Citation Nr: 1330793 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 13-00 407 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an initial increased rating for posttraumatic stress disorder (PTSD), currently rated at 30 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Yuan, Associate Counsel INTRODUCTION The Veteran Served on active duty from October 1968 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was filed in March 2011, a statement of the case was issued in October 2012, and a substantive appeal was received in December 2012. FINDING OF FACT The Veteran's service-connected PTSD results in a disability picture productive of occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal. CONCLUSION OF LAW The criteria for entitlement to rating in excess of 30 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including § 4.7 and Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the Veteran of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the Veteran and what part VA will attempt to obtain for the Veteran. 38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). A. Duty to Notify The record shows that in June 2010, July 2010 and September 2010 VCAA letters, the Veteran was informed of the information and evidence necessary to warrant entitlement to the benefit sought on appeal. The Veteran was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio, 16 Vet. App. 183; Charles v. Principi, 16 Vet. App. 370 (2002). The United States Court of Appeals for Veterans Claims' (Court) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. In this case, the RO provided VCAA notice to the Veteran in June, July, and September of 2010, all of which were prior to its November 2010 rating decision. Accordingly, the requirements the Court set out in Pelegrini have been satisfied. Further, the notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; (3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the Veteran was provided with notice of the types of information and evidence necessary to substantiate the claim for service connection. Further, the VCAA letters also gave notice of the types of evidence necessary to establish a disability rating and effective date for the disability on appeal. The Board also stresses that since the issue in this case (entitlement to assignment of a higher initial rating) is a downstream issue from that of service connection (for which VCAA letters were duly sent), another VCAA notice is not required. VAOPGCPREC 8-2003 (Dec. 22, 2003); see also Dingess, 19 Vet. App. at 491. In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). B. Duty to Assist Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations. The record in this case includes all identified medical records, treatment records, and lay statements. The Veteran was afforded VA examinations in October 2010 and January 2013. All opinions and conclusions provided in those examinations were well-reasoned, supported by the record, clearly articulated the underlying rationale, and considered the entire claims file. Therefore, the Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). No additional pertinent evidence has been identified by the Veteran. II. Merits of the Claim The Veteran seeks entitlement to an initial rating greater than 30 percent for his service-connected PTSD. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's PTSD is rated under 38 C.F.R. § 4.130's General Rating Formula for Mental Disorders, under which a 30 percent evaluation is warranted where there is occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, and recent events). A 50 percent evaluation is warranted where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 100 percent evaluation is warranted where there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. See 38 C.F.R. § 4.130, Diagnostic Code 9411. The symptoms listed in VA's general rating formula for mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV), p. 32). GAF scores ranging between 81 and 90 reflect absent or minimal symptoms (e.g., mild anxiety before an exam), good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns (e.g., an occasional argument with family members). GAF scores ranging between 71 and 80 reflect that if symptoms are present they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument; no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). GAF scores ranging between 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, with some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school). A score from 21 to 30 is indicative of behavior which is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or inability to function in almost all areas. A score of 11 to 20 denotes some danger of hurting one's self or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement) or occasionally fails to maintain minimal personal hygiene (e.g., smears feces) or gross impairment in communication (e. g., largely incoherent or mute). A GAF score of 1 to 10 is assigned when the person is in persistent danger of severely hurting themselves or others (recurrent violence) or there is persistent inability to maintain minimal personal hygiene or serious suicidal acts with clear expectation of death. See 38 C.F.R. § 4.130 (incorporating by reference the VA's adoption of the DSM-IV, for rating purposes). On VA examination in August 2010, the Veteran denied confusion, but endorsed depression, anxiety, anger problems, sleeping problems, and occasional flashbacks. Thereafter, on VA examination in October 2010, the Veteran reported no current legal involvement, but exhibited depression, anxiety, sadness, social withdrawal, decreased interest, concentration problems, blunted affect, feelings of helplessness and worthlessness, nervousness, restlessness, irritability, verbal outbursts, and sleep disturbance. He also reported having some history of panic attacks, with the most recent being two or three years prior. He showed no memory impairment, responded in a logical manner, maintained personal hygiene, and was alert, oriented, and cooperative. The Veteran also reported that he had been married to his current wife for 19 years, and to his previous wife for 11 years. While he noted he general maintained pretty good relationships with his wife and children, these are strained at times due to his verbal outbursts. He identified a number of leisure interests, and stated he maintained regular contact with friends. The VA examiner at the time opined that the Veteran experienced some social impairment due to his PTSD, but no occupational impairment. At the time the Veteran was working at an automobile dealership, and described himself as a "dependable" worker, with no loss of employment due to his PTSD in the preceding year. The examiner at the time assigned the Veteran a GAF score of 60 due to PTSD. Upon further VA examination in January 2013, the Veteran exhibited depression, anxiety, sleep impairment, flattened affect, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances, including work or a worklike setting. The Veteran reported that he had been with the same company for the past 12 years selling parts wholesale over the phone. While he denied direct contact with clients, the Veteran does work with his colleagues, and reported minimal difficulty at work. He also endorsed some social difficulties, as he is not outgoing, and often does not "hit it off" with others. He maintains that he has three adult children and five grandchildren, and that his relationship with his children is generally good. In addition, he also described his relationship with his wife as generally good. The Veteran reported having one friend that he socializes with regularly, and named a number of leisure activities he enjoys. The January 2013 examiner noted that the Veteran was alert and oriented, dressed in work clothes, and neat. The Veteran also maintained good eye contact, and his thought process was linear and goal directed, though speech was monotone. The examiner opined that the Veteran exhibited occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, though generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Veteran was assessed with a GAF score of 55. The Board recognizes that the Veteran's PTSD results in some level of social and occupational impairment. However, after reviewing the evidence of record in light of the regulatory rating criteria and the rule in Mauerhan, the Board concludes that the evidence in this case clearly paints a picture of an individual whose PTSD symptoms are most in keeping with those listed for a 30 percent rating. Mauerhan, 16 Vet. App. 436 (2002). In this regard, the record reflects the Veteran has, for the entire rating period, generally performed occupational tasks satisfactorily, and was self-characterized as a dependable employee during his October 2010 examination. In addition, the Veteran has consistently been well-kempt, maintained eye contact and normal conversation, and demonstrated clear and linear thought processes. The Veteran's GAFs have been between 55 and 60, indicating moderate social and occupational difficulty. The Veteran interacts with his fellow employees, enjoys a number of leisure activities, and maintains generally good relationships with his family and friend. Furthermore, there is also no indication that he has lost significant work due to his PTSD, as he states he has been employed at the same company for 12 years. Furthermore, the Veteran has never been hospitalized for his PTSD during the rating period, and has never exhibited circumstantial, circumlocutory, or stereotyped speech. Though he has a history of panic attacks, they were infrequent, with the most recent attack occurring in 2007 or 2008. The Veteran also has not demonstrated difficulty in understanding complex commands, or any impairment of memory, judgment, or abstract thinking. The Board stresses to the Veteran that it does not doubt that the PTSD results in impairment. Moreover, although some symptoms reported on examination in 2013 are listed under the criteria for the next higher rating of 50 percent, the examiner was of the opinion that the PTSD resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. This is the level of impairment described for the current 30 percent rating. It is again noted the symptoms listed in Code 9411 are just examples of the type and degree of symptoms to warrant a particular rating. After considering the Veteran's PTSD impairment as it is reflected in the present record, the Board is compelled to find that his overall PTSD impairment in most accurately in keeping with the criteria for the current 30 percent rating during the entire period covered by this appeal. The Board is bound to apply the regulatory criteria. The preponderance of the evidence is against a rating in excess of the current 30 percent. Should his PTSD increase in severity in the future, the Veteran may file a new claim for an increased rating. III. Extraschedular Considerations In general, the schedular disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The application of such schedular criteria was discussed above. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, the symptoms described by the Veteran fit squarely within the criteria found in the relevant Diagnostic Code for the disability at issue. The Veteran does not claim any interference with employment, frequent periods of hospitalization, or symptoms not comporting with those contemplated under the rating schedule. In short, the rating criteria contemplate not only his symptoms but the severity of his disability. For these reasons, referral for extraschedular consideration is not warranted. Lastly, the Board acknowledges the judicial holding in Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) regarding claims for a totally disability rating based on individual unemployability (TDIU) reasonably raised by the record. Here, the Board again notes that no such claim has been raised by the record, as the Veteran has long been gainfully employed. The preponderance of the evidence is against a higher rating and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). ORDER A rating in excess of 30 percent for PTSD is not warranted. The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs