Citation Nr: 1331046 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 08-06 740 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to an increased evaluation for posttraumatic stress disorder (PTSD), currently evaluated as 30 percent disabling. 2. Entitlement to service connection for sexual dysfunction, to include on a secondary basis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The Veteran had active service from October 1966 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) from a rating decision of July 2007, of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. In that action, the RO denied the Veteran's claim for an increased evaluation for PTSD and denied his claims for entitlement to service connection for sexual dysfunction and for gastroesophageal reflux disease (GERD). Following a review of the claim, the Board, in April 2010, remanded the claim to the RO via the Appeals Management Center (AMC), in Washington, DC, for additional development. Subsequently, in May 2012, the Board issued a decision granting service connection for GERD. The PTSD and sexual dysfunction issues were then remanded once again to the AMC for additional development. The case has since been returned to the Board for review. In May 2013, the Veteran submitted additional evidence to the Board in the form of lay statements from family and friends. Additionally, VA treatment records were added to the Veteran's Virtual VA electronic claims file. The Veteran's representative waived review of the newly submitted evidence by the RO. See 38 C.F.R. § 20.1304(c) (2013). Thus, the Board will consider such evidence in the adjudication of this appeal. In pertinent part, the Board's two remands were accomplished so that examinations of the Veteran could be accomplished and opinions obtained that reflected consideration of the entire record. The record shows that examinations were accomplished, and upon review of those examination results taken together, the Board finds that there was substantial compliance with the remand instructions. The Board notes that the United States Court of Appeals for Veterans Claims (Court) has concluded that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). As such, further processing of the Veteran's PTSD claim may proceed. FINDING OF FACTS The Veteran's service-connected PTSD is manifested by symptoms that result in occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for a disability evaluation of 50 percent, but no higher, for service-connected PTSD have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2013). For the reasons to be discussed below, the Board finds that VA has satisfied its duties to the Veteran. VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). In May 2007, VA sent the Veteran a letter notifying him of the information and evidence necessary to substantiate the PTSD claim, which included the general criteria for the assignment of effective dates and disability ratings. Proper information for increased rating claims was provided. The Board further finds that VA has complied with the duty to assist by aiding the Veteran in obtaining evidence. It appears that all known and available records relevant to the issues on appeal have been obtained and are associated with the claims files. The RO has obtained the Veteran's treatment records, as well as VA medical records. He was also afforded multiple VA medical examinations over the course of this appeal. The Board notes that the VA examinations reports contain sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disability on appeal and are adequate for purposes of this appeal. Based on the foregoing, the Board finds that the Veteran is not prejudiced by the adjudication of the claim at this time. II. Analysis The Veteran has been assigned a 30 percent disability evaluation for service-connected PTSD under Diagnostic Code 9411. He has averred that his psychiatric disorder is under evaluated and asks that the Board assign a higher disability evaluation effective from the date of his claim. A. Laws and Regulations Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4 (2013). When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2013). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). Diagnostic Code 9411 provides for a 30 percent disability rating where there is occupational and social impairment with 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; and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned when 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 (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned when the psychiatric condition produces 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; speech intermittently illogical, obscure, or irrelevant; 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 work-like setting); and inability to establish and maintain effective relationships. A 100 percent rating is assigned when there is total occupational or 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; and memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2013). The Board further notes that a Global Assessment Functioning (GAF) score is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). The Board notes that an examiner's classification of the level of psychiatric impairment, by a GAF score, is to be considered but is not determinative of the percentage rating to be assigned. VAOPGCPREC 10-95. 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, and has 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). GAF 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 self or others (recurrent violence) or there is persistent inability to maintain minimal personal hygiene or serious suicidal acts with clear expectation of death. See DSM-IV. In determining whether an increased evaluation is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case an increased rating must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Facts and Analysis Following the Veteran's claim for an increased evaluation, he underwent a VA psychiatric examination in June 2007. The examiner noted that he reviewed the claims folder. The Veteran reported that he was working but that he had broken up with his girlfriend. Nevertheless, he stated that he had good relationships with his adult children, along with his brother, and that he did have friends that he socialized with occasionally. The Veteran further indicated that he did not attend therapy but that when he needed to consult with a therapist, he did so every three to four months. He stated that he did experience anxiety and hypervigilance, and that he had chronically poor sleep habits. The Veteran complained of nightmares and some intrusive thoughts along with guilt. Upon completion of the psychiatric examination, the examiner wrote: The patient came to the session nicely groomed and casually dressed. His attitude toward the examiner was cooperative and eye contact was good. He answered questions directly and appropriately, and had no difficulties expressing himself. He does admit to a frequently anxious mood, with periods of guilt and depression . . . He described no symptoms that could be considered psychotic in nature and he denies any suicidal ideation or intent . . . Taken as a whole, the results suggest someone who has significant anxiety and does report re-living traumatic experiences from the past. . . . The examiner diagnosed the Veteran with PTSD and generalized anxiety disorder. A GAF score of 62 was given with a GAF score of 65 for the past year. The next VA psychiatric examination of the Veteran occurred in May 2010. During the examination, the Veteran admitted that he had a "few good friends" and that he had good relationships with his adult sons. When examined, the examiner reported the following: . . . the [V]eteran presented as overtly friendly and was well groomed . . . there was no clear impairment of thought process of communication, nor was there evidence of delusions or hallucinations. Eye contact was within normal limits. As suggested above, the veteran has experienced occasional suicidal thoughts, although without active planning or intent. He indicated that he last experienced suicidal thoughts approximately three years ago, "when I had some money problems." He did not identify any difficulty maintaining minimal personal hygiene or other basic activities of daily living. He was fully oriented to person, place, and time. Consistent with his performance on the Mini Mental State Examination, he did not report any significant memory or cognitive impairment . . . the [V]eteran, to the degree that he experiences any cognitive issues, attributed these to normal aging effects. . . . Rate and flow of speech was within normal limits. The [V]eteran rated current subjective depression at 8 on a scale of 10. . . . Regarding sleep impairment, he indicates that he generally sleeps form approximately 12:30 midnight to 7:00 a.m. . . . He indicates that on nights when he has a troubling combat related nightmare (which he described as happening approximately one time per week) and/or at times when he otherwise experiences significant nighttime related GERD, he will experience significant decreases in the quantity and quality of his sleep on that night . . . he continues to report a range of symptoms consistent with an ongoing diagnosis of posttraumatic stress disorder. He indicates that he experiences repeated or disturbing memories and thoughts or images of a stressful military experience one or more times a week on average. He indicates that he experience disturbing dreams also approximately one time per week . . . Accordingly, he indicated a longstanding tendency to avoid thinking or talking about stressful military experience, avoiding activities or situations that remind him of them, and feelings of emotional numbness and distance from other people. A diagnosis of PTSD was provided and a GAF score of 56 was assigned. It is noted that the examiner added one other comment-that being: . . . In summary, with explicit evidence indicating that the veteran's current of recent psychosocial dysfunction associated with his documented PTSD exceeds symptoms otherwise satisfies or exceeds the range of symptoms noted above associated with the schedular [criteria] associated with a 50% service connection rating. The Board would note that there are no other medical records contained in the claims folder that provides any additional information either in support or against the Veteran's claim for an increased evaluation during the rating period on appeal. Lay statements from friends and family received in May 2013 support the level of impairment set forth in the VA examination reports. Upon reviewing the record, it is the conclusion of the Board that the evidence does support a higher evaluation for PTSD-to 50 percent but no higher. The examinations accomplished have noted anxiety, sleep deprivation, nightmares, and hypervigilance. The Veteran appears to have social relations with family members but he also stated that when he does work, he likes to work alone or only with one of his sons. In other words, in nonsocial environments, he avoids others. Moreover, there is evidence of record that over the course of this appeal, the Veteran has appeared to be decompensating. That is, his symptoms and manifestations are becoming more severe. The record further indicates that the Veteran suffers at least some, if minimal, concentration problems, restricted/constricted affect, and anxiety, but other manifestations were not documented. In addition, the GAF scores between 52 and 56 reflect moderate symptoms according to DSM-IV. One example of this level of disability is flat affect, which is an example of symptomatology equating to a 50 percent rating. Although the entire record is not without a measure of ambiguity, the Board concludes that the totality of the evidence in the file appears to be at least in approximate balance. As the Board is unable to conclude that the preponderance of the evidence is against the claim, the claim may not be denied. When resolving reasonable doubt in the Veteran's favor, the Board concludes that his overall disability picture indicates that a 50 percent evaluation, but no higher, should be assigned for PTSD for the entire rating period on appeal. See 38 C.F.R. §§ 3.102, 4.3, 4.7; Hart, 21 Vet. App. at 505. Hence, the Veteran's claim is granted to this extent. Although a 50 percent rating is warranted for PTSD, the evidence does not an evaluation in excess of 50 percent at any point during the rating period on appeal. The Veteran is capable of caring for his physical well-being and he has not complained of thought disorders. As detailed in the evidence described above, the symptomatology set forth for a 70 percent or total rating has not been shown. The Veteran is not occupationally and socially deficient in most areas and total occupational and social impairment is also not evident. Without evidence supporting this level of impairment, an even higher rating is not warranted. While the benefit of any doubt has been applied to award an increase to the Veteran, it is the conclusion of the Board that an evaluation in excess of 50 percent must be denied. C. Extraschedular Evaluation The Board has also considered whether the Veteran is entitled to an extraschedular evaluation for his PTSD. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2013). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether an appellant is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a appellant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the appellant's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for PTSD is inadequate. A comparison between the level of severity and symptomatology of the appellant's disability with the established criteria found in the rating schedule for mental disorders shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology. In short, there is nothing in the record to indicate that this service-connected PTSD on appeal causes impairment with employment over and above that which is contemplated in the assigned schedular rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) (2013) is not warranted. ORDER A 50 percent disability evaluation for PTSD, but no higher, is granted, subject to the regulations governing the disbursement of monetary benefits. REMAND The Veteran has primarily contended that he has sexual dysfunction as a result of his service-connected PTSD. During the course of the appeal, in a January 2012 rating decision contained in Virtual VA, the RO granted service connection for prostate cancer. In view of this award, the record reasonably raises the theory of secondary service connection for sexual dysfunction related to prostate cancer. A December 2011 VA examiner indicated that the Veteran's sexual dysfunction may not be related to his prostate cancer, but no explanation was provided. Therefore, the Board finds that the claim should be remanded for another VA examination to address the nature and etiology of the Veteran's claimed sexual dysfunction. Accordingly, this issue is REMANDED for the following actions: 1. Schedule the Veteran for a VA examination in connection with his claim of service connection for sexual dysfunction. The entire paper claims file and Virtual VA electronic file, to include a complete copy of this remand, should be made available to, and reviewed by, the designated examiner. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed sexual dysfunction was either (a) caused by, or (b) aggravated by any of the Veteran's now service-connected prostate cancer. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. 2. Then, after undertaking any other development deemed appropriate, re-adjudicate the issue remaining on appeal. If the benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified by VA. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs