Citation Nr: 1331080 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 10-17 539 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to an initial disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran served on active duty from November 1963 to November 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada, which granted service connection for PTSD and assigned an initial disability rating of 30 percent effective September 25, 2007. In May 2011 the Veteran testified before the undersigned Veterans Law Judge at the RO. In July 2011 and again in December 2012 the Board remanded the case to the RO for further development. In a March 2013 rating decision, the RO increased the rating for PTSD from 30 to 70 percent, effective September 25, 2007, the date of claim for service connection. FINDING OF FACT The Veteran's PTSD is not productive of total occupational and social impairment. CONCLUSION OF LAW The criteria for an evaluation in excess of 70 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2013). Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. The appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial and will not be discussed . Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran's service treatment records and VA medical treatment records have been obtained; he did not identify any private treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). VA examinations were conducted and opinions obtained in August 2008, August 2011, and March 2013 (a review of records). The reports of the first two VA examinations included a review of the medical history of the Veteran's psychiatric condition and included mental status examination and conclusions. The March 2013 examination reviewed the entire record and provided opinions including a discussion of the variations in the clinical record as to the assessment of the severity of the Veteran's PTSD symptoms. In combination these examination reports provide a comprehensive and adequate evaluation of the Veteran's PTSD. The Veteran has not argued, and the record does not reflect, that these examinations and opinions are inadequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c)(4). There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Applicable Law Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002). Evaluations of a service-connected disability require review of the entire medical history regarding the disability. 38 C.F.R. §§ 4.1, 4.2. If there is a question that arises as to which evaluation to apply, the higher evaluation is for application if the disability more closely approximates the criteria for that rating; otherwise, the lower rating is for assignment. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. 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). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is competent to report complaints regarding symptoms capable of lay observation. 38 C.F.R. § 3.159(a)(2) (2012). However, these statements must be considered with the clinical evidence of record and in conjunction with the pertinent rating criteria. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). PTSD has been rated at 70 percent from the date of claim, September 25, 2007, under 38 C.F.R. § 4.130, the General Rating Formula for Mental Disorders, Diagnostic Code 9411. Under the General Rating Formula for Mental Disorders, Diagnostic Code 9411, the criteria for a 70 percent rating are 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); inability to establish and maintain effective relationships. Id. The criteria for a 100 percent rating are 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. Id. Ratings are assigned according to the manifestation of particular symptoms, but the use of the term "such as" in the General Rating Formula demonstrates that the symptoms after the phrase 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). Accordingly, the evidence considered in determining the level of impairment from posttraumatic stress disorder under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in Diagnostic Code 9411. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified with the diagnosis of posttraumatic stress disorder in DSM-IV (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)). The Global Assessment of Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." DSM-IV at 32. The GAF scale score assigned does not determine the disability rating VA assigns, but it is one of the medical findings employed in that determination. However, a GAF score is highly probative as it relates directly to the Veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. See Richard v. Brown, 9 Vet. App. 266, 267 (1996). A GAF score of 61 to 70 indicates that the examinee has 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. A GAF score of 51 to 60 indicates that the examinee has 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 co-workers). A GAF score of 41 to 50 indicates that the examinee has serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or serious impairment in social, occupational, or school functioning (e.g. no friends, unable to keep a job). Neither the number of symptoms, nor the type of symptoms, nor the GAF score controls in determining whether the criteria for the next higher rating have been met. It is the effect of the symptoms, rather than the presence of symptoms, pertaining to the criteria for the next higher rating, that is determinative. B. Evidence and Analysis The record indicates that, after his primary care provider advised him to seek psychiatric treatment, the Veteran first sought treatment at VA in August 2007. At that time, he reported that he kept busy teaching in college and had been avoiding seeking treatment for the sake of his pride but finally his defenses broke. On mental status examination, the Veteran was oriented times three, he was agitated, his speech was of normal rate and rhythm, his language was intact, his mood was anxious and depressed, and he had PTSD signs and symptoms. The Veteran's thought process was normal and coherent. He had no unusual thought content such as delusions or obsessions. The Veteran had no suicidal or violent ideation, his insight and judgment were good, his memory intact, and his fund of knowledge was average. On Axis I the diagnosis was that the Veteran had a delayed form of PTSD. On Axis V, the provider estimated the Veteran's GAF score to be 50. The provider commented that the Veteran had been experiencing trouble sleeping, survival guilt, and flashbacks with all symptoms of PTSD. He had been having guilt feelings and feelings of isolation from people. He had been getting angry easily. The August 2007 VA treatment record shows that the Veteran agreed to a treatment plan. The records of subsequent outpatient visits for psychiatric treatment in the years following are contained in the claim file. These treatment records show treatment for PTSD complaints and include findings and GAF scores ranging from 45 to 60. During a February 2008 VA examination the examiner noted that a VA psychologist assigned GAF scores of 60 in October 2007 and in December 2007. The Veteran reported his chief complaint was anxiety. He also reported that he becomes angered easily and gets into fist fights in traffic. He reported having nightmares of combat and flashbacks. On mental status examination the Veteran was well-developed, well-nourished, well-groomed, and with appropriate attitude and eye contact. He was calm, alert and oriented times four. He was able to count backwards from 20 without trouble. His memory and concentration were very good. His judgment was good but he reported he does get angry easily and sometimes acts inappropriately. His intelligence was high average. His mood was anxious and depressed but not markedly. He reported he had had suicidal thoughts in the past. He was withdrawn from family and friends; had violent thoughts and plans; and had occasionally been in fist fights. He reported he had decreased pleasure in life, and feels helpless and worthless occasionally. He was not depressed but had been in the past. He reported feeling irritable, angry, panicky, and guilty, which the examiner noted as appropriate. The Veteran's speech was soft and tense, understandable, and coherent. His stream of thought was relevant, logical and coherent. The Veteran denied having hallucinations or delusions. He reported he obsesses and ruminates about his time in Vietnam. He denied having compulsions or phobias. He was able to do abstractions. He was aware of the seriousness of the problem. The examiner diagnosed PTSD and estimated the Veteran's GAF score at the time of the interview to be 45. The examiner opined that the Veteran was very bright and capable, but was suffering a great deal with PTSD had suffered for close to 40 years. A February 2011 statement from a treating clinical psychologist at VA discussed medical evidence of record, "for the purpose of explicating data" on file in support of the Veteran's claim. In general, the psychologist explained that the Veteran's engagements with others at work and at social functions were not true reflections of the extent of his functional impairments due to his PTSD symptoms. During an August 2011 VA examination, the examiner noted on review of the record that in March 2011 a psychologist assigned the Veteran's PTSD a GAF score of 55. The examiner noted that the Veteran received individual treatment from VA and was on medication. He had not been hospitalized psychiatrically. The Veteran reported complaints of nightmares about his Vietnam experience. He reported having been arrested when he was a policeman for shooting a criminal with a firearm, but the case was later dismissed. The examination report shows that the Veteran has a master's degree in fine arts, and was currently an English teacher (professor) at the College of Southern Nevada where he worked for the last ten years. He reported he was single and had one friend, who was a Vietnam Veteran. He reported that his leisure activities included that he liked to write, ride motorcycles, walk his dog, and go hiking. He reported that he had not been violent. On mental status examination, the examiner made findings essentially similar to those of the February 2008 VA examination when he previously examined the Veteran. It should be noted that the Veteran reported he had no hallucinations or delusions, was not homicidal, and was able to maintain personal hygiene and activities of daily living. He was oriented and his memory was intact. He had no obsessive or ritualistic behaviors. He had normal speech in terms of rate and rhythm, relevance, logic, coherence, and goal orientations. He had no panic attacks and did not feel depressed. He was anxious and he had problems falling and staying asleep, and he sleeps 6 hours at night. The Veteran reported that triggers included frustration at work and confrontation with a colleague. He reported he avoids crowds, and goes emotionally numb and startles easily. He is hypervigilant and has survivor guilt. After examination, the examiner estimated that the Veteran's GAF score was 55. The examiner opined that there were no co-occurring mental disorders; and that the Veteran can work. The examiner opined that the Veteran can work and he has a limited social life. This was based on review of the chart, history, and mental status examination, which were all reliable and congruent. The examiner opined that based on the foregoing, the Veteran's PTSD was productive of "occasional decrease in work efficiency or intermittent periods of inability to perform occupational tasks, especially around other people with whom the Veteran does not feel comfortable, and he requires medication." The report of a March 2013 VA examination shows that the examiner reviewed available records to reconcile conflicting medical evidence to provide an opinion on the severity of the Veteran's PTSD and its effect on his daily functioning. The examiner noted that during the Veteran's treatment history he had received GAF scores ranging from 45 to 65. On reading the records the examiner found the Veteran's actual level of functioning had been relatively stable, with improvement in areas such as sleep in recent months even while weaning off of psychiatric medication. The examiner noted the Veteran continued to function with a range of moderate to severe impairment. He remains employed but struggles with relationships with peers at work. Socially the Veteran remains isolated to a large degree with limited contact with veteran friends and a girlfriend. The Veteran had problems with irritability, guilt, sadness and sleep. The examiner noted that the Veteran had had some notable accomplishments in publishing a book, organizing a writers workshop for veterans, but was unable to take much satisfaction from his accomplishments-indicating some depression. The examiner discussed the recorded GAF scores associated with treatment records, and concluded ultimately that the Veteran's PTSD should be assigned a GAF score of 52. The medical records on file do show that the Veteran's psychiatric condition has been symptomatic for PTSD, with commonly associated PTSD symptoms such as problems with sleeping, nightmares, anxiety, flashbacks, irritability, anxious mood, relationship difficulties, and hypervigilance. However, the psychiatric symptoms attributed to the Veteran's PTSD do not meet or approximate the criteria for a 100 percent disability rating under Diagnostic Code 9411. The evidence on file does not show that the Veteran's PTSD results in a total occupational and social impairment such as to warrant a 100 percent schedular disability rating. The medical evidence associated with the three VA psychiatric examinations, VA treatment records, and the February 2011 statement from a VA psychologist, does not show that the Veteran's symptoms due to his PTSD is productive of the criteria for a 100 percent rating. None of these medical records show evidence that the PTSD results in a total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication, or persistent delusions or hallucinations, or grossly inappropriate behavior, or persistent danger of hurting self of others, or intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), or disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name. See 38 C.F.R. § 4.130 , Diagnostic Code 9411. None of the discussed evidence shows any of these symptoms or a disability picture productive of a total occupational and social impairment. Nor is there any evidence of other significant manifestations which are not listed in the DSM IV. On the contrary, in addition to the discussed medical evidence on file showing the absence of such symptoms, the record also reflects that the Veteran has worked full time in different careers including at a casino, as a policeman and, most recently, teaching at a college. He was able to attain a master's degree at night while working full-time at a casino, and most recently has worked full time for over a decade teaching at the College of Southern Nevada. In addition, he has an apparently successful vocation as an author, successfully writing and publishing several books. None of the foregoing suggests that his disability picture due to PTSD is productive of a total occupational and social impairment due to such symptoms as discussed above. Rather, as reflected in the opinion of the August 2011 VA examination report, the Veteran "can work", and his disability picture due to PTSD is shown to be productive of an "occasional decrease in work efficiency or intermittent periods of inability to perform tasks, especially around other people whom he does not feel comfortable with, and he requires medication." Such disability picture does not warrant a finding of a total occupational and social impairment. While there are limited assignments on file of a GAF score of 45, indicating serious symptoms or serious impairment in social or occupational functioning, this is not a finding productive of a total occupational and social impairment. Moreover, more predominantly, the VA treatment providers and examiners have assigned GAF scores ranging from 55 to 65, reflecting moderate or mild symptoms, respectively. Ultimately, the examiner at the March 2013 VA examination reviewed the complete record at that point and reconciled the various GAF assignment based on associated findings, and concluded with an assignment of a score of 52, reflecting only moderate symptoms. An extraschedular rating may be provided where: (1) the schedular criteria are inadequate to describe the severity and symptoms of the claimant's disability; (2) the case presents other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating is in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Veteran has not described any unusual or exceptional features associated with his PTSD. The rating criteria are adequate to evaluate the disability, and referral for consideration of extraschedular rating is not warranted. A total disability rating based on individual unemployability (TDIU) is a part of a claim for a higher initial rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim 'identify the benefit sought' has been satisfied and VA must consider whether the Veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The Veteran has made no explicit claim that due to his service-connected PTSD he is unemployable, and the record does not show that he is unable to secure or follow a substantially gainful occupation. As of the time of the recent VA examination in August 2011, the examiner recorded an opinion that the Veteran can work. Indeed the evidence on file reflects that the Veteran has reported that he has been teaching at a college for over a decade, and that he also is a writer who has authored and had published several books. As such, the Board finds that a claim for TDIU is not raised by the record. The preponderance of the evidence is against the grant of an initial schedular rating in excess of 70 percent for PTSD; there is no doubt to be resolved; and an increased schedular rating is not warranted. ORDER Entitlement to an initial disability rating in excess of 70 percent for posttraumatic stress disorder is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs