Citation Nr: 1331288	
Decision Date: 09/27/13    Archive Date: 10/01/13

DOCKET NO.  10-20 373	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana

	
THE ISSUES

1.  Entitlement to a rating greater than 30 percent for posttraumatic stress disorder (PTSD), prior to June 15, 2009.

2.  Entitlement to service connection for a low back disability.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

J. M. Kirby, Counsel




INTRODUCTION

The Veteran served on active duty from June 1965 to June 1967.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana.  

With respect to the claim for an increased rating for PTSD prior to June 15, 2009, the Board directed in its November 2012 remand that any outstanding private records documenting treatment for PTSD prior to June 2009 should be obtained.  The RO sent the Veteran a letter later in November 2012 asking the Veteran to identifying the provider(s) of treatment during that period and submit those records to VA or authorize VA to obtain those records.  However, the record does not reflect that the Veteran responded to that letter or otherwise identified, submitted or authorized VA to submit any outstanding treatment records relating to his PTSD during that period of time.  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  Accordingly, the Board finds that there has been substantial compliance with the directives of the November 2012 remand such that an additional remand is not required.  See Stegall v. West, 11 Vet. App. 268 (1998).


FINDINGS OF FACT

1.  In a December 2012 written statement, prior to the promulgation of a decision in the appeal, the Veteran indicated that he wished to withdraw the issue of entitlement to service connection for a low back disability.

2.  Prior to June 15, 2009, the Veteran's PTSD was manifested by depression, anxiety, nightmares, hypervigilance, emotional withdrawal, poor impulse control, and an inability to maintain social and occupational relationships.



CONCLUSIONS OF LAW

1.  The criteria for the withdrawal of the issue of entitlement to service connection for a low back disability have been met.  38 U.S.C.A. § 7105(b) (2), (d) (5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2013).

2.  The criteria for a 70 percent rating for PTSD, but no greater, for the period prior to June 15, 2009 are met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Withdrawal of Issue on Appeal

The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105.  A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision.  38 C.F.R. §§ 20.202, 20.204(b).  Withdrawal may be made by the claimant or the claimant's authorized representative.  38 C.F.R. § 20.204(a).  Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing.  38 C.F.R. § 20.204(b) (1). 

An August 2008 rating decision denied the Veteran's claim for service connection for a low back disability.  The Veteran perfected an appeal as to this issue in March 2010, and the issue was remanded by the Board in November 2012.  However, in a December 2012 written statement, the Veteran requested withdrawal of his appeal as to this issue.  As the pertinent criteria are satisfied, there remain no allegations of errors of fact or law for appellate consideration.  The Board consequently does not have jurisdiction to review the appeal with respect to that issue, and it is dismissed. 




Increased Rating Claim

VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013).  A January 2008 letter satisfied the duty to notify provisions with respect to the Veteran's underlying claim for service connection for PTSD, to include notifying him of regulations pertinent to the establishment of an effective date and of the disability rating.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  For initial rating claims, where service connection has been granted and the initial rating has been assigned, the claim of service connection has been proven, thereby rendering 38 U.S.C.A. § 5103(a)  notice no longer required since its intended purpose has been fulfilled.  Once a claim for service connection has been substantiated, a claimant's filing of a notice of disagreement does not trigger additional 38 U.S.C.A. § 5103(a) notice.  Therefore, any defect as to notice is non-prejudicial.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Goodwin v. Peake, 22 Vet. App. 128, 134 (2008) (where a claim has been substantiated after the enactment of the Veterans Claims Assistance Act, the appellant bears the burden of demonstrating any prejudice from defective notice with respect to any downstream elements).

The Veteran's service treatment records, VA medical treatment records, and identified private medical records have been obtained.  Consistent with the Board's November 2012 remand directives, a November 2012 letter specifically requested that the Veteran submit or authorize VA to submit records relating to treatment for PTSD from Behavioral Medicine and Addictive Disorders, Inc.  However, the Veteran did not respond to that letter or otherwise submit or authorize VA to obtain those records.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  The record does not reflect that the Veteran is in receipt of disability benefits from the Social Security Administration.  38 C.F.R. § 3.159 (c) (2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010).  The February 2008 VA examination and May 2009 addendum together are adequate for rating purposes; the February 2008 VA examination recorded the Veteran's reported symptoms, conducted a mental status examination, and assigned a multi-axial diagnosis and a Global Assessment of Functioning (GAF) score; the May 2009 addendum reflects that the VA examiner reviewed the evidence associated with the record since the February 2008 VA examination and provided an updated opinion as to the Veteran's symptomatology and PTSD severity.  38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  

Review of the record does not indicate that additional evidence pertinent to the issue adjudicated in this decision is available, but not associated with the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication VA did not provide sufficient notice or assistance, such that it reasonably affects the outcome of the case, the Board finds that any such lack of sufficient notice is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).  

Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2013).  Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21 (2013); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002).  

The primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability.  However, VA has a duty to consider the possibility of assigning staged ratings in all claims for increase.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  

Service connection for the Veteran's PTSD was granted by an August 2008 rating decision, and an initial 30 percent rating assigned under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9411 (2013). The Veteran perfected an appeal for a higher initial rating in March 2010.  Subsequently, an April 2012 rating decision granted a 100 percent rating effective June 15, 2009.  A claim for an original or an increased rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded.  AB v. Brown, 6 Vet. App. 35, 38 (1993).  Because the Veteran has not indicated that he has withdrawn his appeal for a higher rating for the first part of the appeal period, that part of the claim remains pending.  

Diagnostic Code 9411 is subsumed into the General Rating Formula for Mental Disorders (General Rating Formula).  Under the General Rating Formula, a 30 percent rating is warranted where the disorder is manifested by 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 normal conversation, due to such symptoms as: depressed mood, anxiety, suspiciousness, weekly or less often panic attacks, chronic sleep impairment, and mild memory loss, such as forgetting names, directions, recent events.  38 C.F.R. § 4.130, Diagnostic Code 9411, General Rating Formula.

A 50 percent rating is warranted where the disorder is manifested by 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 for example, retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.  Id. 

A 70 percent rating is warranted where the disorder is manifested by 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 that is 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 an inability to establish and maintain effective relationships.  Id.  

The maximum 100 percent rating is warranted where the disorder is manifested by 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.

In evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and a veteran's capacity for adjustment during periods of remission.  38 C.F.R. § 4.126(a) (2013).  The rating agency shall assign an evaluation 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.  However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment.  38 C.F.R. § 4.126(b).  Ratings are assigned according to the manifestation of particular symptoms, but the use of a term "such symptoms as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that 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).

After review of the record, the Board finds that the evidence establishes entitlement to a 70 percent rating, but no greater, for PTSD for the period prior to June 15, 2009.  While there are significant deficiencies in the Veteran's social and occupational functioning, and continued problems with impulse control, paranoid ideation, nightmares, anxiety and depression, these are not so severe as to constitute total social and occupational impairment.

The hallmark characteristics of the Veteran's PTSD are his poor impulse control resulting in violence, anxiety and hypervigilance, withdrawal, and inability to establish and maintain effective relationships.  Nearly every record documenting the Veteran's PTSD symptomatology notes that he self-isolates and withdraws, experiences depression and insomnia, and has a history of violence where he is unable to keep himself from losing his temper and fighting with others, including work superiors.  It is both these anger problems - which contribute to his occupational impairment - as well as his social maladjustment that demonstrate a level of disability consistent with a 70 percent rating.  While suicidal ideation, panic attacks, abnormal speech and obsessional rituals were not endorsed by the Veteran or found on examination during the appeal period, the focus of rating mental disorders is on the overall level of social and occupational impairment, not any particular symptom.  See Mauerhan, supra.

With respect to social impairment, the Veteran has noted that he has been married four times, and part of the success of his current marriage resulted from his job's requirement that he be away from home for weeks and sometimes months at a time.  In his June 2009 lay statement, the failure of his past marriages and success of the current marriage are also explained by his report that he is unable to maintain a successful social relationship unless he is in total control.  He also reported at the February 2008 VA examination that in his upcoming retirement, he was not sure how well he would handle the constant "togetherness."  The January 2007 private opinion letter and February 2008 VA examination report also note that the Veteran had only one friend, if that, and chose to self-isolate away from other peer relationships.  Similarly, the January 2007 opinion letter noted that the Veteran felt he had to isolate himself in order to feel safe from others; this is consistent with reports at other times, including the February 2008 VA examination, of paranoid ideation.

With respect to occupational impairment, the Veteran's impaired impulse control in the form of fighting with others and having uncontrolled rage are evident as noted in the January 2007 opinion letter and the February 2008 VA examination report.  Critically, the Veteran reported in his June 2009 lay statement, dated towards the end of this stage of the appeal period, that his inability to maintain employment was primarily due to his uncontrolled anger and tendency to get into fist fights, such that he quit jobs because he was unable to cope with the stressful circumstances of a work environment.  The February 2008 VA examination report noted that the Veteran endorsed having problems with authority.  Each of these signs and symptoms are consistent with a more severe level of occupational impairment.  

However, the record does not establish that the Veteran's PTSD results in total social and occupational impairment such that a 100 percent rating is warranted prior to June 15, 2009.  While there are significant problems with the Veteran's social and occupational functioning, he remains married and appears to have insight into the reasons for both his marital conflict as well as his inability to hold down a job.  The memory loss documented at the February 2008 VA examination is envisioned by lower schedular ratings and does not rise to the level contemplated by the 100 percent rating.  Similarly, the Veteran denied experiencing suicidal or homicidal ideation on every occasion where he was asked, and aside from the February 2008 VA examiner's finding that the Veteran was inappropriately dressed, the record does not show that the Veteran could not maintain hygiene or complete any of the standard activities of daily living.  The paranoid ideation noted at the February 2008 VA examination is an extension of his documented anxiety, but not disabling to a degree that the overall disability picture more closely contemplates the 100 percent rating.

The Global Assessment of 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).  A GAF score of 41-50 is assigned where there are 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); a GAF score of 51-60 represents 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); a GAF score of 61-70 indicates 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, has some meaningful interpersonal relationships.  American Psychiatric Association, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th Edition (1994) (DSM-IV).  Assigned GAF scores are not dispositive of the evaluation issue; rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned.  See 38 C.F.R. § 4.126(a) (2013).

The GAF scores assigned during this period are inconsistent.  The same VA examiner assigned a GAF score of 70 in the February 2008 VA examination report and after the May 2009 VA file review.  However, the remaining evidence of record, including the Veteran's credible lay reporting of his own symptoms, more closely reflects the GAF scores of 51, 45, and 45 assigned at February 2009, March 2009, and May 2009 VA outpatient visits, respectively.  The two GAF 70 scores contemplate mild impairment due to PTSD and more serious impairment secondary to personality disorder and/or mood disorder.  But the remaining evidence of record appears to suggest that the various psychiatric diagnoses are interrelated.  See Mittleider v. West, 11 Vet. App. 181 (1998) (holding that where it is not possible to distinguish the effects of a nonservice-connected condition from those of a service-connected).  As discussed above, the Veteran's occupational and social impairment stemming from his PTSD clearly result in more than mild impairment.  The GAF score assigned in May 2009 was made solely on a file review, not by interviewing the Veteran, which is confusing as the three most recent GAF scores assigned prior to that date were the scores of 51, 45, and 45 noted above.  Further, even in assigning the GAF 70 score at the February 2008 VA examination, the VA examiner noted on mental status examination that the Veteran had paranoid ideation and poor impulse control, symptoms not consistent with a mild degree of PTSD.  The most probative GAF scores of record, 51 and 45, thus also support the assignment of a higher rating.

An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization.  Id. at 115-116.  When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular evaluation. 38 C.F.R. § 3.321(b) (1) (2013).  Otherwise, the schedular evaluation is adequate, and referral is not required.  Thun, 22 Vet. App. at 116.

The schedular rating for this period of the appeal is adequate.  Ratings in excess of those assigned are provided for certain manifestations of PTSD, but the evidence does not establish the existence of that level of symptomatology during the period prior to June 15, 2009.  The diagnostic criteria also adequately describe the PTSD's severity and symptomatology over the appeal period, as higher evaluations exist within the rating criteria which contemplate the maximum level of social and occupational functioning, but this is not present in the Veteran.  Therefore, the Veteran's disability picture is contemplated by the Rating Schedule; no extraschedular referral is required.

The decision above awards a 70 percent rating for PTSD prior to June 15, 2009.  However, the preponderance of the evidence is against the assignment of the maximum 100 percent rating prior to June 15, 2009.  See Hart, 21 Vet. App. at 507-08.  There is no doubt to be resolved, and greater than a 70 percent rating prior to June 15, 2009 is not warranted.  See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).








      (CONTINUED ON NEXT PAGE)
ORDER

The appeal as to the issue of entitlement to service connection for a low back disability is dismissed.

A 70 percent rating for PTSD, but no greater, for the period prior to June 15, 2009, is granted, subject to the applicable regulations concerning the payment of monetary benefits.


____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs