Citation Nr: 1331460 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 12-23 216 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Marne Marotta, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1968 to July 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. FINDING OF FACT The symptoms of the Veteran's PTSD have most nearly approximated occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSION OF LAW The criteria for an initial rating in excess of 30 percent for the service-connected PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). This appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection for PTSD. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). No additional discussion of the duty to notify is therefore required. VA also has a duty to assist the Veteran in the development of the claim, which is not abrogated by the granting of service connection. VA has obtained the Veteran's service treatment records and VA medical records identified by the Veteran as relevant to the appeal. The Veteran was also afforded VA examinations in January 2011 and May 2012. The VA examinations are sufficient, as they are based on consideration of the Veteran's prior medical history, and described his PTSD disability in sufficient detail to enable the Board to make a fully informed evaluation of this disability. The Veteran has not identified any other relevant evidence that has not been requested or obtained. The Board finds that VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on his claim at this time. II. Principles for Rating Disabilities Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. Fenderson v. West, 12 Vet. App. 119 (1999). III. Rating Criteria for PTSD The Veteran's PTSD is currently evaluated as 30 percent disabling under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9411, which directs that the General Rating Formula for Mental Disorders be applied. The General Rating Formula for Mental Disorders provides that a 30 percent rating is assigned 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, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted if the evidence establishes 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; and 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); and 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; and memory loss for names of close relatives, own occupation, or own name. When determining the appropriate disability evaluation to assign, the Board's primary consideration is a veteran's symptoms, but it must also make findings as to how those symptoms impact a veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score, which is defined by DSM-IV as number between zero and 100 percent, that represents the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health illness. Higher scores correspond to better functioning of the individual. Under DSM-IV, GAF scores from 51 to 60 are indicative of 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 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). IV. History During a January 2011 VA examination, the Veteran indicated that he has problems with irritability and does not always deal with problems in a socially-appropriate manner. The Veteran reported that he does not attend a lot of social functions, does not like being around people, and that people are afraid of being around him. He indicated that he feels impatient, anxious, and that loud noises tend to aggravate him and remind him of his military service. He reported having trouble sleeping; waking three to four times per night. At times he kicks and thrashes about in his sleep, to the point that his wife occasionally has to move to the couch to sleep. The Veteran indicated that he has no problems or difficulties at his job. He also reported being married to his wife for fifteen years, visiting his in-laws occasionally, and seeing his children periodically. The Veteran indicated that he did not have any close friends. The examiner noted that the Veteran was oriented, without delusions or hallucinations. The examiner also noted the Veteran had no suicidal or homicidal ideation. He had no difficulty with immediate recall but on delayed recall, he could only remember one of the three words that he was asked to remember. The examiner diagnosed the Veteran with PTSD and a GAF score of 60. VA records dated March 2011 indicate that the Veteran suffered from social withdrawal and hypervigilance. November 2011 VA records indicate that the Veteran reported suffering from sadness, anhedonia, irritability, decreased appetite, hyperarousal. The Veteran indicated that he did not have suicidal ideation and that he had good family and emotional support. In April 2012, VA records show the Veteran reported intermittent nightmares about three times per week, occasional intrusive daytime thoughts, and poor energy. The Veteran indicated that he did not have suicidal ideation. The Veteran had a GAF score of 55. At a May 2012 VA examination, the examiner characterized the Veteran's level of occupational and social impairment as having occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally the Veteran is functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran indicated that he has been married to his wife for 19 years and that their relationship is positive. He also reported that he is on good terms with his three children and has regular contact with them. The Veteran indicated that his social support consists of a couple of friends. The Veteran stated that he is employed and his work performance is good, but that his work satisfaction is low. He indicated that he had a mixed relationship with his coworkers and a positive relationship with his employer. The Veteran denied current suicidal ideation, but reported brief episodes in the past. He denied having homicidal thoughts. He indicated that he did not have a desire to do things, and feels depressed all the time. He also reported having a short temper, being anxious, experiencing decreased sleep, having low energy and a reduced self-esteem. He indicated that he has difficulty concentrating, suffers from hypervigilance and has an exaggerated startle response. The examiner specifically noted that the Veteran had symptoms of depressed mood and anxiety. The diagnoses were PTSD and dysthymic disorder and the examiner indicated that it was not possible to differentiate what symptoms are attributable to each diagnosis. The examiner assigned a GAF score of 57. In his August 2012 appeal, the Veteran stated that his treating psychiatrist "feels[s] that I have difficulty understanding complex commands, impairment of me short term memory. I am forgetting to complete tasks. I am having panic attacks several times weekly. I do not go out with others and I like to be alone so that I am responsible for only me." V. Analysis The evidence includes diagnoses of PTSD and dysthymic disorder and an examiner's opinion that the symptoms cannot be distinguished. In cases where the effects of a service connected disability cannot be separated from those of a non-service connected disability, all of the manifestations will be rated as part of the service connected condition. Mittleider v. West, 11 Vet. App. 181 (1998). Accordingly, the Board will consider the psychiatric symptoms, as depicted by the evidence as a whole in rating the service-connected PTSD. Having carefully considered all the evidence of record in light of the applicable rating criteria, the Board finds that the overall symptomatology and level of impairment have most nearly approximated those indicative of a 30 percent rating. An initial evaluation in excess of 30 percent is not warranted. 38 C.F.R. § 4.7. Examiners have noted that the Veteran has experienced recurrent unpleasant memories of the traumatic events as well as interrupted sleep and some degree of voluntary social isolation. During a January 2011 VA examination, the Veteran reported strong family relationships and no problems or difficulties at work. The examiner noted no abnormal mental trends involving delusions or hallucinations and indicated that the Veteran's thought content was devoid of homicidal and suicidal ideation. VA outpatient records dated March 2011 indicate that the Veteran reported suffering from hypervigilance. Records dated November 2011 indicate that the Veteran reported suffering from sadness, anhedonia, irritability, decreased appetite, and hyperarousal. During a May 2012 VA examination, the Veteran indicated that he did not have a desire to do things and feels depressed all the time. He reported having a short temper, being anxious, experiencing decreased sleep, having low energy and a reduced self-esteem. GAF scores assigned in 2011 and 2012 (60, 57, and 55) are all indicative of moderate occupational and social impairment and are consistent with no more than the initial 30 percent rating assigned. A 50 percent rating is not warranted because the evidence does not show reduced reliability and productivity or difficulty in establishing and maintaining effective work and social relationships. The Veteran described his relationship with his wife as positive, indicated that he has a good relationship with his children, and stated that his social support consists of a couple of friends. The Veteran also stated that his work performance is good and described his relationship with his employer as positive. Even considering the Veteran's statement that he has difficulty understanding complex commands, is forgetful, has panic attacks several times a week and isolates himself; the record contains no evidence that these symptoms have reduced the Veteran's reliability and productivity. And even if the Veteran has preferred to maintain a limited social group and has had occasional episodes of irritability, there is no evidence of disruptive behavior of a degree that would impair routine activities. In addition, the Veteran has consistently indicated that he has a long-term successful marriage and good family relationships. As the criteria for the next, higher, 50 percent rating are not met, it logically follows that the criteria for an even higher rating-70 or 100 percent-are likewise not met. Therefore, the Board finds that the Veteran's PTSD does not more nearly approximate a rating in excess of 30 percent. The Board has considered whether staged ratings are appropriate for the Veteran's service-connected PTSD; however, the Board finds that his symptomatology has been essentially stable throughout the appeal. Therefore, assigning staged ratings for such disability is not warranted. V. Other Considerations The discussion above reflects that the rating criteria reasonably describes and contemplates the severity and symptomatology of the Veteran's service-connected psychiatric disability. The Veteran's disability is manifested by impairment in social and occupational functioning. The rating criteria contemplate these impairments; hence, referral for consideration of an extraschedular rating is not warranted. Thun v. Peake, 22 Vet. App. 111 (2008). The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) has been raised. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Here, the Veteran is employed and there is no evidence of unemployability due to the Veteran's service-connected PTSD. Further consideration of TDIU is not warranted. In summary, the Board finds that the Veteran's PTSD symptoms result in no more than 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, irritability, suspiciousness and chronic sleep impairment. Accordingly, the Board concludes that reasonable doubt does not apply, and the criteria for a rating in excess of 30 percent for the Veteran's PTSD have not been met. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An initial disability rating in excess of 30 percent for PTSD is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs