Citation Nr: 1331482 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 07-29 265 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an increased initial disability rating for posttraumatic stress disorder (PTSD), currently rated 10 percent disabling prior to May 1, 2009, and 30 percent disabling since May 1, 2009. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran served on active duty from September 1975 to September 1995. This matter comes to the Board of Veterans' Appeals (Board) from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In a July 2005 rating decision, the RO determined that new and material evidence had not been received to reopen the claim of entitlement to service connection for a chronic foot disability. In a January 2006 rating decision, the RO determined that new and material evidence had been received to reopen the claim of entitlement to service connection for a chronic foot disability and denied the claim on the merits, and granted entitlement to service connection for PTSD, assigning a 10 percent disability rating, effective May 20, 2005. In a June 2009 rating decision, the RO assigned a 30 percent disability rating for PTSD, effective May 1, 2009. Although an increased rating has been granted, the issue remains in appellate status, as the maximum schedular rating has not been assigned and such rating has not been assigned during the entire appeal period. AB v. Brown, 6 Vet. App. 35 (1993). In March 2011, the Board determined that new and material evidence had been presented in order to reopen the Veteran's claim for entitlement to service connection for a chronic foot disability and remanded the claims for entitlement to service connection for a chronic foot disability and an increased rating for PTSD for additional development. In a May 2012 rating decision, the Appeals Management Center (AMC) granted entitlement to service connection for hallux valgus (claimed as foot problems) of the right and left foot. As this constitutes a full grant of benefits, this claim is no longer on appeal before the Board. FINDINGS OF FACT 1. For the period from May 20, 2005 through April 30, 2009, the Veteran's PTSD was manifested by mild symptoms; the Veteran was able to maintain successful employment and relationships. 2. Beginning May 1, 2009, the Veteran's PTSD has been manifested by symptoms including decreased concentration, interpersonal problems, mood swings, irritability and disrupted sleep; memory was normal, panic attacks were denied, and mental status examination was within normal limits; the Veteran had meaningful relationships and maintained steady employment. CONCLUSIONS OF LAW 1. Prior to May 1, 2009, the criteria for a disability rating in excess of 10 percent for PTSD were not met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.130, Diagnostic Code 9411 (2013). 2. Beginning May 1, 2009, the criteria for a disability rating in excess of 30 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's claim arises from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as 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). Therefore, no further notice is needed under VCAA. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). The record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA and private medical records, VA examination reports, and the Veteran's statements. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board remanded this case in March 2011 in order to provide the Veteran with a letter requesting that she identify all post-service medical providers, addresses, and dates of treatment, with regard to her service-connected PTSD, and to obtain the entirety of the Veteran's treatment records from Maxwell Air Force Base. The Veteran was provided with a letter meeting the requirements of the remand instructions in April 2011; however, she did not respond. The records from Maxwell Air Force Base were obtained and associated with the claims file, and have been considered in adjudicating this decision. The Board notes here that, in her July 2012 Informal Hearing Presentation, the Veteran's representative contended that a new examination is necessary to appropriately decide this claim, as the most recent examination was provided in May 2009. However, the mere passage of time between the last examination and the Board's review does not automatically render the examination inadequate; there must be evidence of a change in the condition or allegation of worsening of the condition. Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007). In this case, treatment records for this time period are part of the claims file, and there is no evidence that the Veteran's service-connected PTSD has worsened since her last examination. Therefore, a new examination is not necessary to appropriately decide the claim. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Evaluation of initial ratings Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the 'authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence'); Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). PTSD is rated under Diagnostic Code 9411, which provides ratings under the General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130. The following ratings are provided for psychiatric disabilities: Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication, a 10 percent rating. Id. 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 30 percent rating. Id. 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; difficulty in establishing and maintaining effective work and social relationships, a 50 percent rating. Id. The level of occupational and social impairment due to a psychiatric disorder is the primary consideration in determining the severity of a psychiatric disorder for VA purposes, and not all the symptoms listed in the rating criteria must be present in order for a rating to be warranted. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002) (finding that symptoms contained in rating schedule criteria 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."). 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 from 71 to 80 indicate that if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after a family argument); and that there is no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). GAF scores ranging between 61 and 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). Evaluation of initial rating for the period from May 20, 2005 through April 30, 2009 A December 2005 VA examination reflects that the Veteran reported that she had been employed by the same company since 1998. She worked as an executive secretary and personnel coordinator. She loved her job, and it kept her very busy. She indicated that she put in a lot of overtime, was a team player, and got along well at her job. The Veteran had been with her current husband since 2001. They enjoyed recreational boating and often made trips to Biloxi or Atlanta. She indicated that they would socialize with two other couples. She had not sought any psychiatric treatment. Mental status examination was generally normal; however, the Veteran appeared mildly anxious and reported problems with persistent depression. She had difficulty sleeping and took Sominex every night. She reported that her sleep difficulties were due to ruminations. She denied nightmares. The Veteran reported that she worried constantly, mostly about family stressors. She described herself as anxious and stressed, and reported that this manifested in sleep difficulties, worry, and sexual disinterest. She denied auditory or visual hallucinations, delusions, thought disorder, paranoid ideation, and suicidal and homicidal ideation. She reported intrusive thoughts occurring about once to twice a week regarding her in-service stressor-an assault by an ex-husband. The Veteran reported some restricted range of affect having to do with her being "meaner" after her in-service assault. She showed some alienation from others, keeping interpersonal distance and finding excuses not to socialize. She reported hyperactive startle response and hypervigilance, and indicated that she was extremely concerned about safety. The examiner noted that the Veteran had been able to work without interference from PTSD symptoms. Her PTSD symptoms put a strain on her current marriage, but the Veteran's symptoms appeared to be in the mild range. The Veteran had an increase in worry, anxiety, and depression in the prior year, due to significant family problems. The Veteran was assigned a GAF score of 70 in connection with her PTSD symptoms. Based on the evidence of record, the Board finds that the Veteran's service-connected PTSD does not warrant an increase in rating for the period from May 20, 2005 through April 30, 2009. In order to warrant a higher rating for this time period, evidence would be necessary that reflected that symptoms associated with her PTSD caused an occasional decrease in work efficiency and intermittent inability to perform occupational tasks. According to her own reports, however, the Veteran was successful at work during this period. In addition, she maintained relationships and recreational hobbies. While the Veteran clearly had some symptoms of PTSD, including sleep problems, worry and anxiety, sexual disinterest, some intrusive thoughts and interpersonal distance, hyperactive startle response, and hypervigilance, the examiner noted that the effects were mild. This conclusion is also supported by the assigned GAF score of 70, reflecting some mild symptoms. While the Veteran did endorse some of the symptoms included in the list set out in the criteria for a 30 percent disability rating, such as depressed mood, anxiety, and chronic sleep impairment, these symptoms have not resulted in any decrease in work efficiency or intermittent periods of inability to perform occupational tasks, according to the Veteran's own reports of her job performance. Overall, the Board finds that the Veteran's disability picture, for the period from May 20, 2005 through April 30, 2009, is mild. As such, a higher disability rating for PTSD for the period from May 20, 2005 through April 30, 2009 is not warranted. The benefit of the doubt doctrine was considered; however, as the preponderance of evidence is against the claim, that doctrine is not for application in this case. 38 U.S.C.A. § 5107. Evaluation of initial rating beginning May 1, 2009 A May 2009 VA examination report shows that the Veteran reported that she had positive relationships with her husband and son, and had several friendships outside the family, with whom she shared an interest in boating and the American Legion. Upon examination, her mood was within normal limits and she had no delusions. She indicated that she had problems maintaining sleep, but that this had improved once she was placed on psychotropic medications. She did not have hallucinations, panic attacks, ritualistic behavior, or homicidal or suicidal thoughts. Her memory was normal. The examiner noted symptoms of increased arousal, including difficulty falling or staying asleep, irritability or outbursts of anger, difficulty concentrating, and an exaggerated startle response. The Veteran had been employed at an office for two years, and prior to that had been employed at a television station for nine years. The diagnoses were PTSD and recurrent major depression, in partial remission with medication. The examiner found that the Veteran's depressive symptoms exceeded those normally associated with PTSD, and that the depressive symptoms were caused by PTSD and should be considered an additional challenge. The examiner estimated a GAF score of 63 for her PTSD, in isolation of other mood symptoms. The Veteran reported that she had continued occupational challenges that included decreased concentration, interpersonal problems and mood swings. In addition, she struggled with irritability, interpersonal deficits, disrupted sleep, and certain social deficits secondary to her history of physical/emotional abuse. The examiner opined that there was no total occupational and social impairment due to PTSD signs and symptoms, and that PTSD signs and symptoms did not result in deficiencies in the areas of judgment, thinking, family relations, work, mood and school; however, he found that the Veteran had reduced reliability and productivity due to PTSD symptoms. VA medical records reflect that the Veteran reported feeling fine and wanting to decrease her medication. See VA medical record dated in April 2010. The Veteran also reported insomnia. See VA medical records dated in December 2009, August 2010, and December 2010. VA medical records showing treatment in January 2011 reflect that the Veteran was diagnosed with anxiety disorder, not otherwise specified, and depression, and was being treated with Prozac. In March 2011, she denied any suicidal or homicidal ideation and stated that she felt fine. The assessment was anxiety disorder, not otherwise specified, and depression. The Board notes here that the May 2009 examiner diagnosed the Veteran with depression in addition to her PTSD, and found that this was secondary to her PTSD and an "additional challenge." VA is precluded from differentiating between symptomatology attributed to a non-service-connected disability and a service-connected disability in the absence of medical evidence that does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). In this case, the examiner did not clearly differentiate the symptoms associated with the Veteran's service-connected and nonservice-connected psychiatric disorders. Therefore, the Board will consider all of the Veteran's psychiatric symptoms and impairment when determining the severity of her PTSD. Even considering all of the Veteran's psychiatric symptoms to be associated with her service-connected PTSD, the Board finds that the evidence of record does not support a higher disability rating as of May 1, 2009. While the May 2009 examiner found that she had reduced reliability and productivity, this is not reflected by the evidence. At this examination, the Veteran indicated that some of her symptoms affected her work, including decreased concentration, interpersonal problems, and mood swings; however, the evidence fails to show that these symptoms cause a reduction in reliability and productivity. Instead, the evidence reflects that she was steadily employed during this time. Moreover, the Veteran reported that she had positive relationships in her life, and that she participated in hobbies. These factors do not reflect an occupational or social impairment to the level to warrant a higher disability rating. It is also significant that the Veteran did not exhibit symptoms listed as examples in the criteria for a 50 percent disability rating. She did not have panic attacks, and her memory was normal. Her mental status examination in May 2009 revealed that her speech, judgment, thought process and content, and insight were all normal. In addition, at her treatment appointments in April 2010 and March 2011, she reported that she felt "fine." This conclusion is supported by the Veteran's GAF score in May 2009. While the examiner noted that this score pertained to her PTSD, without other mood symptoms, it is important to note that a GAF score of 63 reflects on only mild symptoms. Even if a more severe GAF score was provided when taking her depression into consideration, the overall disability picture, established by the level of occupational and social impairment and the specific symptoms, does not approximate the criteria necessary for a 50 percent disability rating. As the preponderance of evidence is against the claim, benefit of the doubt doctrine is not for application in this case. 38 U.S.C.A. § 5107. Extraschedular considerations In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2013). The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present 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 extraschedular disability rating must be 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). Generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 3.321. The Board finds no reason to refer this case to the Compensation and Pension Service for consideration of an extraschedular evaluation under 38 C.F.R. § 3.321(b). The symptoms associated with the Veteran's service-connected psychiatric disability are contemplated by the rating criteria set out in Diagnostic Code 9411. 38 C.F.R. § 4.130, Diagnostic Code 9411. Thus, the evidence does not support referring this case for an extraschedular evaluation. TDIU considerations The Court has held that entitlement to a total rating for compensation based on individual unemployability (TDIU) is an element of all appeals of an initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is granted where a Veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2013). The issue of TDIU is raised 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. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The issue does not arise in the context of an increased rating claim when there is no allegation or evidence of unemployability. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). In this case there has been no allegation or evidence of unemployability. The Veteran has indicated that she has been employed full time throughout the appeals period. Accordingly, the question of entitlement to TDIU has not been raised. ORDER An initial disability rating in excess of 10 percent for PTSD, prior to May 1, 2009, is denied. An initial disability rating in excess of 30 percent for PTSD, as of May 20, 2009, is denied. ____________________________________________ JENNIFER HWA Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs