Citation Nr: 1331631 Decision Date: 10/01/13 Archive Date: 10/07/13 DOCKET NO. 13-14 979 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: John R. Worman, Attorney ATTORNEY FOR THE BOARD Devon Rembert-Carroll, Associate Counsel INTRODUCTION The Veteran had active service in the Marine Corps from August 1969 to June 1972. The matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Louisville, Kentucky, that granted service connection for PTSD and assigned a 30 percent evaluation. The Veteran filed a notice of disagreement in July 2012 and was provided with a Statement of the Case (SOC) in April 2013. The Veteran perfected his appeal in May 2013 with a VA Form 9. The Board notes that the Veteran's claim of entitlement to a total disability rating based on individual unemployability (TDIU) was previously denied by the RO in a March 2013 rating decision. The Veteran was notified of that decision, but did not file a subsequent Substantive Appeal for that claim. Therefore, the issue of entitlement to TDIU is not on appeal before the Board. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals VA treatment records dated October 2012 to April 2013. The other documents are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT For the entire appeal period, the Veteran's symptoms of PTSD resulted in occupational and social impairment with reduced reliability and productivity due to depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances, cognitive and physiological responses to trauma cues, restricted range of affect nightmares, avoidance, a history of disengaging from people, irritability, difficulty concentrating, hypervigilance, exaggerated startle response, and GAF scores of 50-60 and 61. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, for the entire initial rating period, the criteria for an initial disability rating of 50 percent, but no higher, for PTSD have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9434 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The Veteran's claim for a higher initial rating for PTSD arises from his disagreement with the initial evaluation assigned 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. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA also has a duty to assist the Veteran in the development of a claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). Here, the Veteran's statements and post-service VA treatment records have been associated with the claims folder. Additionally, the Veteran has not identified any other outstanding records that have not been requested or obtained. The Veteran was provided with VA examinations in February 2012, March 2013, and April 2013. The Board finds that the VA examination reports are adequate because the examiners conducted clinical evaluations, reviewed the Veteran's medical history, and described the Veteran's PTSD in sufficient detail so that the Board's evaluation is an informed determination. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board thus finds that all necessary development has been accomplished and appellate review may proceed. See Bernard v. Brown, 4 Vet. App. 384 (1993). Legal Criteria Disability evaluations are determined by the application of a schedule of ratings, 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. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. Fenderson v. West 12 Vet. App. 119, 126 (1999). In making all determinations, the Board must fully consider the lay assertions of record. A Veteran is competent to report on that of which he or she has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In the May 2012 rating decision, the Veteran's PTSD was evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9411 (2013). Under the General Rating Formula For Mental Disorders, to include PTSD, a 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation), 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). Id. A 50 percent rating is assigned for 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; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. 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 work-like setting); and inability to establish and maintain effective relationships. Id. A 100 percent evaluation is assignable 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); and disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. Consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran's capacity for adjustment during periods of remission. 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. See 38 C.F.R. § 4.126(a). Furthermore, when evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2 (2013). One factor for consideration is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)). A GAF score of 71 to 80 indicates 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). A GAF score of 61 to 70 indicates some mild symptomatology (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, with some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect 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). Scores ranging from 31 to 40 indicate some impairment in reality testing or communication such as, 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 such as, depressed man avoids friends, neglects family, and is unable to work. Scores ranging from 21 to 30 indicate that behavior is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment such as, sometimes incoherent, acts grossly inappropriately, suicidal preoccupation, or an inability to function in most areas such as, stays in bed all day, no job, home, or friends. While the Rating Schedule does indicate that the rating agency must be familiar with the DSM-IV, it does not assign disability percentages based solely on GAF scores. See 38 C.F.R. § 4.130 (2012). Background At the February 2012 VA examination the Veteran reported that he is married and that he and his wife have a stable relationship. He reported that he lives "in the country" where he tends to a five acre lawn which he enjoys. He also reported that he has relatively few interests, though he and his wife enjoy going to mass. The Veteran also reported that he currently works in the welding trade and has been at his current job as a welder for six years. The Veteran noted that he is very proficient in his craft and adept to the actual job of welding. The Veteran also indicated that he had a propensity for conflict but gets along fine with others as long as they leave him alone. On mental status evaluation the examiner noted that the Veteran's speech was unremarkable as was his mood. The Veteran's thinking was logical and his cognitive abilities were intact. The Veteran denied active suicidal and homicidal ideation. He also denied delusions and hallucinations. The Veteran indicated that he thinks about combat multiple times per week and has nightmares three to four times per week. The Veteran noted that he has difficulty "turning off" thoughts and recollections of combat and that he has numerous upsetting "reminders" including the smell of diesel fuel. The Veteran described patterns of active avoidance and reported that he does not watch war movies currently as well as violent films more generally. The Veteran noted that he tries to avoid large crowds whenever possible including large grocery stores and other entertainment venues. He reported that he is easily startled and that he checks the perimeter "all of the time" and that he asks for a specific table when eating out, a place where he can monitor what is going on. The Veteran reported a pattern of disengaging from people. He reported that he has few if any loving feelings toward others and reported that he has little reaction to others when they are ill or when they die. He reported a sense of abbreviated future upon his return from Vietnam. The examiner noted that although the Veteran denied active suicidal or homicidal ideation and plans, the Veteran affirmed that at times he has had suicidal thoughts as well as violent thoughts toward others. The examiner noted that the Veteran's PTSD impacts his social functioning primarily through contributing to an overall pattern of isolation. The examiner diagnosed moderately severe PTSD and assigned a GAF score of 61. A January 2013 VA treatment record shows that the Veteran was treated for PTSD. The examiner noted that the Veteran denied delusions and auditory or visual hallucinations. The Veteran also denied suicidal and homicidal ideas, intent, and plan. The Veteran's thought process and association were intact and circumstantial and his insight and judgment were intact. The examiner stated that the Veteran's depression, nightmares, flashbacks, sleep, and appetite were better. The Veteran's appearance was good and his attention and concentration were intact. The Veteran was oriented, had no memory problems, his affect was appropriate, and his mood anxious. The examiner diagnosed PTSD and assigned a GAF score of 50-60. A March 2013 VA examination shows that the Veteran complained of chronic apathy with "no zeal to do anything". The Veteran reported that he finds most tasks to be burdensome and that at times he has neglected chores and self-care. The Veteran denied suicidal and homicidal ideation. He also denied auditory and visual hallucinations. The examiner noted that the Veteran was well groomed and well dressed. The Veteran had a good fund of knowledge, good eye contact, speech was normal in rate and volume, and thoughts were linear and goal oriented. The examiner noted that the Veteran's occupational and social impairment due to mild or transient symptoms decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. The Veteran reported that his 43 year marriage was "okay, normal." He reported a "great" relationship with his grandchildren though there were intermittent tensions in his relations with his children. He also reported that he has one long-time friend and occasionally golfs. He reported that he spends the bulk of his free time on his property. The Veteran also reported that he finds caring for his two horses soothing and he enjoys maintaining his acreage. The Veteran noted that these usually require him to muster his will. He also reported that he enjoys watching action movies but explains that the violence and "bloody" scenes trigger anxiety, tremors, and intrusive memories of his combat traumas. The Veteran reported that he continued to work as a welder and machinist for the same company for the past seven years. He reported that "they put me in a corner and leave me alone". He also reported that he continues to have occasional arguments with coworkers. However he denies any formal disciplinary problems, or problems with abseentism or productivity. The Veteran described himself as an employee in good standing. The examiner noted that the Veteran had a history of stable adequate occupational functioning in his trade and his psychological complaints have only a minor impact on his occupational functioning. The examiner also noted that the Veteran had recurrent and distressing recollections of the event, including images, thoughts, or perceptions. The Veteran also had recurrent distressing dreams of the event. He had intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event. He also had physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event. The examiner noted that the Veteran made efforts to avoid thoughts, feelings, or conversations associated with the trauma and made efforts to avoid activities, places or people, that arouse recollections of the trauma. He also had markedly diminished interest or participation in significant activities and had feelings of detachment or estrangement from others. The Veteran also reported difficulty falling or staying asleep, irritability or outbursts of anger, hypervigilance, and exaggerated startle response. He also reported depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work like setting. The examiner diagnosed PTSD and assigned a GAF score of 60. A March 2013 VA treatment record shows that the Veteran was again treated for PTSD. The examiner noted that the Veteran denied delusions and auditory or visual hallucinations. The Veteran also denied suicidal and homicidal ideas, intent, and plan. The Veteran's thought process and association was intact and circumstantial and his insight and judgment were intact. The examiner noted that the Veteran still had nightmares and flashbacks but they were better than before. The examiner also noted that the Veteran's depression was better. The Veteran's appearance was good and his attention and concentration were intact. The Veteran was oriented, had no memory problems, his affect was appropriate, and his mood anxious. The examiner diagnosed PTSD and assigned a GAF score of 50. An April 2013 VA examination shows that the Veteran described having few friends and some conflict with coworkers. The examiner noted that the Veteran's occupational and social impairment due to mild or transient symptoms decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. The Veteran endorsed his statements from the March 2013 VA examination regarding his occupational status. The Veteran also had recurrent distressing dreams of the event. He had intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event. He also had intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event. The examiner noted that the Veteran made efforts to avoid thoughts, feelings, or conversations associated with the trauma and made efforts to avoid activities, places or people, that arouse recollections of the trauma. He also had markedly diminished interest or participation in significant activities and had feelings of detachment or estrangement from others and restricted affect. The Veteran also reported difficulty falling or staying asleep, irritability or outbursts of anger, hypervigilance, and exaggerated startle response. The Veteran also had a depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work like settings and neglect of personal appearance and hygiene. The examiner diagnosed PTSD and assigned a GAF score of 60. Analysis Having considered all the evidence of record and the applicable law, the Board finds that for all periods under consideration an initial 50 percent rating for PTSD is warranted. As outlined above, the Veteran's PTSD has manifested as depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, restricted range of affect, disturbances of motivation and mood, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances, cognitive and physiological responses to trauma cues, nightmares, avoidance, isolation, irritability, difficulty concentrating, hypervigilance, and exaggerated startle response. The evidence of record also shows that the Veteran has had difficulty, in establishing and maintaining effective work and social relationships. The Veteran stated that he has feelings of detachment and estrangement from others. He reported that he only has a few close friends and he has occasional arguments with coworkers. He also reported that he has irritability with verbal outbursts. The Board notes that the Veteran did not exhibit all the symptoms for a 50 percent rating. Nonetheless, the Board finds that the functional impairment due to the above symptomatology during the entire appeal period more nearly approximates the criteria for a 50 percent rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002) (symptoms recited in the rating schedule for mental disorders are to serve as examples of the type and degree of the symptoms and not an exhaustive list). Based on the evidence of record, the Boards finds that the Veteran's PTSD symptoms do not warrant an initial rating of 70 percent. The Board notes that the March 2013 and April 2013 examiners both found that the Veteran had difficulty adapting to stressful circumstances and the April 2013 examiner noted that the Veteran neglected his personal appearance and hygiene. However, the Board finds that the effects of the Veteran's PTSD symptoms have not been described to be of a type, frequency and severity that are consistent with the level of impairment contemplated by the criteria for a 70 percent schedular rating. For the entire appeal period, both private records and the VA examination show that the Veteran denied suicidal and homicidal ideation. The Veteran also did not exhibit 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); or spatial disorientation. Furthermore, while the Veteran reported difficulty in social and work relationships, the evidence of record does not show the Veteran has an inability to establish and maintain effective relationships. Instead, the Veteran reported that he had been married to his wife for 43 years and described his marriage as "okay", "normal", and "stable." The Veteran reported a "great" relationship with his grandchildren and some tensions with his children. He also reported that he had a few close friends. Additionally, while the Veteran reported arguments with coworkers, he denied formal disciplinary problems and he denied problems with abseentism or productivity. The Veteran reported that he was an employee in good standing and that he is proficient in his job. The March 2013 VA examiner also noted that the Veteran has a history of stable adequate occupational functioning and that his psychological complaints had only a minor impact on his social functioning. The Board finds that the Veteran's social interactions with his wife, family, and few friends, as well as his ability to sustain employment without any disciplinary problems, show that the Veteran's symptoms do not rise to an inability to establish and maintain effective relationships. As such, the Board finds that the evidence shows the Veteran is not deficient in most areas and therefore his PTSD does not more closely approximate a 70 percent evaluation. The Board's finding that the Veteran's disability does not meet the criteria for a 70 percent rating entails a finding that he does not meet the criteria for a 100 percent rating. Total occupational and social impairment has not been shown in that he maintains a long term relationship with his wife and continues to successfully work as a welder. Similarly, his symptoms have not been manifested by gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name. The Board realizes that the symptoms noted in the rating criteria are not intended to be an exhaustive list, but are examples of the types and severity of symptoms that indicate a certain level of disability. Thus, the Board believes that based on the overall record evidence, including the Veteran's lay statements, the effects of the Veteran's PTSD symptoms have not been described to be of a type, frequency and severity that are in accord with the level of impairment contemplated by the criteria for a 100 percent schedular rating. The Board acknowledges that the Veteran has been assigned GAF scored of 50-60 and 61. A GAF score of 50 is indicative of serious symptoms, such as suicidal ideation or severe obsessional rituals, or any serious impairment in social, occupational or school functioning, such as no friends or unable to keep a job. A GAF score of 60 is indicative of indicates moderate symptoms, such as flat affect, circumstantial speech, and occasional panic attacks, or moderate difficulty in social, occupational, or school functioning, such as few friends, and conflicts peers or co-workers. A GAF score of 61 is indicative of some mild symptomatology (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, with some meaningful interpersonal relationships. In considering the GAF scores, the Veteran consistently denied suicidal and homicidal ideations and auditory and visual hallucinations. The Veteran did not report any severe obsessional rituals. Furthermore, the Veteran reported that he had a few friends and that he had been with his current employer for seven years and was an employee in good standing. Therefore, while the GAF scores are not determinative by themselves and as reflected by the overall record, the Board finds it reasonable to conclude that the type, frequency and severity of the Veteran's actual reported PTSD symptoms reflects a level of impairment that most closely approximate a 50 percent disability, but not higher, throughout the entire period on appeal. The Board has also considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321(b)(1). However, there is no objective evidence that any manifestations related to the Veteran's PTSD are unusual or exceptional. For the reasons discussed above, the Board finds that the schedular rating criteria adequately contemplate the impairment caused by the Veteran's PTSD. In view of this, referral of this case for extraschedular consideration is not in order. See Thun v. Peake, 22 Vet. App. 111 (2008). In reaching the above conclusions, the Board has resolved the benefit of the doubt in the Veteran's favor to the extent indicated. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Subject to the laws and regulations governing monetary awards, an initial rating of 50 percent, but no higher, for PTSD is granted. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs