Citation Nr: 1331651 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 09-26 610 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) with alcohol dependence. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION The Veteran served on active duty from April 1987 to May 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). FINDING OF FACT The Veteran's PTSD with alcohol dependence causes disturbances in mood, occupational functioning, and social relationships due to symptoms such as impaired impulse control and occasional suicidal ideation; PTSD results in occupational and social impairment with deficiencies in most areas such as work, personal relations, and mood, but not total social and occupational impairment. CONCLUSION OF LAW The criteria for entitlement to an evaluation of 70 percent, but no higher, for PTSD with alcohol dependence have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. The Veteran has been provided notice in letters dated: February 2007 and May 2008. The letters advised the Veteran of the elements required to establish entitlement to service connection, including the disability-rating and effective-date elements. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The letters advised the Veteran of the elements required to establish entitlement to increased rating, including the impact of the disabilities on daily life and occupational functioning. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claim was subsequently readjudicated in a December 2009 supplemental statement of the case. Thus, any timing error was cured and rendered nonprejudicial. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). VA has obtained service treatment records, VA treatment records, and private medical records, assisted the Veteran in obtaining evidence, and afforded him the opportunity to present testimony, statements and evidence. The Veteran was scheduled for a Travel Board hearing in February 2011, however he did not report. The Veteran also was provided with VA examinations in April 2007, February 2008, and September 2009. The Veteran has not alleged that these examinations are inadequate for rating purposes. Moreover, the Board finds that the examinations are adequate in order to evaluate the Veteran's service-connected PTSD as they include an interview with the Veteran, a review of the record, and full psychiatric examination addressing the relevant rating criteria. Further, the Veteran has not alleged, nor does the record show, that his service-connected PTSD disability has worsened in severity since the most recent examination. As such, a new examination is not required. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). All known and available records relevant to the issue on appeal have been obtained and associated with the appellant's claim file and he has not contended otherwise. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess, 19 Vet. App. at 486; Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Accordingly, the Veteran is not prejudiced by a decision at this time. Increased Evaluation Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. (1991). The current level of disability, however, is of primary concern in a claim for an increased rating; the more recent evidence is generally the most relevant in such a claim, as it provides the most accurate picture of the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55 (1994). That being said, given unintended delays during the appellate process, VA's determination of the "current level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period that the increased rating claim has been pending. In those instances, it is appropriate to apply staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Service connection for PTSD was granted in a November 2005 rating decision. An initial 30 percent rating was assigned pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411, from May 2005. The Veteran filed his current claim for an increased rating in December 2006. A December 2009 rating decision increased the evaluation to 50 percent, for PTSD with alcohol dependence, also from May 2005. The Veteran contends that he is entitled to a rating higher than 50 percent. Under this criteria, a 100 percent rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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. A 70 percent rating is warranted when 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; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. The current 50 percent evaluation is warranted when occupational and social impairment is found 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. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, 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. 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 solely on the basis of social impairment. 38 C.F.R. § 4.126. The symptoms recited in the criteria in the rating schedule for evaluating mental disorders 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, 442 (2002). In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. Also of relevance to the evaluation of service-connected mental disorders is the Global Assessment of Functioning (GAF) rating, which 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 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). A GAF of 41 to 50 is defined as serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF of 51 to 60 is defined as 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). On VA examination in April 2007, the Veteran reported nightmares, night sweats, memory impairment, difficulty going to sleep, and avoidance of crowds. He reported that he had been married for 20 years and had three children from the marriage. He reported that he did not have a close relationship with his wife and did not interact much with his children. He did not socialize but liked to read occasionally. He spent a lot of time watching television and on the internet. The Veteran had no history of suicide attempts. He described himself as a fairly heavy drinker. On examination, he was clean and casually dressed, with spontaneous speech. He was cooperative, relaxed, and attentive. His affect was appropriate and mood was anxious. The Veteran was fully oriented and there were no delusions present. His thought process and thought content were unremarkable. The Veteran had no inappropriate behavior, obsessive/ritualistic behavior, panic attacks, or suicidal or homicidal thoughts. He had physically assaulted his wife in 2004 after drinking. His memory was normal. The Veteran was employed full-time as a postal worker and had missed less than one week of work in the past year due to PTSD symptoms. The Veteran noted that he avoided interacting with co-workers and stayed to himself. The examiner diagnosed PTSD and alcohol dependence. The GAF score was 60. The examiner stated that the Veteran's PTSD signs and symptoms resulted in deficiencies in family relations but not in judgment, thinking, or mood. A February 2008 VA examiner found that the Veteran's alcohol dependence was at least as likely as not caused by or a result of his PTSD. She also noted that the Veteran was going through a divorce. A private social worker's treatment summary dated in July 2008 noted that the Veteran had been treated for PTSD symptoms. The Veteran reported frequent and recurring nightmares and resultant insomnia. He had thoughts of persecution and paranoia. The Veteran had attempted to self-medicate his symptoms with alcohol. His GAF score was 49. The same private social worker's treatment summary dated in July 2009 again noted that the Veteran had been treated for PTSD symptoms including frequent and recurring nightmares and resultant insomnia. He still had thoughts of persecution and paranoia and attempted to self-medicate his symptoms with alcohol. The Veteran was noted to remain withdrawn, guarded and suspicious of the motives of others. He had frequent suicidal ruminations but no specific intent. The Veteran had moderate social impairment and difficulty functioning in the workplace. He was given to panic attacks and fits of anger and rage. "In some respects, his symptoms have worsened due to their chronic nature." The GAF score was 43. On VA examination in September 2009, the Veteran reported that he was easily irritated and depressed. He reported poor relationships with his family and co-workers. His sleep was "horrible." He reported anxiety and hyperarousal. The Veteran continued to work full-time at the post office. He was divorced and living by himself in an apartment, and he drank at least a pint of hard liquor every night. The examiner noted a negative history of suicidal ideation/attempts. On examination, the Veteran was polite and cooperative, with good eye contact. He was alert and oriented times four. The Veteran did not appear to be in acute distress; his affect was appropriate and his mood was fine. His speech was relevant and coherent and there was no evidence of psychosis or thought disorder. The Veteran appeared capable of maintaining personal hygiene and other basic activities of daily living. His concentration and immediate and short-term memory were mildly impaired. The Veteran did not exhibit suicidal or homicidal thinking. The examiner diagnosed PTSD and alcohol abuse and assigned a GAF score of 55. The examiner noted that the Veteran's symptoms did not appear to be interfering with his work as he continued to work full-time. He noted that the Veteran's drinking had an effect on his mood and could be causing some of his symptoms. A review of the Veteran's reported symptoms indicates that a 70 percent, but not 100 percent, evaluation is most appropriate. The evidence shows occupational and social impairment with deficiencies in mood, occupational functioning, and social relationships due to symptoms such as impaired impulse control, occasional suicidal ideation, inability to get along with family or co-workers, nightmares, insomnia, and panic attacks. Thus, the criteria for a 70 percent evaluation are met. The evidence does not demonstrate total social and occupational impairment as would be required for a 100 percent evaluation. The Veteran continues to work full-time, with minimal time lost from work due to PTSD symptoms. While he reported poor relationships with his family and coworkers, the evidence does not show total social impairment. Additionally, the Veteran is able to perform his activities of daily living; he is consistently found to be properly dressed, groomed, and oriented; and there are no medical findings of a thought, speech, or significant memory disorder due to PTSD with alcohol dependence. The Veteran has reported suicidal ideation at times, however he has no suicidal plan. While one incident involving a physical assault on his then wife in 2004 is noted in the record, the examiners have not found that the Veteran poses a persistent danger to himself or others. Consequently, the Board finds that a 70 percent schedular rating, but no higher, is warranted. 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. See Barringer v. Peake, 22 Vet. App. 242 (2008); Thun v. Peake, 22 Vet. App. 111 (2008). The Board has also considered whether a claim for a total disability rating based on individual unemployability (TDIU) has been raised by the record under Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the Veteran has not alleged, and the evidence does not suggest, that he is incapable of obtaining and maintaining substantially gainful employment because of his service-connected PTSD with alcohol dependence. In fact, during the April 2007 and September 2009 VA compensation examinations, he affirmed that he is currently employed full-time as a postal worker and had missed very little work because of his service-connected PTSD. Therefore a TDIU claim has not been raised by the record. See Roberson v. Principi, 251 F.3d 1378, 1384 (2001). See, too, Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009) (requiring cogent evidence of unemployability). ORDER An evaluation of 70 percent, but no higher, for PTSD with alcohol dependence is granted. ____________________________________________ M. N. HYLAND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs