Citation Nr: 1331897 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 13-09 067 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD J. L. Wolinsky Associate Counsel INTRODUCTION The Veteran had active military service from July 1978 to August 1992. The Veteran is a combat Veteran serving as an Infantryman and an Indirect Fire Infantryman during the Gulf War. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran seeks a higher rating from an initial grant of service-connected PTSD, currently rated at 30 percent. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the electronic "Virtual VA" system to insure a total review of the evidence. FINDING OF FACT The Veteran's service-connected PTSD has resulted in no more than occupational and social impairment with occasional decrease in work efficiency. CONCLUSION OF LAW The criteria for an initial rating in excess of 30 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5013, 5103A, 5107, 7104 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.20, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a). The appeal arises from disagreement with the initial rating following the grant of service connection. The courts have held that once service connection is granted the claim is substantiated, additional VCAA 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). The duty to assist the Veteran has also been satisfied in this case. The RO has obtained the Veteran's available service treatment records, as well as his post service medical records, a psychological report from W.E.E, and his psychological evaluation by R.J.O. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Also, the RO determined that no records relating to the Veteran are available from the Social Security Administration. See Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010). A VA examination for PTSD was conducted in September 2010. 38 C.F.R. § 3.159(c)(4). The examiner conducted a PTSD examination, reviewed the Veteran's claim file and medical history, reviewed the Veteran's pre-military, military, and post military history, administered a pysch exam, reviewed the Veteran's PTSD stressors, reviewed the Veteran's PTSD symptoms, reviewed employment history, discussed the effects of PTSD on occupational and social functioning and gave a medical opinion regarding the effect of the Veteran's PTSD on his social and occupational functioning. Since the examination included sufficient detail as to the current severity of the Veteran's PTSD, the Board concludes that the examination is adequate for evaluation purposes. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). II. Legal Criteria The Veteran has been assigned a 30 percent rating for his PTSD effective from March 10, 2010. The Veteran seeks a higher initial rating. 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. In instances in which a veteran disagrees with the initial rating, the entire evidentiary record from the time of a veteran's claim for service connection to the present is of importance in determining the proper evaluation of disability, and staged ratings are to be considered in order to reflect the changing level of severity of a disability during this period. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. PTSD is evaluated under VA's General Rating Formula for Mental Disorders. Under the formula, a 30 percent rating is warranted when 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 when 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 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. 38 C.F.R. § 4.130, 9411. A 70 percent rating 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; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. Id. The criteria for a 70 percent rating for PTSD are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). A 100 percent rating is warranted when 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; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130 , 9411. The extent of social impairment will also be considered, but an evaluation will not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b) . The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet App 436, 442-3 (2002). On the other hand, if the evidence shows that a veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443. The Court of Appeals for the Federal Circuit has embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). Ultimately in Mauerhan, the Court upheld the Board's decision noting that the Board had considered all of the Veteran's psychiatric symptoms, whether listed in the rating criteria or not, and had assigned a rating based on the level of occupational and social impairment. Mauerhan, supra at 444. GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). A GAF of 61 to 70 reflects some mild symptoms, or some difficulty in social, occupational, or school functioning, but generally functioning pretty well, with some meaningful interpersonal relationships. A GAF of 51 to 60 indicates moderate symptoms, or moderate difficulty in social, occupational, or school functioning. A GAF of 41 to 50 signifies 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 of 31 to 40 signifies some impairment in reality testing or communication, or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., where a depressed man avoids friends, neglects family, and is not able to work). DSM-IV; 38 C.F.R. §§ 4.125 , 4.130. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). Although GAF are important in evaluating mental disorders, the Board must consider all the pertinent evidence of record and set forth a decision based on the totality of the evidence in accordance with all applicable legal criteria. Carpenter, supra. An assigned GAF, like an examiner's assessment of the severity of a condition, is not dispositive of the percentage rating issue; rather, it must be considered in light of the actual symptoms of a psychiatric disorder (which provide the primary basis for the rating assigned). See 38 C.F.R. § 4.126(a) . Accordingly, an examiner's classification of the level of psychiatric impairment, by word or by a GAF, is to be considered but is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. Id.; see also 38 C.F.R. § 4.126 , VAOPGCPREC 10-95, 60 Fed. Reg. 43186 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. III. PTSD Claim In March 2010, the Veteran submitted a claim of entitlement to service connection for PTSD. In December 2010, the RO granted service connection for PTSD and evaluated the disability as 30 percent disabling, effective from March 10, 2010. The Veteran has disagreed with the initial disability evaluation assigned and submitted a Notice of Disagreement in April 2011. In September 2007 while receiving VA treatment, the Veteran declined to be referred to Mental Health for evaluation of the positive screen for PTSD. At his 2007 treatment the Veteran stated that he experienced an event that involved actual or threatened death or serious injury to himself, or someone else that caused him to experience intense fear, helplessness or horror. In September 2007, the Veteran was not receiving PTSD treatment or services. In January 2010, the Veteran underwent a private psychological evaluation administered by R.J.O Ph.D. The evaluation discussed the Veteran's potential PTSD stressors and the Veteran's experience in Iraq for the Gulf War in 1991. After the Veteran retired from military service he briefly worked for himself in a towing business; he has worked for the United States Postal Service (USPS) since 1998. At the time of the January 2010 evaluation the Veteran was divorced and stated that he had a poor history of sustaining interpersonal relationships with his longest being around ten months. The Veteran reported that he did not abuse alcohol and that he has low motivation to seek another interpersonal relationship. The Veteran additionally stated that isolation is the only environment in which he feels comfortable, is impatient with the general public, and avoids social and community activities due to anxiety. The Veteran did state that he hunts, drives race cars, has friendships with two military veterans and has a favorable rapport with his son. The Veteran denied having suicidal ideations. The Veteran was treated for depression by VA and was prescribed a psychotropic. The Veteran reported trouble sleeping and has hyperarousal to unfamiliar sounds, and exaggerated startling responses. He avoids activities that represent aspects of his original trauma, such as war movies, news about the current war, and conversations about the war. The Veteran's evaluation also stated that the Veteran has poor concentration and results in short-term memory deficits. The Veteran stated that he feels he has become cold to others, has irritability and low frustration tolerance. The Psychologist concluded that the Veteran reports intrusive and ruminating thought patterns of stressful memories with very limited social support. The Veteran lacked an interpersonal relationship and does not desire to formulate closeness with another. The Veteran's friends are limited to other military veterans and his range of interests was restricted. The Veteran emotionally blunted, and community social isolation is manifested to circumvent his symptoms of anxiety. The Veteran's diagnosis was "Axis I: Post Traumatic Stress, Axis II: No Diagnosis, Axis III: No medical diagnosis, Axis IV: Primary support, social, familial, Axis V: GAF 57" and that "Mr. Holt has considerable impairment in his capacity to acquire and sustain social relationships. Flattened affectivity and social anxiety contribute to reactive depressive symptoms resulting in reduced reliability." In September 2010 the Veteran underwent a VA initial evaluation for PTSD administered by a clinical psychologist. The VA examiner reviewed the claims file, and the January 2010 psychological report of the Veteran. The Veteran told the VA examiner that he was in his second marriage at the time of the examination and had been married for six months. He has a "so-so" relationship with his son, and has good relations with his two grown step children. The Veteran reported that he attends community church and has good relations with his neighbors. He stated that he drives racecars, is a mechanic for his car and rides horses for leisure. The Veteran stated no history of suicide attempts, and no history of violence. The Veteran reported to the examiner that he has worked for the United States Postal Service for fifteen years as a mechanic and "love[s] it". The Veteran also shared aspirations of one day retiring from the Post Office and working with homeless Veterans. The Veteran had a good mood, attention intact, was well oriented, did not have delusions, and understood the outcome of his behavior. The Veteran did have sleep impairment and states he typically only gets three hours of sleep a night. The Veteran did not have panic attacks, with no problems with activities of daily living. The Veteran also exhibited normal recent memory and immediate memory, with good recall of local, sports and national events. The Veteran's stressor was confirmed and discussed. The Veteran's PTSD symptoms were analyzed and the Veteran was found to have recurrent distressing dreams of his stressor, and made efforts to avoid thoughts, feelings or conversations associated with the trauma, and had a feeling of detachment or estrangement from others. The Veteran had persistent symptoms of increased arousal with hypervigilance and exaggerated startle response. The examiner found that the Veteran's disturbances did not cause clinically significantly distress or impairment in social, occupation or other important areas of functioning. The symptoms were described as chronic, with bad nightmares about once a month, and recalls his stressors with tv news, natural disasters or loud unexpected noises. Although the Veteran has an overall distrust of authority, the examiner stated the Veteran has "good marital, social, and interpersonal functioning". The Veteran reported missing no time from work during the last year prior to the examination, and has fulltime employment. The examiner confirmed the Veteran's diagnosis of PTSD stating "Axis I: PTSD, Axis II: Deferred, Axis III: Refer to medical chart, Axis IV: worried about society problems, Axis V: Global assessment of function 70." In summary the examiner stated that the Veteran had "good functioning and performance with long term employment with USPS." The Veteran does not have total occupational and social impairment due to PTSD. PTSD symptoms do not result in deficiencies in judgment, thinking, family relations, work, mood or school. There is no reduced reliability and productivity due to PTSD, nor is there occasional decrease in work efficiency. Ultimately finding that "mental disorder symptoms are not severe enough to interfere with occupational and social functioning" and that the "Veteran has good functioning in areas of occupational, social, leisure and interpersonal relations." In March 2011 the Veteran received a private psychological report from W.E.E. Psy.D. The report discussed the Veteran's combat, and the Veteran reported having recurring dreams related to "going through towns in (in Iraq) and seeing bodies everywhere". He hears "alarms going off" in his dreams, and does not feel safe for him to go into a deep sleep due to a fear of being vulnerable to harm. The Veteran additionally reported that he is often on edge, gets mad easily, and avoids loud noises. His wife complained that the Veteran does not "open up" to her and that he prefers to avoid social contact completely, having no close friends. The Veteran also reported that loud noises disturbs him, he avoids fireworks, avoids crowds, and is uneasy with his back to people. The report concluded with the psychologist stating "[The Veteran] manifests significant psychological decompensation and his prognosis is poor due to the severe nature of his symptoms. Psychiatric and psychological outpatient treatment are recommended to avoid further decompensation of his emotional state. His post-traumatic anxiety appears chronic and suggests total/permanent disability" and assigned the Veteran a GAF score of 51. The Board has considered the aforementioned evidence and concludes that the 30 percent evaluation assigned for PTSD effective from March 10, 2010 adequately compensates the Veteran for the state of his social and occupational impairment due to his psychiatric disability. The Veteran's lowest GAF score of 51, diagnosed in March 2011 places him in the category of moderate symptoms with flat affect, circumstantial speech, or panic attacks, or having moderate difficulty in social or occupational functioning. His GAF score of 70 diagnosed at his September 2010 VA exam, places him in the category of mild symptoms, and generally functions pretty well with some meaningful interpersonal relationships. Even at the Veteran's reported worst outbreak of symptoms he does not qualify for a 50 percent evaluation for PTSD. Of the listed suggested criteria of the 50 percent disability rating, the Veteran has not experienced: problems with his speech, panic attacks more than once a week, difficulty in understanding complex commands, impairment of memory, impairment of judgment or abstract thinking, or disturbances to his motivation. The clinical evidence shows that the Veteran is functioning as a mechanic for the United States Postal Service for over a decade and has not missed work due to his PTSD. The record contains statements that Veteran enjoys his work and has goals and ambitions after he retires from the USPS. The Veteran's ability to work and to report to work even with his diagnosed PTSD, shows no occupational impairment and no occupational reduced reliability or productivity. The determination that the Veteran is not occupational impaired was similarly made by the VA examiner in September 2010. While true, that the Veteran has disturbances in mood, has a low frustration tolerance, describes himself as becoming cold to others, and gets mad easily he has had no impact on his occupational functioning. The Veteran's social impairment during the appeal period shows at times he is able to have positive personal relationship, with friends, children, step-children and spouses and is not entirely unable to maintain social relationships. The Veteran additional stated in his September 2010 VA exam that he attends church and had good relations with his neighbors. At times it may be difficult for the Veteran to engage in social relationships, though the overall disability picture shows that he does have the ability to have functioning social relationships. The private evaluation in January 2010, stated that the Veteran was unable to maintain interpersonal relationships, though the Veteran reported that he had one for ten months, and has since married. The report that the Veteran is "closed up" with his wife, is not necessarily indicative of his inability to socially interact with others as the record shows the Veteran has had effective personal social relationships. Furthermore, the Veteran's symptoms in which he reports sleep impairment, and that he does not feel safe going into a deep sleep is contemplated in the 30 percent disability criteria. His alertness, hyperarousal to unfamiliar sounds, and exaggerated startling responses is also contemplated in the 30 percent criteria for anxiety and suspiciousness. The Veteran remains objectively capable of a level of social and occupational functioning that more closely approximates the criteria for a 30 percent evaluation. The Board thusly concludes that the Veteran's PTSD manifestations are insufficient in severity to produce the level of social and occupational impairment contemplated by a 50 percent evaluation. Further, none of the criteria for a 70 percent or 100 percent rating were demonstrated, nor could one conclude that existing psychiatric symptoms would have been best approximated by a 70 percent or 100 percent rating. Therefore, in view of the foregoing, the Board finds that the overall disability picture presented by the objective medical evidence demonstrates that the constellation of psychiatric symptomatology attributable to the Veteran's PTSD does not meet or nearly approximate the criteria for a rating in excess of 30 percent. Because the evidence in this case is not approximately balanced with respect to the merits of the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3 (2011); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1)(2011); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court set forth a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, as a threshold issue, the Board must determine whether the veteran's disability picture is contemplated by the rating schedule. If so, the rating schedule is adequate and an extraschedular referral is not necessary. If, however, the veteran's disability level and symptomatology are not contemplated by the rating schedule, the Board must turn to the second step of the inquiry, that is whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." These include marked interference with employment and frequent periods of hospitalization. Third, if the first and second steps are met, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, a veteran's disability picture requires the assignment of an extraschedular rating. The evidence of record does not identify any factors which may be considered to be exceptional or unusual with respect to the Veteran's service-connected PTSD. There is no unusual clinical picture presented, nor is there any other factor which takes the disability outside the usual rating criteria. The Veteran's occasional problems with social relationships, his sleep impairment, and elevated alertness is specifically contemplated by the rating criteria. As the Veteran's disability picture is contemplated by the rating schedule, the threshold issue under Thun is not met and any further consideration of governing norms or referral to the appropriate VA officials for extraschedular consideration is not necessary. In short, the evidence does not support the proposition that the Veteran's PTSD presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and to warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1). Thus, referral of this issue to the appropriate VA officials for consideration of extraschedular evaluations is not warranted in this case. ORDER An initial evaluation in excess of 30 percent for PTSD is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs