Citation Nr: 1331899 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 11-14 805 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Snyder, William T. INTRODUCTION The Veteran served on active duty from April 1969 to January 1971. This appeal to the Board of Veterans' Appeals (Board) arose from a September 2010 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Newark, New Jersey, that denied the benefit sought on appeal. The Veteran appeared at a Board hearing in September 2011 before the undersigned Veterans Law Judge. A transcript of the hearing testimony is associated with the claims file and has been reviewed. The Veteran has a Virtual file, which is a highly secured paperless repository, associated with his appeal. The Board has considered the documents in both files while reviewing this appeal. FINDING OF FACT The preponderance of the evidence of record shows the Veteran's symptoms related to his PTSD/anxiety disorder most nearly approximate occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to sleep impairment, nightmares, and anxiety. CONCLUSION OF LAW The requirements for an initial evaluation in excess of 30 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.10, 4.21, 4.130, Diagnostic Code (DC) 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As service connection, an initial rating, and an effective date have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Consequently, discussion of VA's compliance with VCAA notice requirements is not necessary. With respect to the duty to assist, the United States Court of Appeals for Veterans Claims (Court) has interpreted the provisions of 38 C.F.R. § 3.103(c)(2) as imposing two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues; and, the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). At the hearing, the undersigned identified the issue before the Board, and asked questions of the Veteran that ensured his testimony addressed the relevant rating criteria. Neither the Veteran nor his representative voiced any disagreement with the manner the hearing was conducted. Hence, the Board finds the Bryant notice requirements were complied with. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim. The RO obtained the relevant treatment records and arranged an examination. Neither the Veteran nor his representative asserts that there are additional records to be obtained or that VA has not assisted the Veteran. In sum, there is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of this adjudication. See 38 C.F.R. § 3.159(c). Governing Law and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. As noted earlier in the Introduction, since this is an appeal from the initial assignment of a disability rating, such as this case, the Board must consider the entire time period involved, and contemplate staged ratings where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). Analysis The history of the Veteran's disability is set forth in the Introduction and is incorporated here by reference. According to the applicable rating criteria, a 30 percent rating will be assigned for PTSD when there is evidence of 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 normal conversation), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, and recent events). 38 C.F.R. § 4.130, DC 9411. A 50 percent evaluation will be assigned where the evidence shows occupational and social impairment with reduced reliability and productivity due to such symptoms as: a 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; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation applies when a veteran's occupational and social impairment reflects 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; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; or an inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned 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; and memory loss for names of close relatives, own occupation, or own name. Id. In this case, the Veteran had a VA psychiatric examination in July 2010. The Veteran reported he attended a VA clinic for counseling and psychotherapy, though he never followed up. He reported flashbacks, vivid memories of his experiences in Vietnam, and sleep disturbance. He endorsed hypervigilence and reported further that he felt most comfortable with his immediate family. He had extreme difficulty dealing with strangers and interacting socially unless he knew the person very well. He also reported mood swings where he became irritable without provocation. The Veteran reported that his wife had initiated the current examination, as she believed the Veteran's mood swings had become intolerable. Mental status examination revealed the Veteran as alert, cooperative, and dressed and groomed appropriately. His motor activity was calm, and mood and affect were appropriate to content of the material discussed. Speech was normal, and there was no evidence of perceptual impairment nor any evidence of thought disorder. Thought content was appropriate to the examination. He denied both suicide and homicide ideation, and he was oriented to time, place, and person. Memory, concentration, abstract reasoning, judgment, impulse control, and insight were all intact. The Veteran reported he and his wife got along reasonably well, though they had frequent arguments. His wife frequently accused him of being an alcoholic because he frequently drank several beers daily. He also reported he had one biological daughter and two stepdaughters with whom he had relatively good relationships. His parents were deceased, but he maintained contact with a brother and a sister. The examiner noted the Veteran appeared to self-medicate with alcohol to calm his anxiety. The examiner noted further that the Veteran maintained independence with in his activities of daily living. It was determined that the Veteran suffered from a moderately severe case of PTSD, which caused his recurrent intrusive thoughts and distressing dreams. A Global Assessment of Functioning (GAF) 50 was assigned. The GAF score is a scaled rating reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness." See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994) (DSM-IV). A GAF of 50 is at the top end of the range 41 to 50, and represents 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). Although the examiner assessed a GAF of 50, he indicated that the Veteran experienced occasional decrease in work efficiency and inability to socialize, which more nearly approximates the assigned 30 percent rating. See 38 C.F.R. § 4.130, DC 9411. The Board finds the objective findings of the clinical examination show the Veteran's impairment is significantly less than that typically reflected in a GAF 50, as immediately shown by his denial of suicide or homicide ideation, or poor impulse control. Moreover, he was steadily employed since his discharge from active service. Further regarding employment, the Veteran had been working for 40 years as a stagehand in the Theater District of New York City. At the time of the examination, he was working on the set of a widely popular musical. The conditions of his employment were agreeable, as he did not have to work with the same people all of the time, he worked on average three days a week, and he worked in relative isolation. The Veteran reported that if he had to deal with the same people, he never would have been able to keep the job. He reported further that his hobby was cabinet making. A March 2011 private examination report reflects essentially the same history as noted at the VA examination. The Veteran reported nightmares, and he often felt jumpy. He also was hypervigilant and, when in a crowded place, sat with his back to the wall. He avoided movies and visited the Vietnam Memorial for the first time in 2010. He described the experience as "overpowering." His first marriage lasted 18 months, but his current marriage had lasted since 1981. The Veteran related that he did not believe his PTSD caused his divorce but the fact they simply were too young. He had 3 adult children. The Veteran denied arguments or problems with co-workers, as his work assignments constantly changed. He reported significant feelings of guilt and he sometimes felt as though war experiences were still occurring. For recreation, he preferred relaxing at the beach, and he socialized with some friends at work. His primary outlet is socializing with his wife and a few friends. Upon mental status examination, the Veteran to spoke in a clear and distinct fashion. He was dressed casually and appropriately, and he wore shoulder-length hair. His thoughts were logical, coherent, relevant, and goal oriented. There was no evidence of hallucinations, delusions, or thought disorder. He was oriented to time, place, and person. The Veteran's long-term, short-term, and working memory were good. His concentration and attention skills were also adequate. He displayed considerable variability in the range of his affect. His mood was sad, tense, and anxious, as he readily became emotional and tearful while discussing aspects of his tour in Vietnam. The examiner diagnosed PTSD and assessed a GAF score of 58. At the hearing, the Veteran's testified that his job was not a conventional 8 to 5 job, but rather it was part-time work. He was a member of the union, and he had been so involved for over 40 years. He also testified there had been times when the sets for a show required weeks of sustained activity six days a week; and, near the end there were times when he told his boss he had to get away. He considered the guys he worked with his friends. After work they stopped in the bus terminal and drank beer together. Otherwise, the Veteran spent a lot of time at home doing wood work and working on a car he owns. In response to questions from the undersigned, the Veteran testified that he was independent in his activities of daily living, even if his wife was not around. He habitually checked his back door to ensure it was locked because he had at times forgotten to lock it. As the evidence set forth above shows, the Veteran's PTSD has clearly impaired his ability to function occupationally and socially. Despite his impairment, however, he has found his niche in the work place of the New York City Theater District, and, although not generating significant income doing so, he has also worked consistently as a craftsman for approximately 45 years. Although the Veteran isolates, he does interact socially with people he knows very well, such as some co-workers and his immediate family. Indeed, he has maintained a marriage of over 30 years, and he maintains a good relationship with his children. Additionally, the medical records reveal no evidence of panic attacks or suicide or homicide ideation. Moreover, the extent of the Veteran's mood disturbance and anxiety has not deprived him of his ability to function independently. Hence, the Board finds his symptoms have more nearly approximated the assigned 30 percent rating for the entire rating period. 38 C.F.R. §§ 4.1, 4.10, 4.124a, DC 8100. In light of this finding, there is no factual basis for a staged rating. The Board acknowledges the Veteran's representative's assertions made at the hearing related to the Veteran's outpatient records reflecting a GAF score of 48. Although the effective date of the Veteran's award of service connection is dated in 2010, the Board nonetheless considers those records for purposes of assessing the history of the Veteran's impairment. See 38 C.F.R. § 4.21; see also Moore v. Nicholson, 555 F.3d 1369 (Fed. Cir. 2009). As alluded to in the examination reports noted earlier, the Veteran presented for outpatient PTSD help in January 2007. The January 2007 VA entry notes that he reported he thought he had been doing okay, but he could not rid himself of intrusive thoughts about his Vietnam experience. He also reported a history of alcohol and illicit substance abuse. Mental status examination revealed that he was alert, fully oriented and had normal thoughts, insight, and judgment. The examiner noted the Veteran was a high-energy person who channeled his stress into his work-as he sometimes worked 24+ hours straight. The examiner described the Veteran as an anxious person who had a hard time being still. The examiner diagnosed PTSD and assessed Axis V GAF 48. The Veteran declined medication. Although the January 2007 entry notes that the Veteran was entered into a weekly PTSD discussion group, the subsequent synopses of the group meetings do not indicate the Veteran participated. A later examination report indicates he did not follow up. The January 2007 GAF is in the same range as that assessed at the July 2010 Compensation and Pension examination. Further, the Veteran was functioning essentially as in 2010. Thus, the Board finds the current assessment of the Veteran's impairment at 30 percent is not in any way inconsistent with the history of his disability. See id. In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran's claim for a higher rating, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). ORDER Entitlement to an initial rating higher than 30 percent for PTSD is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs