Citation Nr: 1332614 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 12-20 736A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Ralph J. Bratch, Attorney ATTORNEY FOR THE BOARD B. J. Dempsey, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1968 to May 1970. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which granted service connection for PTSD and assigned a 30 percent evaluation effective June 15, 2009. The Veteran was scheduled for a personal hearing with a Decision Review Officer (DRO) in July 2012. However, after being notified of the scheduled hearing, the Veteran failed to report and did not request a postponement. As such, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2013). In January 2013, the Veteran filed a motion for an extension of time in order to obtain and submit additional evidence. The Board notes that additional argument from the Veteran's attorney was received in April 2013 and has been considered as part of the following decision. FINDINGS OF FACT 1. The Veteran's PTSD has been characterized by chronic sleep impairment, nightmares, hypervigilence, social avoidance, irritability, obsessive behavior, and occasional flashbacks. 2. The Veteran's PTSD has not been characterized by occupational and social impairment with deficiencies in most areas, 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; and/or inability to establish and maintain effective relationships CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for a higher initial evaluation of 50 percent, but no higher, for PTSD have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1 - 4.7, 4.130, Diagnostic Code (DC) 9411 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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, 3.326(a) (2013). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. § § 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. § § 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). VA has met its duty to notify and assist the Veteran in this case. In a June 2009 letter, VA informed the Veteran of the evidence necessary to substantiate his claim for an increased rating, evidence VA would reasonably seek to obtain, and information and evidence for which the Veteran was responsible. The June 2009 letter also provided the Veteran with notice of the type of evidence necessary to establish a disability rating and effective date. See Dingess, 19 Vet. App. 473. Service treatment records, VA treatment records, various lay statements, and a VA examination record have been associated with the claims file. The Veteran was afforded a VA examination in May 2010. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination obtained in this case is adequate as it is predicated on a review of the claims folder and medical records contained therein; contains a description of the history of the disability at issue; documents and considers the Veteran's complaints and symptoms; fully addresses the relevant rating criteria; and contains a discussion of the effects of service-connected PTSD on the Veteran's occupational and daily activities. Accordingly, the Board finds that the VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. See 38 C.F.R. § 3.159(c)(4). The Board notes that the May 2010 VA examination includes a note that the Veteran is currently receiving Social Security (SSA) retirement benefits. Where there has been a determination with regard to SSA benefits, the records concerning that decision must be obtained, if relevant. Tetro v. Gober, 14 Vet. App. 100, 10809 (2000); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992). Although SSA records have not been associated with the claims file, the Board finds that any such records, which pertain to retirement and not disability, could not be relevant to the issue of a higher initial evaluation for service-connected PTSD. See Golz v. Shinseki, 590 F.3d 1317, 1321 (2010) (holding there is no duty to get SSA records when there is no evidence they are relevant). VA has provided the Veteran with every opportunity to submit evidence and arguments in support of his claim, and to respond to VA notices. In January 2013, the Veteran filed a motion for an extension of time in order to obtain and submit additional evidence. The motion was granted, and evidence received in April 2013 has been made a part of the record. The Veteran and his representative have not made the Board aware of any additional evidence that needs to be obtained prior to appellate review. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal, and no further development is required to comply with the duty to assist in developing the facts pertinent to the appeal. In view of the foregoing, the Board will proceed with appellate review. B. Law and Analysis Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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 rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App 119 (1999). The United States Court of Appeals for Veterans Claims (Court or CAVC) has also held that 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has considered whether staged ratings are for consideration; however, the evidence of record does not establish distinct time periods where the Veteran's PTSD results in symptoms that would warrant different ratings. The Veteran is in receipt of a 30 percent disability rating for service-connected PTSD under DC 9411. He contends that his PTSD has caused symptomatology that more closely approximates a 70 percent disability rating. Under DC 9411, a 30 percent rating is assigned 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 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, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, DC 9411. A 50 percent disability rating for PTSD 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 (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 disability rating is assigned for 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 that is 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); and inability to establish and maintain effective relationships. Id. A 100 percent disability rating is assigned 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, or for the veteran's own occupation or name. Id. In applying the above criteria, the Board notes that when it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability. See 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181 (1998). In determining the level of impairment under 38 C.F.R. § 4.130, a rating specialist is not restricted to the symptoms provided under the diagnostic code, and should consider all symptoms which affect occupational and social impairment, including those identified in the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed. 1994) (hereinafter DSM- IV). See Mauerhan v. Principi, 16 Vet. App. 436 (2002). If the evidence demonstrates that a claimant suffers symptoms or effects that cause an occupational or social impairment equivalent to those listed in that diagnostic code, the appropriate, equivalent rating is assigned. Id. Within the DSM-IV, Global Assessment Functioning (GAF) scale scores ranging from 1 to 100, reflect "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996). GAF scores from 71 to 80 reflect transient symptoms, if present, and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family arguments); resulting in no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind school work). DSM-IV at 46-47. GAF scores from 61 to 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, with some meaningful interpersonal relationships. Id. GAF 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). Id. Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsession rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, inability to keep a job). Id. GAF scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech which is at times illogical, obscure, or irrelevant) or major impairment in several areas such as work or school, family relations, judgment, thinking, or mood (e.g., a depressed patient who avoids friends, neglects family, and is unable to do work). Id. In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). After a review of all the evidence, lay and medical, the Board finds that the Veteran's service-connected PTSD has been characterized by chronic sleep impairment, nightmares, hypervigilence, social avoidance, irritability, obsessive behavior, and occasional flashbacks. Such symptoms more nearly approximate the criteria for a higher 50 percent rating under DC 9411. See 38 C.F.R. § 4.130. Treatment records dated from October 2008 to June 2009 from D.P., a private psychiatrist, reflect the Veteran's symptoms over the course of several months. An initial evaluation from October 2008 indicates that the Veteran was being medicated for sleeping difficulty and that associated fatigue was causing impairment in judgment and abstract thinking. Psychosocial history notes describe good relationships with family but indicate that the Veteran was simply "getting by" at work. In November 2008, D.P. observed "normal" appearance and alertness and orientation to people, places, and time. The Veteran's mood was described as "fair" and he displayed "normal" thought content. His recall at 5 minutes was "normal" and thought processes include insight, judgment, and abstract reasoning. His affect was deemed "appropriate." In June 2009, the Veteran displayed "normal" appearance and described a "busy summer" with his grandchildren. In December 2008, the Veteran was seen for sleep impairment by R.P., a private physician specializing in sleep disorders. R.P.'s report notes that while the Veteran quit drinking 20 years earlier, he drank previously to help with "insomnia." The Veteran reported difficulty maintaining sleep and occasional difficulty initiating sleep. No diagnosis was provided, although the doctor ruled out obstructive sleep apnea. In a PTSD questionnaire submitted in June 2009, the Veteran described marital and drinking problems. He stated that he has sought medication and isolation to treat his problems. During a May 2010 VA psychiatric examination, the Veteran reported present intrusive thoughts, flashbacks to Vietnam, sleep disturbance, and symptoms of hyperarousal and hypervigilence. He also related problems getting along with people and a dislike of crowds. The Veteran indicated occasional anxiety, but no suicidal or homicidal thoughts. His dress and hygiene were described as "casual but adequate." The examiner noted that the Veteran paid his bills and was self-responsible. On a mental status examination, the Veteran was alert and oriented. He did not show signs of mania or pressured speech. No acute panic attacks or history of suicide attempts were reported. The examiner provided a GAF score of 65. The report also notes that the Veteran had retired. In a December 2010 affidavit, G.B., the Veteran's wife, testified that the Veteran "does not like to socialize" and "prefers to be alone." She described him as someone who tends to stay isolated and often refrains from activities like going to church and restaurants, which were more prevalent before he went to Vietnam. She characterized the Veteran as "always aware and alert about his surroundings" and related how he has installed motion detectors and security lights outside the house, and more than one lock on every door entrance. She also stated that the Veteran suffers from nightmares an average of once or twice a week and anxiety attacks at least once a week. She described irritability that included anger control issues, throwing objects, and verbal abuse. She noted that the Veteran has trouble falling asleep, concentrating and staying focused. She also described occasional disorientation and personal hygiene that "lacks in some ways." In a December 2010 affidavit, the Veteran described himself as a "loner" with "no hobbies" who is suspicious of everyone besides his wife, two sisters, and an old schoolmate. He avoided crowds and stayed home to be alone, with participation in an "Old Timers Club" as his only regular activity outside of the house. He conveyed difficulty initiating and maintaining sleep, staying focused, and maintaining concentration. He stated that he is "always on high alert" and described related activities around the house: constantly looking out the windows to check his "perimeter;" installing motion detectors, security lights, and landscaping lights to illuminate his property; and performing a "fire watch" when he wakes up every 2 hours, which includes checking all the doors and windows to make sure they are locked. During rare visits to restaurants, the Veteran only sits in places where he can monitor the front door and ensure that no one is ever behind him. He refuses to go to Chinese restaurants because it invokes memories of Vietnam. Similarly, he will not attend firework displays because of their similarity to noises and images from Vietnam. He stated that he is "always irritable, on edge" and has a "short fuse." He shared that while he was not suicidal at the moment of writing the affidavit, he has had suicidal thoughts over the years and wondered how he could carry through with the act. On review of the evidence, the Board observes that the GAF score of 65 is more indicative of the social impairment contemplated by a 30 percent rating. See 38 C.F.R. § 4.130. The Board acknowledges this score but notes that a GAF score is not dispositive and must be considered in light of the actual symptoms of the Veteran's disorder. See 38 C.F.R. § 4.126(a). Indeed, the evidence demonstrates that the Veteran suffers from symptoms that are more closely related to the variety of social impairments listed and contemplated by the 50 percent rating criteria. Specifically, the Board finds that the Veteran's PTSD results in social impairment with reduced reliability due to symptoms which include chronic sleep impairment, nightmares, hypervigilence, social avoidance, irritability, obsessive behavior, and occasional flashbacks. The Board takes particular note of how these symptoms have contributed to disturbances of motivation and mood and difficulty establishing and maintaining effective social relationships. As these particular kinds of impairment are addressed by the 50 percent disability rating, such a rating may be appropriately designated. See Mauerhan, 16 Vet. App. 436. Resolving reasonable doubt in favor of the Veteran, the Board finds that the severity of the Veteran's social impairment due to his service-connected PTSD more nearly approximates the criteria for a higher 50 percent disability rating. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. The Board also finds that the Veteran's PTSD has not been characterized by occupational and social impairment 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; and/or inability to establish and maintain effective relationships. While the lay and medical evidence demonstrates social impairment, however, the weight of the lay and medical evidence does not demonstrate an inability to establish and maintain effective relationships which would warrant a 70 percent rating. While the Veteran has indicated that he prefers to be alone and avoid crowds, he occasionally attends social meetings and goes out to restaurants. Although he reports difficulty getting along with people, he maintains positive relationships with his wife, sisters, grandchildren and an old friend. During the May 2010 VA psychiatric evaluation, the examiner found him to be self-responsible, in a stable marriage, and successfully retired. In reaching the above conclusions, the Board has not overlooked the Veteran's or his wife's statements with regard to the severity of his PTSD. In this regard, both are competent to report on factual matters of which each had firsthand knowledge and the Board finds that both the Veteran and his wife have been credible. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Veteran has provided lay evidence with respect to his current symptomatology in lay statements, during his VA examination, and during the course of his medical treatment. He is competent to provide such testimony, and the Board finds that the Veteran's statements are credible. His wife is similarly competent and credible to relate her observations of the Veteran's behavior. The Board has considered this evidence in evaluating the Veteran's assigned ratings. The Veteran's reported symptomatology has already been discussed above. The Board notes, however, that the objective medical findings and opinions provided by the Veteran's treatment reports and his VA examination report, where relevant, have been accorded probative weight in this case. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) ("[t]he probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . the credibility and weight to be attached to these opinions [are] within the province of the adjudicator."). Based on all of the evidence of record discussed above, the Board continues to find that the Veteran's PTSD symptomatology and the severity of such symptomatology more closely approximates the criteria for a 50 percent evaluation. Thus, the Board concludes that that weight of the lay and medical evidence demonstrates that a 70 percent disability rating is not warranted. See 38 C.F.R. § 4.130, DC 9411. D. Additional Considerations The Board has considered whether referral for an extraschedular evaluation is warranted. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. See 38 C.F.R. 3.321(b)(1). Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's PTSD is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria, DC 9411, specifically provide for disability ratings based on a combination of clinical psychiatric symptoms and findings. In this case, the Veteran's PTSD is manifested by symptoms of chronic sleep impairment, nightmares, hypervigilence, social avoidance, irritability, obsessive behavior, and occasional flashbacks. These symptoms are part of or similar to symptoms listed under the schedular rating criteria. The schedular rating criteria specifically include occupational and social impairment with reduced reliability and productivity due to PTSD signs and symptoms. The schedular rating criteria also encompass symptoms that are "like or similar to" those explicitly listed. Mauerhan, 16 Vet. App at 442; see also 38 C.F.R. § 4.21. Additionally, the Board has considered a probative GAF score, which is incorporated through the DSM-IV as part of the schedular rating criteria, as reflective of the degree of severity of psychiatric symptoms or overall functional impairment caused by PTSD. For these reasons, the Board finds that the schedular rating criteria are adequate to rate PTSD and referral for consideration of an extraschedular evaluation is not warranted. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "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. § 4.1. In this case, the symptoms reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life. In the absence of exceptional factors associated with PTSD, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board has considered whether the evidence of record reasonably raises the question of whether the Veteran is unemployable due his service-connected PTSD. In Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), the United States Court of Appeals for Veterans Claims held that a request for a total rating based on individual unemployability (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. However, in the instant case the Veteran does not contend that he is unemployable due to PTSD, and the evidence of record shows that he is currently retired. Under these circumstances, the Board finds that a TDIU claim has not been raised by the record. ORDER Entitlement to a higher initial evaluation of 50 percent, but no higher, for PTSD is granted. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs