Citation Nr: 1332932 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 10-36 189A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to an evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1965 to September 1967 and from April 1972 to March 1975. He is a recipient of the Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which in pertinent part, continued the 50 percent rating for PTSD from March 31, 2004. By way of history, an April 2005 RO rating decision initially granted service connection for PTSD with a 30 percent evaluation effective March 31, 2004. The Veteran subsequently submitted a Notice of Disagreement to that rating decision, and by way of an August 2006 Decision Review Officer Decision, his PTSD evaluation was raised to 50 percent effective March 31, 2004. In April 2009, the Veteran filed a claim for increase, contending that his PTSD has gotten worse. The Veteran testified before the undersigned at a Travel Board hearing in March 2013. The transcript is of record. A review of the Virtual VA paperless claims processing system reveals documents that are pertinent to the present appeal. The Veterans Benefits Management System (VBMS) does not reveal any pertinent documents pertaining to this appeal. FINDING OF FACT PTSD is productive of occupational and social impairment that more nearly approximated a disability picture manifested by deficiencies in most areas such as near continuous panic or depression affecting the ability to function independently, appropriately, and effectively, impaired impulse control, difficulty in adapting to stressful circumstances in a work-like setting, and inability to establish and maintain effective relationships. Total social and occupation inadaptability is not demonstrated. CONCLUSION OF LAW The criteria for a rating of 70 percent for PTSD have been met. 38 U.S.C.A. §§ 1110, 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013)) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a) (2013). Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a) ; 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In an April 2009 letter, the RO notified the Veteran of the evidence needed to substantiate the claim for entitlement to an increased evaluation for service-connected PTSD. This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). For claims pending before VA on or after May 30, 2008, 38 C.F.R. 3.159 was amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). In any event, the April 2009 letter complied with this requirement. The Veteran has substantiated his status as a veteran. The Veteran was notified of all other elements of the Dingess notice, including the disability rating and effective date elements of his claim, in the April 2009 letter. In addition, the RO also provided additional information regarding disability ratings and the criteria applicable to the Veteran's increased rating claim in compliance with a decision of the Court that was subsequently vacated by the Federal Circuit. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A ; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, all pertinent VA treatment records have been obtained. Furthermore, the Veteran was afforded a VA examination in July 2009 in which the examiner considered the Veteran's history, considered lay evidence, and conducted appropriate testing. The examination is found to be adequate. At the Travel Board hearing, the undersigned outlined the issue on appeal, carefully considered the Veteran's arguments, identified potential evidentiary defects, and held the record open for a 30 day period for submission of additional evidence. See 38 C.F.R. § 3.103(c)(2). Given the foregoing, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. Law & Analysis 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. 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 evaluation will be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). "Staged" ratings may are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App 119 (1999). As discussed below, the disability has not significantly changed and a uniform evaluation is warranted. The Veteran's PTSD is rated under 38 C.F.R. § 4.130, DC 9411. All psychiatric disabilities are evaluated under a general rating formula for mental disorders. Under the general rating formula, a 50 percent rating is warranted 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. A 70 percent rating is warranted when the psychiatric disorder results in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, 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 an 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. A total schedular rating of 100 percent is assigned when the condition results in 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 mental and personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The Global Assessment of Functioning (GAF) scale reflects psychological, social, and occupational functioning of 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). On this record, the Veteran demonstrates a GAF score of 55. GAF scores between 51 and 60 reflect moderate symptoms, (that is, flat affect, circumstantial speech, occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (e.g., few friends, contacts with peers or co- workers). An examiner's classification of the level of psychiatric impairment, by words or by a score, is to be considered, but is not determinative of the percentage rating to be assigned. VAOPGCPREC 10-95. The Board must assess the credibility and weigh all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013), the Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Thus, "[a]lthough the veteran's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran's level of impairment in "most areas." Id. at 118. As such, the Board will consider both the specific symptomatology as well as the occupational and social impairment associated with the rating code to determine whether an increased evaluation is warranted. In his April 2009 claim for increase, the Veteran contended that his service-connected PTSD is more severe than the current ratings contemplate. Thus, the primary issue on this appeal is whether the overall impairment caused by the Veteran's PTSD more nearly approximate the criteria for a higher evaluation. For the following reasons, the Board finds that the overall impairment caused by the Veteran's PTSD most nearly approximates the 70 percent rating criteria. Relevant Veteran Center notes from 2008 to 2009 reveal that over the course of treatment, the Veteran's moods and symptoms fluctuated. An April 2008 entry indicates an uptick in anxiety, stress, and an increase in nightmares. In May 2008, the Veteran reported that he was doing well but he presented with depressed mood and affect. In June and August 2008, the Veteran showed a decreased in anxiety and depression. However in October 2008, the Veteran appeared stable, but anxious, fidgety, with more pressured thoughts and speech than usual. In July 2009, the Veteran was afforded a VA examination, during which he focused on the impact of his PTSD on his job. The Veteran stated that he found himself losing his temper at work when dealing with customers or coworkers. He reported having been transferred several months ago from a sales role to a training role within the company because he found sales "confrontational" and found himself angry over minor matters when dealing with customers. As a result of this transfer, he is earning less money. He reported having a good relationship with his supervisor who adjusted the Veteran's role to suit his temperament. The Veteran did not think that he could return to working full-time due to his anger issues. Upon mental status examination, the examiner noted that the Veteran's appearance, communication skills, and cognitive functioning were intact. He was alert and oriented, and denied suicidal and homicidal ideation, intentional, and plan. His manner was hypervigilant and scanned the room when not looking at the examiner. He demonstrated avoidance in talking about combat experiences, even with his wife, the only person with whom he is close. He was noted to complete activities of daily living independently. He stated that he was emotionally close to his wife, but denied feeling close to others. He reported being hypervigilant in public. The examiner noted that the Veteran continued to complain of moderate symptoms of PTSD, such as being wakeful at night with occasional nightmares. He suffered daytime intrusive recollections daily in which he relived Vietnam contacts. He avoided conversations, people, places, and events which reminded him of Vietnam. At work, he was easily irritated and had to adjust his position to avoid anxiety even though it cost him financially. He described having an exaggerated startled response and hypervigilance. He was assigned a GAF score of 55. An April 2010 VA psychiatric outpatient treatment note indicated complaints of worsening of PTSD symptomatology, particularly as related to increased stress related to work and finances. The examining physician indicated that based on the Veteran's responses, symptomatology with respect to hyperarousal and re-experiencing of events, feelings of numbness and avoidance, was shown in the severe range. The Veteran reported symptoms that resulted in a change in jobs and it was noted that he could have lost his job due to his anger and avoidance if not for a sympathetic supervisor. The physician indicated an uptick in panic attacks which were brought on by severe anxiety and shortness of breath which lasted a few minutes to an hour at a time and often presenting in waves. Upon mental status examination, the physician noted that the Veteran's mood and affect was anxious, moderately depressed, and mildly irritable. Psychomotor activity was fairly agitated. Speech was pressured but derailable. He exhibited circumstantial thought process and presented an overly large amount of detail. The Veteran denied suicidal and homicidal ideals and psychotic behavior. However, he indicated that he has had recent thoughts that he would be better off dead. Concentration, attention, insight, and judgment were moderately to severely impaired. A GAF score of 55 was assigned. VA treatment records from 2010 and 2011 show regular psychiatric treatment and notes medication management and improvement in his PTSD symptomatology. Yet, a GAF score of 55 was consistently assigned. The Veteran's former supervisor, D.H., submitted a statement in September 2010 in support of the Veteran's claim attesting to the impact of the Veteran's PTSD symptomatology on the Veteran's job. D.H. indicated that the Veteran's experiences in Vietnam are re-experienced on and off at work as he has broken down a number of times. He has also left work on a number of occasions and lost some of his managerial duties as a result of these breakdowns. Due to outbursts and meltdowns recalling combat experience, the Veteran had to resign some managerial duties a couple of years ago because those duties were making him ill. He was also unable to deal with confrontation which was inherently involved in his position. He demonstrated having technical issues as well having trouble trusting technology. Additionally, D.H. described incidents of the Veteran losing his temper at work which caused the Veteran to lose his managerial position. In November 2011, the Veteran's wife submitted statements confirming the stress that the Veteran experienced with managing his PTSD symptoms at work. She also indicated that she has had difficulty communicating with him as he oftentimes resorts to avoidance of topics or confrontation. She expressed concern about how he would be able to maintain his current part-time job with his depression and mood swings. The Veteran testified at a Board hearing in March 2013 and indicated that he was currently working a part-time job three times per week, which meant a cut in salary. He provided additional details regarding the difficulty of maintaining his previous jobs due to his anger and irritability. D.H. submitted another statement in April 2013, which further detailed the Veteran's challenges that he faced dealing with customers and staff members as a result of his PTSD. He indicated that the Veteran was forced to take a part-time position because he could no longer deal with others. This was in part due to his continued fear and stress of losing his full-time position, which he ultimately lost. He stated that in 2002, the Veteran was a great employee but his ability to cope with others has deteriorated which led to his current position (and may ultimately lead to unemployment one day). The Board has considered all of the lay and medical evidence of record in considering an increased evaluation in excess of 50 percent for the Veteran's PTSD, and we conclude that the evidence warrants an increased evaluation of 70 percent. The Board did not focus solely on the presence or absence of specific symptoms listed in the DC, but instead examined how the Veteran's symptoms affected his occupational and social functioning, comparing his documented symptoms against the examples provided in the DC to ascertain the level of impairment. See Vazquez-Claudio, 713 F.3d at 118. The records show psychological assessments of the Veteran's PTSD symptomatology which has been described as both moderate and severe over the course of psychiatric treatment (re-experiencing events in combat, intrusive thoughts, hyperarousal, and avoidance). Furthermore, as shown in April 2010, the Veteran was reported to have severe anxiety which had manifested into frequent panic attacks, and shortness of breath lasting a few minutes to an hour in duration and coming on in waves. The Veteran's concentration, attention, insight, and judgment were described as moderately to severely impaired. Although the record reflects that medicine was used to control such symptomatology, the Veteran has indicated on this record that the effects of the medicine were numbing and thus, dosage had to be reduced or restricted. Throughout the record, the Veteran has consistently been shown to have anger issues and depression which has resulted in further occupational and social impairment. The Veteran's supervisor, D.H.'s statements have explicitly demonstrated the impact that the Veteran's intrusive thoughts, hyperarousal, avoidance, anxiety, depression, and anger/irritability has had on his occupation. As a result of his PTSD, the Veteran was not able to function in his job independently, appropriately, and effectively. His outbursts of anger demonstrated impaired impulse control as the Veteran's response to mild situations at work was exhibited by outbursts of anger and sometimes violence (towards objects). The Veteran's previous job involved confrontation in a managerial role and as he could not deal with people, this made the Veteran very stressed and ineffective at carrying out his duties. As a result of his inability to adapt to stressful situations and work effectively with others, the Veteran was essentially demoted to a part-time position with changed duties to accommodate his temperament. With respect to social impairment, the record reflects that other than his wife, the Veteran is essentially a loner as he does not enjoy interacting with others and avoids social situations. Also, as related to occupational impairment, the Veteran was unable to perform his previous job as the managerial position involved confrontation and interaction with others. The Board finds that the majority of the Veteran's symptoms were similar to those listed in the criteria for a 70 percent evaluation and this overall impairment most nearly approximated occupational and social impairment resulting in near continuous panic or depression affecting the ability to function appropriately and effectively, impaired impulse control, difficulty in adapting to stressful circumstances in a work-like setting, and inability to establish and maintain effective relationships. See Vaszquez-Claudio, 713 F.3d at 118 (explaining that the "disability rating regulation contemplates initial assessment of the symptoms displayed by the veteran, and if they are the kind enumerated in the regulation, an assessment of whether those symptoms result in" the required level of occupational and social impairment). As such, the Veteran's symptoms are more characteristic of a disability picture that is contemplated by a 70 percent rating and no more. The Veteran on this record denied having delusions and hallucinations. He was not a danger to himself or others, and there is no evidence that he had an inability to perform any activities of daily living. He has not shown that he was ever disorientated to time or place or had memory loss so severe as to not recall names of relatives, his own occupation, or his own name. In short, the Veteran does not manifest either the symptomatology or the impairment required for a 100 percent rating for the service-connected PTSD at any time during the period of the appeal. As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. 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. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. The discussion above reflects that the symptoms of the Veteran's PTSD are fully contemplated by the applicable rating criteria. As shown above, the criteria include multiple psychiatric symptoms and encompassed the Veteran's psychiatric symptoms as shown in the VA examinations and treatment records. There is neither evidence nor allegation of symptoms of and/or impairment due to the Veteran's PTSD that is not encompassed by the schedular rating assigned. Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is thus not required and referral for consideration of an extraschedular rating for PTSD is not warranted. 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111 (2008). Accordingly, the Board concludes that the severity of the Veteran's symptoms warrants an increased evaluation to 70 percent. ORDER An increased evaluation of 70 percent is granted for the period of the appeal, subject to the regulations governing the payment of VA monetary benefits. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs