Citation Nr: 1333189 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 10-09 210 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a disability rating higher than 50 percent for posttraumatic stress disorder (PTSD) with panic disorder and major depression. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Sonia, Associate Counsel INTRODUCTION The Veteran served on active duty from September 19, 1974 to September 15, 1975 and January 2004 to October 2005. He received the National Defense Service Medical and the Global War on Terrorism Expeditionary Medal, among other decorations associated with his service. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri in which the RO included PTSD as a component of the service-connected psychiatric disorder, and increased the rating for PTSD with panic disorder and major depression to 50 percent effective May 8, 2009. The Board has not only viewed the Veteran's physical claims file, but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT The Veteran's PTSD with panic disorder and major depression results in sleep impairment, nightmares, memory problems, depression, irritability, intermittent panic attacks, hyper-vigilance, feelings of guilt, and avoidance of crowds. It is not shown to result in more than occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for a rating in excess of 50 percent for service-connected PTSD with panic disorder and major depression have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.126, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist 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, 2107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). As discussed below, VA has fulfilled its duties under the VCAA. When VA receives a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (b). Proper notice from 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159 (b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In the present appeal, the VCAA duty to notify was satisfied by a May 2009 letter that informed the Veteran of what evidence was required to substantiate the claim, and of his and VA's respective duties for obtaining evidence. In addition, the letter included the type of evidence necessary to establish a disability rating and effective date. The letter also indicated that the cause of a disability is presumed for veterans who have certain diseases and served in Southwest Asia during the Gulf War, which was necessary because the Veteran asserted service in Iraq. Regarding the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The duty to assist also includes providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). In connection with the current appeal, the evidence of record includes the Veteran's service treatment records, statements in support of the claim by the Veteran and his representative, VA treatment records, private medical records, and several VA examinations, including PTSD examinations in August 2009 and February 2012. The examinations were adequate because the examiners reviewed the Veteran's relevant medical history, recorded pertinent examination findings, and provided sufficient analyses to support the conclusions rendered. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). The Board notes the Veteran's contention in his March 2010 substantive appeal that the "report," presumably the August 2009 PTSD examination report, did not address his feelings of guilt related to his heart attack and did not address all the traumatic events he experienced during service. He also indicated that the examination was too short. However, a review of the examination report shows that the examiner discussed the Veteran's heart attack in the context of a psychosocial functional status and quality of life summary at the end of the report. Moreover, the examination report identifies, based on the statements of the Veteran himself, four traumatic events as well as ten mortar attacks and other experiences related to the use of IEDs. The report thoroughly discussed the traumatic events described by the Veteran in addition to the severity of his symptoms. Therefore, the examination report addresses the contentions raised by the Veteran in his substantive appeal. The Board also notes that the Veteran submitted a copy of June 2009 correspondence from the Social Security Administration (SSA) indicating he is eligible for Medicare hospital and medical insurance beginning in July 2009. However, in the August 2009 VA examination, the Veteran indicated that that his unemployment was not due to the effects of the claimed mental disorder. Moreover, in the February 2012 VA examination, the Veteran indicated he received social security for his back disability and numbness in two fingers. The Veteran stated, "I can't stand or sit for very long. I get real moody." Therefore, the Veteran has indicated he is in receipt of social security disability benefits due to his physical disabilities and not due to any psychiatric disability. As a result, no request to obtain records from SSA has been made, and none is necessary. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In conclusion, the Veteran has not identified, and the record does not otherwise indicate, any existing, pertinent evidence that has not been obtained. The record also presents no basis for further development to create any additional evidence to be considered in connection with the matters currently under consideration. Hence, no further notice or assistance to the Veteran is required for fair adjudication of the Veteran's claim. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). When entitlement to compensation has been established and a higher initial evaluation is at issue, the level of disability at the time entitlement arose is of primary concern. Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Consideration must also be given to a longitudinal picture of the Veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Moreover, if the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In the present appeal, the Veteran seeks an increased rating for PTSD, with panic disorder and major depression. Pursuant to the rating criteria, PTSD is evaluated under a general rating formula for mental disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (2013). A 50 percent disability evaluation is assigned where the evidence demonstrates 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 in short-term and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability evaluation is warranted 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 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 work like setting); inability to establish and maintain effective relationships. Id. A 100 percent disability evaluation is assigned where the evidence shows 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; 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. Id. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. The rating agency shall also consider the extent of social impairment, but not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Moreover, the list of symptoms under the rating criteria is meant to be examples of the symptoms that would warrant the evaluation, but they are not meant to be exhaustive. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). In assessing the evidence of record, it is also important to note that the Global Assessment of Functioning (GAF) Scale reflects 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 DSM-IV). A score of 41 to 50 is defined as 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). See Carpenter v. Brown, 8 Vet. App. 240, 242-44 (1995). A score of 51 to 60 indicates 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. A score of 61 to 70 is defined as some mild symptomatology (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. In June 2008 psychology notes from Farmington CBOC, the Veteran's reported symptoms included nightmares, flashbacks, irritability, hyper-vigilance, hyper-startle response, and avoidance behavior. He reported increased arguments with his wife. In addition, the Veteran exhibited a depressed mood, and disheveled appearance. The Veteran denied hallucinations, and judgment and insight were good. Moreover, he denied suicidal and homicidal ideation, but he identified passive suicidal ideation in the past. He was assigned a GAF score of 50. A month later, in August 2008, the Veteran received follow-up treatment for the same symptoms he identified in June. The treatment record notes the Veteran's denial of suicidal and homicidal ideation and that his judgment and insight were good. In February 2009, the Veteran reported ongoing PTSD symptoms and again denied homicidal or suicidal ideation as well as hallucinations. His judgment and insight were adequate and his speech was logical and coherent. In addition, the Veteran's memory (immediate, recent and remote) was within normal limits and his general appearance was unremarkable. He was assigned a GAF score of 50. An August 2009 PTSD examination report identified the Veteran's symptoms as nightmares, cold sweats, panic attacks two to three times per week, depression, avoidance of crowds, and paranoia. Specifically, the Veteran indicated he becomes panicked when seeing trash bags on the highway because he thinks they have IEDs in them. The Veteran denied homicidal ideation but noted past passive suicidal thoughts. The medical examiner did not identify impairment of thought process, impairment of communication, delusions, hallucinations, inappropriate behavior, or obsessive or ritualistic behavior that interfered with the Veteran's routine activities. However, the medical examiner did note moderate to severe memory loss; impaired impulse control; irrelevant, illogical, or obscure speech patterns; anxiety; and moderate to severe depressed mood. Regarding his social interactions, the Veteran indicated that he had a close relationship with his sister, positive relationships with people in his small community, and lots of friends. The Veteran reported "doing OK" with his children until there was an incident with his daughter during her teenage years. However, the Veteran indicated he did not go out much; his leisure time involved raising horses on his farm. He also stated that he stayed in his basement on the Fourth of July. Based on the foregoing, the examiner diagnosed PTSD, panic disorder without agoraphobia, intermittent explosive disorder, and major depression. The examiner noted that the panic disorder without agoraphobia was secondary to the PTSD and the major depression and intermittent explosive disorder was "more directly related to the medical health issues following return from Iraq." The medical examiner assigned a GAF score of 55 for PTSD alone and 45 for PTSD, major depression, intermittent explosive disorder, and panic disorder without agoraphobia. The medical examiner further concluded that, with regard to his PTSD symptoms, the Veteran exhibited reduced reliability and productivity. In September 2009, the Veteran sought treatment at Poplar Bluff VAMC. He maintained eye contact during the psychiatric evaluation, occasionally looking down at the floor. His speech was clear, coherent, and relevant. His mood was flat and his affect a little constricted. The Veteran denied homicidal or suicidal thoughts or plans as well as visual or auditory hallucinations. The Veteran reported ongoing intrusive nightmares and flashbacks. The medical examiner noted that the Veteran's insight and judgment were fair with fair impulse control. A GAF score of 50 was assigned. December 2009 treatment records from Poplar Bluff VAMC include the Veteran's report of improved symptoms, including being able to sleep better. The Veteran's mood was neutral and his affect appropriate. The Veteran denied homicidal or suicidal thoughts as well as visual or auditory hallucinations. His insight and judgment were fair with fair impulse control, and a GAF score of 55 was assigned. VA treatment records from January 2010 identify the Veteran's continued reports of nightmares, sleep disturbance, intrusive thoughts, hyper-vigilance, hyper-startle, detachment from self and world, avoidance of relationships, and anger issues. The Veteran denied homicidal or suicidal ideation and his speech was logical and coherent. Insight and judgment were fair; grooming and eye contact were good. In February 2012, the Veteran was afforded a PTSD VA examination. The Veteran's symptoms included depressed mood, anxiety, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood. The Veteran also reported feelings of detachment, increased arousal, irritability, angry outbursts, and an exaggerated startle response. The Veteran stated he was depressed every day for about an hour, had decreased interest in activities, experienced feelings of guilt, and had thoughts of death/suicidal ideation. However, the Veteran indicated that he had adequate support, to include his psychiatrist, therapy group, wife, and daughters. The Veteran noted that his relationship with his wife was improving since 2010 when she talked with his psychiatrist. He also described positive relationships with both of his daughters as well as his sister. As discussed above, the treatment records, examination reports, and the Veteran's statements tend to show that PTSD with panic disorder and major depression produced occupational and social impairment with reduced reliability and productivity. Throughout the appeal period, the Veteran has described symptoms of sleep impairment, nightmares, memory problems, depression, irritability, intermittent panic attacks, hyper-vigilance, feelings of guilt, and avoidance of crowds. However, the Veteran has also denied hallucinations and homicidal ideation. Although the Veteran identified suicidal ideation in June 2008, August 2009, and February 2012, the associated records indicate that such thoughts were passive. Most recently, in the February 2012 examination, the Veteran specifically denied any attempt to take his own life. Moreover, the Veteran has regularly been assigned GAF scores in the low 50s, which suggests moderate symptoms, such as flat affect and occasional panic attacks, both of which are contemplated in the Veteran's 50 percent rating. Regarding the Veteran's social and occupational impairment, the Veteran is currently unemployed and has identified some limitations in his social functioning. The Veteran has reported avoidance behavior throughout his treatment for PTSD and depression. In a May 2006 VA examination for mental disorders, the Veteran indicated that he had a few friends and that the would spend his leisure time checking on his farm, completing housework, and occasionally going out to eat with his wife. Subsequently, in the August 2009, the Veteran indicated he had lots of friends, but that he rarely left his farm. In the February 2012 examination, the Veteran affirmed that he maintained positive relationships with his wife, daughters, and sister. He indicated he leaves his home twice a week for group therapy sessions but that he does not drive often due to fatigue. The examiner specifically noted that the Veteran's depression was partially related to his "limited abilities and subsequent medical conditions." The Board recognizes that in the August 2008 VA examination, the Veteran identified some symptoms listed in the 70 percent rating criteria. These included impaired impulse control and constant irrelevant, illogical, or obscure speech patterns. At that time, the Veteran was also assigned a GAF score of 45 for his PTSD and depression symptoms and a 55 for his PTSD symptoms. However, as previously discussed, 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. The Board need not find all or even some of the symptoms to award a specific evaluation. See Mauerhan, 16 Vet. App. at 436. Therefore, while the VA examination contains some symptoms listed in the 70 percent rating criteria, this does not mean that the Veteran's symptoms necessary warrant such a rating. A review of the examination report also reveals symptoms such as sleep impairment, nightmares, and panic attacks more than once a week, which are associated with the 50 percent rating criteria. Furthermore, the August 2009 examination report did not find impairment of thought process or impairment of communication. In sum, the level of occupational and social impairment is more consistent with the 50 percent rating and does not more nearly approximate the criteria for a 70 percent or higher rating. From August 2009 forward, the Veteran continued to demonstrate occupational and social impairment with reduced reliability and productivity. Treatment records from January 2010 note the Veteran's insight and judgment were fair and his speech was logical and coherent. The February 2012 examination report also assigned a GAF score of 57 and concluded that the Veteran demonstrated occupation and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Such a conclusion actually suggests an improvement in social and occupational functioning. Therefore, taking into consideration the Veteran's GAF scores, and all other evidence of record, the Board finds that the Veteran's symptoms are of such severity to approximate, or more nearly approximate, the criteria for the assigned 50 percent evaluation, and no more, under Diagnostic Code 9411. 38 C.F.R. § 4.3, 4.7, 4.130. The evidence of record does not show that the Veteran's PTSD warranted a rating above 50 percent during the appeal period. Neither the Veteran's accounts nor clinicians' observations have indicated that he has total occupational and social impairment due to his symptomatology or occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood. As the preponderance of the evidence is against the Veteran's claim for a rating in excess of 50 percent for PTSD and depression, the benefit of the doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extraschedular Consideration The Board has considered whether an extraschedular evaluation is warranted for PTSD with panic disorder and major depression. To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director of the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1)(2013). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular scheduler standards. 38 C.F.R. § 3.321(b). Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, the Board or the RO must determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. Here, the Board finds that the symptomatology and impairment caused by the Veteran's PTSD and panic disorder with major depression is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria, Diagnostic Code 9411, specifically provides for disability ratings based on a combination of history and clinical findings. In this case, considering the lay and medical evidence for the entire rating period on appeal, the Veteran's PTSD and panic disorder and major depression manifested disturbances of motivation and mood, chronic sleep impairment, memory loss, panic attacks, and difficulty establishing and maintaining effective work and social relationships. These symptoms are part of the schedular rating criteria. In addition, the levels of occupational and social impairment are explicitly part of the schedular rating criteria, which also include analogous symptoms that are "like or similar to" listed schedular rating criteria. Mauerhan, 16 Vet. App. at 442; see also 38 C.F.R. § 4.21. Therefore, the Veteran's symptoms such as avoidance of crowds, decreased interest in social activities, and irritability are all taken into consideration as the Board contemplates occupational and social impairment. Additionally, the Board has considered GAF scores, which are 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 the service-connected disability. Also, evidence of record does not indicate that the Veteran was ever hospitalized for the service-connected psychiatric disability. For these reasons, the Board finds that the criteria for referral for extraschedular rating have not been met. 38 C.F.R. § 3.321(b)(1). In adjudicating the current appeal for a higher evaluation, the Board has not overlooked the Court's holding in Rice v. Shinseki, 22 Vet. App. 447 (2009) (per curiam) (holding that claims for higher evaluations also include a claim for a total rating based on individual unemployability (TDIU) when the appellant claims he is unable to work due to a service connected disability). However, the Board finds that Rice is inapplicable as the Veteran himself has indicated that his psychiatric disability does not prevent him from working. Moreover, in December 2012, the Veteran's representative submitted a letter to the RO withdrawing the Veteran's claim for a TDIU rating. Therefore, the Board finds that the current decision need not consider whether the Veteran meets the criteria for a TDIU. ORDER A rating in excess of 50 percent for PTSD with panic disorder and major depression is denied. ____________________________________________ M. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs