Citation Nr: 1333479 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 10-45 892 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE 1. Entitlement to an evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD) with dysthymia, panic disorder, and agoraphobia prior to February 7, 2011. 2. Entitlement to an evaluation in excess of 70 percent for PTSD with dysthymia, panic disorder, and agoraphobia for the period beginning February 7, 2011. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs ATTORNEY FOR THE BOARD Avery M. Schonland, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1974 to January 1978. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a November 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In deciding this appeal, the Board has reviewed the Veteran's electronic ("Virtual VA") file, in addition to her physical claims file. Virtual VA is a highly secured electronic repository used to store and review every document involved in the claims process. In this case, there are additional treatment records among the Veteran's paperless records in the Virtual VA, from the Pueblo Community Based Outpatient Clinic (CBOC) covering treatment from February 2010 to November 2011. In January 2012, subsequent to the RO's November 2011 supplemental statement of the case (SSOC), the Veteran submitted a VA Form 8940 in support of her claim for total disability based on individual unemployability (TDIU). The RO granted TDIU in a December 2011 rating decision, and the Veteran has not initiated an appeal on that issue. The RO did not review this new evidence as it may pertain to the issue of increased evaluation for PTSD in a subsequent SSOC prior to certification of this appeal to the Board in March 2013. Generally, the Board must refer new evidence to the RO for their initial review under 38 C.F.R. § 20.1304. However, the January 2012 VA Form 8940 contains employment information from 1997 to 1999, and is duplicative of the January 2011 VA Form 8940. Therefore, the new VA Form 8940 need not be considered by the RO prior to this appellate review. FINDINGS OF FACT 1. Prior to February 7, 2011 the medical evidence or record demonstrates that the Veteran's PTSD has been manifested by occupational and social impairment with reduced reliability and productivity. 2. PTSD has not been manifested by symptomatology more closely approximating total occupational and social impairment. CONCLUSION OF LAW 1. Prior to February 7, 2011 the criteria for a 50 percent evaluation, but no higher, for PTSD have been satisfied. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.400, 4.1-4.14, 4.125-4.130, Diagnostic Code 9411 (2013). 2. Effective February 7, 2011, the criteria for an evaluation in excess of 70 percent for PTSD have not been satisfied for any part of the rating period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.400, 4.1-4.14, 4.125-4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Procedural Duties The Duty to Notify 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. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.156(a), 3.159, 3.326(a). The VCAA provides that VA will notify the claimant of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. Quartuccio v. Principi, 16 Vet. App. 183 (2002). Specific to requests for increased evaluation, the claimant must be notified of the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding disability ratings and effective dates assigned. Vasquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) includes notice that a disability rating and an effective date for the award of benefits will be assigned if the claim is granted. The VA satisfied its duty to notify the Veteran. The record reflects that following the Veteran's July 2009 claim for increased evaluation of posttraumatic stress disorder (PTSD), and prior to the adjudication of that claim in November 2009, the RO mailed the Veteran a letter in July 2009 fully addressing all notice elements. This July 2009 notice satisfies the VA's duty to notify the Veteran. The Duty to Assist The VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The VA satisfied its duty to assist the Veteran in the development of her claim. The RO associated the Veteran's service treatment and personnel records with the file. The RO has also associated the Veteran's Pueblo CBOC treatment records with the file, and updated these VA treatment on several occasions. The Veteran has not identified any private treatment records for the RO to assist her in obtaining. Thus the Board concludes that VA has made every reasonable effort to obtain all records relevant to the Veteran's claim. In October 2009 and February 2011, the VA provided the Veteran with mental health examinations. The examinations and opinions are adequate. An examination is adequate where it is based upon consideration of the Veteran's prior medical history and describes the disability in sufficient detail. Stefl v. Nicholson, 21 Vet. App. 120, 123. The opinion and conclusion of an examination are adequate when the examiner supports the conclusion with an analysis that the Board can consider and weigh against contrary opinions. Id. at 124. Here, each examination report shows that the examiner considered the relevant history of the Veteran's in-service military sexual trauma, provided a sufficiently detailed description of the PTSD diagnosis under the criteria of Diagnostic and Statistical Manual of Mental Disorders, 4th ed., American Psychiatric Association (DSM-IV), and provided an analysis to support her conclusion. Each examination report provided findings that can be applied to the Schedule for Rating Disabilities. The Board finds these examinations are adequate as the examiner considered the Veteran's subjective history and complaints, and performed a thorough mental health examination providing all necessary findings to evaluate the claim. As VA has satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A, or § 38 C.F.R. 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of her claim. Accordingly, the Board will address the merits of the claim. II. Merits of the Claim The Veteran seeks increased evaluation for posttraumatic stress disorder (PTSD). Historically, the RO granted service connection for PTSD in a January 2008 rating decision, assigning an initial 30 percent evaluation. The Veteran did not appeal that initial evaluation or effective date. In the November 2009 rating decision on appeal, the RO continued that 30 percent evaluation pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. The Veteran argues that the current evaluation does not accurately reflect the severity of her disability. Having carefully considered the claim in light of the record and the applicable law, the Board is of the opinion that the evidence is at an approximate balance, and an increased initial evaluation of 50 percent will be allowed prior to February 7, 2011. However, the evidence does not support an evaluation in excess of 70 percent after February 2011. Disability evaluations are determined by evaluating the extent to which a Veteran's service connected disability adversely affects her ability to function under the ordinary conditions of daily life, including employment, by comparing her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. If two disability 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. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. While the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Court has also held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The Veteran's PTSD is evaluated under Diagnostic Code 9411. The General Rating Formula for Mental Disorders provides for a 30 percent disability rating when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is assigned when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped, speech; panic attacks more than once a week; difficulty 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; difficulty in establishing and maintaining effective work and social relationships. Id. A higher 70 percent evaluation will be assigned where there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; 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); and the inability to establish and maintain effective relationships. Id. A total evaluation will be 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; memory loss for names of close relatives, own occupation, or own name. Id. In evaluating psychiatric disabilities, VA has adopted the DSM-IV. That manual includes a Global Assessment of Functioning (GAF) scale which takes into consideration psychological, social, and occupational functioning on a hypothetical continuum of mental illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DSM-IV). A score of 41-50 indicates serious symptoms (e.g. suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g. no friends, unable to keep a job). A score of 51-60 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 peer or coworkers). See DSM-IV. As the U.S. Court of Appeals for the Federal Circuit recently explained, evaluation under § 4.130 is symptom-driven, meaning that symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed.Cir.2013). The symptoms listed in DC 9411 are not exhaustive, but rather serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a particular disability evaluation is warranted, the DC requires not only the presence of certain symptoms, but also that those symptoms have caused a particular level of occupational and social impairment. The regulation requires an ultimate factual conclusion as to the veteran's level of impairment.VazquezClaudio, 713 F.3d at 117-18; see 38 C.F.R. § 4.130, DC 9411. The evidence for consideration in this case includes the January 2009 to November 2011 Pueblo CBOC treatment records, the October 2009 and February 2011 VA examination reports, and January 2010 and November 2010 lay statements submitted by the Veteran with her notice of disagreement and substantive appeal. This appeal stems from the RO's November 2009 continuation of a 30 percent evaluation for PTSD. Therefore, the relevant question in this matter is the state of her disability for the period beginning one year prior to her July 2009 claim for increased evaluation. 38 C.F.R. § 3.400(o)(2). In this case the appellate period begins in July 2008. The Veteran's Social Worker at the Pueblo CBOC submitted a December 2009 statement in support of her claim, attesting to her diagnosis and in-service sexual assault. The Social Worker further reported symptoms of arousal, avoidance, panic attacks, and relationship problems. The Pueblo CBOC treatment records show flashbacks, nightmares, hypervigilance, relationship problems including two marriages ending in divorce and separation from her most recent marraige, anger, mood shifts, prescription treatment for sleep disturbance, intrusive thoughts, prescription treatment for anxiety, panic attacks, depression, avoidance, heightened startle response, isolation, and depression. The October 2009 VA examination echoes these symptoms with report of sadness, depression, unemployment, diminished interest, weight gain, sleep disturbance, concentration problems, lack of motivation, nightmares, anger, irritation, and one panic attack every six weeks. The examiner summarized that these mild to moderate symptoms of PTSD, dysthymia, and panic disorder cause occasional decrease in work efficiency, and intermittent periods of inability to perform occupational tasks; and assessed a GAF score of 55. The February 2011 VA examiner recorded the Veteran's report of recently returning to her use of alcohol after 25 years of sobriety, and a January 2011 physical altercation at a bar coincident with resuming her use of alcohol. The Veteran further reported to the February 2011 VA examiner that her husband had left her in August 2010, and that she had declined inpatient treatment through the VA Palo Alto Healthcare System's Women's Trauma Recovery Program in Melo Park, California. She indicated symptoms of intrusive thoughts, three to four nightmares per week, sleep disturbance, avoidance, anhedonia, concentration problems; and the new symptom of suicidal ideation, not noted at the October 2009 VA examination or in the Pueblo CBOC treatment records. The February 2011 VA examiner objectively noted grooming without hygiene defect; normal speech; poor insight and judgement; suicidal ideation without plan; orientation to person and place, but not time; and impaired concentration, memory, communication, and thought process. She summarized that these PTSD symptoms cause deficiencies in most areas, such as work, school, family relations, judgement, thinking, and mood; and assessed a GAF score of 48. The Veteran provided a lay statement with her November 2010 substantive appeal reporting three to four panic attacks per week, and the inability to hold a steady job. In this statement she also reported symptoms of sadness, depression, agoraphobia, overeating, lack of concentration, sleep impairment, lack of motivation, separation from her husband as of August 2010, anger, and irritability. In later lay statements related to her TDIU claim, she reported that she last worked in 1999 due to the workplace problems created by her PTSD. Evaluating the evidence in light of the pertinent rating criteria demonstrates that a 50 percent evaluation prior to February 2011 is approximated under the doctrine of reasonable doubt. The Veteran's PTSD symptoms include sleep impairment, frequent nightmares, suspiciousness, anxiety, hypervigilance, panic attacks, intrusive thoughts, concentration problems, and lack of motivation. The Pueblo CBOC treatment records document "severe symptoms" as early as June 2009; and "significant difficulties" in the areas of social, occupational, and family functioning as early as October 2009. The October 2009 VA examiner described the Veteran's PTSD symptoms as moderate due to lack of motivation and panic attacks, and assessed a GAF score of 55. This is consistent with the Pueblo CBOC treatment records showing GAF scores of 55 in January 2009, 50 in August 2009, and 51 in May 2010. A GAF score is highly probative, as it relates directly to the veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. Massey v. Brown, 7 Vet. App. 204, 207 (1994). These GAF scores support an increased rating, ranging from 51 to 55, indicating moderate symptoms under the DSM-IV. However, these symptoms do not rise to the level of occupational and social impairment, with deficiencies in most areas as is required for a 70 percent evaluation until February 2011. The October 2009 VA examination records that the Veteran scored a 25 out of 30 on cognitive testing; had fair judgement and insight, with unimpaired thought process and communications; was oriented to date, time, and place; and demonstrated that her long term memory, attention span, and concentration were all grossly intact. The Pueblo CBOC treatment records similarly show that from June 2009 to February 2011 the Veteran had fair concentration, intact memory, good hygiene, no suicidal ideations, and adequate judgement and insight. The Veteran's panic attacks increased from one every six weeks as recorded at the October 2009 VA examination, to three to four per week as the Veteran reported on her substantive appeal. The GAF scores decreased from 55 at the October 2009 VA examination to 48 at the February 2011 VA examination. The Veteran's memory and concentration went from adequate at the October 2009 VA examination to impaired at the February 2011 VA examination. Perhaps most significantly, the February 2011 VA examination and February 2011 Pueblo CBOC treatment records both show an episode of physical violence. Neither the October 2009 VA examination report nor the Pueblo CBOC treatment records show any indication for periods of violence, as would support a 70 percent evaluation under Diagnostic 9411. Furthermore, the symptoms the Veteran does have (intrusive thought, nightmares, anxiety, depression, panic attacks, etc.) have not been demonstrated to be so frequent and disabling as to result in occupational and social impairment with deficiencies in most areas until February 2011, or total occupational and social impairment at any point during the appellate period. There is no doubt that the Veteran's PTSD interferes with her social functioning given her "relationship problems" as discussed in the Pueblo CBOC treatment records. But the Pueblo CBOC treatment records also make clear that prior to February 2011 her "relationship problems" had not yet caused the complete deterioration of her relationship with her daughter and grand children. Rather, as described above, the Veteran retained some social functioning until February 2011. The record reflects that her daughter stopped allowing her access to her grandchildren and moved to Texas in February 2011. There is also no doubt that the Veteran's PTSD interferes with her occupational functioning given that she has not worked since 1999, but the October 2009 VA examiner characterized her as able to be employed from a psychiatric standpoint. The February 2011 VA examination is the first indication of a significant change in symptoms and impairment. Based upon the guidance set forth in Hart, 21 Vet. App. 505, the Board has considered whether staged ratings are appropriate. In the present case, the Veteran's symptoms have most nearly approximated the 50 percent evaluation until February 2011. As described in detail above, the evidence does not more nearly approximate a 70 percent evaluation until February 2011 based on both that VA examination and the Pueblo CBOC treatment records. However, the evidence throughout the entire appeal period does not demonstrate total occupational and social impairment to warrant a total evaluation. The Veteran has never been deemed to be an actual threat of danger to herself or others. She declined in-patient treatment for her PTSD through the VA's Palo Alto Healthcare System's Women's Trauma Recovery Program in Melo Park, California. Neither the VA examinations nor the Pueblo CBOC treatment records have indicated delusions or hallucinations; and there is no evidence of neglect of personal appearance and hygiene, or near continuous panic or depression. While there is some indication for impaired memory and concentration; the Veteran has always had a normal speech pattern, and been oriented to herself and her location. As a final matter, the Board has contemplated whether the case should be referred for extra-schedular consideration. An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). The schedular rating criteria are designed 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. Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three step inquiry for determining whether a Veteran is entitled to an extra-schedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that that the available schedular evaluations for that service connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto 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 Compensation and Pension Service to determine whether, to accord justice, a Veteran's disability picture requires the assignment of an extra-schedular rating. In this case, the evidence does not show that the Veteran's disability presents an exceptional disability picture, insofar as her symptoms are expressly contemplated by the rating schedule. As outlined above, the Veteran has reported PTSD symptoms including sleep impairment, frequent nightmares, anxiety, hypervigilance, memory and concentration impairment, panic attacks, disturbances of motivation and mood, and suicidal ideation. Such symptoms are contemplated by the schedular criteria of the General Rating Formula for Mental Disorders set forth in 38 C.F.R. § 4.130, Diagnostic Code 9411. The regulations expressly consider each of these symptoms and further allow for other signs and symptoms of PTSD which may result in occupational and social impairment. Although Diagnostic Code 9411 does not contemplate agoraphobia or overeating, as reported by the Veteran on her November 2010 substantive appeal; the Schedule for Rating Disabilities allows rating under Diagnostic 9403 for phobias, which uses the same General Rating Formula for Mental Disorders covering Diagnostic Code 9411 for PTSD. The Schedule for Rating Disabilities also contemplates the symptom of binge eating under Diagnostic Code 9521, but the Veteran's overeating has never been diagnosed as an eating disorder. The Schedule for Rating Disabilities adequately contemplates all of the Veteran's symptoms. As the rating criteria adequately contemplate the Veteran's symptoms, the first step of Thun has not been met, and referral for the assignment of an extra-schedular disability rating is not warranted. ORDER Prior to February 7, 2011 a 50 percent evaluation, but no more, for PTSD is granted, subject to the laws and regulations governing the payment of monetary benefits. On and after February 7, 2011, an increased evaluation for PTSD is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs