Citation Nr: 1333498 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 10-14 091 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial increased rating greater than 70 percent for service connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. VanValkenburg, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1963 to December 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the October 2009 decision by the Waco, Texas, Regional Office (RO) of the United States Department of Veteran Affairs (VA), which granted service connection for PTSD evaluated at 70 percent. The Veteran requested a hearing before the Board in April 2010. The Veteran subsequently withdrew his request in August 2011. 38 C.F.R. § 20.704(e) (2013). The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to ensure complete review of the evidence of record. FINDING OF FACT The Veteran's PTSD is not shown to have been manifested by total occupational and social impairment. CONCLUSION OF LAW The Veteran has not met the criteria for an initial rating in excess of 70 percent for PTSD. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Assist and Notify VA has met all statutory and regulatory notice and duty to assist provisions. See 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 (2013). A December 2009 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Finally, the Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claim was subsequently readjudicated, most recently in the March 2010 statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). VA has met its duty to assist the Veteran in the development of the claim. The Veteran's VA treatment records, examinations and private treatment records have been obtained in the development of the claim. 38 U.S.C.A § 5103A, 38 C.F.R. § 3.159 (2013). The record indicates the Veteran receives disability payments from his former employer based on an on-the-job injury. The private treatment records from the Veteran's employer have been associated with the claims file. The Veteran has not indicated nor does the record show the Veteran is in receipt of Social Security Administration (SSA) disability benefits. The Veteran has been afforded several PTSD VA examinations conducted in September 2009 and February 2010. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A medical examination is adequate "where it is based upon consideration of the Veteran's prior medical history and examination and also describes the disability, if any, in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one." Stefl v. Nicholson, 21 Vet App. 120, 123 (2007). The VA examiner considered Veteran's description and history of his symptoms, reviewed the claim file, conducted a thorough examination and provided a detailed report of the Veteran's condition. There is no indication of any additional relevant evidence or information that has not already been obtained. The examination report contains sufficient bases and findings for the Board to render a decision in this appeal. Applicable Laws Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2013); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2013); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2013); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2013). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider a veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Id.; Powell v. West, 13 Vet. App. 31, 35 (1999). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran's psychiatric disorder is currently rated under 38 C.F.R. § 4.130, Diagnostic Code 9411 (2013). PTSD is to be rated under the general rating formula for mental disorders under 38 C.F.R. § 4.130. Ratings are assigned according to the manifestation of particular symptoms. Notably, the term "such as" in 38 C.F.R. § 4.130 precedes lists of symptoms that are not exhaustive, but rather serve as examples of the type and degree of symptoms and their effects that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under 38 C.F. R. § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a claimant's disability that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). The pertinent provisions of 38 C.F.R. § 4.130 concerning the rating of psychiatric disabilities read in pertinent part as follows: 50 percent: 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 establishing effective work and social relationships. 70 percent: 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. 100 Percent: 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. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) [citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), p. 32]. GAF scores ranging between 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, and has some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect more 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). Scores ranging from 41 to 50 reflect 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 38 C.F.R. § 4.130 (2012) [incorporating by reference the VA's adoption of the DSM-IV for rating purposes]. The Board notes that an examiner's classification of the level of psychiatric impairment by a GAF score is to be considered, but is not determinative of the percentage rating to be assigned. VAOPGCPREC 10-95. Analysis The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran contends his PTSD warrants an initial rating in excess of 70 percent. After a review of the evidence, the Board finds the Veteran is not entitled to an initial rating in excess of 70 percent for his service connected PTSD. The evidence shows symptoms most consistent with occupational and social impairment with deficiencies in most areas including mood, work and a difficulty in establishing and maintaining effective relationships as contemplated by a 70 percent rating. In this regard, the Veteran's manifestations of PTSD during the September 2009 and February 2010 VA examinations included poor eye contact, hypervigilance, depression, occasional hopelessness, flashbacks, nightmares, mental discomfort through anxiety or distress, isolation, startle response, social dysfunction, sleep disturbances, and hyperarousal. His GAF score was 50 during both examinations, reflecting serious symptoms. However, the evidence does not show: 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, disorientation to time or place, memory loss for names of close relatives, own occupation or own name. As discussed in further detail below, the Veteran had adequate hygiene and appropriate behavior during both examinations. He had no delusions, hallucinations, homicidal or suicidal thoughts. His rate and tone of speech during both examinations was unremarkable. There was no indication of impulse control problems and the Veteran reported an ability to keep any irritability or outbursts of anger to himself. In this regard, the Board notes that the September 2009 VA examiner specifically indicated that Veteran's occupational and social functioning level and stated symptoms lead to deficiencies in most areas, which is consistent with the 70 percent currently assigned. The Veteran reported he had nightmares of Vietnam two to three times per week, flashbacks, problems falling and staying asleep. He avoided people and crowds. His PTSD symptoms included persistent re-experiencing of the traumatic event through recurrent and intrusive distressing recollections and dreams (nightmares), avoidance of thoughts, feelings, conversations, activities and/or place/people that were reminders of trauma. A GAF score of 50 was assigned. The Veteran was dressed casually and spent the examination staring out the window. Eye contact was poor. The Veteran described having many traumatic instances and was reluctant to talk about combat and what he saw in Vietnam. When asked about Vietnam he cried stating "I got paid; I was just doing my job." The Veteran described watching his lieutenant step on a trap and being blown up. He reported viewing decapitations of four enemies by a South Korean General. The VA examiner observed he appeared to be flashing back during the discussion of Vietnam. The Veteran was married over forty years with one child. He spent time peddling around and mowing his yard. During the examination the Veteran made comments such as "it was no place for an 18 year old" or "that's war." The Veteran denied suicidal and homicidal thoughts and did not appear to be responding to internal stimuli. The Veteran did not work due to disabilities based on medical issues. He denied alcohol and drug use but stated he used to drink a lot to "keep the boogeyman away." The Veteran reported all his friends being dead. The VA examiner noted he was competent to manage his funds. The examiner summarized the Veteran has had problems with PTSD. The physician indicated with treatment, prognosis was poor. The Board affords the 2009 VA examination great weight as it was based on the review of the claim file, thorough examination, history from the Veteran, application of DSM-IV criteria and a detailed description of the Veteran's condition. The GAF score reflected serious symptoms of social and occupational functioning. The Veteran has exhibited good relationships with his family and has therefore not shown a total social impairment. The Veteran's occupational impairment was necessitated by physical impairments, not PTSD. The Veteran's symptoms more nearly reflect the frequency, severity or duration of psychiatric symptoms required for the assignment of a 70 percent evaluation for PTSD for this period. The February 2010 VA examiner also specifically indicated that the manifestations of the Veteran's PTSD is of such severity as to lead to deficiencies in most areas including work, school, family relations, judgment, thinking and mood. The VA examiner rationed the Veteran had a long marriage and a fair relationship with his wife and son, but noted the Veteran had no social activities and generally kept to himself. The Veteran reported he could not get along with people. The Veteran was depressed most of the time. A GAF score of 50 was assigned. The VA examiner believed the Veteran's prognosis would be good with treatment but noted he did not wish to receive treatment. The VA examiner commented on the Veteran's ability to function in an occupational environment. The Veteran had not worked since 1986 and initially attributed it to a hip injury and back pain but also admitted he could not get along with people. The Veteran admitted his unemployment could be attributed equally to physical and mental problems. The examiner opined it was more likely than not that the Veteran's inability to get along with people would severely limit his ability to work even if he had no physical disability and his inability to get along with people was more likely than not related to PTSD. The Veteran had no psychiatric hospitalizations, no history of psychiatric medicine therapy or suicide attempts. The Veterans demeanor during the examination was stern but cooperative. He kept his head down and clicked his dentures during the examination. He was clean shaven and had neatly combed hair. Eye contact was poor during the examination but there was no inappropriate behavior. Personal hygiene was adequate. There was no impairment of thought process or communication, no delusions, hallucinations, homicidal or suicidal thoughts. The Veteran was oriented to person, place and time with a grossly intact memory. There was no obsessive or ritualistic behavior. Speech was normal, panic was not reported. The Veteran had depression, depressed mood or anxiety quoted as "Pretty sorry I guess" and no impulse control problems. The Veteran reported feeling tired 60 percent of the time and sleeping poorly. The Veteran re-experienced thoughts of war even though he didn't want to, especially when it rained and reported it never went away. The Veteran reported having flashbacks in the past. The Veteran endorsed having mental discomfort such and distress and anxiety on exposure to similar events, sensory triggers or anniversaries. He denied physical reaction related to exposure. He avoided thoughts, conversations, activities, situations associated with trauma, had numbing, occasional feelings of hopelessness, and reported alienation from others. The Veteran endorsed hypervigilance, trouble sleeping and an exaggerated startle response. He denied having amnesia regarding the trauma, difficulty concentrating and stated he tried to control irritability and outbursts of anger. The Veteran did not drink alcohol but in the past drank too much. He stopped drinking entirely in 2001 when he started seeing things at night. He was arrested for a driving while intoxicated. The examiner observed "sorry" energy. The Veteran reported having nightmares of Vietnam about one to two times per week. The Veteran had not worked since 1986 and his longest job was fifteen years for a railroad company where he injured his left hip and his back became worse. He was married in 1966 and had an adult son. The Veteran had no friends and reported not wanting to get involved with anyone and wanting to be left alone. He endorsed anhedonia, an inability to experience pleasure from activities usually found enjoyable. The Board acknowledges the representative's statement from April 2012 highlighting the VA examiner's opinion that the Veteran's inability to get along with people would severely limit his ability to work even without a physical disability. This conclusion was heavily relied on by the RO in assigning the Veteran a total disability rating for individual unemployability. Nevertheless, although the Veteran has consistently indicated that he did not socialize and had difficulty getting along with people, the record also shows that he has remained married for several decades and also has a fair relationship with his son. Therefore, the Board concludes that the overall disability picture does not demonstrate total social impairment as contemplated by a 100 percent rating. In summary, in light of the evidence discussed in detail above, Board finds that the preponderance of the evidence is against the assignment of a 100 percent rating at any time during the course of the appeal. While the Veteran has great difficulties with social relationships and hobbies, the record does not demonstrate total social impairment. Moreover, the record does not contain evidence of gross impairment in thought processes or communication. He has not had persistent delusions or hallucinations. There is no evidence of grossly inappropriate behavior, persistent danger of hurting self or others, or intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene). Likewise, the Veteran has not been disorientated to time or place or displayed memory loss for names of close relatives, own occupation, or own name. Accordingly, the criteria for an initial rating in excess of 70 percent are not met. Extraschedular Consideration According to VA regulations, an extraschedular disability rating is warranted upon a finding that 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 would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2013); see also Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's 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 the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the Veteran's service-connected PTSD are inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria found in the rating schedule shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology, to his level of social and occupation impairment. Specifically, the Veteran primarily reports depression, flashbacks, sleep impairment, intrusive memories, hypervigilance, startle response, nightmares, isolation, all resulting in deficiencies in most areas. As discussed above, the 70 percent rating is adequate to fully compensate for these symptoms and are contemplated by the rating criteria. Since the available schedular evaluation adequately contemplates the Veteran's level of disability and symptomatology, the second and third questions posed by Thun become moot. The Board therefore has determined that referral of these disabilities for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER Entitlement to an initial increased rating in excess of 70 percent is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs