Citation Nr: 1333825	
Decision Date: 10/25/13    Archive Date: 11/06/13

DOCKET NO.  09-32 777	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida

THE ISSUE

Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD), prior to June 5, 2012. 

WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse

REPRESENTATION

Appellant represented by:  Veterans of Foreign Wars of the United States 

ATTORNEY FOR THE BOARD

William J. Jefferson III, Counsel


INTRODUCTION

The Veteran had active service from March 1970 to January 1972. 

This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO). 

In June 2011, a Travel Board hearing was held before the undersigned Acting Veterans Law Judge. A transcript of the proceeding is of record. During the hearing, the undersigned identified the issues on appeal, and noted what pertinent evidence was outstanding and what evidence might assist in substantiating the claims.  Additionally, the Veteran through his testimony, with the assistance of his representative, demonstrated actual knowledge of the elements necessary to substantiate the claims. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). At the hearing, the Veteran submitted additional evidence and waived his right to initial review of the evidence by the agency of original jurisdiction. See 38 C.F.R. § 20.1304 (2012). 

In May 2012, the Board remanded the claim to the RO via the Appeals Management Center (AMC), in Washington, DC for additional development. 

In a June 2012 rating decision, the RO granted a 100 percent disability evaluation for PTSD, effective June 5, 2012. Since the grant did not constitute a full grant of the benefits sought on appeal, at least for an increased rating prior to June 5, 2012, the claim remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). 


FINDING OF FACT

Prior to June 5, 2012 the Veteran's PTSD was not manifested by symptoms more nearly approximating occupational and social impairment with deficiencies in most areas. 



CONCLUSION OF LAW

Prior to June 5, 2012 the criteria have not been met for a rating higher than 50 percent for the PTSD. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.125, 4.126(a), 4.130, Diagnostic Code 9411 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Duties to Notify and Assist

Under the Veterans Claims Assistance Act (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, and 5126 (West 2002 & Supp. 2012)); 38 C.F.R. § 3.159, the Board is required to ensure that VA's duty-to-notify-and-assist obligations have been satisfied. This notice obligation was accomplished by way of a letter from the RO to the Veteran dated in February 2006, which, apprised him of the type of evidence and information, not of record, which was necessary to substantiate his claim and explained the division of responsibility between him and VA in obtaining this supporting evidence. Quartuccio v. Principi, 16 Vet. App. 183 (2002). 

This claim concerning the Veteran's PTSD arose in the context of him trying to establish service connection for this disability. When a Veteran files a claim of entitlement to service connection, there are five elements of the claim: (1) Veteran status, (2) existence of a disability, (3) relationship between the disability and his military service, (4) rating for the disability, and (5) effective date for the disability. So VCAA notice should concern all elements of the claim, including the "downstream" disability rating and effective date elements. See Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). 

Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the Agency of Original Jurisdiction (AOJ), which in this particular instance is the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated, instead preserved, and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). 

But when, as here, the claim as it arose in its original context for service connection since has been granted, VA does not have to provide additional VCAA notice concerning the "downstream" elements of the claim, so including as regarding the initial rating assigned for the disability, because the initial intended purpose of the notice has been served. See Goodwin v. Peake, 22 Vet. App. 128 (2008). See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) and VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). According to the holding in Goodwin, etc., instead of issuing an additional VCAA notice letter in this situation concerning the "downstream" disability rating element of the claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue an SOC if the disagreement is not resolved. And the RO did this, provided this required SOC (also SSOCs), citing the applicable statutes and regulations, including Diagnostic Codes and a discussion of the reasons and bases for initially assigning the 50 percent rating and more recently a higher 100 percent rating. The Veteran, therefore, has received all required notice concerning this claim.

The RO also provided assistance to the Veteran with this claim as required by 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). To this end, the RO obtained his service treatment records (STRs) and post-service VA evaluation and treatment records, and also VA compensation examinations in May 2008, and recently in June 8, 2012. This evidence is sufficient to assess the severity of the Veteran's PTSD for the times at issue, for a rating in excess of 50 percent prior to June 5, 2012. The Board therefore finds that the duty to assist the Veteran with this claim also has been satisfied and, accordingly, is proceeding to the merits of this claim.


A Rating Higher than 50 percent for PTSD Prior to June 5, 2012

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), 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. 

If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, this doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3.

A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the effective date of the award. And when this occurs, the rating must be "staged" to reflect this change in severity of the condition. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007) (employing this practice also to claims that do not involve initial ratings but, rather, established ratings).

Mental disorders are evaluated under 38 C.F.R. § 4.130. The fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) provides guidance for the nomenclature employed in this regulation. When evaluating a mental disorder, the evaluation must be 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. 38 C.F.R. § 4.126(a). Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b).


According to 38 C.F.R. § 4.130, the applicable Diagnostic Code 9411, a 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 

A higher 70 percent rating requires 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 worklike setting); inability to establish and maintain effective relationships. Id. 

The maximum 100 percent rating requires total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. 

In evaluating the evidence, the Board also considers various Global Assessment of Functioning (GAF) scores contained in the DSM-IV, which clinicians have assigned. A GAF score is a scaled rating reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing the DSM-IV. An examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. See generally 38 C.F.R. § 4.126; VAOPGCPREC 10-95 (March 31, 1995). 

According to the DSM-IV, GAF scores ranging between 61 and 70 indicate 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 when the individual is functioning pretty well and has some meaningful interpersonal relationships. GAF scores ranging between 51 and 60 indicate moderate symptoms (like flat affect and circumstantial speech, and occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). A GAF score of 41 to 50 reflects a serious level of impairment (e.g., suicidal ideation, severe obsessive rituals, frequent shoplifting), or serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).

Although GAF scores are important in evaluating mental disorders, the Board must consider all the pertinent evidence of record and set forth a decision based on the totality of the evidence in accordance with all applicable legal criteria. See also 
38 C.F.R. § 4.126(a) (an evaluation shall be based on all the evidence of record that bears on occupational and social impairment, rather than solely on an examiner's assessment of the level of disability at the moment of examination). 


Factual Background

Service connection for PTSD was granted in a December 2008 rating decision, and a 50 percent rating was assigned from January 31, 2008. A 100 percent disability evaluation for PTSD, effective from June 5, 2012 was awarded in a June 2012 rating decision. An initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD), prior to June 5, 2012 remains on appeal.

VA mental health records from May and July 2006 show that the Veteran complained of nightmares and depressive symptoms. It was reported that he worked two jobs. He was alert and oriented and there were no psychotic manifestations. In July 2006, the mental health evaluation assessment was moderate depressive disorder. The GAF score was 55. 

In November 2006, VA mental health records report that the Veteran had been seeing a social worker every other week. He continued working two jobs. Audio visual hallucinations that were helped with medication were reported. Moderate depressive disorder with psychotic features was diagnosed. The GAF score was 55. 

A VA PTSD examination was performed in May 2008. It was reported that the Veteran was treated with anti-depressant and anti-psychotic medications. The Veteran's symptoms included recurrent and intrusive recollections, recurrent distressing dreams, distress at exposure to internal or external stimuli symbolizing traumatic events, and also reactivity to external cues. He avoided thoughts or feelings associated with reported trauma, and he avoided activities places or people that aroused recollections of trauma. The Veteran's symptoms were described as mild to moderate in severity. The Veteran was employed full-time as a cook. He had been employed for 2 to 5 years as a cook, and he had lost no time in the past 12 years. He had decreased concentration and poor social interaction at work. It was mentioned that the Veteran had a poor relationship with his spouse. He was isolated and had no friends. The Veteran presented casually dressed. He had no hallucinations. He had had panic attacks. The Veteran's recent and immediate memory were mildly impaired. The diagnosis was PTSD, chronic. The GAF was 64. Moderate symptoms were reported, and it was indicated that there was no total occupational and social impairment. 

A December 2008 a VA mental health evaluation report indicated that the Veteran reported sleep problems, and that he had continued to receive mental health therapy and medication to treat his PTSD. He was oriented, his mood was appropriate and his thought processes were normal. The GAF was 55. In March 2009 a GAF score of 56 was reported. 

In July 2009 a VA clinical entry reported that the Veteran felt hopeless, and that he had severe depression. 

In a June 2009 statement, the Veteran's spouse mentioned that the Veteran yelled and was loud, but he had also had quiet moods. 

In the Veteran's notice of disagreement, received in June 2009, he reported problems concentrating at work and feeling lost. He had more frequent panicky attacks. He reported that he had been missing work because it was hard to concentrate. He had thoughts of homicide against co-workers. 

A July 2009 clinical entry indicated that the Veteran had been having homicidal thoughts. Another medical entry on the same date indicated that the Veteran reported that he was feeling well and he denied any suicidal or homicidal thoughts. In a later July 2009 mental health entry, the Veteran reported that he had homicidal thoughts towards co-workers but he had no plan. When he was not in the workplace he was not bothered by the thoughts. 

Treatment records from a VET Center, dated from March 2010 to April 2011, show that the Veteran presented with anxiety symptoms. Some depressive symptoms were reported later. The Veteran presented casually dressed and adequately groomed. He was oriented and there were no hallucinations or homicidal thoughts. He had remained employed. The therapy assessments were described as good. 

At a June 2012 VA PTSD examination, it was reported that the Veteran indicated he had had increased PTSD symptoms including sleep disturbance, nightmares, intrusive memories, decreased concentration, hypervigilence, and isolating and avoidant behaviors. Depressed mood, anxiety, panic and depression, memory loss, suicidal ideations, and delusions or hallucinations were reported. There was neglect of personal appearance, and an intermittent inability to perform activities of daily living including maintenance of minimal personal hygiene. The Veteran spent his time in his room watching television. He had limited interactions with his spouse and family. He had daily depression. The Veteran reported that he was no longer able to work. He had frequent angry altercations with family members. It was indicated that the Veteran had total occupational and social impairment. The Veteran's GAF score was 45. The diagnoses were chronic PTSD, and mood disorder, not otherwise specified.

Analysis

The Board has considered the evidence and concludes that the assigned 50 percent rating for PTSD prior to June 5, 2012, is appropriate and that an increase in the disability rating for his PTSD for that entire period is not demonstrated. 

During this period the evidence shows that the Veteran's PTSD was substantial, manifested by several symptoms, including sleep disturbance, recurrent and intrusive recollections, recurrent distressing dreams, distress at stimuli and external cues, avoidance. His social relationships were isolative, essentially limited to his spouse and family, and those interactions were reported as strained at best. During this time, in mid-2009 to be specific, some psychotic problems were reported, including homicidal thoughts directed towards the Veteran's employment. However, this exacerbation is not determinative of his entire clinical picture for the period being discussed here. 

In contrast, it is noted that during this period prior to June 5, 2012, the Veteran's psychiatric symptoms were clinically described as mild to moderate. He continued to present casually dressed and appropriately groomed. It appears that for much of this time the Veteran was employed, including for a time at two jobs. Subsequent therapy sessions at a Vet Center from 2010 to 2011 show that his therapy assessments were described as good, without much if any reported psychotic manifestations. Importantly, it is noted that prior to June 5, 2012, the Veteran's GAF scores ranged from 55 to 64, and scores in this range indicate mild to moderate symptoms. 

Based on these findings, the Board is compelled to conclude that prior to June 5, 2012 the overall evidence of record does not show that the Veteran's PTSD was manifested by symptoms more nearly approximating occupational and social impairment with deficiencies in most areas, the criteria necessary for a 70 percent disability evaluation under Diagnostic Code 9411. The evidence here shows no more than a 50 percent evaluation prior to June 5, 2012. 

The Board has considered the lay testimony from the Veteran and his spouse regarding the severity of his service-connected PTSD prior to June 5, 2012. They are competent to provide statements regarding the Veteran's symptomatology during that period, and the Board finds that the statements are credible. However, as laypersons, lacking in medical training and expertise, the Veteran and his spouse cannot provide competent opinions on a matter as complex as the severity of his PTSD and thus, their statements are of limited probative value. And, even if the opinions were entitled to be accorded greater probative value, they are far outweighed by the medical examination findings. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 

The Board concludes that prior to June 5, 2012, the criteria considered under the 70 percent disability rating for PTSD, 38 C.F.R. § 4.130, Diagnostic Code 9411, has not been demonstrated by the medical evidence, and the Veteran's PTSD symptoms are, in fact, considered and provided for in the criteria for a 50 percent disability rating during this time. The Board is aware that there was a period where some psychotic manifestations during the period but the duration was not lengthy. There is no indication that the PTSD required a "staged" rating during this period from June 5, 2012, even considering the psychotic symptoms identified. Fenderson and Hart, supra. 

Therefore, and for reasons and bases set forth above, the preponderance of the evidence is against the claim for a rating in excess of 50 percent for PTSD prior to June 5, 2012 and for purposes of an increased rating during this time, the benefit-of-the-doubt doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 

Extraschedular Consideration

Based upon the findings discussed in detail above, and following a full review of the record, the Board determines that the record evidence favors a finding that the Veteran's PTSD should be rated at 50 percent prior to June 5, 2012. Additionally, the Board finds that at no point since the date of the claim has the PTSD disability been shown to be so exceptional or unusual as to warrant the assignment of a rating higher than 50 percent prior to June 5, 2012 on an extraschedular basis. See 38 C.F.R. § 3.321.

The threshold factor for extraschedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedural Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extraschedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996); Thun v. Peake, 22 Vet. App. 111 (2008). 

If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or the Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Thun, supra.

In this case, the Board finds that the schedular criteria are adequate to rate the Veteran's PTSD disability, that is prior to June 5, 2012. The rating schedule fully contemplates the described symptomatology, and provides for ratings higher than those assigned based on more significant functional impairment. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). 


ORDER

The appeal for an initial rating in excess of 50 percent for PTSD, prior to June 5, 2012, is denied. 




______________________________________________
KELLI A. KORDICH
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs