Citation Nr: 1333829 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 09-25 225 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The Veteran served on active duty from July 1965 to July 1969. He was awarded the Combat Infantryman Badge (CIB) for his service in Vietnam. This matter is before the Board of Veterans' Appeals (Board) from a February 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, that assigned a 10 percent rating for PTSD, after granting service connection for the same. By a rating action dated in March 2007, the 10 percent rating was increased to 30 percent, effective from October 5, 2005. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in March 2012. A copy of the transcript is of record. This case was before the Board in June 2012 when the Board granted a 50 percent rating for PTSD prior to August 2, 2011. The issue of entitlement to an initial rating in excess of 50 for PTSD for the entire period, to include on an extra-schedular basis, was Remanded for additional development. The Board has additionally considered that the Veteran raised a claim for entitlement to a total disability rating based on individual unemployability (TDIU) due to his service-connected PTSD during the pendency of the appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The RO considered and subsequently denied his claim in a December 2011 rating decision. Locklear v. Shinseki, 24 Vet. App. 311, 315 (2011) (held that VA can specifically separate the adjudication of the schedular disability rating from the adjudication of entitlement to TDIU). The Veteran did not express disagreement with this decision and the rating decision became final in December 2012. In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claim. The documents in the VVA file are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT For the period of the appeal, the Veteran's PTSD has been manifested by no 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 PTSD are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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) (including as amended effective May 30, 2008, 73 Fed. Reg. 23353 (Apr. 30, 2008)). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). As the February 2006 rating decision granted service connection for PTSD, that claim is now substantiated. VA's General Counsel has clarified that no additional VCAA notice is required in circumstances concerning a "downstream" issue, such as the rating or effective date assigned for a service-connected disability. VAOPGCPREC 8-2003. The filing of a notice of disagreement as to the disability rating assigned does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(3). Instead of issuing an additional VCAA notice letter in this situation concerning the "downstream" disability-rating and/or earlier-effective-date elements of the claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to instead issue a Statement of the Case (SOC) if the disagreement concerning the downstream issue is not resolved. And because the RO issued the appropriate SOC in May 2009 addressing the downstream increased rating claim, which included citation to the applicable statutes and regulations and a discussion of the reasons and bases for not assigning a higher rating, no further notice is required. See Goodwin v. Peake, 22 Vet. App. 128 (2008) and Huston v. Principi, 17 Vet. App. 195 (2003). Regarding VA's duty to assist, all appropriate development to obtain the Veteran's pertinent medical records, to include service treatment records and pertinent, available post-service treatment records, has been completed. The Veteran has not identified any pertinent, outstanding records that could be obtained to substantiate his claim. The Board is also unaware of any such records. The Veteran has been afforded the appropriate VA examinations in 2006, 2007 and 2011. To that end, when VA undertakes to provide a VA examination or, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations obtained in this case are more than adequate, as they are predicated on a thorough examination of the Veteran and consider all of the pertinent evidence of record, to include the Veteran's statements of how his disability affects his occupation and social functioning, and provides all the necessary information in order to properly consider the claim. Recognition is given to the fact that the reports of the Veteran's psychiatric examinations are now, at a minimum, in excess of two years old. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. VAOPGCPREC 11-95. Here, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's PTSD since he was last examined. The Veteran does not contend otherwise. Discussion of the Veteran's March 2012 Board hearing is also necessary. The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2). Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. They were met here. The issue as listed above was identified at the hearing. Information was elicited from the Veteran concerning the nature and severity of his PTSD. Sources of evidence relevant in this regard were identified during this process. Indeed, based on his report of recent VA treatment, the matter was Remanded to obtain outstanding VA treatment records. In this regard, the Board finds that there has been substantial compliance with its June 2012 remand instructions. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). VA medical records dated from September 2011 to the present were associated with the claims file. VA's duties to notify and assist are met. Accordingly, the Board will address the merits of the claim. II. Increased Rating Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). PTSD is evaluated under the general rating formula for mental disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Under this general rating formula, a 50 percent rating is warranted when the evidence shows 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 effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. 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 warrants a 70 percent rating. Id. 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 warrants a 100 percent rating. Id. In assessing the evidence of record, it is important to note that the Global Assessment of Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Richard v. Brown, 9 Vet. App. 266, 267 (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). GAF Scale Consider psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. Do not include impairment in functioning due to physical (or environmental) limitations. 70 - 61 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, has some meaningful relationships. 60 - 51 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). 50 - 41 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). 40 - 31 Some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) OR major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). The symptoms listed in 38 C.F.R. § 4.130 are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Instead, VA shall consider all symptoms of a Veteran's PTSD that affect his level of occupational and social impairment, including, if applicable, those identified in the fourth edition of the American Psychiatric Association 's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) provided additional guidance in rating psychiatric disability. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Specifically, the Federal Circuit emphasized that the list of symptoms under a given rating is a nonexhaustive list, as indicated by the words "such as" that precede each list of symptoms. It held that a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage or others of similar severity, frequency, and duration. Other language in the decision indicates that the phrase "others of similar severity, frequency, and duration," can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. 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. 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. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board has reviewed all of the evidence in the Veteran's claims files, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, and 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. A January 2006 VA examination report notes that the Veteran reported that he was self-employed as a janitorial contractor and carpet cleaner. He noted that he had been in jail five times in the past due to offenses including assault; however, he indicated that he had not had any legal problems since 1987. The Veteran reported recurrent and intrusive distressing recollections of his combat service in Vietnam. He also reported hypervigilance, sleep problems and exaggerated startle response. He noted that he had difficulty trusting and getting along with others. He denied homicidal and suicidal ideation. On examination, the Veteran was cooperative, polite and friendly toward the examiner. Mood was good and attention was intact. The Veteran was oriented to person, place and time. Thought process and thought content were unremarkable. Speech was normal. Remote, recent and immediate memory is normal. The VA examiner stated that it was likely that his PTSD did affect his social, occupational and personal relationships with others. However, he noted that it was equally likely that the Veteran's alcoholism contributed to complications in these areas. A GAF score of 65 was assigned. In an October 2006 statement, the Veteran explained that the reason he had been self-employed since 1984 was mainly due to his inability to trust and get along with others. He reported intermittent periods of inability to perform occupational tasks, depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment and mild memory loss. At a March 2007 VA examination, the Veteran was clean and neatly groomed. He was self-employed and had worked on a contract with an auto dealership, which ended in December 2006. The examiner summarized that the Veteran had difficulty dealing with people and experienced estrangement from others. He described himself as having difficulty with anger control and dealing with authority figures. The examiner noted that the Veteran spent his time caring for his mother. He enjoyed woodworking, hunting and fishing, but taking care of his mother left no time for these activities. On examination, the Veteran was clean and neatly groomed; he was cooperative and friendly. He was oriented times three. His speech was unremarkable and spontaneous. Mood was good. Memory was normal. The Veteran had no delusions, inappropriate behavior, hallucinations, panic attacks, or obsessive/ritualistic behavior. Attention was intact. Impulse control was fair. The VA examiner stated that the Veteran experienced hypervigilance and exaggerated startle response. He also had difficulty with anger control and dealing with authority figures, but no problems with the activities of daily living. It was noted that the Veteran had daily, moderate to severe chronic PTSD symptoms. He was assigned a GAF score of 65. A September 2007 VA outpatient treatment record shows that the Veteran reported feeling depressed when he was not busy. He denied suicidal ideation. He reported having no prior psychiatric treatment. Mental examination revealed mildly depressed mood and appropriate affect appropriate. There were no reports of delusions or hallucinations. Judgment was fair to good and insight was fair. Impression was PTSD and GAF score was 55. A June 2011 Vocational Rehabilitation record notes that the combination of the Veteran's PTSD and his heart disability resulted in preventing the Veteran from succeeding in employment, even self-employment. On VA examination in August 2011, the Veteran reported living with his mother and having occasional contact with two of his three children. He said he had been unemployed since suffering a heart attack in 2009. He spent his time caring for his mother, working on the house, cooking and taking walks. His symptoms included depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and impaired impulse control. He reported intermittent passive suicidal ideations but denied active suicidal ideations, intent, or plan. He denied current active homicidal ideations, intent or plan. He reported sleep disruption on a nightly basis. On examination, the Veteran endorsed symptoms of irritability, a moderate chronic depressed mood, and moderate chronic anxiety. He stated the he generally secluded himself when feeling irritable. He had mild memory loss (such as forgetting names) but no impairment of short or long term memory. Speech was within normal limits. There was no neglect of personal hygiene or personal appearance. A GAF score was 55 assigned. The examiner stated that the Veteran's PTSD signs and symptoms result in occupational and social impairment with reduced reliability and productivity. VA treatment records show the Veteran joined regular PTSD group therapy sessions in May 2008. Since that time, his GAF scores fluctuated between 45 and 55. He was always appropriately groomed, with normal speech and only occasional reports of passive suicidal ideation. During this time period, the Veteran continued to report living alone but caring for his disabled, elderly mother. A September 2011 VA treatment record shows that the Veteran was still taking care of his 90 year old mother. Mood was not too good because of this situation. The Veteran denied suicidal ideation. He reported some recent visual hallucinations of Vietnamese soldiers. On examination, speech was normal rate and volume. Motor examination showed no abnormalities. Affect was full range and thought processes were logical. Thought content showed no suicidal or homicidal ideations. Insight and judgment were fair. In December 2011 the Veteran reported that his hallucinations and nightmares had subsided. His mood had improved. On examination, the Veteran was clean and casually dressed. Eye contact was good and speech was normal. No motor abnormalities were noted. He was assigned a GAF score of 55. The Veteran testified during a March 2012 hearing before the Board that the extent of his social interactions was with his mother. He reported that his most recent treatment for PTSD was in late 2011. Based on the above, the Board finds that a disability rating in excess of 50 percent for the Veteran's service-connected PTSD is not warranted at any time during this appeal. This conclusion is based on the Board's finding that at no point during this appeal does the severity of the Veteran's disability most closely approximate occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. With respect to the 70 percent rating criteria, some fleeting, passive suicidal ideation and impaired impulse control (such as unprovoked irritability with periods of violence) are noted in the medical evidence of record. This evidence does not demonstrate obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; 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. The March 2007 VA examination report notes that while the Veteran had difficulty controlling his anger and difficulty with authority figures, he had no problems with the activities of daily living. Moreover, the evidence from 2007 to 2012 shows that the Veteran was actually caring for his disabled, elderly mother in addition to himself. The Board finds that the occasional, passive suicidal ideation with no plan and the occasional impaired impulse control do not produce deficiencies in most areas. While the Veteran has not worked since 2009, the evidence indicates that he is not working, in part, due to his heart disability. Further, the evidence shows that the Veteran has had a good, caring relationship with his mother during the period on appeal, and at least some relationship with his children. The record does not suggest that the Veteran has had problems with judgment or thinking. While there may be some deficiency in mood caused by his psychiatric disabilities, the symptoms of depression and anger on which this conclusion is based are not of the frequency, severity, or duration to satisfy the 70 percent rating criteria. There have been no findings of poor hygiene or speech deficiencies. The absence of these symptoms is not outcome determinative. However, the Veteran simply no other evidence that other symptoms of similar severity, frequency, and duration have been demonstrated. See Vasquez-Claudio, supra. The Board thus finds that the evidence of record does not support the assignment of a disability rating of 70 percent. In reaching this conclusion, the Board has also considered acknowledges that VA treatment records show that the Veteran has been assigned GAF scores as low as 45, with several assigned scores in the range indicating 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). Virtually no description of symptoms specific to the Veteran and reflective of serious symptoms appears in these treatment records, thus giving the Board no basis to rely upon these GAF scores in determining an appropriate disability rating. In other words, the GAF scores as listed in these treatment records are not supported by the qualitative descriptions of the Veteran's symptomatology as discussed above. Therefore, despite the assignment of GAF scores as low as 45, the Board finds that entitlement to a 70 percent evaluation is not warranted. In contrast, the Board finds that the GAF scores that were assigned by the VA examiners (a GAF score of 65 in 2006 and 2007, and of 65 in 2011) are supported by the accompanying descriptions of the Veteran's complaints, pertinent history, and mental status examination findings and are thus highly probative to the case at hand. These reflect mild and moderate symptoms, and are not consistent with a rating in excess of 50 percent. For all the foregoing reasons, the Veteran's claim for an initial schedular rating in excess of 50 percent for PTSD must be denied. See Fenderson, supra. As for extra-schedular consideration, the threshold determination is whether the disability picture presented in the record is adequately contemplated by the rating schedule. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Court clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If so, then the assigned schedular evaluation is adequate, referral for extra-schedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation fails to reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability, 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 or frequent periods of hospitalization. Id. at 116. If additional factors are found, 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 to determine whether justice requires assignment of an extra-schedular rating. Id. The evidence of record does not reveal that the Veteran's PTSD disability picture is so unusual or exceptional in nature as to render his schedular rating inadequate. The Veteran's PTSD has been evaluated under the applicable Diagnostic Code (9411) that has specifically contemplated the level of occupational and social impairment caused by service-connected PTSD. The Veteran's symptoms such as sleep impairment, mild memory loss and disturbances of motivation and mood are specifically enumerated under Diagnostic Code 9411. Therefore, referral for assignment of an extra-schedular evaluation in this case is not in order. Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). Finally, the Board once again notes that the RO considered and subsequently denied the Veteran's claim for entitlement to a TDIU due to his service-connected PTSD in a December 2011 rating decision. The Veteran did not express disagreement with this decision and the rating decision became final in December 2012. The Veteran has not subsequently raised another claim for TDIU, or submitted evidence of unemployability, so as to raise another claim for TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER An initial rating in excess of 50 percent for PTSD is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs