Citation Nr: 1333954 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 10-15 667 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to an initial disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran had active military service from June 1978 to June 1982 and from February 1989 to September 1989. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. By that rating action, the RO granted service connection for PTSD with an evaluation of 30 percent from the date of service connection on May 30, 2008. Subsequently, in an April 2012 rating decision, the RO increased the PTSD evaluation to 70 percent disabling from the date of service connection on May 30, 2008. Because the possibility exists for the assignment of a higher evaluation, the Veteran's claim remains in appellate status, and is characterized as shown on the title page of this decision. See AB v. Brown, 6 Vet. App. 35 (1993). The Board notes that the Veteran requested a Travel Board hearing in his April 2010 formal appeal, VA Form 9, but withdrew his request for a hearing in correspondence received in April 2012. Finally, the Board notes that there is an electronic "Virtual VA" claims file in addition to the paper claims file; review of the electronic file was completed in order to ensure thorough review of the evidence of record. FINDING OF FACT The occupational and social impairment from the Veteran's PTSD has more nearly approximated deficiencies in most areas than total occupational and social impairment throughout the period of this claim. CONCLUSION OF LAW The criteria for rating in excess of 70 percent for PTSD have not been met or approximated. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is seeking an initial disability rating in excess of 70 percent for PTSD. The Board will initially discuss certain preliminary matters and will then address the pertinent law and regulations and their application to the facts and evidence. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes the Court has held the plain language of 38 U.S.C.A. § 5103(a) requires notice to a claimant pursuant to the VCAA be provided "at the time" or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In the case at hand, the record reflects the originating agency provided the Veteran with all notice required by the VCAA by a letter mailed in November 2008, prior to the initial adjudication of the claim. The Board also finds VA has complied with its duty to assist the Veteran in the development of the claim herein decided. In this regard, the record reflects that service treatment records (STRs) and pertinent post-service medical records have been obtained and that the Veteran has been afforded appropriate VA examinations as described in greater detail below. Neither the Veteran nor his representative has identified any other evidence that could be obtained to substantiate the claim. The Board also is unaware of any such evidence. Therefore, the Board is satisfied that the originating agency has complied with the duty to assist requirements of the VCAA and the pertinent implementing regulation. Accordingly, the Board will address the merits of the claim. Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2013). The percentage ratings contained 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. §§ 3.321(a), 4.1 (2013). PTSD is rated under the following criteria. A 30 percent rating is warranted for 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, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted 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 effective work and social relationships. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted for 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. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2013). Additionally, 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(b) (West 2002); 38 C.F.R. § 4.3 (2013). Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2 (2013) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the Veteran's service-connected PTSD. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. As noted above, service connection for PTSD was granted in a September 2009 rating decision that assigned a 30 percent schedular rating, effective May 30, 2008. The disability rating was subsequently increased to 70 percent, effective May 30, 2008. A VA mental health consult report in May 2007 showed that the Veteran was a postal worker living with his wife and three children. Upon examination, he denied current or past delusions or hallucinations, obsessive, or ritualistic behavior; he had anxiety, irritability, periods of rage, frequent crying spells, avoidance, sleep disturbances, poor concentration, limited activities outside of work although he attempted to be involved in his children's activities, hypervigilance, and mildly depressed mood. He noted that work was a regular stressor and that he had difficulty dealing with co-workers and supervisors. In response to his claim for service connection for PTSD, the Veteran was afforded a VA examination in April 2009 in which he reported two prior divorces and that his most recent, third, marriage had also recently ended due to his nightmares and anger. He reported having a good relationship with his younger children but a strained relationship with his stepson. He noted having some friends at the post office where he works, but no friends outside of work, and had disciplinary actions and demotion occur at work. He had no history of suicide attempts but did have a history of violence with physical fights related to his anger. Physical examination showed a clean general appearance, speech unremarkable, full affect, anxious mood, intact attention, intact orientation to person, time, and place, thought process and content were unremarkable, no hallucinations, no inappropriate behavior, no obsessive or ritualistic behavior, panic attacks up to weekly lasting 20 minutes, no homicidal or suicidal thoughts, fair impulse control, episodes of violence, an ability to maintain minimum personal hygiene, and normal memory. His symptoms were noted as sleep disturbances, irritability or outbursts of anger, difficulty concentration, hypervigilance, and exaggerated startle response. The examiner assigned a global assessment of functioning (GAF) score of 45. The Veteran submitted a notice of disagreement in September 2009 in which he stated that his panic attacks had gotten a little less severe but were now more frequent, that he had a marked increase in time off from work due to the severity of his PTSD and was demoted due to his inability to work with others, and that his divorces were due to his wives not being able to deal with his anger. He noted his symptoms of nightmares, depression, isolation, and that his records showed numerous instances of spontaneous anger with violence and occasional altercations. He stated that his memory was failing and it was harder to complete even everyday tasks, and he had severe difficulty in establishing and/or maintaining any type of work or social relationships. The Veteran was afforded a VA examination in March 2012 in which it was noted that his PTSD was responsible for ongoing problems with intrusive thoughts, sleep disturbances (nightmares), hyperarousal, panic feelings, and social and occupational problems. The VA examiner summarized his level of impairment as occupational and social impairment with deficiencies in most areas. The Veteran reported relationship problems as related to his nightmares, pacing, and irritability. However, he reported remaining friends with the woman he was dating and that he maintained regular visitation with his two sons. He noted having some work-related social contacts but no close friends. He reported being active in a monthly bible study group but denied having any leisure or recreational outlets. The Veteran stated that he was currently working as a custodian after being downgraded three years prior after an altercation with his supervisor. He reported a couple of verbal outbursts at work and taking leave due to his PTSD symptoms. His symptoms were noted to include avoidance, detachment, restricted range of affect, irritability, difficulty concentrating, exaggerated startle response, depressed mood, anxiety, suspiciousness, panic attacks more than once a week, impairment memory, difficulty in understanding complex commands, and suicidal ideation. The examiner assigned a GAF score of 47. On review of the evidence above, the Board finds that the occupational and social impairment from the Veteran's PTSD has more nearly approximated deficiencies in most areas (as required for a 70 percent rating) than total deficiencies (as required for a 100 percent rating). In determining that the Veteran's PTSD warrants the aforementioned disability rating, the Board has considered the GAF scores assigned for the Veteran. GAF scores are based on 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. A GAF 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). In this case the GAF scores assigned for PTSD are consistent with the Veteran's moderate to severe symptoms as detailed by the various examiners and treating providers. However, the GAF scores do not correlate to any specific rating. The Board has found the examination findings and the actual assessments of the Veteran's occupational and social functioning to be more probative than the GAF scores. The Board notes that the Court has held that the symptoms enumerated under the schedule for rating mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular disability rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The evidence of record shows that the Veteran's PTSD caused occupational and social impairment, with deficiencies in most areas, which is squarely within the criteria for the 70 percent rating. A schedular rating of 100 percent rating is awarded for total deficiencies, but the evidence does not show the Veteran's PTSD impairment more nearly approximates such impairment. To this point, specific symptoms associated with the 100 percent rating include 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. Review of the evidence of record shows that the Veteran's PTSD caused some danger of hurting others in the form of physical fights due to anger and intermittent inability to go to work, but the other symptoms were absent. In reaching that conclusion, the Board notes that the Veteran's symptoms include suicidal ideation, some panic or depression, impaired impulse control (such as unprovoked irritability with periods of violence), difficulty in adapting to stressful circumstances (including work or a worklike setting), and an inability to establish and maintain effective relationships. The Board finds that these symptoms, which have persisted throughout the entire appeal period, are on par with those contemplated by the 70 percent rating. As explained in more detail above, the symptoms throughout the Veteran's treatment and the appellate time period are essentially consistent. For this reason, staged ratings are not applicable. See Fenderson, 12 Vet. App. at 119. Therefore, as explained above, the medical evidence supports the Board's conclusion that a 70 percent rating is warranted for the entire appeal period. However, a rating greater than 70 percent is not appropriate for any period of time on appeal because the Veteran does not have total social and occupational impairment. Although the Veteran clearly has a serious disability, he exhibits few of the symptoms noted as applicable for a 100 percent rating. He does not have gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others (although, as noted above, he had some outbursts of anger and physical fights); 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. While the Veteran expressed suicidal ideation in the March 2012 VA examination, the vast majority of the evidence of record includes denial of suicidal ideation or intent. As such, his symptoms appear to more closely approximate those for a 70 percent rating, specifically suicidal or homicidal ideation, but without rising to the level required for a 100 percent rating, specifically a persistent danger of hurting self or others. As noted above, the Board acknowledges that a Veteran need not demonstrate the presence of all, most, or even some, of the symptoms listed as examples in the rating criteria. See Mauerhan, 16 Vet. App. at 442; however, as the Court held in Mauerhan, without the examples noted in the rating criteria, differentiating a 50 percent evaluation from a 70 percent evaluation would be extremely ambiguous. By extension to the present case, without the examples, differentiating the 70 and 100 percent ratings would be equally ambiguous. The Board is to consider all symptoms of a Veteran's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV. If the evidence demonstrates that a veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the DC, the appropriate equivalent rating should be assigned. Id. In this case, however, the Board concludes that the Veteran's psychiatric symptoms do not cause total occupational and social impairment as contemplated for a 100 percent rating. With respect to the Veteran's occupational impairment, the Board acknowledges that his psychiatric symptoms result in some level of impairment. Indeed, the Veteran has reported that his psychiatric symptoms have resulted in problems at work to include a demotion. That said, the Veteran remains employed. As such, while the Veteran has a significant level of occupational impairment, the Board finds that based on the evidence of record he does not have total occupational impairment. In this regard, the Board notes that the 70 percent rating assigned herein is recognition of significant industrial impairment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Similarly, the Veteran clearly does not have total social impairment. While he does have significant social isolation, and three prior divorces, he has retained relationships with the woman he was most recently dating and family. Although he reports having no friends, the Veteran retains the ability to interact with his fellow co-workers and attend a bible study group. While there certainly are difficulties in these activities, they do not constitute total social impairment. Thus, the Veteran does not have total social and occupational impairment sufficient to warrant a total schedular rating. He does have some deficiencies in several areas, but the greater weight of evidence demonstrates that it is to a degree that is contemplated by the 70 percent rating assigned herein. Again, in determining that a rating in excess of 70 percent is not warranted, the Board has considered the Veteran's complaints regardless of whether they are listed in the rating criteria, but for the reasons discussed above concludes that the Veteran's level of social and occupational impairment does not warrant a rating in excess of the currently assigned 70 percent rating. While the Veteran may have some of the criteria for a 100 percent rating, see Mauerhan, 16 Vet. App. at 442, the Board concludes his overall level of disability does not exceed the criteria for a 70 percent rating. For the reasons above the Board finds the criteria for a rating in excess of 70 percent are not met. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted more than the assigned ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). VA must also consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, in arriving at the determination above the Board has considered the lay evidence offered by the Veteran in the form of correspondence to VA in which it has generally been asserted that the Veteran is entitled to higher disability ratings for his PTSD due to his reported symptoms. Although the Veteran is competent to report his own overall symptomology, and in affording those statements full credibility, they do not show that his impairment more closely approximates the schedular criteria for the next higher evaluation. The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b) (1). The Court has held that the threshold factor for extra-schedular consideration is a finding on part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. 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 the 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 evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008). In the case at hand, the record reflects that the manifestations of the disability are not in excess of those contemplated by the schedular criteria. In sum, there is no indication that the average industrial impairment from the disability would be in excess of that contemplated by the assigned rating. Accordingly, the Board has determined that referral of this case for extra-schedular consideration is not in order. In reaching its decision, the Board has considered the benefit-of-the-doubt rule; but has determined that it does not apply in this case because the preponderance of the evidence is against claim. ORDER Entitlement to an initial disability rating in excess of 70 percent for PTSD is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs