Citation Nr: 1334307 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 11-23 481 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to a rating in excess of 30 percent for posttraumatic stress syndrome (PTSD) with depressive features. REPRESENTATION Appellant represented by: Calvin Hansen, Attorney at Law ATTORNEY FOR THE BOARD A.P. Armstrong, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1966 to November 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which granted service connection for PTSD and assigned a 30 percent disability rating, effective December 16, 2009. FINDINGS OF FACT The Veteran's disability picture most closely approximates the criteria for a 30 percent rating, or occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform tasks. CONCLUSION OF LAW The initial rating of 30 percent disability for PTSD is continued. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.14, 4.126, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Procedural Duties The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Where service connection has been granted and an initial disability rating and effective date have been assigned, the claim has been more than substantiated, the intended purpose of the VCAA notice has been fulfilled and no additional notice is required as to downstream issues, including the disability evaluation. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007). Next, VA has a duty to assist the Veteran in the development of claims. This duty includes assisting him in the procurement of pertinent treatment records and providing an examination when necessary. 38 C.F.R. § 3.159. All pertinent, identified medical records have been obtained and considered. The Veteran was afforded a VA mental health examination in December 2009. There is no argument or indication that the examination or opinions are inadequate. The Veteran had an opportunity to submit additional evidence and provided statements in support of his claim. As VA satisfied its duties to notify and assist the Veteran, he will not be prejudiced as a result of the Board's adjudication of his claim. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §3.159. II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances 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, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. All reasonable doubt as to the degree of disability is resolved in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson v. Brown, 12 Vet. App. 119, 126-127 (1999). Psychiatric disabilities are rated based on the General Rating Formula codified in 38 C.F.R. § 4.130, which provides disability ratings based on a spectrum of symptoms. "A veteran may qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of a similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). VA must consider all symptoms of a claimant's condition 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). See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The criteria for 30 percent rating are: 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 normal conversation), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. The criteria for 50 percent rating are: Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. The criteria for 70 percent rating are: 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; obsessive 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. Id. The criteria for 100 percent rating are: Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The Board finds that the Veteran's PTSD symptoms do not warrant a rating in excess of 30 percent, or occupational and social impairment with occasional decrease in efficiency and intermittent periods of inability. See 38 C.F.R. § 4.130, DC 9411. The Veteran is competent to report observable symptoms of PTSD. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As his reports are consistent with the medical evidence, the Board finds them credible as well. In a letter dated in December 2009, the Veteran reported having anger toward certain people, flashbacks, and nightmares. During the December 2010 evaluation, the Veteran reported that he had many friends, including some who were new; he had been divorced twice, and been under a restraining order in 1994; and alcohol had played a role in the breakups of the marriage, but he had no current problems with alcohol abuse. He had worked as a plastics moulding supervisor for the past 42 years, and remained employed. The Veteran reported having nightmares every couple of months, mild memory impairment, anxiety, and fear. The Veteran also presented with symptoms of depression; but had a normal affect, unremarkable but slow speech, no panic attacks, no reported impairment in judgment, unremarkable thinking. His remote memory was not impaired, but there was mild impairment of recent and intermediate memory. The examiner cited as examples of the memory impairment, the fact that the Veteran forgot one of three objects after 10 minutes, but recalled it when told, and the Veteran reported forgetting to call his son. The examiner assigned a Global Assessment of Functioning Score (GAF) of 50, or serious symptoms. See DSM-IV. VA outpatient treatment records dated from August 2009 to May 2011 show that depression and alcohol screenings were negative. There was no reported complaints or treatment for a psychiatric disability. Analysis The symptoms listed in the criteria for the next higher, 50 percent evaluation, are not intended to serve as an exhaustive list, but as examples of the type of symptomatology that would warrant that evaluation, but without those factors, differentiating a 30 percent evaluation from a 50 percent evaluation would be difficult. Mauerhan v. Principi, 16 Vet. App. at 442. The VA examination showed that the Veteran did not have impairment of affect or speech as described in the 50 percent criteria. He exhibited no impairment in the ability to understand commands as he was cooperative and was not reported to have any difficulty following the examiner. While there was mild short term memory impairment, but he was able to recall two of three objects, thereby suggesting an ability to recall more than highly learned material. He was able to conduct activities of daily living without impairment and was a successful supervisor. This suggests that he was not forgetting tasks, and no such impairment was reported. The record does show that he has disturbance in motivation, inasmuch as he is able to maintain his job, friendships, and his hobby working on vehicles. He has reported occasional passive suicidal ideation but his level of activity and negative depression screenings show that he does not have impairment of mood that reduces reliability or productivity. The record also does not show difficulty establishing effective work and social relationships. He has been able to maintain responsible employment for decades and has also been able to maintain social relationships with many friends and with his children and grandchildren. The VA examiner did assign a GAF score of 50, which is meant to indicate serious symptoms. DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM), 32 (4th ed.) (1994) (DSM IV); 38 C.F.R. §§ 4.125, 4.130 (2013). , The examiner also concluded; however, that the Veteran's level of functioning was that of occasional decrease in efficiency with intermittent periods of inability to perform. A GAF score is not dispositive and all the evidence of the disability picture must be considered. See 38 C.F.R. § 4.6. A GAF score of 50 would indicate a person who has no friends and is unable to keep a job. DSM-IV. The record shows that the Veteran is functioning at a much higher level, inasmuch as he has friends and a job. Moreover, GAF scores recorded during VA treatment for similar symptoms in 2008 and 2007 were in the mid-fifty range, or moderate symptoms and moderate difficulty in functioning. See DSM-IV. The Veteran has had depression and dysphoric mood shown in treatment records prior to the effective date of service connection. He also suffers from anxiety, hypervigilance, and fear, which manifest in his difficulty travelling and precautionary behaviors like keeping a shot-gun next to his bed. He has sleep problems a couple of times a month with war-related nightmares once every couple of months. The Veteran also has mild impaired memory and sporadic suicidal thoughts. There is no evidence; however, that he has any of the symptoms listed as examples for the 50 percent rating, or symptoms that would be equivalent to those listed in the 50 percent criteria. While the Veteran reported having suicidal thoughts, and suicidal ideation is a symptoms listed in examples for a 70 percent rating, this does not cause any reported deficiency in the areas needed for that rating. None of the other symptoms listed in the 70 and 100 percent criteria have been reported. See 38 C.F.R. § 4.130, DC 9411. Accordingly, the weight of the evidence is against a schedular rating in excess of 30 percent. The Board has also considered whether this case should be referred for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1). However, this case does not present such an exceptional or unusual disability picture that it would be impracticable to apply the schedular standards, and referral is unnecessary. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). Rather, the manifestations of the Veteran's PTSD are fully contemplated by the schedular rating criteria. Specifically, the rating criteria and case law for evaluating psychological disorders is intentionally broad to take into account a variety of symptoms and the entire effect of the disability on the Veteran's life. Moreover, there are no related factors such as frequent periods of hospitalization or marked interference with employment. As such, referral for consideration of an extra-schedular rating is not necessary. See Thun, 22 Vet. App. at 115-16. The preponderance of the evidence is against a rating higher than 30 percent for PTSD, therefore the benefit of the doubt doctrine is inapplicable and a higher initial rating is denied. See 38 C.F.R. § 4.3. In addition, his symptoms have generally been to the same degree throughout the period on appeal such that staged ratings are inapplicable. Fenderson, 12 Vet. App. at 126-7. Entitlement to a total rating for compensation based on individual unemployability (TDIU) is an element of all appeals of an initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is granted where a Veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2008). In this case there is no evidence of unemployability; hence entitlement to TDIU is not raised. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009) ORDER An initial rating in excess of 30 percent for PTSD is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs