Citation Nr: 1334318 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 12-22 583 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD J. All, Associate Counsel INTRODUCTION The Veteran had active service from July 1968 to July 1970, including combat service in the Republic of Viet Nam . The Veteran's decorations include the Bronze Star and the Combat Infantry Badge. This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file revealed additional evidence in the form of VA treatment records pertinent to the issue on appeal. FINDING OF FACT The Veteran's PTSD is manifested throughout the appeal period by disturbed sleep, dreams of combat, situational anxiety, anger, irritability, occasional depressed mood and minimal effect on social and occupation functioning. CONCLUSION OF LAW The criteria for an initial evaluation greater than 10 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102 , 4.3, 4.7, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Further, with respect to the increased initial evaluation claim on appeal, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 473; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The appellant bears the burden of demonstrating any prejudice from defective notice with respect to downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008). There has been no allegation of such error in this case. In any event, VA's duty to notify has been satisfied through the notice letters dated September 2010 and October 2011, which fully addressed all notice elements. These letters informed the Veteran of what evidence was required to substantiate his claim, and of the Veteran's and VA's respective duties for obtaining evidence. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond. The Board, therefore, finds that all notices required by the Veteran Claims Assistance Act (VCAA) and implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Service treatment records and personnel records are associated with the claims file. All post-service treatment records and reports identified by the Veteran have also been obtained. The Veteran has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. Additionally, the Veteran was provided a VA psychiatric examination related to his PTSD in April 2011. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159; Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The Board finds this examination adequate for the purpose of evaluating the Veteran's psychiatric disability, as it involved a review of the Veteran's pertinent medical history, a clinical evaluation of the Veteran, and an adequate discussion of relevant symptomatology. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Analysis Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Federal Circuit has held that while the Board must review the entire record, it does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). In deciding the Veteran's claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Initial Evaluation Claim Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). In cases where the original rating assigned is appealed, consideration must be given to whether a higher rating is warranted at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). The Court in Fenderson held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. Cf. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Court also discussed the concept of the "staging" of ratings, finding that in such cases, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson at 126-127; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has considered whether staged ratings are warranted. It has determined that the Veteran's PTSD has not significantly changed, and that a uniform rating is applicable throughout the appeal period. The Veteran's PTSD is currently evaluated as 10 percent disabling throughout the appeal period, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. Under this diagnostic code, a 10 percent evaluation is warranted when there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. A 30 percent evaluation is warranted when there is 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, mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent evaluation is warranted when there is 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. A 70 percent disability evaluation is warranted when there is 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 work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent disability evaluation is warranted when there is 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 and place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the rating schedule 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). Thus, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. Instead, 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 Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). The nomenclature employed in the portion of VA's Schedule for Rating Disabilities ("the Schedule") that addresses service-connected psychiatric disabilities is based upon the DSM-IV. 38 C.F.R. § 4.130. The DSM-IV contains a Global Assessment of Functioning (GAF) scale, with scores ranging between zero and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. GAF scores included in the record are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). The DSM-IV contemplates that the GAF scale will be used to gauge a person's level of functioning at the time of the evaluation (i.e., the current period) because ratings of current functioning will generally reflect the need for treatment or care. While GAF scores are probative of the Veteran's level of impairment, they are not to be viewed outside the context of the entire record. Therefore, they will not be relied upon as the sole basis for an increased disability evaluation. Turning to the record, the Veteran has received treatment at the VA Medical Center (VAMC) in Loma Linda and the Palm Desert VA Clinic. Pertinent to this appeal are records dated September 2008 to September 2012. In September 2008, the Veteran visited the Palm Desert VA Clinic for a "new patient" appointment with a primary care physician. During the visit, the Veteran was given a PTSD screening test, which was negative on all four questions asked. In July 2010, the Veteran contacted the Palm Desert VA Clinic, stating that "he may have some PTSD." The Veteran was provided a brief mental health screen by telephone to facilitate the scheduling of a full psychiatric evaluation or intake. During the screening call, the Veteran stated that he had been experiencing problems with anger and irritability, and had significant sleep problems, frequent nightmares, and was haunted by awful memories. Although he indicated problems with energy, he denied feelings of anxiety, depression, hopelessness or loneliness. The Veteran also denied changes in appetite or problems with low self-esteem. Suicidal or homicidal ideation were absent, as were symptoms of psychosis. The report indicates that the Veteran was cooperative and polite, and that his speech and thought patterns were normal. Although no diagnosis was given, the Veteran was scheduled to attend a group therapy session for PTSD. The record indicates that the Veteran has attended these sessions periodically since August 2010. In April 2011, the Veteran underwent a VA psychiatric examination for PTSD in conjunction with his service connection claim. During the examination, the Veteran stated he had trouble sleeping, experienced nightmares and flashbacks, and felt on edge and withdrawn. The examiner assessed the severity of these symptoms as moderate, noting that they were episodic in nature. The Veteran indicated that his symptoms had no real affect on relationships and work. The examination report reflects that the Veteran is married (41 years) and has three adult children. When asked about his marriage, he related that he and his wife are adjusting to spending more time together, as he had recently retired from his long-term job as an elevator installer. He described his relationship with all his children as "great." The Veteran reported a good relationship with his former supervisor and a fair relationship with co-workers. He retired because he "was done" and did not attribute his unemployment as primarily due to the effects of a mental condition. On examination, the Veteran was oriented and his appearance and hygiene were appropriate, as was his behavior. He maintained good eye contact, had normal affect and mood, and his communication, speech, and concentration were within normal limits. Panic attacks were absent. The Veteran exhibited signs of suspiciousness, indicated by his statement that he needed "to see people a few times before . . . trust[ing] them." There were no hallucinations or delusions observed. Obsessive-compulsive behavior was absent. The Veteran's thought processes were appropriate and he was able to understand directions. He did not appear confused or exhibit slowness of thought, and his judgment was not impaired. His abstract thinking was normal and his memory was within normal limits. The Veteran denied suicidal and homicidal ideation. The examiner diagnosed PTSD and assigned a GAF score of 76. A GAF score of 71 to 80 indicates that, if symptoms are present at all, they are transient and expectable reactions to psychosocial stressors with no more than slight impairment in social and occupational functioning. See DSM-IV. The examiner stated that the Veteran's PTSD symptoms had no noted effects on his employment and overall quality of life. Although the Veteran was not currently working, he appeared to be doing well with retirement and did not display any problems or difficulties with respect to the routine responsibilities of self care. The Veteran did not report that his social and interpersonal relationships have been adversely impacted by his PTSD symptomatology, and his statements about his familial role were consistent with someone who was doing well with his family relationships. The examiner opined that the Veteran's psychiatric symptoms were not severe enough to interfere with social and occupational functioning or to require continuous medication. The Veteran was assessed as capable of establishing and maintaining effective work and social relationships, including effective family role functioning, and reported no difficulty with recreation or leisurely pursuits. The Veteran did not appear to pose any threat of danger or injury to self or others, and the prognosis for the Veteran's PTSD was assessed as "good." In January 2012, the Veteran sought help for sleeping problems at the Palm Desert VA Clinic, and was given a mental health assessment. During the examination, the Veteran indicated that he has experienced daily intrusive thoughts of Viet Nam since 2007. He reported dreaming of his combat experiences, but denied screaming or jumping out of bed, thrashing about in bed, or talking in his sleep. He stated, however, that his dreams "are not really nightmares" and denied having flashbacks. The Veteran also reported feelings of nervousness, apprehension, and anxiety around helicopters. He admitted to survivor's guilt and occasionally has fleeting feelings of sadness. He denied anhedonia or avolition. The Veteran also denied a foreshortened sense of the future. With regard to social relationships, the Veteran reported some estrangement from others and a desire to avoid conversations about his service in Viet Nam . He does not experience hyperstartle or hypervigilance, but has less patience and gets upset more quickly. The Veteran did not exhibit symptoms of psychosis and denied experiencing panic episodes. He did indicate sometimes feeling anxious about being in places or situations where escape would be difficult. He denied excessive anxiety and worry. He also denied impaired concentration. The Veteran did not have suicidal or homicidal ideation, and signs of psychosis were absent. The examiner indicated that the Veteran's appearance was good and his speech and thought patterns were normal. The Veteran made good eye contact, had a pleasant and cooperative attitude, and exhibited an affect that was regular in range and intensity. The examiner diagnosed the Veteran with insomnia, and was assigned a GAF score of 75. The Veteran's PTSD, however, was assessed as subclinical, as he did not meet criteria D. In September 2012, the Veteran was seen at the Palm Desert VA Clinic for medication management related to his insomnia. During the visit, the Veteran indicated that his insomnia medication was an effective treatment and that he now sleeps very well. He denied feelings of depression or sadness, as well as anhedonia. He also denied feelings of guilt or worthlessness. His energy level was reported as "good," and his concentration as "getting better." The Veteran's appearance and hygiene were good. He described his mood as "great." His speech and thought patterns were normal. The Veteran denied suicidal or homicidal ideation and signs of psychosis were absent. The Veteran's sole diagnosis was insomnia. He was assigned a GAF Score of 80. The record contains several statements from the Veteran, which he submitted in support of his claim. In October 2011, the Veteran stated that he "suffer[s] greatly from feelings of apprehension[,] guilt and overall feelings of remorse and fear of what [he] saw and experienced." He has trouble getting restful sleep and indicated that the war is the first thing he thinks of in the morning and the last thing before "hopefully falling asleep." He stated that a majority of the members of his platoon suffer from various diseases and problems due to their service in Viet Nam and he fears his health will deteriorate as well. In his August 2012 appeal, the Veteran stated that his sleeping problem was being treated with medication, as he is unable "to get a full night's sleep without waking and having re-occurring thoughts about [his] combat duty." He also indicated that he "find[s] it hard to complete tasks that used to be easy and normal" for him, such as "putting off filing taxes [and] paying bills." His "work efficiency" has also been affected. Even though he is retired, he has trouble getting motivated to start and finish projects. He stated that he finds himself "being more lackadaisical about personal goals and appearance." He attributes these problems to his "constantly reliving [his] combat experience." He also feels increasingly angry about the way he was treated when he returned home from Viet Nam , which is exacerbated by seeing today's soldiers "treated like conquering heroes." In response to the October 2012 supplemental statement of the case, the Veteran submitted a brief statement noting that he continues to suffer sleep impairment and feelings of guilt. In considering the evidence discussed above, as well as all other evidence of record, the Board concludes that the evidence does not support a finding of occupational and social impairment sufficient to support the assignment of an initial evaluation in excess of 10 percent at any point since August 27, 2010. The evidence of record does not indicate the Veteran has at all experienced symptomatology such as speech impairment, memory loss, suicidal or homicidal ideation, panic attacks, impaired impulse control or neglect of personal hygiene, all symptoms congruent with evaluations higher than 10 percent. The Veteran did not report difficulties with personal, social or occupational relationships. In fact, the Veteran consistently reported doing well with his family relationships and expressed no difficulty with recreation or leisurely pursuits. He also reported positive relationships with his former supervisor and co-workers, and did not attribute his decision to retire as primarily due to any mental condition. While the Veteran repeatedly reported chronic sleep problems, and ultimately received a diagnosis of insomnia in January 2012, his sleep impairment is controlled by medication and has not been noted to have an appreciable effect on his employment or overall quality of life. Control of symptoms with continuous medication is contemplated by the 10 percent evaluation. Additionally, the Veterans GAF scores of 76, 75, and 80, are indicative of symptoms that, if present at all, are transient and expectable reactions to psychosocial stressors with no more than slight impairment in social and occupational functioning. See DSM-IV. The Board acknowledges the Veteran's contentions that his service-connected PTSD with depression warrants an increased evaluation throughout the appeal. The Veteran asserts that he feels apprehension toward his future, continues to suffer sleep impairment, experiences feelings of guilt, has trouble with motivation and work efficiency, and is "more lackadaisical about personal goals and appearance," all of which he attributes to "constantly reliving [his] combat experience." See statements dated October 2011, August 2012, October 2012. However, in January 2012, the Veteran denied a foreshortened sense of the future, and as late as September 2012, he reported that he now sleeps very well, and denied feelings of depression, sadness, adhedonia, and guilt. Further, he described his mood as "great" and reported a "good" level of energy. The report from that visit also indicates the Veteran's appearance and hygiene were good, an observation that is consistently reported throughout the record. In determining the actual degree of disability, findings from objective examinations are very probative of the degree of the Veteran's impairment. Furthermore, the opinions and observations of the Veteran alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.130 with respect to determining the severity of his service-connected PTSD. See Moray v. Brown, 2 Vet. App. 211, 214 (1993); 38 C.F.R. § 3.159(a)(1) and (2). In reaching its decision, the Board considered the benefit-of-the-doubt rule. However, the preponderance of the evidence is against the Veteran's claim for an increased initial evaluation, as the Veteran's symptomatology most closely approximates that contemplated by a 10 percent evaluation. Therefore, an initial evaluation in excess of 10 percent as of August 27, 2010, is not warranted. 38 U.S.C.A. § 5107(b) ; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Additional Considerations The record does not establish that the rating criteria are inadequate for rating the Veteran's PTSD with depression. The Veteran's disability is manifested by impairment in social and occupational functioning. The effects of the Veteran's disability have been fully considered and are contemplated in the rating schedule. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). As a final note, entitlement to total disability rating based upon individual unemployability (TDIU) is an element of all increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In this case, the Veteran does not claim and the record does not suggest that the Veteran is unemployable due solely to service-connected PTSD. Although retired, there is no suggestion in the record that PTSD would markedly interfere with his ability to obtain employment, should he seek it. Therefore, remand or referral of a claim for TDIU is not necessary as there is no evidence of unemployability due to the service-connected disability adjudicated above. ORDER An initial evaluation in excess of 10 percent for PTSD is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs