Citation Nr: 1334508 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 09-48 652 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to an initial rating in excess of 30 percent disabling for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Bonnie Yoon, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1967 to July 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland which granted service connection for PTSD and assigned a 30 percent disability rating effective January 22, 2008. A claim for increased evaluation includes a claim for a finding of total disability based on individual unemployability (TDIU) where there is evidence or allegations of unemployment due to service connected disabilities. Rice v. Shinseki, 22 Vet. App. 447 (2009). However in this case, while the Veteran is not employed, it is due to his service-connected heart condition for which he has received the maximum benefit allowed. As there is no evidence or allegation that the Veteran's PTSD renders him unemployable, the question of entitlement to TDIU has not been inferred. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to ensure consideration of the totality of the evidence. FINDING OF FACT Throughout the appellate period, PTSD has been manifested by occupational and social impairment with no greater than an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, due to symptoms such as anxiety with panic attacks occurring twice a month, chronic sleep impairment, and recurrent intrusive thoughts and nightmares. CONCLUSION OF LAW The criteria for an initial rating in excess of 30 percent for PTSD are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a 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 and 3.326(a). This appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection for PTSD. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). No additional discussion of the duty to notify is therefore required. VA also has a duty to assist the Veteran in the development of the claim, which is not abrogated by the granting of service connection. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA has fulfilled its duty to assist the Veteran. The Veteran's service treatment records and VA medical treatment records have been obtained; he did not identify any private treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Regarding Social Security records, the Veteran has indicated that he is on medical disability due to his heart condition; VA has no duty to obtain these Social Security records because they are not relevant to the Veteran's PTSD. See Golz v. Shinseki, 590 F.3d 1370 (Fed. Cir. 2009). VA examinations were conducted in April 2008 and July 2011. Both the April 2008 and July 2011 examiners made all required clinical findings and discussed the functional impact of PTSD on the Veteran's daily life. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Therefore, the April 2008 and July 2011 examinations are fully adequate for adjudication purposes. The Veteran, through his representative, has argued that a new VA examination is warranted in this case. He contends that the last examination in July 2011 is old and that his condition has deteriorated since that last exam. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. However, a new examination is appropriate when there is an assertion (and indication) of an increase in severity since the last examination. See 38 C.F.R. § 3.159; see also Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). In this case the Veteran merely states that his PTSD has worsened; however, he has not raised any specific allegations of worsening of PTSD symptoms since the July 2011 examination, and while VA treatment records since the July 2011 VA examination show that the Veteran is receiving ongoing treatment for PTSD, they show no indication of any increase in severity of his condition. Therefore, the need for a new VA examination is not triggered in this case. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). II. Legal Criteria In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule). The percentage ratings contained in the Rating Schedule represent the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). 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). VA also 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). The Veteran's PTSD is currently evaluated as 30 percent disabling under Diagnostic Code 9411, in accordance with the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. A 30 percent rating is warranted when the mental disorder is manifested by occupational and social impairment with an 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, and recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. 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 compete 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 evaluation 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 actives; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; 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. A maximum 100 percent evaluation 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. Id. A Global Assessment of Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). A score of 51-60 represents "[m]oderate 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)." Id. A score of 61-70 illustrates "[s]ome 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 interpersonal relationships." Id. Although GAF scores are important in evaluating mental disorders, the Board must consider all the pertinent evidence of record and set forth a decision based on the totality of the evidence in accordance with all applicable legal criteria. See 38 C.F.R. § 4.126(a). III. Analysis VA treatment records show that in January 2008, the Veteran underwent an initial mental health evaluation where he stated that he was married and had one son and had friends he interacted with regularly. He endorsed persistent avoidance, social isolation, increased irritability, and concentration problems. He also stated that he had mild short-term and long-term memory loss, and woke up frequently at night and had nightmares and night sweats. It was also noted that the Veteran had mild anxiety, and verbal conflicts. He stated he was feeling hopeless about the future at that time, but he was not suicidal. The diagnosis was PTSD (combat related), with a GAF score of 58. In February 2008, the Veteran complained of sleep deprivation and increased anxiety and hypervigilence, but was otherwise presented with appropriate appearance, comprehensible speech and no delusions or hallucinations. He was diagnosed with anxiety disorder: PTSD, chronic, with a GAF score of 54. Another February 2008 record noted that the Veteran's mood swings of anxiety and depression became more obvious when discussing his past life events, including Vietnam. Additional symptoms noted were periods of social isolation, sleep deprivation with occasional nightmares, some hypervigelence but no startle reactions, and some intrusive thoughts. The diagnosis was PTSD with a GAF score of 56. The Veteran underwent a VA examination in April 2008. The Veteran stated that he has had flashbacks, startled reactions, hypervigilence and irritability. He stated that he attended a coping skills PTSD group, and spent most of his time socializing with family although he does have friends. He stated that he was on medical disability due to his heart condition. The examiner noted that the Veteran endorsed efforts to avoid thoughts, feelings and conversations to people, but had no problem talking to other soldiers. The examiner also stated that the Veteran's diminished interest in significant activities was mainly due to not being able to work anymore, along with a restricted range of affect. The examiner also noted that the Veteran was more impacted in the social area of functioning than occupational, in that he may leave events if he grows uncomfortable around people. The examiner felt that while the Veteran does suffer from PTSD, any adverse impact on his vocational functioning appeared to be minimal, although his social and interpersonal functioning may have been impacted to a greater degree. The diagnosis was PTSD, with a GAF score of 65. The Board notes that VA treatment records from the period of April 2008 through March 2010 are of record and contained in the Virtual VA electronic records system. VA treatment record from April 2008 shows the Veteran having been taken into a recreational therapy group due to more social isolation. VA treatment records show no further notations regarding PTSD or psychiatric symptoms until an initial mental health evaluation in March 2010, when the Veteran complained that he could not sleep, and that he had dreams about dead people and had flashbacks. He stated that he stops walking sometimes because he feels like he is stepping on something. He also complained of lack of concentration, some memory loss (forgetting to take his medications), and anxiety and anger issues. The diagnosis was PTSD. In April 2010, the Veteran continued to complain of sleep disturbances, isolation, sadness and guilt. The diagnosis was PTSD, with GAF score of 55. June 2010 records show the Veteran having similar complaints as well, but he also stated that he was sleeping better, enjoying his coping skills group, and having a decrease in his previous symptoms. VA treatment records from August 2010 to November 2010 show indicate the Veteran having attended PTSD group counseling for coping skills. The Veteran was noted to be highly interactive, and was good at verbalizing his understanding. The Veteran underwent another VA examination in July 2011. The Veteran complained of sleep problems, waking up a couple times a month with a cold sweat, nervousness and thoughts of being back in Vietnam. He stated that some noises still trigger a fear response which makes him look for shelter. He also complained of some hyper vigilance, irritability, and snappiness. He has been married for 21 years, with one son, and keeps up with some friends and family and a spiritual group. The Veteran stated he likes fishing, and attends some tournaments. He stated he is on medical disability, but does not contend that it is due to the effects of a mental disorder. A mental status exam noted subjective sense of memory loss, panic attacks occurring twice a month, and restless, agitated sleep with frequent awakenings. The examiner noted the Veteran's symptoms to be mild to moderate, with a sporadic duration and frequency. Although the Veteran still exhibited symptoms, the examiner felt that it did not cause clinically significant or impairment in social, occupational or other important areas of functioning. The examiner diagnosed PTSD, but felt that the degree of dysfunction was attenuated by past and current treatment. With regard to the effect of PTSD on employment, family role, physical health, relationships and leisure activities, the examiner felt they were mild to moderately affected, and only mildly affected were activities of daily living, routine responsibilities, schooling and quality of life. The Veteran was not considered to be unemployable. The diagnosis was PTSD with a GAF score of 67. No other mental disorder was found. VA treatment records from November 2010 to September 2012 show that the Veteran had been regularly attending a PTSD spirituality group and taking guitar lessons as part of recreational therapy. There are no other complaints or problems noted. Records also show that the Veteran is taking citalopram for his PTSD without complaints as well. After a full consideration of the evidence of record, the Board finds that a rating in excess of 30 percent is not warranted. The Veteran's overall mental health picture most closely approximates the criteria for the currently assigned 30 percent rating. The Veteran's manifested symptoms include anxiety, chronic sleep impairment, some isolation, and irritability. In fact, while the Veteran has complained of some social adjustment issues, he still enjoys recreational activities such as fishing and playing the guitar. The Veteran has been married for 21 years, and has a good relationship with his family, and does maintain some friendships. The July 2011 VA examiner felt that the Veteran was able to function satisfactorily for the most part in most areas, and both the April 2008 and July 2011 VA examiners felt that there was minimal effect on the Veteran's vocational functioning. Both examiners have indicated that the Veteran was cooperative and pleasant on interview, demonstrating insight and judgment as well as clear thought and communication. No memory impairments were demonstrated, although there were subjective complaints of being forgetful. Although the Veteran complained of panic attacks, he stated they occurred only twice a month. While the Veteran's reported GAF scores varied during the appeal period, even at the worst score of 54 the symptoms associated with the lowest score still most closely approximates the criteria for a 30 percent rating. In sum, the Board finds that the evidence presented does not reflect that the Veteran is entitled to a rating in excess of 30 percent for his service-connected PTSD at any time during the appellate period. With respect to assigning staged ratings, at no time during the period in question has the Veteran's symptoms warranted a higher schedular rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007). As stated above, the Veteran's overall symptoms throughout the appeal period have remained relatively consistent, and reflective of a 30 percent disability rating. Consideration has been given to the possibility of assignment of an extraschedular evaluation under 38 C.F.R. § 3.321. Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, a determination must be made as to whether the schedular criteria reasonably describe a Veteran's disability level and symptomatology. Id. At 115. If the schedular rating criteria do reasonably describe a Veteran's disability level and symptomatology, referral for extraschedular consideration is not required and the analysis stops. Id. If the schedular rating criteria do not reasonably describe a Veteran's level of disability and symptomatology, a determination must be made as to whether an exceptional disability picture includes other related factors, such as marked interference with employment and frequent periods of hospitalization. Id. At 116. If an exceptional disability picture including such factors as marked interference with employment and frequent periods of hospitalization exists, the matter must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. The Schedular criteria are sufficient and adequate in this case. Ratings in excess of that currently assigned for PTSD are provided for certain manifestations of the service-connected disorders, but the competent lay and medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disability. The Veteran has not required hospitalization due to these service-connected disabilities, and marked interference of employment has not been shown. Therefore, the Veteran's disability picture is contemplated by the rating schedule and no extraschedular referral is required. ORDER An initial rating in excess of 30 percent disabling for post-traumatic stress disorder (PTSD) is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs