Citation Nr: 1334581 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 11-20 807 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD J. Honan, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1968 to March 1970, and received a Bronze Star Medal and Army Commendation Medal for his service in Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which denied service connection for PTSD. In a May 2010 rating decision the RO granted service connection for PTSD, anxiety disorder, depressive disorder, and alcohol dependence (in remission), and assigned a 30 percent disability rating, effective January 11, 2007. In his May 2010 notice of disagreement, the Veteran sought a higher disability rating for his PTSD. In addition to the paper claim file, the Veteran's virtual file contains additional treatment records that the Board has reviewed and considered. FINDING OF FACT The Veteran's PTSD is manifested by no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to such symptoms as depressed mood, anxiety, panic attacks occurring weekly or less often, and chronic sleep impairment; his lowest GAF score in the appellate period was 68. CONCLUSION OF LAW The criteria for an initial rating in excess of 30 percent for service-connected PTSD have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA 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. This appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection. In cases 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008). That burden has not been met. The Veteran's VA examination reports, VA treatment records, and Vet Center treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that there are any outstanding private treatment records or that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c)(2). VA examinations were conducted in March 2010 and April 2012. The Veteran has not argued, and the record does not reflect, that these examinations were inadequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c)(4). The examination reports described the Veteran's psychiatric symptoms in sufficient detail so that the Board's evaluation of the disability is a fully informed one. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). II. Analysis In May 2010, the RO granted service connection for PTSD in conjunction with anxiety disorder, depressive disorder, and alcohol dependence (in remission). The RO assigned a single disability rating of 30 percent pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411, effective January 11, 2007. The Veteran contends that he is entitled to an initial rating in excess of 30 percent. Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate rating codes identify various disabilities. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history. See generally 38 C.F.R. §§ 4.1, 4.2. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. With an initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119 (1999). PTSD is evaluated under a general rating formula for mental disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (2013). A 30 percent rating is warranted where there is an 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, or mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating 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. Higher ratings are available for other, more significant manifestations. The Global Assessment of Functioning is a scale reflecting psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). A GAF score of 41 to 50 is defined as denoting serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A score of 51 to 60 is defined as indicating 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). A score of 61 to 70 is defined as indicating some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning but generally functioning pretty well, has some meaningful interpersonal relationships. The Veteran received treatment for PTSD from the Corona Vet Center beginning in June 2008. These treatment records indicate that the Veteran experienced ongoing sleep disturbances, intrusive thoughts, and anxiety. The Veteran's therapist, an LCSW, consistently reported his mood as dysphoric and his thought-processes as logical and goal-directed. Starting in March 2009, the Veteran received VA treatment for PTSD at the Loma Linda VA Medical Center and the Corona Community Based Outpatient Clinic (CBOC), where he participated in group therapy and received individual therapy. The group therapy treatment records indicated consistently appropriate and average participation, but individual treatment reports indicated minor fluctuations in mood, anxiety, anger/irritability, sleep, and motivation levels. In March 2009, the Veteran reported that he had witnessed atrocities in Vietnam and currently experienced guilt, painful memories, nightmares, flashbacks, avoiding, irritability, and depressed mood. In April 2009, shortly after the Veteran first began receiving VA treatment, he had a GAF score of 68. The Veteran then maintained a consistent GAF score of 70 from May 2009 onwards, according to his VA treatment records. In June 2009, he reported depressed mood that came and went depending on his circumstances, moderate anxiety, and good motivation. He stated that his irritability was better controlled with anger management sessions and medication. The Corona Vet Center records indicate that the Veteran had 11 individual visits and two phone contacts during the appellate period. In January 2010, his counselor closed his case, citing his ongoing group and individual therapy at the Loma Linda VA Medical Center and support from his family, noting his progress in managing his PTSD symptoms, and observing that his symptoms were stable. In March 2010, the Veteran was afforded a VA psychiatric examination, and was diagnosed with PTSD, anxiety disorder, depressive disorder, and alcohol dependence in remission. The examiner found these disorders to be interrelated, and reasoned that they all stemmed from exposure to traumatic events. She found the Veteran's affect and mood reflected anxiety, and stated that he experienced a depressed mood that occurred as often as twice a week, with each episode lasting for one day. The Veteran complained of excessive worry, pacing, restlessness, sadness, increased social isolation, occasional problems with appetite, occasional feelings of hopelessness and helplessness, and occasional crying episodes. The examiner observed the Veteran's communication and speech as within normal limits, but noted that the Veteran had difficulty understanding complex commands. The Veteran reported panic attacks that occurred less than once per week. Although the examiner observed suspiciousness, the report reflects no hallucinations or delusions during the examination or any history thereof. She found the Veteran's judgment and abstract thinking normal; that the Veteran understood directions; and the Veteran did not have slowness of thought or appear confused. She also found that the Veteran had mild memory impairment, but showed no indication of suicidal ideation or obsessional rituals. She reported a GAF score of 68. VA treatment records from 2010 to 2012 showed that the Veteran's mood ranged from mild depressed mood to good mood, motivation levels ranged from low to fair, anxiety levels fluctuated with events such as the holidays and stress on the job, and hypervigilance and exaggerated startle response were present consistently. The Veteran's therapist never described any of his symptoms as severe and documented the medications that he took to manage his mental health. At all times during the appellate period, the Veteran reported a positive relationship with his wife, his two sons, and his two grandsons. He saw his family often. His therapist consistently reported the Veteran's thought processes as logical and goal-directed. In April 2012, the Veteran was afforded another VA psychiatric examination. The examiner diagnosed the Veteran with PTSD and alcohol dependence (no longer in remission). He attributed the symptoms of anxiety, hypervigilance, suspiciousness, flashbacks, sleep disturbance and hyperstartle response to PTSD, but reported alcohol dependence as causing problems staying focused and depressed feeling after using alcohol. It was impossible to differentiate which portion of occupational and social impairment was caused by each mental disorder, since the pattern of PTSD and alcohol dependence were circular and tended to be mutually reinforcing events. The examiner found social and occupational impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress; or, symptoms controlled by medication. The Veteran reported no social changes since his last examination. He kept to himself, but had remained married to his wife for 43 years and had two sons. He last worked in 2010 as a heavy equipment operator, and had maintained that job for 11 years before being laid off due to budget cuts and taking an early retirement. The examiner indicated that the Veteran experienced depressed mood, anxiety, suspiciousness, panic attacks weekly or less often, chronic sleep impairment, and disturbances of motivation and mood. While the examiner also found mild memory loss, he did not find any chronic impairment of short and long-term memory. He did not observe any impaired judgment, impaired abstract thinking, flattened affect, or suicidal ideation. In his original service-connection claim from January 2007, the Veteran reported ongoing stress since service. In his May 2010 notice of disagreement, he asserted that he experienced panic attacks four to five times per week, and stated that his treatment records from the Loma Linda VA Medical Center and the Corona Vet Center would support a higher disability rating for PTSD. The Veteran, as a layperson, is competent to report matters observed or within his personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91 (1993). However, when assessing credibility and probative value, such assertions must be weighed against medical and other pertinent evidence. Cf. Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). The Board may discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Board may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See Caluza v. Brown, 7 Vet. App. 498 (1995). The Board assigns no probative value to the Veteran's self-reported panic attacks that allegedly occur four to five times per week. This assertion is not credible, as it is inconsistent with the rest of the record, i.e.; the Corona Vet Center records and VA treatment records do not reference a single incident of panic attacks reported by the Veteran, and none of the VA examination reports indicated that panic attacks occurred at a frequency of multiple times per week. The Veteran's friend, A.G., who served with the Veteran in Vietnam, wrote a November 2011 letter that described the circumstances of the Veteran's service. However, A.G.'s statement did not address the presence or severity of the Veteran's current PTSD symptoms, and is not relevant to the disability rating on appeal. The evidence of record does not support the assignment of a rating in excess of 30 percent under the General Rating Formula for Mental Disorders at any time during the appellate period. Importantly, the Veteran remained employed through July 2010. He had maintained his employment for approximately 11 years prior to his retirement which, he told the VA examiner, was the result of budget cutbacks. Although he told the examiner that his job allowed him to avoid contact with others, he also reported that his relationship with his supervisor and coworkers was good. The Veteran has consistently reported a good relationship with his wife, to whom he has been married for over 40 years, as well as good relationships with his sons and grandsons. The Veteran's medical records do not evidence difficulty in establishing and maintaining effective work and social relationships. Moreover, the credible evidence of the frequency of the Veteran's panic attacks is encompassed by the criteria for a 30 percent disability rating. Both VA examiners also indicated that the Veteran experienced mild memory impairment that included forgetting names, directions, and recent events or conversations, but this level of memory impairment is contemplated by the 30 percent rating. And, while the March 2010 examiner stated that the Veteran had difficulty understanding complex commands, she also reported that he did not exhibit slowness of thought or appear confused, and that he was able to understand direction and his judgment was not impaired. The Veteran's GAF scores have ranged from 68 to 70 during the appellate period, which indicate mild symptoms. While the GAF test is not the single definitive factor in determining disability evaluations, the Veteran's consistent scoring of 68 to 70 over several years carries significant probative weight, and does not support a rating higher than 30 percent. According to the rating criteria for mental disorders, a disability evaluated at the next higher level of 50 percent is characterized by: 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; and difficulty in establishing and maintaining effective work and social relationships. The Veteran was not observed to exhibit flattened affect or stereotyped speech during the appellate period. While the Veteran contended that he experienced panic attacks four to five times per week, his treatment records and VA examination reports indicated the frequency of panic attacks as occurring weekly or less often. While the March 2010 VA examiner observed the Veteran to have difficulty in understanding complex commands, she also reported that the Veteran understood directions and did not have slowness of thought or appear confused. The medical records reflected the presence of mild memory loss as contemplated by the 30 percent rating criteria, but not the more severe memory impairment encompassed by the 50 percent rating criteria. The evidence of record also did not show the Veteran to have impaired judgment or impaired abstract thinking during the appellate period. And while the treatment records showed fluctuations in mood and motivation, the evidence does not suggest that they resulted in social and occupational impairment with reduced reliability and productivity. The Veteran reported to the April 2012 VA examiner that he retired due to budget cuts, and did not allege that his PTSD symptoms caused him to retire. Finally, the Veteran has been married for over 40 years, enjoys a positive relationship with his sons and grandsons, and was able to maintain his former employment for over 10 years. These facts do not evidence difficulty in establishing and maintaining effective work and social relationships. Thus, the Veteran's symptoms more nearly approximate the level of disability contemplated by a 30 percent rating. In making this determination, the Board is aware that the symptoms listed under the rating criteria are essentially examples of the type and degree of symptoms for that evaluation, and that the Veteran need not demonstrate those exact symptoms to warrant a particular evaluation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). In this regard, the Board has also reviewed the evidence to determine his overall level of impairment. Id.; see also Vazquez-Claudio v. Shinseki, 2012-7114 (Fed. Cir. April 8, 2013) (Although the Veteran's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the Veteran's level of impairment). Although the Veteran's treatment records indicate temporary fluctuations in his condition, the competent medical evidence of record does not indicate that these symptoms reflect overall worsening of his social and occupational functioning. As the schedular criteria for any higher rating were not met at any point during the course of the appeal, staged ratings are not warranted. See Fenderson, 12 Vet. App. 119 (1999). Ordinarily, the VA Schedule of Ratings will apply unless there are exceptional or unusual factors, which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). An extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). The Veteran's symptoms are contemplated by the evaluation presently assigned. The competent, credible evidence of record indicates that the Veteran experiences depressed mood, anxiety, irritability, nightmares, and requires continuous medication. As the rating criteria reasonably describe the Veteran's disability level and symptomatology, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is adequate. Thun v. Peake, 22 Vet. App. 111, 115 (2008). A referral for an extraschedular rating is not warranted. The preponderance of the evidence is against the claim, there is no doubt to be resolved, and an increased initial evaluation for PTSD is not warranted. Finally, a request for a total disability rating based on individual unemployability (TDIU), whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities and is part of a claim for increased compensation. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Although a VA treatment note from August 2010 indicated that the Veteran reported retiring from his job the month prior due to stress, he did not state that the stress was related to his PTSD symptoms. He also later informed a VA examiner in April 2012 that he had been laid off and had taken an early retirement due to budget cutbacks. The Veteran does not contend, and the evidence of record does not suggest, that he is rendered unemployable due solely to his service-connected disabilities. A claim for TDIU is not raised by the evidence. ORDER An initial disability rating in excess of 30 percent for PTSD is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs