Citation Nr: 1334852 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 10-47 002 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an increased rating for posttraumatic stress disorder (PTSD), currently rated as 70 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. Zobrist, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1967 to August 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in October 2010, a statement of the case was issued in November 2010, and a substantive appeal was received that same month. On the substantive appeal, the Veteran requested a Board hearing; however, in a September 2011 written statement, he withdrew the hearing request. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT At no time during the appeal period has total occupational and social impairment been demonstrated due to the Veteran's service-connected PTSD; the record has not demonstrated symptoms on par with those contemplated in the maximum, 100 percent criteria, such as: gross impairment in thought processes or communication; persistent delusions or hallucinations, 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. CONCLUSION OF LAW The criteria for a rating in excess of 70 percent for PTSD are not met at any time during the appellate period. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Duty to Notify Upon receipt of a complete application, 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. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided VCAA notice by letter dated in June 2010. The notice included the type of evidence needed to substantiate the claim for a higher rating, namely, evidence to show that the disability was worse and the effect the disability had on employment. The Veteran was notified that VA would obtain service records, VA records, and records of other Federal agencies and that he could submit other records not in the custody of a Federal agency, such as private medical records, or that, with his authorization, VA would obtain any such records on his behalf. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran was given the opportunity to testify at a hearing, but he canceled a hearing scheduled in October 2011. The RO has also obtained the Veteran's VA treatment records. The Veteran requested that VA obtain a copy of a 2004 "fitness for duty" examination conducted while he was employed at the post office. VA made several requests for copies of records from Dr. K. K., and notified the Veteran in September 2010 that no response had been received; that same month, he directed VA to make a decision without the records from Dr. K. K. The Board notes that, in any event, the 2004 record is not material to the rating period on appeal. Neither the Veteran nor his representative has identified any other pertinent records for the RO to obtain on his behalf. Further, VA has conducted necessary medical inquiry in an effort to substantiate the claim. 38 U.S.C.A. § 5103A(d). The Veteran was afforded a VA examination in July 2010. As the examination report and medical opinion contains the Veteran's medical history, findings, and an opinion with a rationale to support the conclusion reached in the opinion, the Board finds that the report is adequate to decide the claim. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (a medical opinion must be based on consideration of the veteran's prior medical history and examinations and also describe the disability, if any, in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one). As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that VA has complied with the notice and assistance requirements and that the Veteran is not prejudiced by a decision on the claim at this time. Legal Criteria, Factual Background, and Analysis Legal Criteria The Board notes that it has reviewed all of the evidence in the Veteran's claims file, as well as in "Virtual VA", with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The present appeal involves the Veteran's claim that the severity of his service-connected PTSD warrants a higher disability rating. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Under the criteria for PTSD (set forth at 38 C.F.R. § 4.130, Diagnostic Code 9411), a 70 percent rating is assigned 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 a work-like setting); inability to establish and maintain effective relationships. A 100 percent schedular rating 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 or place; memory loss for names of close relative, own occupation or own name. The Board notes here that the symptoms listed in VA's general rating formula for 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 rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Global Assessment of Functioning (GAF) scale reflects the psychological, social and occupational functioning under a hypothetical continuum of mental illness. See American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). See also Carpenter v. Brown, 8 Vet. App. 240, 243 (1995). According to the DSM-IV, a GAF score between 51 and 60 is indicative of 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 coworkers). Factual Background Pertinent evidence of record includes VA medical center (VAMC) treatment records, a VA examination, and the Veteran's submitted statements. A VA clinic note from January 2008 noted negative depression and PTSD screenings. A primary care note from August 2008 reported that the Veteran had no mood concerns or depression and had an "intact support system." In April 2009, he reported that he "feels he is doing well moodwise, is not anxious." He was taking Effexor for his PTSD and was a pastor at Antioch Bible Church. His suicide risk screening was negative. In February 2010, his treating physician reported that he was "doing well moodwise w. Effexor"; his PTSD was evaluated as "well controlled." In October 2010, his primary care physician noted that "he copes well [with] PTSD and has intact support system and has his faith." At that time, the Veteran reported that he "has been well" and "feels he is doing well from [a] mood standpoint." His depression screening was negative. The Veteran was afforded a VA examination in July 2010. The Veteran reported that he had been married for two years and lived with his wife and step-daughter. He had "no significant problems with memory," adequate appetite, and stable weight. "[H]e goes to the gym daily" and has "2 or 3 close friends and plays dominos with them." He works in his yard. He had to stop golfing due to finances. He reported reduced energy and increased fatigue due to the heat. He "reported occasional mild difficulty with depression" and "did not report any panic attacks." He described being stressed out/anxious "in the past." He "denied problematic use of alcohol or illicit drugs" or physical violence. He reported that he was "adequately able to complete his hygiene, take care of his finances, drive, [and] do basic cooking and cleaning." The Veteran "reported getting about 6 or 7 hours of sleep a night." He "occasionally [has] difficulty maintaining sleep" and will "toss and turn," "in part due to having to void and he wakes a couple times a night for this reason." "The Veteran reported having nightmares about 2-3 times a week. He reported night sweats about 3-4 times a week." He reported "mild difficulty with hypervigilance, exaggerated startled response, difficulty with loud noises, difficulty in crowd." He stated that the frequency of intrusive thoughts varied from daily to not at all. "[H]e does not have flashbacks as much as he once did," the last one being "a couple weeks ago." He stated that he tries to keep from thinking about Vietnam. The Veteran "reported having some occasional problems with anger and irritability," and presented for "examination as mildly irritable and agitated." He stated that he did not like how Vietnam veterans were treated when they returned home, was frustrated with the VA claims process and his disability rating, and "reported anger and frustration with the postal service," his last employer. He "reported that he stopped working due to work stress and PTSD symptoms." The Veteran reported receiving medication management, but no counseling, group therapy, or hospitalization for psychiatric problems. He "reported some improvement in functioning due to medication." On mental status examination, the examiner reported that the Veteran performed within normal limits and was alert and oriented to person, place, day, date and time. Thought process was linear. History was adequate. Affect was irritable and agitated. Insight was demonstrated. Spontaneous speech was full and grammatic and free of paraphasias. Attention and memory were intact. The Veteran did not report any overt symptoms of psychosis. The Veteran denied any history of suicide attempts. He denied current suicidal or homicidal ideation. The examiner opined that "the Veteran presents with a diagnosis of [PTSD], which is well controlled with current treatment. He presents with moderate impairment in functioning due to symptoms of PTSD with moderate impairment in social functioning, moderate impairment in occupational functioning." She assigned a GAF score of 56. Analysis For the reasons set forth below, the Board finds that the current 70 percent rating adequately reflects the current level of impairment. To meet the criteria for a 100 percent disability rating, the evidence must show 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of closest relatives, own occupation, or own name. The evidence of record clearly indicates that the Veteran's PTSD is not of such severity as to indicate total occupational and social impairment. On the contrary, the Veteran's PTSD has been consistently evaluated throughout the appeal period as "well controlled" and he has stated that he has no concerns regarding his mood. Suicide, depression, and PTSD screenings conducted within the time period on appeal have all been negative. On VA examination, his mental status was within normal limits. He reported no suicidal or homicidal ideation. He reported that he lives with his wife and step-daughter, that he has several close friends with whom he socializes, and that he makes daily trips to the gym. Although he reported that he had to give up golfing, he stated that this was due to financial reasons. Fatigue was attributed to heat. Additionally, although he reported occasional sleep difficulties, he also reported that he sleeps 6-7 hours a night and that any sleep interruption was due, at least in part, to physical issues (frequent urination). There is no indication that he has any difficulty with hygiene or other activities of daily living. His current GAF score indicates only "moderate" impairment. To the extent that the Veteran's PTSD symptomatology manifests in some occupational and social impairment, as demonstrated by episodes of depression, hypervigilance, exaggerated startle response, difficulty with loud noises and crowds, avoidance behavior, flashbacks, intrusive thoughts, anger, and irritability, such symptoms were described as mild, occasional, and intermittent, and such level of disability is well within that contemplated by the 70 percent disability rating currently assigned. The Board acknowledges the Veteran's statements that he retired from his job working with the United States Post Office in 2004 due, at least in part, to his PTSD, but notes that he has since reported working as a pastor, to include during the time period on appeal. The Board has considered the Veteran's PTSD symptoms and acknowledges that they result in significant impairment. However, the types of symptoms listed as examples for a 100 percent schedular rating are not shown. There is no showing of gross thought process or communication impairment. He is not in persistent danger of hurting himself or others, nor does he have persistent delusions or hallucinations. There is no disorientation, nor is there memory loss for names of close relatives, his own occupation or own name. These types of symptoms which show some degree of loss of touch with reality are simply not shown in this case. With respect to the Veteran's own statements regarding the severity of his PTSD, the Board notes that, while the Veteran has asserted that his PTSD should be rated at 100 percent disabling (see May 2010 increased rating request and October 2010 notice of disagreement), he has neither alleged that his condition has worsened nor complained of any additional symptomatology since his last disability rating was issued, nor has he alleged total social and occupational impairment due to his PTSD. On the contrary, on VA July 2010 examination, "[t]he Veteran reported some improvement in functioning due to medication." The Board notes the Veteran's assertion, in his substantive appeal, that Dr. K. K.'s 2004 medical records, which VA was unable to obtain for the file, "should have helped to raise [his] PTSD to 100%." However, the Board previously found, above, that it complied with the "duty to assist" with respect to obtaining these private medical records and that, regardless, said records would not be relevant to determining the Veteran's current level of disability due to his PTSD. Based on the evidence of record, to include the Veteran's ability to maintain several successful family and social relationships, his normal mental status, his self-description of his PTSD symptoms as "mild" and "occasional," and consistent medical evaluations that his PTSD symptomatology is well-controlled and of no more than moderate disability, the Board finds that the Veteran's PTSD does not manifest in total occupational and social impairment due to the types of symptoms comparable to those contemplated by the criteria for a 100 percent disability rating. Staged ratings are not for application as there is simply no evidence to support a 100 disability rating at any point during the appeal period. Fenderson v. West, 12 Vet. App. 119 (1999). The Board has considered whether this case presents an exceptional or unusual disability picture, with such related factors as marked interference with employment or frequent periods of hospitalization, so as to render impractical application of regular schedular standards and warrant referral for extraschedular consideration. However, after reviewing the record in this case, the Board finds that the symptoms described by the Veteran fit squarely within the criteria found in the relevant Diagnostic Codes for the disability at issue. In short, the rating criteria contemplate not only his symptoms but the severity of his disability. For these reasons, the Board finds that referral for extraschedular consideration is not warranted. Thun v. Peake, 22 Vet. App. 111 (2008). Finally, the Board notes that, although the Veteran refers to past interference with employment, he has already been assigned a combined service-connected disability rating of 100 percent from May 2005. Accordingly, the Board finds that consideration of a total rating based on individual unemployability is not required. In sum, the Board concludes that the preponderance of the evidence is against entitlement to a rating in excess of 70 percent for PTSD. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to a disability evaluation in excess of 70 percent for the Veteran's service-connected PTSD is not warranted. The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs