Citation Nr: 1334878 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 12-15 859 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada THE ISSUE Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) with alcohol abuse. ATTORNEY FOR THE BOARD Aaron Bill, Associate Counsel INTRODUCTION The Veteran had active military service from April 1992 to February 2004. This appeal comes to the Board of Veterans' Appeals (Board) from a September 2011 rating decision. The Board has not only reviewed the Veteran's physical claims file but also his file on the "Virtual VA" system to ensure a total review of the evidence. FINDINGS OF FACT 1. For the entirety of the rating period on appeal, the Veteran's PTSD has more nearly approximated occupational and social impairment, with deficiencies in most areas due to such symptoms as irritability, anger, aggressiveness, depression, and nightmares. 2. For the entirety of the rating period on appeal, the Veteran's PTSD has not more nearly approximated total occupational and social impairment. CONCLUSION OF LAW The criteria for a disability rating in excess of 70 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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). Adequate notice for VCAA purposes was provided to the Veteran in a letter dated May 2011. Because the current appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection for PTSD, no additional notice is required. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the United States Court of Appeals for Veterans Claims (Court) have held that, once service connection is granted and the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App.112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims). The Board finds that all necessary development has been accomplished; therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A. VA has obtained service records, private treatment records, VA treatment records and VA examination reports. Additionally, the Veteran was offered the opportunity to testify at a video hearing with the Board but he did not appear and has not provided good cause for his failure to show for the hearing. The Veteran has also been afforded VA examinations in June 2011 (with an addendum added for the June 2011 VA examination in August 2011) and August 2012, on the issue of rating his PTSD. The Veteran's history was taken, and mental health evaluations were conducted. Conclusions reached and diagnoses given were consistent with the examination reports. Therefore, the Veteran has been afforded adequate examinations on the issue decided herein. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Disability Rating Criteria Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation 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. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2012). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In rendering a decision on appeal, the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994. The Veteran is in receipt of a 70 percent disability rating for PTSD under Diagnostic Code (DC) 9411. A 70 percent disability rating is assigned when PTSD causes 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 that is 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); and inability to establish and maintain effective relationships. Id. A 100 percent disability rating is assigned when PTSD causes 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; and memory loss for names of close relatives, or for the Veteran's own occupation or name. Id. In applying the above criteria, the Board notes that, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability. See 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181 (1998) citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so). The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). As noted below, treatment providers have rendered Global Assessment of Functioning (GAF) scores pursuant to the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV). As indicated in Carpenter v. Brown, 8 Vet. App. 240, 242 (1995), the GAF is a scale reflecting psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. A score in the range of 51 to 60 indicates moderate symptoms (e.g., a flattened affect, circumstantial speech, occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (e.g., having few friends or having conflicts with peers or co-workers). A GAF score of 41 to 50 reflects a serious level of impairment (e.g., suicidal ideation, severe obsessive rituals, frequent shoplifting), or serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A score of 31 to 40 reflects some impairment in reality testing or communication or major impairment in several areas, such as work or school, family relations, judgment, thinking or mood and an inability to work. 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 also 38 C.F.R. § 4.126(a)(an evaluation shall be based on all the evidence of record that bears on occupational and social impairment, rather than solely on an examiner's assessment of the level of disability at the moment of examination). The Veteran filed a claim for service connection for PTSD in May 2011. In a September 2011 rating decision, the RO granted service connection for PTSD and assigned a 10 percent rating, effective May 6, 2011; his rating was subsequently increased to a 70 percent rating effective May 6, 2011 in an October 2012 rating decision. The Veteran contends that his PTSD symptomatology warrants an initial rating of 100 percent for the entire initial rating period. The Veteran has reported PTSD symptoms that include homicidal and suicidal ideation, impulse control issues, isolative tendencies and poor relationships. After a review of all the evidence, lay and medical, the Board finds that, for the rating period on appeal, the Veteran's PTSD has been characterized by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, consistent with the criteria for a 70 percent disability rating under DC 9411. 38 C.F.R. § 4.130. The evidence of record also does not support a need for the Board to consider staged ratings pursuant to the requirements set out in Fenderson as the record does not show distinct time periods where the Veteran's PTSD symptoms would warrant different ratings. The evidence of record includes treatment records from the VA Southern Nevada HCS dated from December 2007 to July 2012, VA examination reports as well as the Veteran's own statements. In the VA treatment records from December 2007, Dr. J.C. states that the Veteran suffers from irritability, depression and has a low frustration tolerance based upon his PTSD. Dr. J.C. noted the Veteran was employed full time with good financial status but continued to struggle with his PTSD symptoms. Dr. J.C. also noted that the Veteran was twice divorced but living with a girlfriend at the time indicating he is able to form relationships. At the time, Dr. J.C. assigned a GAF score of 45 to the Veteran indicating serious symptoms or any serious impairment in social occupational or school functioning. Additionally, according to VA treatment records, the Veteran saw Dr. M.M. beginning in April 2007. The doctor noted the Veteran had a panic anxiety disorder with nightmares and night sweats, problems sleeping both in going to sleep and remaining asleep and that he appeared agitated. The doctor noted his speech was at a normal rate and rhythm, his language was intact but had quick mood swings related to his PTSD. The Veteran's thought process was normal and coherent, he had no hallucinations or illusions nor suicidal or violent ideation. Dr. M.M. stated the Veteran's insight and judgment were good and his memory was intact. The Veteran was assigned a GAF score of 55 at the time which indicates moderate symptoms or moderate difficulty in social, occupational or school functioning. Dr. M.M. began seeing the Veteran more frequently beginning in February 2011. At that time, the doctor assigned a GAF score of 50 to the Veteran indicating serious symptoms or any serious impairment in social occupational or school functioning. Both prior to and from May 6, 2011, the record does not indicate total occupational and social impairment, due to such symptoms as described for a 100 percent evaluation for PTSD. At a VA examination in June 2011, the VA examiner reviewed Dr. M.M.'s treatment records from February 2011 when making his assessment and noted the Veteran was capable of working and did work as a postal carrier. The examiner stated: The patient's thought processes and communication are within normal limits. He is not hallucinating or delusional, but he is hyper-alert. His eye contact and interaction in the session are appropriate. He is aggressive, but appropriate. He has had homicidal thoughts and has gotten into many fights. He does not feel suicidal. He is able to maintain personal hygiene and activities of daily living. He is oriented to time, place and person. His memory is intact both long and short-term. He denies obsessive and ritualistic behaviors. His speech is normal in rate and rhythm, relevant, logical and coherent and goal oriented. There is no obscure speech pattern. He does not have panic attacks. He gets angry and aggressive, but he is not depressed or particularly anxious. He denies panic attacks. His impulse control is impaired. He has problems falling asleep. He sleeps 4-5 hours a night. It was also noted that the Veteran saw friends and family, played on the computer and was then assigned a GAF score of 50 by the examiner, consistent with Dr. M.M.'s assessment from four months earlier. The VA examiner offered an addendum opinion in August 2011 adding that he believe the Veteran was exposed to a lot of traumatic stress in service leading to the current diagnosis of PTSD. The Board finds that the Veteran's PTSD symptomatology was generally noted to be moderate in degree as evidenced by his GAF scores, with some severe symptomatology noted during the VA examination. However, his PTSD was not of the severity indicated for a 100 percent rating. In sum, while the Veteran's PTSD has significantly impacted his occupational functioning, total occupational and social impairment, due to the symptoms enumerated in Diagnostic Code 9411, has not been shown so as to warrant a rating of 100 percent for PTSD. In short, the preponderance of the evidence is against an initial rating in excess of 70 percent for PTSD. In July 2011 VA treatment records, Dr. M.M. noted the Veteran was a hard worker but that he suffered from depression and had relationship problems due to his PTSD. The doctor then assigned a GAF score of 55 to the Veteran indicating moderate symptoms or moderate difficulty in social, occupational or school functioning. VA treatment records from May 2012 show that the Veteran has no suicidal or homicidal ideations according to Dr. M.M. and the doctor assigned a GAF score of 55 consistent with the July 2011 VA treatment records. Most recently the Veteran was given a VA examination in August 2012 at which point the examiner indicated on the Disability Benefits Questionnaire (DBQ) that the Veteran suffered from irritability, difficulty concentrating and hypervigilance. The examiner indicated that the Veteran also had a depressed mood, suspiciousness, chronic sleep impairment, his affect was flattened, he suffered from impaired judgment and abstract thinking, he suffered disturbances of motivation and mood, had difficulty in establishing and maintaining effective work and social relationships, suicidal ideation as well as impaired impulse control. The examiner then opined that the Veteran requires therapy but poses no threat of danger or injury to himself or others. The Veteran was then assessed a GAF score of 52, consistent with Dr. M.M.'s assessment of moderate symptoms or moderate difficulty in social, occupational or school functioning. The Board further finds that in review of all the evidence, the nature of the Veteran's symptoms and assessments by various VA examiners and treating physicians are most nearly characterized by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, consistent with the criteria for a 70 percent disability rating under DC 9411. The Board finds that the Veteran's PTSD symptoms and the severity of his symptoms more closely approximates the criteria for a 70 percent evaluation for PTSD for the entire initial rating period, and do not more nearly approximate the criteria for a 100 percent disability (total occupational and social impairment) for any period. 38 C.F.R. §§ 4.3, 4.7. For a rating in excess of 70 percent, the PTSD would have to manifest deficiencies in the form of total occupational and social impairment due to gross impairment in thought processes or communication, persistent danger of hurting self or others, intermittent inability to perform activities of daily living, disorientation to time or place or memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130. While the Veteran indicates impulse control issues and "lousy" relationships in his VA Form 9, he is employed by the United States Postal Service as a mail carrier and the weight of the evidence shows he is capable of entering and maintaining relationships as evidenced by the VA treatment records and examination reports. The weight of the lay and medical evidence does not demonstrate symptoms of gross impairment in thought processes or communication, persistent danger of hurting self or others, intermittent inability to perform activities of daily living, disorientation to time or place or memory loss for names of close relatives, own occupation or own name which would warrant a 100 percent schedular rating. Given these factors, the Veteran's symptoms do not more nearly approximate a 100 percent rating. The Board recognizes that the Court in Mauerhan, 16 Vet. App. 436, stated that the symptoms listed in VA's general rating formula for mental disorders is 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; however, the Court further indicated that without those examples, differentiating between rating evaluations would be extremely ambiguous. Id. at 442. With this in mind, the evidence shows that the Veteran's overall PTSD picture is already adequately contemplated by the existing 70 percent rating. The Veteran does suffer from impaired impulse control (such as unprovoked irritability with periods of violence), difficulty in adapting to stressful circumstances (including work or a work-like setting), and inability to establish and maintain effective relationships, this is specifically listed under the criteria for a 70 percent rating. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for an increased rating in excess of 70 percent for PTSD for any period, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Extraschedular and TDIU The Board has considered whether referral for an extraschedular evaluation is warranted for PTSD. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that all the symptomatology and impairment caused by the Veteran's PTSD is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria, DC 9411, specifically provide for disability ratings based on a combination of history and clinical findings. In this case, considering the lay and medical evidence, the Veteran's PTSD is manifested by impaired impulse (such as a history of violence and getting into fights as noted in his June 2011 VA examination report), difficulty in adapting to stressful circumstances (including work or a work-like setting), and inability to establish and maintain effective relationships. As discussed above, the Veteran has a number of psychiatric symptoms such as nightmares, sleep impairment, irritability, and occasional depression. These symptoms are either explicitly part of the schedular rating criteria or are "like or similar to" those symptoms and impairment explicitly listed in the schedular rating criteria. Mauerhan, at 443. The levels of occupational and social impairment are also explicitly part of the schedular rating criteria. In addition, for the Veteran's PTSD disability, the GAF scores are incorporated as part of the schedular rating criteria as they tend to show the overall severity of symptomatology or overall degree of impairment in occupational and social functioning. Also, the PTSD schedular rating criteria by nature are focused on an evaluation of all the Veteran's symptoms and how they affect his social and occupational functioning. A claim for entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) is part of an increased rating issue when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the evidence associated with the claims file shows that the Veteran is currently employed. Therefore a TDIU is not reasonably raised. ORDER An initial rating in excess of 70 percent for PTSD is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs