Citation Nr: 1334884 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 08-37 346 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an initial rating higher than 50 percent for service-connected PTSD, on an extraschedular basis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran had active service from December 1966 to July 1970. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a February 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's appeal. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal, except as otherwise stated herein. The Veteran requested a hearing before the Board which was conducted in April 2010 by the undersigned Veterans Law Judge (VLJ). A transcript is associated with the claims file. A June 2010 Board decision granted an increase from an initial 30 percent schedular rating for PTSD to an initial 50 percent schedular rating but remanded consideration of entitlement to a rating in excess of 50 percent on an extraschedular basis. The claim for service connection for ischemic cardiomyopathy, to include as secondary to PTSD and/or as due to exposure to herbicides, was stayed. Subsequently a July 2010 rating decision effectuated the grant of a 50 percent schedular rating for PTSD effective October 22, 2007 (date of receipt of original claim). A September 2011 rating decision granted service connection for ischemic cardiomyopathy with coronary artery disease (CAD), status post myocardial (MI) infarction and stent placement and assigned an initial 10 percent rating from November 8, 1999; and granted a 100 percent schedular rating for that disorder effective August 1, 2007. That rating decision also granted entitlement to basic eligibility to Dependents' Educational Assistance effective August 1, 2007. The Veteran has not disagreed with any aspects of the grants by the September 2011 rating decision and, so, there is no pending appeal as to any such matters. In the September 2013 Informal Hearing Presentation disagreement was expressed with the last sentence in the January 2012 supplemental statement of the case (SSOC) in which it was stated that because of the grant of a 100 percent schedular rating for the service-connected heart disease "the issue of an extra-schedular rating becomes moot (removed) issue." The Board agrees that the issue of potential entitlement to a rating in excess of 50 percent for PTSD on an extraschedular basis is not moot. The Informal Hearing Presentation also suggested that entitlement to special monthly compensation (SMC) was now an issue. In this regard, in Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008) the Court held that although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of a TDIU predicated on a single disability may form the basis for an award of SMC. Following the holding in Bradley, Id., precedential VA General Counsel opinion VAOGC 6-99 was withdrawn. That opinion had held that was that an award of a 100 percent schedular rating did moot a claim for a TDIU. However, the matter of "SMC" has not been adjudicated, much less denied, by the RO and so the Board does not have jurisdiction over it, and it is referred to the RO for appropriate action consideration. FINDINGS OF FACT The Veteran's PTSD does not presents such an exceptional disability picture that the schedular rating criteria are shown to be inadequate for the purpose of properly compensating the Veteran for social and occupational impairment due to service-connected PTSD and the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. CONCLUSION OF LAW The criteria for an initial rating higher than 50 percent on an extraschedular basis for PTSD are not met. 38 C.F.R. § 3.321(b)(1) (2012); Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The VA has a duty to provide specific notification to the Veteran and assist him with the development of evidence pursuant to the Veterans Claims Assistance Act (VCAA). The Veteran's claim for an initial rating higher than 30 percent for PTSD arises from his disagreement with the initial evaluation following the grant of service connection. It has been held that once service connection is granted, the claim is substantiated and additional notice is not required. 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). As to VA's duty to assist, the Board notes that pertinent records from all relevant sources identified by the Veteran, and for which he authorized VA to request, have been obtained. 38 U.S.C.A. § 5103A. VA has associated service treatment records and post-service VA medical records with the claims folder. Additionally, the Veteran was afforded a VA examination in October 2009. Following the June 2010 Board remand voluminous VA treatment records have been associated with the claim files. Pursuant to the 2010 Board remand in September 2010 the RO provided the Veteran a letter regarding the requirements for an extraschedular rating and he was requested to submit evidence as to interference with employment and any hospitalizations. However, later in September 2010 the Veteran responded stating that he had no further information or evidence to submit. In light of the foregoing, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 3.159, and that the Veteran will not be prejudiced by the Board's adjudication of the claim. II. Entitlement to an Initial Extraschedular Rating Higher than 50 Percent for Service-Connected PTSD Service connection for PTSD was established by a February 2009 rating decision, at which time a 30 percent rating was assigned, effective October 2007. As noted, the Board's June 2010 grant of no more than a 50 percent schedular rating under 38 C.F.R. § 4.130, Diagnostic Code 9411 was effectuated by the July 2010 rating decision, effective the date of receipt of the original claim for service connection for PTSD. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations 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. The determination of whether an increased evaluation is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board notes that the appeal for a higher evaluation arises from the initial rating decision which established service connection for the PTSD and assigned the initial disability evaluation. Therefore, the entire rating period is to be considered, including the possibility of staged extraschedular ratings (i.e., separate ratings for separate periods of time) based on the facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). The Board has considered the entire record, including the Veteran's VA clinical records. These show complaints and treatment, but will not be referenced in detail. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Therefore, the Board will discuss the evidence pertinent to the rating criteria and the current disability. As to the 50 percent schedular rating now assigned, the current regulations establish a general rating formula for mental disorders. 38 C.F.R. § 4.130. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase 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). Accordingly, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130, Diagnostic Code 9411, for a schedular rating is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a Veteran's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV). Id. A rating of 50 percent 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 (retention of only highly learned material, forgetting to complete tasks); impaired judgment, impaired abstract thinking; disturbances of motivation and mood; and difficulty establishing and maintaining effective work and social relationships. Id. An extra-schedular disability rating is warranted if 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 application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under 38 C.F.R. § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that 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. 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. Second, 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 "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto 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 to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. Id. III. Background In October 2007 the Veteran was diagnosed with PTSD. He reported intrusive memories, nightmares, hypervigilance, depressed mood, avoidance, and irritability. A GAF score of 55 was assigned. A score of 55 indicates moderate symptoms or moderate difficulty in social or occupational functioning. See Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994) (DSM-IV) (a Global Assessment of Functioning (GAF) rating is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness). A March 2008 VA outpatient treatment (VAOPT) record shows that the Veteran reported that his anger and irritability issues had declined but that he continued to have night sweats and nightmares. He also denied suicidal/homicidal ideations but admitted to violent urges in the past. He stated he was able to control his desire to hurt others adequately at the time. A GAF score of 54 was assigned, indicating moderate symptoms or moderate difficulty in social or occupational functioning. A July 2008 VAOPT record shows that the Veteran reported symptoms of intrusive recollections that occurred on a weekly basis, with occasional nightmares. He stated he has no real problems in public situations, but will not go to events with large crowds. He also complained of some depression, but no suicidal or homicidal ideation. A GAF score of 50 was assigned indicating serious symptoms or serious impairment in social or occupational functioning. A January 2009 VAOPT clinical note shows that the Veteran reported having depression, anxiety, intrusive memories, poor sleep, and night sweats. A GAF score of 50 was assigned. On VA psychiatric examination in October 2009 the Veteran reported symptoms of anger, avoiding crowds, avoiding thoughts, feelings or conversations associated with military trauma, depression, hyperstartle response, hypervigilance, increased irritability, recurrent and intrusive memories, sleep disturbance, nightmares, social withdrawal and isolative behavior. On mental status examination his cognitive functions were grossly intact, affect was appropriate to content and mood was anxious. He stated that his symptoms severely impair his ability to go shopping, his social/interpersonal relationships, family relationships and occupation. His PTSD symptoms had moderately impaired his recreational activities. The examiner stated that there was moderate impairment in both social and occupational areas. A GAF score of 58 was assigned, indicating moderate symptoms or moderate difficulties in social or occupational functioning. The Veteran testified in April 2010 that he continued to have a violent temper and has difficulty making decisions and concentrating. He had been in two incidents involving violence in the last two years. He was taking medication for anxiety. He could not read at length and could not concentrate. He isolated himself because he could not control his temper. Nightmares impaired his sleep. He had last worked in 1984. Additionally, the Veteran submitted a statement by his treating VA psychologist. In the statement, dated in March 2010, the psychologist indicated that the Veteran had such difficulty with decision making he has difficulty in completing routine daily activities, such as what clothing to wear and scheduling appointments and that he gets distracted easily. The psychologist also stated that the Veteran still had considerable difficulty with irritability, such that he has been involved in several incidents involving physical violence. The psychologist opined that the Veteran could be a danger to coworkers in a job setting. Also, it was opined that he would be totally impaired as to vocational adjustment. It was felt that, even without consideration of his cardiac problems, he would be unable to hold employment due to his irritability and temper. VA treatment records show that the Veteran continued to complain of the classic symptoms of PTSD for which he was treated primarily with medication. On psychiatric outpatient evaluation in March 2010 the Veteran's GAF was 50. In August 2010 his GAF was 50. In October 2010 his GAF was 50. In April 2011 his treatment, including medications, had remained consistent. His GAF was 52. The VA treatment records since at least 2010 do not document any incidents of violence by the Veteran. IV. Analysis The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected PTSD with the established criteria found in the rating schedule. The Board finds that the Veteran's symptomatology is fully addressed by the rating criteria under which such disability is rated. In this regard, the Veteran's disability rating contemplates his occupational and social impairment caused by his PTSD symptomatology, as enumerated in the rating criteria above. In determining the appropriate schedular rating 38 C.F.R. § 4.126(a) requires consideration of the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. Indeed, that regulation specifically requires that a rating must be based on all the evidence that bears on occupational and social impairment and not solely on an examiner's assessment of the level of disability at the moment of the examination. Specifically, a wide range of factors as well as signs and symptoms are contemplated in the applicable rating criteria including the use of medication, decrease work efficiency, ability or inability to perform occupational tasks, routine behavior or self-care as well as symptoms such as anxiety, suspiciousness, panic attacks, chronic sleep impairment, memory impairment, impaired affect; circumstantiality, impaired speech; panic attacks; difficulty in understanding complex commands; impaired judgment; impaired abstract thinking; disturbances of motivation or mood; suicidal or homicidal ideation; obsessional rituals; impaired impulse control; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; delusions or hallucinations; behavior; being a persistent danger of hurting self or others; the degree of ability to perform activities of daily living; and the degree of orientation or disorientation. Moreover, the evidence considered for rating purposes under § 4.130 is not restricted to the symptoms provided in the Rating Schedule; rather, VA must consider all relevant evidence. See Mauerhan, 16 Vet. App. 436, 442 (2002). Of significance is that the Veteran's treating psychologist indicated in a March 2010 statement that he would be unable to hold employment because of his problems with irritability and temper and that his problems with concentration added to his difficulties in the vocational area. However, the Board must also note that the rating schedule, at 38 C.F.R. § 4.130, provides for higher schedular ratings of 70 percent and even 100 percent for a service-connected psychiatric disorder. A 70 percent evaluation is warranted where there is objective evidence demonstrating occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to 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, or 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 the inability to establish and maintain effective relationships. A 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. Thus, a pattern of behavior which creates a "persistent danger of hurting self or others" is a criterion for consideration on a schedular basis. However, the Board determined in June 2010 that a higher schedular basis was not warranted and, in doing so, specifically considered this very matter. In fact, this was one, but only one, of the factors weighed in the Board's assigning a higher schedular of no more than 50 percent. Other factors were also weighed, such as the relatively consistent GAF scores which did not weigh in favor of the assignment of a higher schedular rating. The evidence does not otherwise show such symptomatology or dysfunction either socially or occupationally as to warrant referral of the case for extraschedular consideration. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology of his service-connected PTSD and the Board concludes that the symptoms shown are not exceptional or unusual for the service-connected PTSD. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. Therefore, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). "Because the VA disability rating schedule is designed to consider the disabling effect of disabilities separately, no single DC provision will adequately assess the variety of symptoms involved with multiple service-connected disabilities." Johnson v. Shinseki, No. 10-1785, slip op. at 10 (Vet. App. Mar. 27, 2013) (en banc). Thus, as to the question of "whether [38 C.F.R.] § 3.321(b)(1) requires VA to consider multiple service-connected disabilities on a collective basis" the Court held that it did not. Johnson v. Shinseki, No. 10-1785, slip op. at 4 (Vet. App. Mar. 27, 2013) (en banc) (noting that a concurring opinion in Brambley v. Principi, 17 Vet. App. 20, 27 (2003) that there should have been a determination of "whether the appellant's service-connected disabilities as a whole [sic] entitled [a veteran] to [an extraschedular rating] under § 3.321(b)(1)" had never been adopted by the Court and concurring opinions are not binding on the Court" (citing Maryland v. Wilson, 519 U.S. 408, 412-13). In other words, an extraschedular rating may not be assigned on the basis of the combined impact of the Veteran's service-connected PTSD and his service-connected heart disease, which are his only service-connected disorders. As the preponderance of the evidence is against the claim an initial extraschedular disability rating in excess of 50 percent for PTSD at any time since the original claim for service connection was filed, the benefit-of-the-doubt rule does not apply, and the Board must deny the claim. See U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An initial rating higher than 50 percent for service-connected PTSD, on an extraschedular basis, is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs