Citation Nr: 1335234 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 09-12 759 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to April 9, 2013, and in excess of 50 percent on and after April 9, 2013. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The Veteran served on active duty from April 1962 to April 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in September 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut, denying the Veteran's claim for increase for a rating in excess of 30 percent for PTSD. By its February 2011 decision, the Board denied the claim, following which an appeal of that denial was taken to the U.S. Court of Appeals for Veterans Claims, which by its memorandum decision of April 2012 vacated the Board's denial and remanded the matter to the Board for further review. The Board in March 2013 remanded this case to the RO via the VA's Appeals Management Center (AMC) in Washington, DC, so that additional development could be undertaken. On remand, the AMC by its rating decision of July 2013 increased the rating assigned for PTSD from 30 percent to 50 percent, effective from April 9, 2013. Following the AMC's completion of the actions sought, this case was again returned to the Board for further review. FINDINGS OF FACT 1. Prior to April 9, 2013, the disability picture presented involving the Veteran's PTSD and associated entities more nearly approximates the criteria denoting occupational and social impairment with reduced reliability and productivity, but is not reflective of any greater degree of social and industrial impairment. 2. For the period on and after April 9, 2013, the Veteran's PTSD was productive of not more than occupational and social impairment with reduced reliability and productivity, without a showing of occupational and social impairment with deficiencies in most areas or total social and industrial impairment. 3. The schedular criteria are adequate for the evaluation of the Veteran's PTSD throughout the period in question. CONCLUSIONS OF LAW 1. The criteria for the assignment of a 50 percent rating, but none greater, for PTSD and associated entities have been met for the period prior to April 9, 2013. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411 (2013). 2. The criteria for the assignment of a rating in excess of 50 percent for PTSD and associated entities for the period on and after April 9, 2013, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Preliminary Matters As noted above, this matter was previously remanded by the Board in April 2010 so that additional development could be undertaken. All of the actions sought by the Board through its prior remand were accomplished and there is no contrary argument advanced by the Veteran or on his behalf. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). Before addressing the merits of the Veteran's claim on appeal, the Board is required to ensure that the VA's duties to notify and assist have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; see Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000). The claim underlying the instant appeal was received by VA in March 2008, and the notification obligation in this case was accomplished by way of the RO's letter, dated in April 2008. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice is to be furnished to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, complete VCAA notice was provided to the appellant prior to the RO's initial decision in September 2008, in accord with Pelegrini. In light of the foregoing, and in the absence of any allegation of prejudice by or on behalf of the Veteran, the Board cannot conclude that any defect in the timing or substance of the notice provided affected the essential fairness of the adjudication, with resulting prejudice to the Veteran. The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). The record includes the Veteran's service treatment records and reports of examinations and treatment compiled by various medical professionals postservice, in addition to the Veteran's written statements in support of his claim for increase. The Veteran has not made the RO, AMC, or the Board aware of any additional evidence that needs to be obtained in order to decide fairly the claim herein addressed on its merits, and has not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of his appeal. 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); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The record indicates that the Veteran has been provided VA psychiatric or psychological examinations in connection with the instant appeal. The findings from those examinations are detailed and comprehensive in scope and are such as to permit the Board to evaluate the disability at issue both fairly and fully. On that basis, further development action relative to the Veteran's PTSD claim is not warranted. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In view of the forgoing, the Board finds that VA has satisfied its duty to assist under the governing law and regulations. Analysis The record reflects that service connection for PTSD with a history of a panic disorder was established by the RO through its rating decision of December 2005. At that time, a 10 percent schedular evaluation was assigned under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411, effective from March 2003. That 10 percent rating was increased to 30 percent, effective from January 2005, by further rating action in May 2006. And, most recently, the AMC in July 2013 further increased the rating assigned to 50 percent, effective from April 9, 2013, the date of a VA examination. The disorder at issue was at that time characterized as PTSD with a history of a panic disorder, currently diagnosed as a major depressive disorder and a panic disorder with agoraphobia. Thus, the questions for review on appeal are whether a rating in excess of 30 percent is warranted prior to April 9, 2013, and whether a rating in excess of 50 percent is for assignment on and after that date. See Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings." Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate DCs identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and there must be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. PTSD is evaluated under 38 C.F.R. § 4.130, DC 9411. Under the general rating formula for mental disorders, a 30 percent rating is assignable for occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although 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, mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is warranted for PTSD if one exhibits 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. A 70 percent evaluation is warranted for PTSD if one exhibits occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: Suicidal ideation; obsessional rituals which interfere with routine actives; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); or an inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned when there is total occupational or social impairment due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. Consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). The symptoms recited in the criteria in the rating schedule for evaluating 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, 442 (2002). In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. The Global Assessment of Functioning (GAF) is a scale reflecting psychological, social and occupational functioning on a hypothetical continuum of mental health-illness. Diagnostic and Statistical Manual of Mental Disorders, 32 (4th ed. 1994); see also Carpenter v. Brown, 8 Vet. App. 240, 243 (1995). A GAF of 51-60 indicates 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 GAF of 41-50 indicates serious symptoms (e.g. suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF of 31-40 indicates some impairment in reality testing or communication (e.g. speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g. depressed man avoids friends, neglects family, and is unable to work). A GAF scale score of 21 to 30 denotes behavior that is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or inability to function is almost all areas (e.g., stays in bed all day; no job, home or friends). Id. In connection with this appeal, the Veteran alleges that he is entitled to higher ratings than previously assigned for his PTSD for the periods in question, citing the many PTSD symptoms affecting his social and occupational functioning. He asserts that the most disabling manifestations include recurring, severe panic attacks and a sleep impairment, which require regular mental health therapy. There is evidence for and against entitlement of the Veteran to higher schedular ratings for the periods in question, particularly the earlier period, as noted below. VA outpatient treatment records reveal the Veteran was seen in 2008 and 2009. Most of the mental status evaluations are essentially the same and show that the Veteran was appropriately dressed and maintained good personal hygiene. He was cooperative, although he was noted to be tearful in October 2008. He had no formal thought disorder and denied hallucinations and delusions. He had no suicidal or homicidal ideation. He was oriented times three. Insight and judgment were good, as was his memory. No change in his psychiatric status was found by the attending medical professional to have occurred when evaluated in the latter portion of 2008. Yet, VA outpatient treatment records disclose that, when the Veteran, was seen in March 2008, he asserted he still had panic attacks. He said they consisted of shortness of breath and a sweating feeling as if he were going to pass out or that something dreadful was going to happen. He maintained that they occurred once a week. He reported he continued to have nightmares and flashbacks and was easily startled. It was noted in October 2008 that he was sad, as his wife had died. He was still grieving when he was seen in February 2009. On a May 2008 VA psychiatric examination, the Veteran endorsed avoidance symptoms, sleep disturbance, irritability, difficulty concentrating, hypervigilance and exaggerated startle. He alleged that despite medication and counseling, his symptoms had been worsening and he described breakthrough depression seven days a month. He reported recurrent panic attacks, and stated that he avoided crowds; he further maintained that panic attacks were occurring four times per week, with an increase occurring over the previous six months. He also claimed increasing discomfort in seeking treatment at VA due to the presence of veterans of the current wars and stated that he felt guilty since some of them had lost a limb or were in wheelchairs. Examination disclosed his anxiety, as indicated by his flushed complexion, occasional hand wringing and reported mood. The diagnostic impressions were of a major depressive disorder, moderate, and a panic disorder with agoraphobia. The GAF scale score was 50. On the other hand, it was indicated that, following his retirement as a principal in 2004, he had been active with a veterans' organization and had been elected to be an officer. He was also a town councilman and worked 20 hours a week as a driver for a car dealership. He noted that his medication prevented him from having a full blown panic attack and stated that the most recent full blown attack had occurred six months earlier. He maintained that he had good relationships with his immediate circle of family and friends. Also, clinical evaluation showed he was professionally dressed and clean shaven. He was well spoken and maintained good eye contact. He remained attentive and denied any suicidal or homicidal ideation. His stream of thought was goal-directed. He denied audio and visual hallucinations. Judgment was good and his insight was noted to be average to good. Continuing treatment from 2009 to 2013 at VA mental health facilities is indicated, to include use of psychotropic medication to control PTSD manifestations. GAF scores from September to December 2009 ranged from 50 to 55 and from January to October 2010 from 55 to 65. A GAF score of 60 was assigned in March and May 2011, and on the latter occasion it was set forth that the Veteran was "very involved" in city council, local school, and military activities. In June 2011, he reported an increase in anxiety attacks, but with a change of medication, improvement in those attacks was evident by August 2011. A GAF score of 60 was assigned in May and November 2012 and again in January 2013. VA examination in April 2013 yielded diagnoses of chronic PTSD, a panic disorder with agoraphobia, and a depressive disorder not otherwise specified, all of which were linked to military service and manifestations of which could not be differentiated. The assigned GAF score was 47. In the opinion of the VA examiner, the diagnoses produced occupational and social impairment with reduced reliability and productivity, but no greater level of impairment. His primary complaints were of sleep deprivation and panic attacks occurring six or seven times weekly, which entailed sweating, pounding heart, trembling, chills, depersonalization, and fear of losing control. He stated that he attempted to avoid situations which might trigger those episodes. An increased level of severity of his panic attacks was reported by him over the previous six months. He reported socializing at veterans' organizations and with friends twice weekly and that the frequency of his socializing had decreased over the past several years. Clinically, the Veteran was alert and oriented and well groomed. He exhibited a mildly constricted affect and described his own depression as an "8" on a scale of one to ten. Speech was normal in volume and in other ways, but was somewhat hypophonic and slightly slow. Intrusive thoughts of Vietnam were noted to occur four to five times monthly, with dreams occurring once monthly. The Veteran reported that he was more distressed by PTSD symptoms than may be reflected in his level of functional impairment. On balance, the record identifies a disability picture involving the Veteran's PTSD and associated entities that more nearly approximates the criteria for the assignment of a 50 percent schedular evaluation, but none greater, for the period prior to April 9, 2013. One of the factors utilized by the AMC in increasing the rating from 30 to 50 percent was the GAF score of 47 assigned in April 2013; yet, the GAF score in 2008 was but three points higher and the level of functional impairment prior to April 2013 is otherwise on par with that demonstrated subsequent to April 9, 2013, inclusive of the occurrence of panic attacks and sleep difficulties. Varying GAF scores ranging from 50 to 65 were assigned by attending medical professionals from 2009 to early 2013. It, too, is the law of this case, as indicated by the Court's specific finding in its April 2012 memorandum decision, that there was an increase in imminent panic attacks of the Veteran which were supported by medical analysis, and that the totality of the evidence, including the May 2008 VA examination, contained significant evidence tending to support a 50 percent rating. The Board concurs, with notation that the examples of manifestations outlined in DC 9411 for a 50 percent rating are panic attacks occurring more than once weekly and while the Veteran's panic episodes were at that frequency or greater prior to April 2013, they were not happening at a rate of being near-continuous, as might warrant the next higher evaluation. Notice is taken that the Veteran in 2008 reported experiencing panic symptoms almost daily, as well as impaired sleep; however, he conceded during the May 2008 VA psychiatric examination that the most recent full blown attack had occurred six months prior thereto, albeit with use of prescribed medication. As recently held by Court, "the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria." Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Inasmuch as the current version of DC 9411 does not contemplate the effects of medication in alleviating symptoms of PTSD, the Board is precluded from considering the relief afforded by the Veteran's medication in evaluating the severity of his PTSD, to include his panic attacks, and its effect on his social and occupational functioning. Id. The effects of medication cannot be readily ascertained in this instance, however, given that various medications have been utilized by the Veteran both prior to and after April 9, 2013, and no period in which medication use was discontinued is indicated. That notwithstanding, near continuous panic attacks or other manifestations demonstrating the social and industrial impairment for which a rating in excess of 50 percent is assignable prior to April 9, 2013, or after, is not shown. In all, a preponderance of the evidence is against the assignment of a rating higher than 50 percent for PTSD for the period prior to or on and after April 9, 2013. Occupational and social impairment with deficiencies in most areas is not demonstrated. Suicidal ideation is not indicated, nor are there obsessional rituals or significant speech abnormalities. The Veteran's panic attacks or depression are not nearly continuous or shown to be so severe as to impede his independent, appropriate, or effective functioning. His sleep is adversely affected, but violent outbursts, spatial disorientation, or poor grooming are also not demonstrated. The Veteran has difficulty in establishing and maintaining social and work relationships, as well as adapting to stressful circumstances, per the April 2013 examination, but he is shown to be able to socialize with others, albeit less frequently than he might desire and has significant community involvement and activities, many of which entail public contact and stress. In fact, the level of his involvement in various community activities is inconsistent with any greater degree of social impairment. To that end, while the Board concedes that a 50 percent rating is warranted prior to April 9, 2013, a schedular rating in excess of 50 percent is not for assignment for that same period or for the period on and after April 9, 2013. Lastly, a determination of whether the claimant is entitled to an extraschedular rating under 38 C.F.R. § 3.321(b) is required, and this is a three-step inquiry. First, the Board must determine if the evidence presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. To do this, it must be determined if the criteria found in the rating schedule reasonably describe the claimant's disability level and symptomatology. If this is the case, the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral for extraschedular consideration is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, the 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. If the Board determines that the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, the case must be referred for completion of the third step--to determine whether, to accord justice, an extraschedular rating must be assigned. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this instance, the Veteran's service connected psychiatric disability of PTSD with a history of a panic disorder is clearly accounted for under DC 9411, which provides, as here, a 50 percent rating where there is social and industrial impairment of such severity as to produce reduced reliability and productivity. The Veteran is shown to be negatively affected by various psychiatric symptoms, including anger, irritability, social isolation, panic features, nightmares, flashbacks, guilt, and sleep difficulties. All of the indicated manifestations are encompassed in the 50 percent schedular evaluation assigned for the periods at issue, which reflects the existence of significant difficulties in social and occupational functioning. There is otherwise no indication in the record that DC 9411 fails to describe adequately or contemplate the existing disability level, and, as such, the question of extraschedular consideration need not proceed further. In all, the record supports the assignment of a schedular rating of 50 percent rating for PTSD prior to April 9, 2013, but no higher schedular or extraschedular rating than 50 percent for the period prior to or on and after April 9, 2013. See 38 U.S.C.A. § 5107; 38 C.F.R. § 4.7; Mauerhan, Hart, supra. ORDER A rating of 50 percent, but none greater, for PTSD for the period prior to April 9, 2013, is granted. A rating in excess of 50 percent for PTSD for the period on and after April 9, 2013, is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs