Citation Nr: 1335300 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 07-38 546 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to a disability evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: John R. Worman, Attorney at Law ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from February 1971 to February 1973. This matter comes to the Board of Veterans' Appeals (Board) from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. FINDINGS OF FACT The Veteran's PTSD has not been productive of total occupational and social impairment. CONCLUSION OF LAW The criteria for an evaluation in excess of 70 percent for PTSD have not been met or approximated. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.321(b), 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. In the notice, VA will inform the claimant which information and evidence, if any, that the claimant is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (2011); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Notice should also address the rating criteria and effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the appellant pre-adjudication notice by a letter dated in February 2005. Although the notice provided did not address either the rating criteria or effective date provisions that are pertinent to the appellant's claim, complete notice in this regard was sent in an August 2006 letter and the claim was readjudicated in an October 2007 Statement of the Case. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). VA has obtained the Veteran's service treatment records, VA records and Social Security Administration (SSA) records, assisted the Veteran in obtaining evidence, afforded the Veteran psychiatric examinations and obtained medical opinions as to the severity of his PTSD. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. The United States Court of Appeals for Veterans Claims (hereinafter "the Court") has held that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations obtained in this case are adequate. They are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints, symptoms and history. As the examination reports ultimately provide sufficient information such that the Board can render an informed determination, they are adequate. Accordingly, VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues addressed in this decision has been met. 38 C.F.R. § 3.159(c)(4). VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Laws and Regulations Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013). Separate rating codes identify the various disabilities. 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. The VA schedule of ratings will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). 38 C.F.R. § 3.321(b)(1) provides that, in exceptional circumstances, where the schedular evaluations are found to be inadequate, the veteran may be awarded a rating higher than that encompassed by the schedular criteria. According to the regulation, an extraschedular disability rating is warranted upon a finding that "the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards." Id. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). "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. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating a mental disorder, VA shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. VA 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 examination. 38 C.F.R. § 4.126(a). The general rating criteria used for evaluation of the Veteran's PTSD provides a 100 percent evaluation 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. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2013). A 70 percent evaluation requires 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. Id. In claims for VA benefits, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Facts and Analysis Of record is a May 2004 VA mental health treatment plan record. The record documents that the Veteran then had a supportive family and a stable job. He was still able to work and was assigned a GAF score of 53. In December 2004 the Veteran filed his claim for an increased evaluation. He asserted that his PTSD had gotten worse. A December 2004 VA psychiatry attending record notes that the Veteran then attended a 20 minute session for treatment of PTSD. He was noted as then having recently returned from visiting his mother. He discussed increased stress due to his son having to return to Iraq. In February 2005, the Veteran was provided a VA psychiatric examination. At this time, the Veteran reported suffering from frequent intrusive memories and recollections of his PTSD symptoms. He also complained of nightmares and sleep disturbance. He was then becoming isolated and unable to socialize. He reported that he had not been able to work and had been staying home most of the time. He was then married and was limited in his social activities. He was able to take care of his basic activities of daily living. Mental status examination showed that he was quite anxious, restless and unable to concentrate on the topic under consideration or the topics discussed. He was alert, oriented to time, place and person. His affect was anxious and his mood was depressed. He denied suicidal and homicidal ideations, as well as delusion, hallucinations and any other psychotic symptomatology. His judgment was OK. His insight into his mental problems was very limited. He was competent to handle his own account. Chronic PTSD was assessed on Axis I. On Axis IV "[p]sychosocial stressors, unable to work due to [PTSD] symptom" was noted. He was assigned a GAF score of 43. Of record is a February 2005 letter from VA PTSD Team Psychiatrist. The letter outlines that the Veteran's main symptoms included recurrent and intrusive memories, persistent efforts to avoid reminders of the traumatic experience, chronic insomnia, severe nightmares, emotional numbing, startle response and a tendency to isolate. The psychiatrist noted that the Veteran continued to be employed, although he found it difficult to function at work. She related that he had "severe occupational and social impairment" and was "socially isolated and ha[d] few friends." She assigned the Veteran a GAF score of 49. The Veteran's wife submitted a February 2005 letter regarding his PTSD symptoms. In the letter, she noted that the Veteran had started drinking heavily and suffered from sleeplessness. She stated that he felt that someone was after him to kill him and that he suffered from crying spells. She also noted "suicidal tendencies." She outlined that he was often easily provoked to anger, felt a sense of worthlessness, that he started easily and was often restless. She stated that he was "no longer sociable" and that they could no longer take family vacations. The Veteran's wife also submitted a letter dated in April 2005. In this letter, she related that she was having a great deal of problems in her marriage because of the Veteran's "increasing bouts of depression, which include[d] sleeplessness, loss of appetite, loss of arousal and profuse sweating." A May 2007 VA mental health treatment plan note documents continued PTSD and symptoms including recurrent and intrusive distressing recollections, physiologic reactivity on exposure to cues, avoidance of thoughts or feelings associated with the trauma, avoidance of activities, places or people that aroused trauma recollections, difficulty falling or staying asleep and difficulty concentrating. The note documented that the Veteran had a supportive family and that he was then working, albeit with difficulty. He was assigned a GAF score of 48. Of record is a December 2007 letter from the Veteran's Brother. In the letter, he relates that over the years he had made observations relative to the Veteran's mental health and inappropriate behavior. He related that the Veteran suffered from long and short term memory loss and expressed major frustration with his inability to recall the names of close relatives, lifelong friends and associates. He related that the Veteran was indulging in the use of alcohol. He noted that in recent years that the Veteran had become "somewhat estranged and disassociated himself from family and friends." He also related that the Veteran had reached a stage where he could not maintain gainful employment and that his "qualify of life [was] expected to deteriorate greatly over the next few months." He noted that he spoke with the Veteran weekly. A May 2008 A mental health treatment plan note documents similar manifestations as documented in the May 2007 VA mental health treatment plan note. The note documents that the Veteran continued to be married and had a supportive family. It notes that he had reported that he had recently retired. A GAF score of 48 was assigned. In a June 2008 letter the Veteran related that he was receiving treatment through VA for his PTSD. He explained also that his symptoms prevented him from engaging in family/social functions and caused sleep disturbance. In April 2009, the Veteran's wife submitted another letter. In the letter, she explained that the Veteran was sinking in to a deep depression. She related that he felt that he could no longer be the man he once was and had informed her of suicidal ideation. In August 2009, the Veteran was again afforded a psychiatric examination. Mental status examination showed that he was casually dressed and oriented as to person, place, and time. He spoke clearly and his answers were coherent and relevant. He denied suicidal and homicidal thoughts, as well as hallucination or delusion. His memory of recent and remote events was good. He was able to manage his benefits. The examiner found no major change in frequency, severity and duration of symptoms or remissions since his last VA examination. They felt his capacity for adjustment was moderate. He was then apparently employed and had lost a few hours of time from work. There was no impairment of thought process, social functioning or normal activities of daily living. PTSD was assessed and the Veteran was assigned a GAF score of 60. It was felt that he could perform desk work. In October 2011, the Veteran was afforded another VA psychiatric examination. The examination report documents that the Veteran had worked for 42 years prior to the examination until he stopped working following a stroke. Mental status examination revealed that the Veteran was able to understand the questions and answered appropriately, although his responses were a little bit delayed and late. His affect was limited in range. His mood was depressed. He was well-oriented as to time, place and person. His judgment was intact. His insight was limited. There were no suicidal or homicidal ideations, plans or impulses. His fund of knowledge was average and his memory was decreased to recent and long-term events. The examiner noted that there was no major change in frequency, severity, and duration of symptoms or remissions since the last examination. They found that the Veteran's capacity for adjustment was moderate. There was no impairment of through process, social functioning or normal activities of daily living. He was found able to manage his VA benefits. PTSD was assessed on Axis I and social isolation was noted on Axis IV. The Veteran was assigned a GAF of 53 "representing the severe impact [PTSD] has on limiting the social functioning" of the Veteran. Of record is a December 2011 VA neuropsychology record pertaining to a recent cerebrovascular accident (CVA). At this time, it was disclosed that the Veteran had been employed since his discharge from service until the CVA. The note documents that the Veteran desired to return to work, but would need to be trained in a different job. The neuropsychological evaluation was requested for a more complete assessment of the Veteran's ability to return to work versus retirement in light of his CVA. The note documents that the Veteran reported having "good relationships" with his wife, children, friends form work and associates from church. He noted that he had slowed down since the CVA, but that he helped around the house. At this time, an Axis I diagnosis of "vascular dementia uncomplicated was made" and the Veteran was assigned a GAF score of 65. An Axis IV assessment of "stress related to potential early retirement due to cognitive impairments" was also assessed. A follow up letter related to this work-up documents that the Veteran was advised not to return to work due to his CVA residuals. Contained within the claims file are records related to the Veteran's claim for SSA disability benefits. They document that the Veteran was applying for such benefits for "anxiety related disorders" and "late effects of cerebrovascular disease." The records document that the Veteran had difficulty interacting appropriately with the general public and that he tended to withdraw and self isolate. They document that the Veteran had been employed until July 2011 and that he preferred to be alone. The documents contain an April 2012 psychiatric examination report that notes an "allegation" of PTSD. In terms of social life, it documented that the Veteran had friends. In regard to occupation, it noted that he had retired due to his CVA. A GAF score of 58 was assigned. In July 2013 the Veteran was again afforded a VA examination, which resulted in continued diagnosis of PTSD. The examiner noted that the Veteran continued to exhibit the same frequency and intensity of his PTSD symptoms, including frequent nightmares, flashbacks and avoidance behavior. They also found that the Veteran did not have total occupational and social impairment, but rather occupational and social impairment with reduced reliability and productivity. The examiner also found that the Veteran was able to do simple sedentary types of jobs, taking into consideration only the diagnosis of PTSD. In order to attain a 100 percent schedular rating for PTSD, the next available rating, the evidence must show, to at least equipoise, that PTSD has resulted in total occupational and social impairment. Along these lines, the Board acknowledges the evidence that indicates the Veteran has demonstrated a propensity to isolate due to his PTSD, as well as staying home from work. See e.g. February 2005 VA examination report. However, the evidence also indicates that the Veteran has maintained friendships and communicates with his family, including his wife. Moreover, repeated VA examination has not found total occupational and social impairment due to PTSD symptomatology. In regard to occupational impairment, the Board also acknowledges that PTSD has caused interference therewith. However, the evidence also clearly indicates, despite the Veteran's reports of retirement prior to 2011, that the Veteran held a job throughout the relevant period and stopped working in July 2011 not due to PTSD, but rather due to a stroke that he suffered. Thus, despite the Veteran's PTSD symptomatology, in the absence of total occupational and social impairment caused thereby, which are not indicated by the evidence, a 100 percent schedular evaluation is not warranted. Gilbert, supra. In reaching this decision, the Board has considered the GAF scores assigned to the Veteran during the applicable period. Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). Under the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (DSM-IV), GAF scores ranging between 61 to 70 reflect some mild symptoms, for example depressed mood and mild insomnia; or some difficulty in social, occupational, or school functioning, for example occasional truancy, or theft within the household; but generally functioning pretty well, and has some meaningful interpersonal relationships. A GAF score of 51 to 60 represents moderate symptoms, with moderate difficulty in social and occupational functioning. A GAF score of 41 to 50 signifies serious symptoms, for example suicidal ideation, severe obsessional rituals, and frequent shoplifting; or any serious impairment in social, occupational, or school functioning, for example no friends, unable to keep a job. A GAF score of 31 to 40 signifies some impairment in reality testing or communication, or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood, for example where a depressed man avoids friends, neglects family, and is not able to work. In terms of GAF scores, the Board notes that they have ranged from 65 to 43. However, despite the seriousness of the symptoms indicated by the lower GAF scores, the evidence does not indicate total occupational and social impairment caused by PTSD. Indeed, the Veteran has maintained some social relationships and retired from his job not due to PTSD, but rather residuals of a CVA. The GAF scores assigned in a case, like an examiner's assessment of the severity of a condition, are not dispositive of the evaluation issue; rather, they must be considered in light of the actual symptoms of the veteran's disorder (which provide the primary basis for the rating assigned). See 38 C.F.R. § 4.126(a). The Board has also considered extraschedular referral. According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2013). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran'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 extraschedular rating. It is appropriate to consider extraschedular referral on a "disability-by-disability" basis. Johnson v. Shinseki, 26 Vet. App. 237 (2013). With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected PTSD is inadequate. A comparison between the level of severity and symptomatology of the Veteran's PTSD with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. The criteria particularly contemplate his specific symptoms and social and industrial impairment. The Board further observes that, even if the available schedular evaluation for his disability is inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." The record does not show that the Veteran has required frequent, or any, hospitalizations for his PTSD. Additionally, there is not shown to be evidence of marked interference with employment due to this disability not contemplated by his 70 percent rating. Moreover, there is no evidence in the medical records of an exceptional or unusual clinical picture. In short, there is nothing in the record to indicate that the service-connected disability on appeal causes impairment with employment over and above that which is contemplated in the assigned schedular rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER Entitlement to a disability evaluation in excess of 70 percent for PTSD is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs