Citation Nr: 1335520 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 07-40 102 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an increased initial rating for posttraumatic stress disorder (PTSD), rated as 50 percent disabling prior to October 28, 2011 and 70 percent disabling thereafter. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Marne Marotta, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1968 to June 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from February and March 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which granted service connection for PTSD with an initial 30 percent evaluation, effective December 15, 2006. In a November 2007 rating decision, the rating was increased to 50 percent, effective December 15, 2006, the original date of service connection. An increased 70 percent evaluation was then assigned in a June 2012 rating decision, effective October 28, 2011. A veteran is generally presumed to be seeking the maximum benefit allowed by law and regulation, and a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35 (1993). Therefore, the claim for an increased initial evaluation for PTSD remains before the Board. FINDINGS OF FACT 1. Prior to October 28, 2011, the Veteran's service-connected PTSD was manifested by symptoms such as episodes of depressed mood, avoidance, anxiety, sleep disturbance, intrusive thoughts, anger, and hyper vigilance, resulting in occupational and social impairment with reduced reliability and productivity. The Veteran's PTSD was not manifested by symptoms such as suicidal ideation, obsessional rituals which interfere with routine activities or near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, resulting in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 2. For the period beginning October 28, 2011, the Veteran's service-connected PTSD was manifested by symptoms such as suicidal ideation, impaired impulse control, difficulty in adapting to stressful circumstances and difficulty in establishing and maintaining effective work and social relationships. The Veteran's PTSD was not manifested by persistent delusions or hallucinations, grossly inappropriate behavior, or intermittent inability to perform activities of daily living, resulting in total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 50 percent for PTSD for the period prior to October 28, 2011 are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2013). 2. The criteria for a disability rating in excess of 70 percent for PTSD for the period beginning October 28, 2011 are not met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist This appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection for PTSD. Once service connection is granted and the claim is substantiated, additional notice is not required, and 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). No additional discussion of the duty to notify is therefore required. VA also has a duty to assist the Veteran in the development of his claim, which is not abrogated by the granting of service connection. VA has obtained records of treatment reported by the Veteran, including service treatment records and VA treatment records. Additionally, the Veteran was provided proper VA examinations in May 2008 and October 2011 in response to the claim for an increased rating. 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 VA examinations are sufficient, as they are based on consideration of the Veteran's prior medical history and described his PTSD disability in sufficient detail to enable the Board to make a fully informed evaluation of this disability. The Veteran has not identified any other relevant evidence that has not been requested or obtained. The Board finds that VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on his claim at this time. II. Principles for Rating Disabilities Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. Fenderson v. West, 12 Vet. App. 119 (1999). III. Rating Criteria for PTSD The Veteran's PTSD is evaluated as 50 percent disabling from December 15, 2006 and 70 percent disabling from October 28, 2011 under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9411, which directs that the General Rating Formula for Mental Disorders be applied. The General Rating Formula for Mental Disorders provides that a 50 percent rating is warranted if the evidence establishes 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; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical obscure, or irrelevant speech; 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 worklike setting); and inability to establish and maintain effective relationships. A 100 percent evaluation is warranted where there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. When determining the appropriate disability evaluation to assign, the Board's primary consideration is a Veteran's symptoms, but it must also make findings as to how those symptoms impact a Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442; Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran's impairment must be "due to" those symptoms, a Veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score, which is defined by DSM-IV as number between zero and 100 percent, that represents the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health illness. Higher scores correspond to better functioning of the individual. Under DSM-IV, GAF scores from 51 to 60 are indicative of moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Scores from 41 to 50 reflect 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). IV. Prior to October 28, 2011 Prior to October 28, 2011, the Veteran's PTSD was evaluated as 50 percent disabling. In order to warrant a 70 percent or higher rating for this period, the Veteran must have occupational and social impairment, with deficiencies in most areas. The Board finds that the evidence, as discussed below, does not reflect that a rating in excess of 50 percent is warranted. In a January 2007 VA examination, the Veteran was fully employed but indicated that he had problems getting along with his bosses at work. The Veteran indicated that he had significant sleep difficulties, tended to stay home, was moody and irritable and did not like going to family gatherings. The Veteran indicated that he felt anxious and nervous in crowds and was depressed at times, but he did not have significant suicidal thoughts and had no plan or intent to carry out any suicidal thoughts. When depressed, the Veteran reported ignoring his grooming somewhat. The examiner indicated that the Veteran exhibited hypervigilance, fear, social isolation and withdrawal. The examiner indicated that the Veteran did not have any impairment of thought processes or communication skills. In a January 2008 statement, the Veteran indicated that he retired from his job because he could not take the stress anymore. The Veteran indicated that while he wanted to continue working, his job became overwhelming and he became aggravated at the people he worked with. VA treatment records dated September 2007 indicate that the Veteran had a GAF score of 50. The Veteran reported that he retired because he had difficulties tolerating the stress and did not have support at work. The Veteran also reported spending time with his brother. The examiner indicated that the Veteran was dressed appropriately and his thought process was linear and logical. The Veteran did not have hallucinations, delusions, suicidal or homicidal ideation. In March 2008, VA treatment records indicate that the Veteran had a GAF score of 50 to 55. The Veteran reported significant symptoms of depression, low mood, anhedonia, irritability, lack of motivation and concentration. The Veteran did not have hallucinations, delusions, suicidal or homicidal ideation. A May 2008 VA examination indicates that the Veteran had a GAF score of 48. The examiner indicated that the Veteran exhibited no impairment in thought processes or communication. The Veteran was oriented to time, place and person and his judgment was fair. The Veteran denied any current of past suicidal or homicidal ideation. The examiner indicated that the Veteran felt more estranged and detached from his family. In July 2008, VA records indicate that the Veteran looked forward in his retirement to peace and quiet, seeing his grandchildren and spending time at the shore with his wife. The Veteran experienced anxiety that kept him in bed some days. VA records dated December 2008 indicate that the Veteran started new medication and felt more energetic and motivated to do things. The examiner noted that the Veteran seemed less anxious and jumpy. The Veteran indicated that he wanted to volunteer to work with children who showed interest in chess. The Veteran reported that he had plenty to do, including housekeeping, cooking, shopping and chores. The Veteran did not have suicidal or homicidal ideation, hallucinations or psychosis. In February 2009, VA records indicate that the Veteran was upset and depressed with the sudden loss of his younger brother. The Veteran indicated that he spent a lot of time taking care of his mother-in-law, but could not motivate himself to clean his garage. The Veteran reported that his interest in chess helped him focus and distracted him from his depression, but that he did not have time to volunteer to teach children how to play chess after school. The Veteran did not have suicidal or homicidal ideation, hallucinations or psychosis. In May 2009, the Veteran filed a claim for total disability based on individual unemployability and stated that he had not worked for a year and a half because he did not think that he could "handle or put up with the outside world." The Veteran indicated that he wanted to go out and "try things" but that he got too nervous to do it. The Veteran stated that he had nightmares about Vietnam, that he had difficulty motivating himself and sometimes stayed in bed. The Veteran also reported feeling worthless and wondering whether it was worth being alive. The Veteran indicated that he and his wife were thinking about taking a vacation. VA records dated December 2009 indicate that the Veteran played chess on the internet and enjoyed the positive distraction. The Veteran hoped to be able to play in tournaments in the spring. The Veteran indicated that he had to push himself to get motivated to do things. He reported going to a large gathering for Thanksgiving and indicated that he enjoyed it. The Veteran indicated that he had some intrusive dreams. The Veteran was in touch with reality and oriented to person, place and time with no suicidal or homicidal ideation. The Veteran's reasoning, judgment and memory were intact and he did not have delusions or hallucinations. In February 2010, VA records indicate that the Veteran was more agitated because his mother-in-law passed away and his wife was fired from her job. His bad dreams began again and he was so angry that he had hostile thoughts toward the person that fired his wife. The Veteran indicated that he was able to control his behavior and did not do anything rash. The Veteran found a part-time job. The Veteran was in reality and oriented to person, place and time with no suicidal or homicidal ideation. The Veteran's reasoning, judgment and memory were intact and he did not have delusions or hallucinations. The Veteran's affect was anxious and angry and his mood was depressed. VA records dated May 2010 indicate that the Veteran was working, felt more motivated, and felt like he had a sense of purpose. The Veteran reported being a little less anxious, but that got apprehensive before going to work. Once he got to work, he felt more relaxed. The Veteran reported having nightmares about once a week, but indicated that the dreams were less intense and less frequent. The Veteran reported sleeping well some nights, but having trouble sleeping other nights. The Veteran did not have suicidal or homicidal ideation, delusions or hallucinations. The Veteran's thought process was logical and linear, his cognition was grossly intact, and his insight and judgment were fair. In October 2010, VA records indicate that the Veteran was feeling "pretty good." The Veteran indicated that there were stresses in his family, but that he felt better when he worked. The Veteran indicated that he had more dreams recently that combined dead family members with visions from Vietnam. The Veteran indicated that he had intrusive thoughts, but that it had improved to one to two times per week. The Veteran did not have suicidal or homicidal ideation, delusions or hallucinations. The Veteran's thought process was logical and linear; his cognition was grossly intact; and his insight and judgment was fair. VA records dated January 2011 indicate that the Veteran felt "pretty good" but reported some grief and memories during the holidays. The Veteran reported feeling worthwhile and meaningful at times and wondering why he is here at other times. He mentioned that he missed being passionate. The Veteran denied suicidal or homicidal tendencies, although he did report intermittent agitation with others. The Veteran's affect was anxious and restricted. His thought process was linear and logical, his cognition was grossly intact, and his insight and judgment were fair. In April 2011, VA records indicate that the Veteran was doing "fairly well," with the Veteran feeling anxious and having nightmares some days, but that most days he was less anxious and in a good mood. The Veteran indicated that he was working and wanted to work more. The Veteran noted that keeping busy helps him. The Veteran denied any suicidal or homicidal ideation. The Veteran did not have hallucinations or delusions. His thought process was logical and linear and his cognition was grossly intact. The examiner indicated that the Veteran had fair insight and judgment. VA records dated July 2011 the Veteran reported working a lot more. The Veteran reported that at times he slept like "a log" and at other times he had bad dreams and was quite disturbed. The Veteran indicated that he got back into chess and attended a tournament where he watched for several hours. The Veteran stated that he tried to keep active and looked forward to seeing his grandchildren. The Veteran was in reality and oriented to person, place, and time. The Veteran did not have suicidal or homicidal ideation, delusions or hallucinations. The Veteran's reasoning, judgment and were intact. His affect was anxious. In September 2011, the Veteran reported that things were generally better, that he worked a lot during the summer and had a steady job. The Veteran reported that he had dreams and memories of Vietnam, but that they were less disturbing. The Veteran indicated that he and his wife went to Florida, and although the plane trip triggered memories of Vietnam, the Veteran was able to handle it. The Veteran stated that he was pleased that he went and did something for his wife and indicated that he wanted to do something for his 40th anniversary. The Veteran was oriented to place, time, and person. The Veteran's reasoning, judgment, and memory were intact and his affect was less anxious. The Veteran did not have suicidal or homicidal ideation, hallucinations or delusions. Throughout this time period, the Veteran had symptoms of difficulty in adapting to stressful situations, but his symptoms do not include those associated with a 70 percent rating (suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical obscure, or irrelevant speech; 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; and inability to establish and maintain effective relationships). However, the Board's inquiry is not strictly limited to the criteria found in the VA rating schedule. See Mauerhan, supra. For a 70 percent rating, the symptoms present must also cause occupational and social impairment in most areas, such as work, school, family relations, judgment, thinking, or mood. Vazquez-Claudio, supra. Upon review of the evidence, the Board finds that the Veteran's symptoms more closely approximate the rating criteria for a 50 percent rating during this period. The Veteran's GAF scores ranged from 48 to 55. A GAF score of 51 to 60 reflects moderate symptoms or moderate difficulty in social, occupational, or school functioning. See DSM-IV, at 32. A GAF score of 41 to 50 reflects serious symptoms or any serious impairment in social, occupational, or school functioning. Id. The evidence of record supports a 50 percent evaluation for the Veteran's service-connected PTSD. During this timeframe, the Veteran reported taking care of his mother-in-law, spending time with his family, and looking forward to spending time with his wife in his retirement. Although the Veteran retired early and felt that he could not handle his job in 2007, the Veteran was able to find other employment and indicated that he enjoyed staying busy. During this time, the Veteran's reasoning, judgment and memory were intact. And while the Veteran experienced depression and irritability at times, the Veteran was able to function independently, appropriately and effectively, even serving as a caretaker for his mother-in-law. Taken as a whole, the manifestations of the Veteran's PTSD are most analogous to those contemplated by a 50 percent evaluation. The extent and severity of the Veteran's actual PTSD symptoms reported and/or shown are suggestive of occupational and social impairment, with reduced reliability and productivity; i.e., the level of impairment contemplated in the assignment of a 50 percent rating for psychiatric disabilities. See Mauerhan, supra, Vazquez-Claudio, supra. More severe symptomatology resulting in occupational and social impairment in most areas, such as work, school, family relations, judgment, thinking, or mood, was not shown during this timeframe. V. Since October 28, 2011 Since October 28, 2011, the Veteran's PTSD is evaluated as 70 percent disabling. In order to warrant a 100 percent rating, the Veteran must have total occupational and social impairment. The Board finds that the evidence, as discussed below, does not reflect that a rating in excess of 70 percent is warranted. In October 2011, during a VA examination, the Veteran had a GAF score of 41. The examiner found that the Veteran had occupational and social impairment with reduced reliability and productivity. The Veteran reported that about once or twice a week he "lets himself go," does not get out of bed, does not shower or get dressed, and tries to avoid everything. The Veteran also reported that his depression decreased his motivation and distorted his thoughts. The Veteran reported working as a security guard at night, where he is by himself most of the time. He reported that he sometimes works other shifts, but gets aggravated when people are around. The examiner indicated that the Veteran's symptoms include: depressed mood; anxiety; suspiciousness; panic attacks that occur once a week or less often; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including at work or in a work-like setting; suicidal ideation; anhedonia; restlessness; and feelings of worthlessness. The examiner noted that the Veteran was internally distracted at times, often after being asked about Vietnam or other stressors. The Veteran indicated that he occasionally wonders if he would be better off dead, most recently about a month ago. The Veteran stated that he thought about ending his own life by drinking excessively and overdosing on drugs, but that he could not leave his wife alone and that his religion would not allow him to do it. Since October 28, 2011, the Veteran has had symptoms of occasional difficulty in performing activities of daily living, but his symptoms do not include those associated with a 100 percent rating (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, own occupation, or own name). However, as indicated above, the Board's inquiry is not strictly limited to the criteria found in the VA rating schedule. See Mauerhan, supra. For a 100 percent rating, the symptoms present must also cause total occupational and social impairment. Vazquez-Claudio, supra. Upon review of the evidence, the Board finds that the Veteran's symptoms more closely approximate the rating criteria for a 70 percent rating. During the October 2011 VA examination, the Veteran had a GAF score of 41, which reflects serious symptoms or any serious impairment in social, occupational, or school functioning. The evidence of record supports a 70 percent evaluation for the Veteran's service-connected PTSD. The Veteran currently works as a security guard during the night shift. Although the Veteran has indicated that he gets agitated when he works other shifts and people are around, the October 2011 examiner indicated that the night shift accommodated the Veteran. The examiner also indicated that if the Veteran has to work in a place that requires greater social interaction, the Veteran would likely have more difficulties in managing his PTSD. The Veteran reported that he has been married to his wife for forty years, but that their relationship includes a lot of bickering. The Veteran reported that his daughter tries to help, but that his relationship with her is also strained because of his PTSD. Taken as a whole, the manifestations of the Veteran's PTSD are most analogous to those contemplated by a 70 percent evaluation. The extent and severity of the Veteran's actual PTSD symptoms reported and/or shown are suggestive of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; i.e., the level of impairment contemplated in the assignment of a 70 percent rating for psychiatric disabilities. See Mauerhan, supra, Vazquez-Claudio, supra. More severe symptomatology resulting in total occupational and social impairment was not shown. VII. Other Considerations Finally, the Board has considered whether extraschedular consideration is warranted. The discussion above reflects that the symptoms of the Veteran's PTSD (mainly occupational and social impairment) are contemplated by the applicable rating criteria. The effects of the Veteran's disability have been fully considered and are contemplated in the rating schedule; hence, referral for an extraschedular rating is unnecessary at this time. Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) has been raised. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The Board notes that the Veteran filed a claim for TDIU in August 2007, which was denied in October 2008. As the Veteran is currently employed and there is no evidence of unemployability due to the Veteran's psychiatric disability, further consideration of TDIU is not warranted. ORDER Entitlement to an initial rating in excess of 50 percent for PTSD for the period prior to October 28, 2011 is denied. Entitlement to a rating in excess of 70 percent for PTSD for the period beginning October 28, 2011 is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs