Citation Nr: 1335591 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 10-20 197 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for irritable bowel syndrome (IBS). 2. Entitlement to a disability rating in excess of 30 percent prior to December 17, 2012, and in excess of 50 percent thereafter for posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran had active service from October 1988 to August 1991 and from May 1994 to October 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita Kansas. In November 2012, the Board remanded the issues too afford the Veteran a VA examination to determine the current level of severity of the disabilities. The examinations were provided in December 2012. The Board notes that the December 2012 examiner did not specifically use the words moderate or severe in his findings regarding the Veteran's IBS; however, he reported the Veteran's symptoms in a manner consistent with the rating criteria and in a manner that would allow the Board to determine whether the symptoms meet the criteria for severe IBS. Therefore, the Board may conclude its directives were substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In March 2013, the RO granted an increased rating of 50 percent effective December 17, 2012 for PTSD. In April 2013, the Veteran requested an earlier effective date for the increased rating. The Board notes that the proper evaluation for PTSD is considered below for the entire period on appeal, to include the period prior to December 17, 2012. Therefore, the earlier effective date assertion is subsumed by, and a part of, the increased rating claim. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran's IBS manifests with frequent episodes of bowel disturbance with abdominal distress, but without severe IBS with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. 2. The preponderance of the evidence shows that the Veteran's PTSD is productive of occupational and social impairment, with deficiencies in most area, such as work, school, family relations, judgment, thinking or mood, due to such symptoms as: suicidal ideation, near- continuous panic or depression, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, and other symptoms; it is not manifested by total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for IBS have not been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.114, Diagnostic Code 7319 (2012). 2. The criteria for a disability rating of 70 percent for PTSD have been met throughout the entire period on appeal. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA call for VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). The record shows that through a VCAA letters dated August 2008 and June 2009, the Veteran was informed of the information and evidence necessary to substantiate the claims. The Veteran was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. The case was readjudicated in March 2013. The Board also finds that there has been compliance with the VCAA assistance provisions. The record in this case includes service treatment records, VA treatment records, VA examination reports, and lay evidence. No additional pertinent evidence has been identified by the Veteran. With the VCAA requirements having been met, the Board my proceed to a decision on the claims. Increased Rating - Laws and Regulations Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 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. In any increased rating claim, different ratings can be assigned for different periods of time in a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). Increased Rating - IBS The Veteran's service connected IBS is rated under Diagnostic Code 7319. Under DC 7319, ratings of 0 (noncompensable), 10, and 30 percent are authorized for irritable colon syndrome. A noncompensable rating is warranted for mild IBS with disturbances of bowel function with occasional episodes of abdominal distress. A 10 percent rating is assigned for moderate IBS with frequent episodes of bowel disturbance with abdominal distress. A 30 percent rating is assigned for severe IBS with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. 38 C.F.R. § 4.114. The Veteran was granted service connection for IBS in a September 2005 rating action, and assigned a 10 percent disability evaluation from December 2003. He submitted his current claim for increase in July 2008. In this regard, records dated in December 2008, show that the Veteran's IBS was considered essentially controlled with medication. Thereafter, the Veteran was afforded a VA examination in April 2009. The Veteran complained of flatus and abdominal cramps as well as two to five bowel movements per day. He also complained of diarrhea most of the time, but some constipation, described as his first bowel movement being hard, but they then get loose as the day goes on. In December 2012, the Veteran was afforded another VA examination. The examiner noted the use of continuous medication to control his intestinal condition. He had daily flatulence, as well as diarrhea, described as loose stools three times per day in the morning. There was no alternating diarrhea and constipation, and no episodes of bowel disturbance with abdominal distress. The examiner indicated the condition had no impact on the Veteran's ability to work. In his May 2009 notice of disagreement, the Veteran reported medication for IBS with constant abdominal distress. In the May 2010 substantive appeal, the Veteran reported that he is in constant abdominal distress. In a final May 2013 statement, the Veteran noted three or four bouts of diarrhea before breakfast. Although the Veteran asserts that he has constant abdominal distress, his diarrhea appears to be mainly limited to the morning hours, the medical records reflect the view the condition is considered essentially controlled, and when last examined, the examiner indicated there was no impact from this condition on the Veteran's ability to work. It is significant, the Veteran's assertions of constant abdominal distress appear only in association with his claim for increased benefits. The picture these facts describe do not reveal a severe disability as contemplated for the next higher rating. Due to the lack of severe symptoms and the lack of constant abdominal distress, the Board finds that the preponderance of the evidence is against the claim. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002). Increased Rating - PTSD Considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The evaluation must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). When determining the appropriate disability evaluation to assign, the Board's "primary consideration" is the Veteran's symptoms. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). According to the Diagnostic and Statistical Manual of Mental Disorders, Fourth edition (DSM IV), a global assessment of function (GAF) score reflects the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." DSM IV, American Psychiatric Association (1994), pp.46-47; 38 C.F.R. §§ 4.125(a), 4.130. A GAF score 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; child frequently beats up younger children, is defiant at home, and is failing at school. A GAF score 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 score of 51-60 represents 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 score of 61-70 indicates some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. The Veteran's service-connected PTSD has been rated under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9411, which provides, in part as follows: When the Veteran experiences occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation), 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), a 30 percent disability rating is warranted. A 50 percent disability rating is warranted when the Veteran experiences 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. A 70 percent disability rating is warranted when the Veteran experiences occupational and social impairment, with deficiencies in most area, 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 work like setting); inability to establish and maintain effective relationships. A 100 percent disability rating 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of closest relatives, own occupation, or own name. 38 C.F.R. § 4.130. In Mittleider v. West, 11 Vet. App. 181 (1998), the United States Court of Appeals for Veterans Claims (Court) held that VA regulations require that when the symptoms and/or degree of impairment due to a Veteran's service-connected psychiatric disability cannot be distinguished from any other diagnosed psychiatric disorders, VA must consider all psychiatric symptoms in the adjudication of the claim. A review of the record reflects that the Veteran was awarded service connection for PTSD in a November 2003 rating action, at which time it was evaluated as 30 percent disabling, effective from May 2003. The Veteran submitted a claim for increase in July 2008, but the disability remained evaluated at the 30 percent level until a March 2013 rating action, when it was increased to its current 50 percent rating. The 50 percent evaluation was made effective from a December 2012 examination. Treatment records dated in December 2008, show the Veteran reported frequent panic attacks, with little ones daily and major ones once every two weeks. He described them as episodes of heart racing, feeling scared, and needing to get away. He indicated he was depressed, had poor sleep and concentration, and felt hopeless, with a sense of foreshortened future. Recurring nightmares were present, and he complained he had trouble connecting to people and family. Other symptoms included hypervigilance, severe irritability and exaggerated startle response, and although he denied suicidal thoughts, he felt he might be better off if he were not alive. The examiner noted moderate motor slowing and a guarded constricted affect. The examiner described the Veteran's depression as significant, and he assigned a GAF score of 41, (serious). March 2009 records show the Veteran reported nightmares one to two times per week, (down from 2 to 3 per week), but his level of irritability remained the same. He had occasional thoughts of suicide, but without any clear plan or intent. The treatment provider noted mild motor slowing, with quiet and slow speech, but otherwise within normal limits. A 42 GAF score (serious) was assigned. The Veteran was afforded a VA examination in April 2009. At that time, the Veteran reported no social interactions; he avoids anywhere with crowds, and that he has recurring dreams about his experiences. Difficulty with sleep onset and maintenance, was also mentioned, as well as a startle response to loud and unexpected noises. He also reported feeling rage, but did not report himself being a violent person. The Veteran had difficulty making eye contact, his speech was soft and slow, but typically logical and goal-directed, and his mood was characterized as depressed and anxious. There was no evidence of a thought disorder or psychosis, and the Veteran's insight was deemed to be intact and his judgment was adequate. While he endorsed almost constant thoughts of suicide, he had no intent, and the examiner assigned a GAF score of 40. The Veteran submitted a statement in September 2008. He reported difficulty creating and maintaining decent relationships with his co-workers and would go days without speaking to anyone. He noted no friends of any kind, and that his wife had separated from him. (They were subsequently divorced.) In his May 2009 notice of disagreement, the Veteran reported irritability and depression. He noted no friends and stated that he does not socialize. He claimed daily panic attacks, to the point that he believed he had a heart condition, but no such physical condition was found. He also reported nightmares. A July 2011 statement showed that the Veteran has a job that he can perform from home. He claimed no motivation and severe disturbances of mood. The Veteran was again examined for VA purposes in December 2012. At that time, the Veteran reported near constant anxiety and daily depression, with repeated nightmares. The Veteran reported difficulty falling or staying asleep, hypervigilance, and exaggerated startle response, together with difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The examiner noted no memory impairment, no impaired impulse control, no illogical, obscure, or irrelevant speech, no suicidal ideation, no neglect of personal hygiene, and no obsessional rituals. The examiner described the symptoms as being moderate to severe, and assigned a GAF score of 50. The Veteran also submitted a lay statement in April 2013. The Veteran noted his divorce due to his isolation, depression, and irritability. He noted anxiety and difficulty adapting to a job. He also noted that he has no friends or social interactions. Resolving any reasonable doubt as may arise as to the severity of disability in this case in favor of the Veteran, (given the record does not show he avails himself of much actual treatment), the Board nevertheless concludes that the criteria for a 70 percent disability rating are met. Although the Veteran does not present with all the symptoms provided in the criteria for a 70 percent disability rating, the Board has considered that the symptoms listed in Diagnostic Code 9411 are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. In any event, the Veteran appears to have experienced suicidal ideation, near-continuous depression and anxiety, panic attacks, nightmares, hypervigilance, exaggerated startle response, social isolation, difficulty in adapting to stressful circumstances, and an inability to establish and maintain effective relationships. The Veteran's symptoms have been described as serious by several examiners. The Veteran's GAF scores are also consistent with a 70 percent rating, ranging from a low of 40 and high of 50. This represents serious impairment, more consistent with the 70 percent criteria, and as this level of disability has been present throughout the appeal period, the rating is appropriate for that entire time. The Board must then consider whether the Veteran is entitled to a 100 percent disability rating. In order to meet the criteria for a 100 percent disability rating, the evidence must show 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of closest relatives, own occupation, or own name. The Board finds that the criteria for a 100 percent disability rating have not been met. The Veteran does not have total occupational and social impairment. Although his job is isolated, he still maintains employment. Additionally, he takes care of his two children on occasion without assistance. He also have no impaired thought processes or communication, no delusions or hallucinations, no inappropriate behavior, no persistent danger of hurting himself or others, no inability to perform activities of daily living, no disorientation to time or place, and no memory loss of names of closest relatives, own occupation, or own name. The Board finds that a preponderance of the evidence is against a finding of entitlement to a 100 percent disability rating for PTSD. Based on the evidence of record, and after resolving all doubt in the Veteran's favor, the Board finds that the manifestations of the Veteran's PTSD more nearly approximate the criteria for a 70 percent disability rating throughout the entire period on appeal. Extraschedular Consideration The RO must refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular rating where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b) (1) (2011). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating, otherwise, the schedular evaluation is adequate, and referral is not required. Id. at 116. The Board finds that the rating criteria contemplate the Veteran's disabilities. The Veteran's PTSD is manifested by suicidal ideation, near-continuous depression and anxiety, panic attacks, nightmares, hypervigilance, exaggerated startle response, social isolation, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships. His IBS is manifested by diarrhea in the mornings and flatulence. These manifestations are contemplated in the applicable rating criteria. As such, the Board finds that the Veteran has not described other functional effects that are "exceptional" or not otherwise contemplated by the assigned evaluations. Rather, his description of PTSD and IBS symptomatology is consistent with the degree of disability addressed by such evaluations. Therefore, the rating criteria are adequate to evaluate the Veteran's disabilities and referral for consideration of an extraschedular rating is not warranted. Finally, the Court has held that entitlement to total disability based on individual unemployability (TDIU) is an element of all appeals for a higher rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to TDIU is raised when a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Here, the Board finds that the most probative evidence shows that the Veteran is not unemployable due to his service-connected disabilities, as he works full-time. Thus, TDIU is not raised by the record. ORDER Entitlement to a disability rating in excess of 10 percent for IBS is denied. Entitlement to a disability rating of 70 percent for PTSD is granted. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs