Citation Nr: 1336046 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 10-35 521 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an increased initial rating for service-connected posttraumatic stress disorder (PTSD), currently rated as 30 percent disabling. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD M. Yuan, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1966 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was filed in February 2010, a statement of the case was issued in June 2010, and a substantive appeal was received in August 2010. The Board notes that this appeal is subject to the Expedited Claims Adjudication (ECA) Initiative. The Veteran's signed ECA agreement was date-stamped as received by the RO in October 2009 and is included in the claims file. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT The Veteran's PTSD is productive of 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 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). CONCLUSION OF LAW The criteria for rating in excess of 30 percent for PTSD have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) VA has satisfied its duty to notify the Veteran pursuant to the VCAA. See 38 U.S.C.A. § 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary, or would be of assistance, in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice required by the VCAA can be divided into three elements. Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In this case, the Board finds that the Veteran has been notified of the applicable laws and regulations which set forth the necessary criteria for the benefit currently sought. In an August 2009 letter, the Veteran was informed of the information and evidence necessary to warrant entitlement to the benefit sought. In addition, he was advised of the types of evidence VA would assist him in obtaining, as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio, 16 Vet. App. 183; Charles v. Principi, 16 Vet. App. 370 (2002). The August 2009 letter was sent prior to the Veteran's December 2009 rating decision giving rise to this appeal. Therefore, VCAA notice was timely in this case. See Pelegrini, 18 Vet. App. 112. As the present appeal seeks an increased initial rating following a grant of service connection, notice provided to the Veteran prior to service connection was granted was legally sufficient and no further notice under the VCAA is necessary. See Hartman v. Nicholson, 483 F.3d 1311 (2006). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Further the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board finds that VA complied with the assistance provisions set forth in the law and regulations. All available pertinent in-service and VA records have been obtained. The Veteran was afforded VA psychological examinations in December 2009 and March 2013, and both contain sufficiently specific clinical findings and informed discussion of the pertinent features of the disability on appeal to provide probative medical evidence adequately addressing the issue decided below. No additional pertinent evidence has been identified by the Veteran as relevant to this appeal. In particular, there is no argument or indication that the disability has increased in severity since the last medical evaluation of record. Under these circumstances, no further action is necessary to assist the Veteran with this appeal. As such, the Board finds that the record, as it stands, includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. Laws and Regulations The Veteran seeks entitlement to an initial rating greater than 30 percent for his service-connected PTSD. 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 order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's PTSD is rated under 38 C.F.R. § 4.130's General Rating Formula for Mental Disorders, under which a 30 percent evaluation is warranted where there is occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally 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, and recent events). A 50 percent evaluation is warranted where 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; 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); 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; memory loss for names of close relatives, own occupation, or own name. See 38 C.F.R. § 4.130, Diagnostic Code 9411. The symptoms listed in VA's general rating formula for 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 (2002). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a) (2012). In addition, the evaluation must be 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. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). GAF scores ranging between 81 and 90 reflect absent or minimal symptoms (e.g., mild anxiety before an exam), good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns (e.g., an occasional argument with family members). GAF scores ranging between 71 and 80 reflect that if symptoms are present they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument; no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). GAF scores ranging between 61 and 70 reflect 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, and has some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect more 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 ranging 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). Scores ranging from 31 to 40 reflect 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 other children, is defiant at home, and is failing at school). A score from 21 to 30 is indicative of behavior which is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or inability to function in almost all areas. A score of 11 to 20 denotes some danger of hurting one's self or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement) or occasionally fails to maintain minimal personal hygiene (e.g., smears feces) or gross impairment in communication (e. g., largely incoherent or mute). A GAF score of 1 to 10 is assigned when the person is in persistent danger of severely hurting self or others (recurrent violence) or there is persistent inability to maintain minimal personal hygiene or serious suicidal acts with clear expectation of death. See 38 C.F.R. § 4.130 [incorporating by reference the VA's adoption of the DSM-IV, for rating purposes]. Factual Background and Analysis After reviewing the competent and credible medical evidence of record, the Board finds that the Veteran's overall PTSD impairment is most in keeping with the criteria for a 30 percent rating for PTSD, and therefore that an increased initial rating is not warranted. 38 C.F.R. § 4.130, Diagnostic Code 9411. The Veteran has been receiving treatment for his PTSD from the Wilmington, Pennsylvania VA Medical Center since 2007. During a session in May 2007, the Veteran was neat in appearance, respectful, maintained good eye contact, and displayed appropriate affect. The psychologist noted that the Veteran became tearful when speaking of a fellow soldier who had died in Vietnam. In addition, the Veteran displayed normal speech and appeared alert and oriented, with linear and logical thought processes. He denied hallucinations, or any suicidal or homicidal ideations. Impulse control was normal, and he displayed no impaired judgment. Thereafter, the Veteran was seen by a psychiatrist in May 2009. At that time, the Veteran was employed part-time at Home Depot and married to his third wife, with two children and three grandchildren. Though he expressed some distance from his eldest daughter, and occasional frustration with his youngest, the Veteran seemed to maintain generally normal relationships with his family. He attested to having nightmares, flashbacks, avoidance of crowds, persistent anxiety, worrying about bad things happening, restricted range of affect, and hypervigilance. The psychiatrist noted the Veteran's speech was coherent, and that he had no suicidal or homicidal ideation. He also displayed no cognitive impairment, and was again tearful speaking about his fellow soldier's death. During a subsequent June 2009 session with a social worker, the Vet added that he had a limited social and peer group, though he did have friends, and enjoyed fishing. He appeared unshaven, but answered questions readily, with a low-key, muted affect. His thought processes remained linear and logical, with fair insight and judgment noted, and no cognitive impairment. The social worker diagnosed PTSD, with some marital problems, and assigned a GAF score of 55. The Veteran was also working on some anger issues at the time. Upon December 2009 VA examination, the Veteran reported he still worked part time at Home Depot, though he had difficulty interacting with customers and employers he considered stupid. He stated he had never expressed his frustrations with his employer in any overt way. The Veteran also stated his wife often complained he was not emotionally warm, and often irritable or impatient. He claims he raised his voice at her at least once a day. The Veteran noted infrequent contact with his eldest daughter, and frustrations with his younger daughter. However, he continued to have friends he was close and comfortable with, as they were also Veterans. He also reported avoidance of crowds, emotional numbness, and some detachment from people. The Veteran also attested to a sense of foreshortened future, hypervigilance, and continuing anger issues. He also had intrusive thoughts, nightmares about once a week, and reported a flashback upon hearing a song he used to hear in Vietnam. No reports of hallucinations or delusions were made, and the Veteran's speech was logical and goal oriented. His thought processes and communication were unimpaired. Moreover, the Veteran also experienced depressed mood, appetite loss and low energy or interest in significant activities, which the examiner attributed to depressive disorder not otherwise specified (NOS). The examiner assigned a GAF of 57. A July 2010 VA social worker record is to the effect that the Veteran was disappointed with the RO's decision. The Veteran there stated he recently would find any reason not to go to work. He also claimed he sometimes wonders if his family would be better off without him, though upon further questioning he did not think of suicide, but rather occasionally considered the possibility of leaving and surviving somewhere. Subsequently, the Veteran's wife wrote a letter stating the Veteran didn't seem to care about his daily hygiene, noting that he wouldn't shave daily or get haircuts when he needed. She stated that she would either have to prod him to cut his hair, or trim it herself, noting that he seemed "lazy about this." Finally, the Veteran received another VA psychological examination in March 2013. The examiner noted that the Veteran exhibited occupational and social impairment was due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress; or symptoms controlled by continuous medication. The Veteran had, at that point, been married for 12 years, had not spoken to his eldest daughter in 3 months, and was often frustrated with his younger daughter. He continued to have friends, go fishing, and work part time in retail. The examiner noted he presented with depressed mood, anxiety, chronic sleep impairment, irritability, exaggerated startle response, avoidance, detachment from people, and decreased interest. The Board recognizes that the Veteran's PTSD results in some level of social and occupational impairment. However, after reviewing the evidence of record in light of the regulatory rating criteria and the rule in Mauerhan, the Board concludes that the evidence in this case paints a picture of an individual whose PTSD symptoms are most in keeping with those listed for a 30 percent rating. Mauerhan, 16 Vet. App. 436 (2002). In this regard, the record reflects the Veteran has generally performed occupational tasks satisfactorily, been well-kempt, maintained eye contact and normal conversation, and demonstrated clear and linear thought processes. He does have memory problems, but such are contemplated under the criteria for the current 30 percent rating. In fact, a VA examiner has described the degree of PTSD impairment in terms actually more in keeping with the criteria for a 10 percent rating. At any rate, the Board finds that the preponderance of the evidence is against a rating in excess of the current 30 percent based on the types of symptoms listed as examples under the rating criteria. Moreover, although not determinative by itself, the Veteran's GAF scores have been between 55 and 60, indicating moderate social and occupational difficulty. The Veteran continues to work part time, enjoys several leisure activities, and maintains relationships with his family and friends. Moreover, the Veteran stated during his December 2009 examination that he did not miss significant amounts of work due to his PTSD. Furthermore, he does not display circumstantial, circumlocutory, or stereotyped speech, does not have more than one panic attack a week, and does not have difficulty understanding complex commands. The objective evidence of record contains no indications of impairments to his judgment, abstract thinking, or reported disturbances of motivation and mood. The Board again recognizes the evidence of depressed mood, anxiety, suspiciousness, and chronic sleep impairment. However, these symptoms are contemplated under the current 30 percent disability rating criteria. 38 C.F.R. § 4.130. The Board recognizes the Veteran's endorsement of memory problems, noting that he must write things down, and that if he doesn't take care of something immediately, then it doesn't get done. However, the Board views this symptom as more closely approximate mild memory loss, also contemplated under the 30 percent rating criteria. Id. There is no doubt that the Veteran's PTSD results in some impairment. However, the preponderance of the evidence is against a finding that the criteria for a rating in excess of 30 percent have been met. Should the Veteran's PTSD increase in severity in the future, he may file a new claim for an increased rating. Extraschedular Considerations In general, the schedular 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; 38 C.F.R. Part 4. The application of such schedular criteria was discussed above. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, the symptoms described by the Veteran fit squarely within the criteria found in the relevant Diagnostic Code for the disability at issue. In short, the rating criteria contemplate not only his symptoms but the severity of his disability. For these reasons, referral for extraschedular consideration is not warranted. In closing, for reasons stated above, the Board finds that the preponderance of the evidence weighs against an initial disability rating in excess of 30 percent for the Veteran's service-connected PTSD. In reaching these conclusions, the Board has considered the benefit-of-the-doubt rule, finds that it is not for application here, and that the claim must therefore be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER An initial rating in excess of 30 percent for PTSD is not warranted. The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs