Citation Nr: 1336725 Decision Date: 11/12/13 Archive Date: 11/22/13 DOCKET NO. 09-37 605 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: American Red Cross ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from July 1967 to September 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. This case was brought before the Board in February 2013, at which time the claim was remanded to the Agency of Original Jurisdiction (AOJ) for further development. The requested development having been completed, the case is once again before the Board for appellate consideration of the issue on appeal. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. Both the paper and virtual claims files have been reviewed. FINDINGS OF FACT 1. Prior to March 22, 2013, the Veteran's PTSD was manifested by a depressed mood with flashbacks, sleep impairment and frequent nightmares; he was able to maintain successful professional relationships with no evidence of memory loss, panic attacks, obsessional rituals or cognitive impairment. 2. As of March 22, 2013, is manifested by depressed mood, some impairment to judgment and suicidal ideation with an attempt and continued risk; there is no evidence of persistent delusions or hallucination, disorientation to time or place, or severe memory loss. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 50 percent for PTSD prior to March 22, 2013, have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012). 2. The criteria for an initial evaluation of 70 percent for PTSD have been met as of March 22, 2013. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In cases such as this, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The appellant bears the burden of demonstrating any prejudice from defective notice with respect to downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008). There has been no allegation of such error in this case. In any event, VA provided the Veteran notice letters in February and March 2006 and February 2009 that fully addressed all notice elements. These letters informed the Veteran of what evidence was required to substantiate his underlying claim, and of the Veteran's and VA's respective duties for obtaining evidence. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond. In light of the above, the Board finds that all notices required by VCAA and implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012). Service treatment records are associated with claims file. All post-service treatment records identified by the Veteran have also been obtained. The Veteran has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. The Veteran has been afforded VA examinations in February 2009 and April 2013. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2012); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). These VA examinations are adequate for the purposes of evaluating the Veteran's disabilities, as they involved a review of the Veteran's pertinent medical history as well as a clinical evaluation of the Veteran, and provides an adequate discussion of relevant symptomatology. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As noted above, the instant claim was previously remanded by the Board in February 2013. Specifically, the Board instructed that all outstanding VA treatment records be obtained and that the Veteran be provided an additional VA examination to address the current severity of his service-connected PTSD. VA treatment records have been obtained and associated with the virtual claims file, and the Veteran was provided the requested examination in April 2013, which the Board has found to be adequate. There has been substantial compliance with the prior remand, and adjudication of the Veteran's claim may proceed. See generally Stegall v. West, 11 Vet. App. 268, 271 (1998). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Analysis Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Evidence to be considered in the appeal of an initial assignment of a disability rating is not limited to that reflecting the current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In Fenderson, the Court also discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it is possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's PTSD has been assigned an initial evaluation of 50 percent pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). PTSD, like most acquired psychiatric disorders, is to be rated under the General Rating Formula for Mental Disorders (General Rating Formula). Id. Pursuant to the General Rating Formula, a 50 percent evaluation is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereo-typed speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability evaluation is warranted when 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; 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 worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent disability evaluation is warranted when 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 and place; memory loss for names of close relatives, own occupation, or own name. Id. The nomenclature employed in the portion of VA's Schedule for Rating Disabilities ("the Schedule") that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). 38 C.F.R. § 4.130 (2012). The DSM-IV contains a Global Assessment of Functioning (GAF) scale, with scores ranging between zero and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. GAF scores included in the record 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). The DSM-IV contemplates that the GAF scale will be used to gauge a person's level of functioning at the time of the evaluation (i.e., the current period) because ratings of current functioning will generally reflect the need for treatment or care. The Board notes that while GAF scores are probative of the Veteran's level of impairment, they are not to be viewed outside the context of the entire record. Therefore, they will not be relied upon as the sole basis for an increased disability evaluation. Ratings are assigned according to the manifestations of particular symptoms. However, the use of the phrase "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve only 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). Thus, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV. A. Prior to March 22, 2013 In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran does not meet the criteria for an initial evaluation greater than 50 percent for PTSD prior to March 22, 2013. See Fenderson, supra. A higher evaluation is not warranted because the competent evidence of record does not demonstrate that the Veteran's symptomatology more closely approximated a 70 percent evaluation or higher during this period. In this regard, the Board notes that the Veteran's treatment records do not contain evidence showing that he suffered from frequent panic attacks, obsessive rituals, hallucinations or delusions. While VA treatment records and a February 2009 VA examination report reflects the Veteran reported frequent nightmares and difficulty sleeping, he did not report panic attacks or hallucinations, and no delusional material was noted. Higher ratings also take into account the inability to attend to basic personal appearance and hygiene, speech impairment, and impaired thought and judgment. The Veteran has persistently presented as well-groomed with an appropriate appearance. See, e.g., November 2005 VA Mental Health Assessment, February 2009 VA examination report. The February 2009 VA examination report specifically found the Veteran was able to maintain basic activities of daily living and his personal hygiene appeared intact. He also presented throughout this period with logical and goal-directed thoughts, an appropriate affect, and was alert and oriented in all spheres. There were no impairment in thought processes or communication at the February 2009 VA examination. With regard to the Veteran's ability to establish and maintain personal relationships, the Veteran reported at the February 2009 VA examination that he had no social relationships. However, he also reported that he tries to fill his time by going to church and volunteering. At the November 2005 mental health assessment, the Veteran reporting having had only one relationship since returning from Vietnam, which had recently ended due to his inability to open up. Later records, however, indicate the Veteran had developed another romantic relationship though, as discussed below, that too has since ended. With regards to professional relationships, the Veteran reported at the November 2005 assessment that he had been employed in the production department of the Washington Post for over 20 years. At the February 2009 VA examination, he reported continued employment and rated his performance as 7 out of 10, and noted that he had not taken any time off work in the prior twelve months. Thus, the Board concludes that although the Veteran may have had some social difficulties during this period, particularly with society as a whole, he was capable of maintaining successful relationships, particularly in the professional arena. Therefore, the Veteran's impairment in this area was not significant enough to approximate the criteria for a 70 percent rating prior to March 22, 2013. Finally higher evaluations contemplate suicidal and homicidal ideation or a persistent danger of hurting himself or others. While the November 2005 assessment notes the Veteran reported suicidal ideation, including an attempted suicide three years prior due to financial difficulties and his mother passing away, he denied suicidal intent or homicidal ideation, and was found to be a low suicide risk. Further, the February 2009 VA examination report makes no mention of suicidal or homicidal ideation. Also of record are the Veteran's GAF scores. As noted above, GAF scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter, 8 Vet. App. at 242. The higher the score, the better the functioning of the individual. The Veteran's GAF scores during this fluctuated between 64 (November 2005) and 55 (February 2009). GAF scores ranging between 51 and 60 are assigned when there are "moderate" symptoms or moderate impairment in social, occupational, or school functioning (few friends, conflicts with peers or co-workers). See DSM-IV. Indeed, the February 2009 VA examiner determine the Veteran's PTSD symptmatology to be mild to moderate. Overall, the Board concludes the evidence does not support an evaluation greater than 50 percent prior to March 22, 2013. In making this determination, the Board acknowledges the November 2005 mental health assessment noting "severe" symptoms of PTSD. However, the Board finds the preponderance of the evidence weighs against a finding that the Veteran's symptomatology during this stage more closely approximates that contemplated by a 70 percent evaluation. The Veteran was able to maintain successful personal and professional relationships, sustaining long term employment, going to church and volunteering, and was able to function independently, with no evidence of psychotic features, panic attacks, obsessional rituals or cognitive impairment. He did, however, exhibit a depressed mood with sleep impairment and nightmares. The Board finds such symptomatology and overall functioning does not result in an overall disability picture more closely approximating occupational and social impairment with deficiencies in most areas, required for the assignment of a 70 percent evaluation. See generally Mauerhan, 16 Vet. App. 436. In reaching this decision, the Board considered the benefit-of-the-doubt rule. However, the preponderance of the evidence is against an initial evaluation higher than 50 percent prior to March 22, 2013; therefore, the benefit-of-the-doubt rule does not apply. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). B. As of March 22, 2013 Treatment records indicate that, as of March 22, 2013, the Veteran's PTSD results in symptomatology that meets the criteria for an initial 70 percent evaluation, but not more. Records indicated that, on this date, the Veteran was admitted to the mental health unit following a suicide attempt due to relationship issues. A preadmission evaluation found the Veteran to suffer from a depressed mood, and placed him on close observation to protect him from self harm. A GAF score of 35 was assigned, indicating major impairment in several areas. See DSM-IV. During this mental health admission, while the Veteran later denied suicidal ideation, he was found to have questionable auditory hallucinations and fair to poor insight and judgment. See, e..g, March 25, 2013, Psychiatry Team Note. At his discharge a few days later, his cognitive functioning was grossly intact, he appeared fairly groomed and denied auditory or visual hallucinations and suicidal or homicidal ideation. Finally, an April 2013 VA examination, conducted following inpatient treatment, notes the Veteran reported no current suicidal ideation, his sleep was improved and his mood was less depressed. He continues to experience intrusive thoughts, emotional detachment, increased irritability, avoidance of trauma reminders, hyper-vigilance, and exaggerated startle response. The examiner determined the Veteran's PTSD results in occupational and social impairment with reduced reliability and productivity, and assigned a GAF score of 55, indicating "moderate" symptomatology. See DSM-IV. The Board recognizes that, other than suicidal ideation, the Veteran does not experience symptomatology associated with a 70 percent evaluation. For example, there is no evidence of obsessional rituals that interfere with daily activities, speech impairment or near continuous panic attacks. See General Rating Formula. However, even following his discharge from inpatient mental health treatment, the Veteran is noted to be a category 2 high risk for suicide. Thus, resolving all doubt in favor of the Veteran, the Board determines that, as of March 22, 2013, the overall disability picture more closely approximates that contemplated by a 70 percent evaluation. See generally Mauerhan, 16 Vet. App. 436. However, a 100 percent evaluation is not warranted during this stage of the appeal as there is no evidence of any gross impairment in thought process, grossly inappropriate behavior, a disorientation to time or place, or a memory loss for names of close relatives, own occupation, or own name. See 38 General Rating Formula. There is no evidence of hallucinations or delusions, impairment of thought processes or inability to maintain minimal personal hygiene, symptoms contemplated by a 100 percent evaluation. Id. The evidence not indicate the Veteran's PTSD results in total occupational and social impairment. Overall, the evidence discussed above supports no more than a 70 percent evaluation as of March 22, 2013. In reaching its decision, the Board considered the benefit-of-the-doubt rule in considering whether a higher evaluation is warranted. However, the preponderance of the evidence reflects the Veteran's symptomatology more closely approximates that contemplated by a 70 percent evaluation during this stage of the appeal. Therefore, the benefit-of-the-doubt rule does not apply. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). C. Final Considerations The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis. Ordinarily, the VA Schedule 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). 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) (2012). 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 claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant'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. 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 disabilities is inadequate. A comparison between the level of severity and symptomatology of the Veteran's PTSD with the established criteria found in the rating schedule for these disabilities show that the rating criteria reasonably describes the Veteran's disability level and symptomatology. Specifically, the Veteran's social and occupational impairment is contemplated in the applicable criteria that rate his PTSD. As the first prong of Thun has not been satisfied, 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. Finally, the Board notes that entitlement to a total disability evaluation based on individual unemployability (TDIU) is an element of all increased rating claims. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). However, while the evidence notes the Veteran is currently unemployed, there is no indication the Veteran is unemployable due to his service-connected PTSD. In this regard, the record reflects the Veteran retired in 2009 after a lengthy career, and there has been no assertion that his retirement was precipitated by his PTSD symptomatology, or that his has since been unable to obtain employment. Therefore, remand for consideration of TDIU under Rice is not warranted in this case. ORDER An initial evaluation in excess of 50 percent for PTSD prior to March 22, 2013, is denied. An initial evaluation of 70 percent, but not greater, for PTSD as of March 22, 2013, is granted. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs