Citation Nr: 1336823 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 11-24 459 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to an initial evaluation in excess of 50 percent for the service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD D. Havivi, Associate Counsel INTRODUCTION The Veteran had active service from April 1967 to March 1970. Among his awards were the Purple Heart, Bronze Star with Combat "V" and the Combat Action Ribbon. This case comes before the Board of Veterans' Appeals (Board) on appeal of a February 2011 rating decision of the RO. The issue of service connection for ischemic heart disease is not on appeal because the Veteran did not file a VA Form 9 or attempt to perfect his appeal after receiving the May 2013 Statement of the Case. The issues of service connection for right thumb scar and left wrist gunshot wound residuals are not on appeal because the Veteran did not file a Notice of Disagreement for either issue after a January 2012 rating decision. A review of the Virtual VA paperless claims processing system and the Veterans Benefits Management System revealed no additional records which are pertinent to the present appeal. FINDINGS OF FACT The service-connected PTSD is not shown to be productive of a disability picture that is manifested by 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 that is intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); or inability to establish and maintain effective relationships. CONCLUSION OF LAW The criteria for the assignment of an initial rating in excess of 50 percent for the service-connected PTSD have not been met. 38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.1-4.7, 4.10, 4.14, 4.125-4.126, 4.130 including Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) includes notice that a disability rating and an effective date for the award of benefits will be assigned if the claim is granted. As this is an appeal arising from the initial grant of service connection, the notice that was provided in September 2010 before service connection was granted was legally sufficient and VA's duty to notify the Veteran in this case has been satisfied. See Hartman v. Nicholson, 483 F.3d 1311 (2007). VA also has a duty to assist the Veteran in the development of the claim which includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Board finds that all necessary development has been accomplished, as the record includes the Veteran's service treatment records, lay statements, VA outpatient treatment records and the reports of VA examinations. Therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Additionally, the January 2013 VA examination obtained in this case is adequate, as it is predicated on a review of the Veteran's medical history, contains a description of the history of the disability at issue, documents and considers the Veteran's complaints and symptoms, and fully provides medical evidence that is relevant to the governing rating criteria. Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Veteran was also afforded a November 2010 VA examination. This examination report is in narrative form and is also adequate. Because the January 2013 examination was given in the form of a Disability Benefits Questionnaire, the Board prefers to rely on this form instead of the narrative, though the substance of the two examinations is similar. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of his claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002). Merits of the Claim The Veteran asserts that his PTSD is more severe than contemplated by the assigned evaluation. Service connection for PTSD was granted by a February 2011 rating decision, and an initial 50 percent evaluation was assigned under the provisions of 38 C.F.R. § 4.130 including Diagnostic Code 9411. The Veteran filed a timely appeal with his September 2011 VA Form 9. He was then afforded another VA examination in January 2013 and a Supplemental Statement of the Case continuing the 50 percent evaluation was issued. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. §§ 4.7 and 4.21. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Evidence to be considered in the appeal of an initial assignment of a disability rating is not limited to that reflecting the then-current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to receive a staged rating. That is, it is possible 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) (in determining the present level of a disability for any increased evaluation claim, the Board must consider staged ratings). Diagnostic Code 9411 is subsumed into the General Rating Formula for Mental Disorders (General Rating Formula). Under the General Rating Formula, the currently assigned 50 percent evaluation is warranted where the disorder is manifested by 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 for example, 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. 38 C.F.R. § 4.130, Diagnostic Code 9411, General Rating Formula. A 70 percent evaluation is warranted where the disorder is manifested by 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 that is intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control, such as unprovoked irritability with periods of violence; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances, including work or a work-like setting; and an 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 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 rating schedule is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (also known as "the DSM-IV"). 38 C.F.R. § 4.130 (2013). The DSM-IV contains a Global Assessment of Functioning (GAF) scale, with scores ranging between zero and 100 percent. 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. Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition p. 44 (1994). While GAF scores are probative evidence 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. 38 C.F.R. § 4.2 (2013). The Veteran was afforded VA examinations in November 2010 and January 2013. In the November 2010 VA examination, the examiner noted that the Veteran's service treatment records showed nervous trouble, frequent and terrifying nightmares and sleep problems. The Veteran did take a sleep aid occasionally, but often had to wake up at all hours for work, so he did not take it regularly. The Veteran reported intrusive thoughts about traumatic events in Vietnam, but he was generally able to avoid thinking about them by avoiding triggers. He avoided hunting and guns, as well as coverage of current wars and had not eaten any rice since his return from Vietnam. He also reported having blunted emotions, such as detachment when his young son died, anger and irritability. The Veteran responded to anger by leaving the situation and shutting down emotionally. When he felt overwhelmed by his anger, he would take a week off work and go fishing, which made him feel much better. He startled easily and was hypervigilant, but denied any suicidal or homicidal ideation. He no longer carried guns, as he was worried that he might overreact harshly and accidentally hurt someone. He had maintained steady employment and was currently the yard manager for an oil business. He sometimes felt angry and upset on the job, but he had not been reprimanded for it and had advanced steadily and performed well. The Veteran was married and had a good relationship with his children from a previous marriage, his current wife and his parents. He had friends with whom he was close, although his degree of socialization was less than what it was before he left for Vietnam. The examiner diagnosed the Veteran with chronic PTSD. The Veteran was noted to be well groomed and had a logical, coherent and relevant thought processes. He did not report problems with concentration or short or long-term memory. His GAF score was 50, which indicated serious symptoms or serious impairment in social or occupational functioning. However, as discussed, the GAF score is not solely determinative and all the other evidence must be considered as well. At a January 2013 VA examination, the examiner opined that the Veteran had occupational and social impairment with reduced reliability and productivity. The examiner noted that the Veteran had good relationships with his family including going out often with his wife. The examiner also noted that the Veteran was working, but that he might retire within the next six months due to the company's relocation. The Veteran continued to take sleep aid medication on occasion. He was noted to have recurrent and distressing recollections of his stressors, including images, thoughts and perceptions. He made efforts to avoid thoughts, feelings or conversations associated with the trauma and had a restricted range of affect, exaggerated startle response and hypervigilance. His symptoms had lasted for more than a month and caused clinically significant distress or impairment in social and occupational function. The Veteran also had symptoms of anxiety and difficulty in establishing and maintaining effective work and social relationships. His GAF score was recorded as being 58, in the range of moderate symptoms. The Veteran's mental status was mentioned in passing in some of his VA outpatient treatment records, most often to say that it is normal. However, there was a notation in May 2010 that he was feeling some depression. The Veteran's social and occupational impairment clearly equates with the criteria for a 50 percent rating. He had difficulty sleeping without medication, anxiety, and a restricted range of affect. He avoided triggers that might cause recollections of his trauma such as eating rice and hearing news of current wars. He also had difficulty establishing and maintaining work and social relationships, although he did well with pre-existing ones. He was prone to anger and irritability, but he had mechanisms for coping. However, the service-connected disability picture is not shown to meet the criteria for a rating of 70 percent. He has GAF scores of 50 and 58. While a score of 50 is considered to indicate serious impairment in social and occupational functioning, it is the top of the range (50-41), and the findings in the November 2010 examination did not indicate serious impairment. The score of 58 more closely corresponds to the moderate symptoms as demonstrated in the record. He was noted to have tools to adapt to stressful circumstances, including those he experienced at work. The Veteran acknowledges anger at work, but he was able to deal with it by removing himself from the situation, sometimes even taking vacation for a week at a time. This apparently has not impaired his functioning; in fact, he advanced to yard manager during his career. The Veteran also enjoyed good relationships with his parents, children and current wife. He enjoyed spending time with them and spoke to them frequently. While he had thoughts and nightmares relating to his stressors, there was no showing of panic attacks, memory loss, impaired judgment, impaired abstract thinking, or suicidal or homicidal ideation. He also spoke coherently and logically and was able to function independently, appropriately and effectively. He had not neglected his personal appearance or hygiene and did not have any deficiency in judgment or obsessional rituals that interfered with routine activities. Thus, a 50 percent disability rating reasonably addresses the extent of the service-connected disability picture. Staged ratings are inapplicable in the instant case because there is no evidence of change in the Veteran's disability. Fenderson v. West, 12 Vet. App. 119 (1999). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2011); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Here, the Veteran has not presented evidence to support an increased initial rating for the service-connected PTSD. Because the evidence preponderates against the claim, an increased initial rating is denied. The Board has also considered whether the service-connected PTSD warrants referral for extraschedular consideration. In exceptional cases where schedular disability ratings are found to be inadequate, consideration of an extraschedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate. See Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination concerning whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. In this case, the Veteran's symptoms are expressly contemplated by the criteria of the Rating Schedule. As outlined, the Veteran has anxiety, exaggerated startle response, hypervigilance, anger, irritability, restricted range of affect, avoidance of recollection triggers and difficulty in establishing and maintaining effective work and social relationships. Such symptoms are contemplated by the schedular criteria set forth in 38 C.F.R. § 4.130, Diagnostic Code 9411. The regulations and case law expressly consider each of these symptoms. In other words, Diagnostic Code 9411 adequately contemplates the Veteran's symptoms. Therefore, the first step of Thun has not been met, and referral for the assignment of an extraschedular disability rating is not warranted. ORDER An increased, initial rating in excess of 50 percent for the service-connected PTSD is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs