Citation Nr: 1336970 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 10-21 609 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Havivi, Associate Counsel INTRODUCTION The Veteran had active service from November 1965 to November 1967 and he was awarded the Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. A review of the Virtual VA paperless claims processing system and the Veterans Benefits Management System reveals an additional record which is pertinent to the present appeal. This document is the Veteran's Appellant Brief, which will be discussed below. FINDING OF FACT The evidence demonstrates that the Veteran's PTSD is not been manifested by 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 an initial rating in excess of 10 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5100, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.1-4.7, 4.10, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION 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 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 January 2009 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 (2006). 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, VA outpatient treatment records, lay statements and the report of the VA examination. Therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Additionally, the March 2009 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). In his October 2013 Appellant Brief, the Veteran requests that if the rating is not increased, he should be afforded another VA examination because of the passage of time from his last examination and his belief that it did not accurately portray his symptoms. The duty to assist does not require that the Board remand the Veteran's claim, solely because of the mere passage of time since that otherwise adequate VA examination in March 2009. See VAOPGCPREC 11-95; Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (The requirement of a "contemporaneous" examination does not require a new examination based upon the mere passage of time). Here, new evidence has been submitted in the form of VA medical center outpatient records. The Veteran alleged that the VA examination did not accurately reflect his current condition, but the new records received by the VA do not reflect any worsening that would merit an evaluation in excess of 10 percent, and therefore there is no need for another examination. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant 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 seeks an increased initial rating for his service connected PTSD. The RO granted a service connection in a June 2009 rating decision. At that time, a noncompensable evaluation was assigned under 38 C.F.R. § 4.130, Diagnostic Code 9411. The effective date was December 2008, the date of the claim. This rating was subsequently increased to 10 percent in the March 2010 Statement of the Case, with the same effective date. 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; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). 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 10 percent evaluation is warranted when there is occupational and social impairment due to mild transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; the symptoms are controlled by continuous medication. 38 C.F.R. § 4.130, Diagnostic Code 9411, General Rating Formula. A 30 percent evaluation is warranted when the medical evidence of record shows 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, or mild memory loss (such as forgetting names, directions, and recent events). Id. A 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. 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 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 a VA examination in March 2009. During the examination, the Veteran described his positive and long-term work and social relationships. He also enjoys hobbies such as yard work and going to basketball games. The examiner described the Veteran as well-groomed, alert and cooperative, though his mood was mildly anxious. The Veteran's though process and content were both normal. The Veteran described his mood in the past month as "okay," and stated that he had a hard time sleeping without a light on. He stated that he takes medication that allows him to get 5-6 hours of sleep per night. If he does not take it, his sleep is broken. The Veteran denied irritability, suicidal ideation and homicidal ideation. The Veteran did report difficulty remembering dates, but that on the whole his memory was not giving him problems. He stated that he copes with arguments by walking away from them and forgetting them. The examiner concluded that the Veteran had daily distressing recollections of his trauma in Vietnam, with nightmares once every six months. When exposed to reminders of them, such as people carrying babies on their backs, the Veteran finds himself in a cold sweat and wants to get on the floor. The Veteran puts forth a lot of effort daily to not think about his traumas. He avoids loud noises, such as live football games, and will leave the room if something on the news bothers him. He also has cluster headaches for which he takes medication and an exaggerated startle response. The examiner noted that while the Veteran formerly was dependent on alcohol, he had been in full sustained remission since 1976. The Veteran's GAF score was 75, which indicates that the present symptoms are transient and expectable reactions to psychosocial stressors, with no more than slight impairment in social or occupational functioning. The Veteran also received treatment at a VA medical center from June 2009 to November 2009. In his early visits, the Veteran described some lack of interest or pleasure in doing things, low energy, insomnia, and irritability. He also stated that he sometimes had moderate depression, guilt, anxiety, and sadness. In August 2009, the Veteran reported that he had experienced a dramatic improvement in his symptoms, that he was sleeping well and discussing his service with his family. He only reported a continuation of his hypervigilance, restlessness and exaggerated startle response. In November of 2009, he reported that he was sleeping well with his medication and had no other symptoms to report. In his statements to the VA, the Veteran described his stress and chronic sleep impairment which required medication in August 2009 and short-term memory loss and insomnia in February 2009. The Veteran's social and occupational impairment most nearly approximate a 10 percent rating. The Veteran's chronic sleep impairment is controlled by continuous medication. He also experiences mild and transient symptoms, such as when he is exposed to something that reminds him of his trauma, such as a baby carried on someone's back. He functions satisfactorily, has established and maintained work, social and familial relationships of over 30 years and has coping mechanisms such as leaving the situation when he is in an argument or sees something that angers him. The Veteran's symptoms are not severe enough to warrant a rating of 30 percent. The Veteran does not show any decrease in work efficiency due to his symptoms. He has worked for newspapers for over 30 years and currently is the head of the union. While he is moving towards retirement and only working part-time, there is no indication that this is due to his PTSD. He enjoys his job and sometimes even stops by when he is not working. He visits his sister and frequently talks on the phone with her, spends time daily with his daughter who is still at home, sees his adult son and grandson weekly, and regularly attends basketball games which his close friend coaches. While he has symptoms of exaggerated startle response and hypervigilance, there is no evidence that they affect his work. He has reported feeling down once a month or less, but this also does not affect his work or social functioning. There is no evidence of panic attacks or delusions. He reported experiencing a hallucination during his heart attack, but no others. He had chronic sleep impairment but is able to sleep through the night with medication. The Veteran does admit to forgetting dates on occasion, but not names, directions or recent events. There is no indication that he has memory loss that affects his functioning. At one of his VA outpatient sessions, the Veteran had a GAF score of 60, which indicates moderate difficulty in functioning. At this same session, he reported re-experiencing his traumas, irritability, insomnia restlessness, hypervigilance and exaggerated startle response. However, in another session later that month, he reported a dramatic improvement in his symptoms. The Veteran's overall functioning is minimally impaired. His PTSD rarely if ever interferes with his productivity or enjoyment of life. Therefore, his symptoms are not enough to merit a 30 percent rating. Staged ratings are inapplicable in the instant case. While the rating was increased from noncompensable to 10 percent by the Statement of the Case, the effective date remained the date of the claim, meaning the Veteran should have been evaluated at 10 percent the entire time. Because there is no evidence of a departure from symptoms that would merit a 10 percent evaluation, staged ratings are inapplicable. 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 his PTSD. Therefore, the evidence is not in equipoise and the Veteran cannot be given the benefit of the doubt. Because the evidence preponderates against the claim, entitlement to an increased initial rating for PTSD is denied. The Board has also considered whether the Veteran's PTSD warrants referral for extra-schedular consideration. In exceptional cases where schedular disability ratings are found to be inadequate, consideration of an extra-schedular 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 rating schedule. As outlined above, the Veteran has chronic sleep impairment controlled by continuous medication. He also has other symptoms such as hypervigilance and exaggerated startle response, but they do not affect his ability to function. 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 all of 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. The criteria for an initial rating in excess of 10 percent for PTSD have not been met. ORDER Entitlement to an initial rating in excess of 10 percent is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs