Citation Nr: 1337029 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 12-16 709 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial increased rating for posttraumatic stress disorder (PTSD), currently 30 percent. 2. Entitlement to a compensable rating for status post right hand fracture, arthralgia (right hand disability), currently non-compensable. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD J. Honan, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1968 to August 1969, including service in the Republic of Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal of July 2010 and April 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The July 2010 rating decision granted service connection for PTSD and assigned a 30 percent disability rating, effective February 1, 2010. The April 2011 rating decision denied a compensable rating for the Veteran's right hand disability. FINDINGS OF FACT 1. The Veteran's PTSD is manifested by no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to such symptoms as irritability, anxiety, panic attacks occurring weekly or less often, and chronic sleep impairment; his lowest GAF score in the appellate period was 55. 2. The Veteran's right hand disability is manifested by pain, stiffness, and weakened grip; x-ray evidence indicated arthritis affecting a minor joint group; with satisfactory evidence of painful motion. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 30 percent for service-connected PTSD have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2013). 2. The criteria for an increased disability rating of 10 percent for a service-connected right hand disability have been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.3, 4.59, 4.69, 4.71a, Diagnostic Code 5299-5003 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA 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. The Veteran's PTSD appeal arises from his disagreement with the initial evaluation following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial and will not be discussed. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). A January 2011 letter satisfied the duty to notify provisions as to the Veteran's increased rating claim for his right hand disability. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1). This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's VA medical treatment records and all private treatment records identified have been obtained. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). VA examinations were conducted in July 2010 (PTSD) and February 2011 (hand, thumb, and fingers). The Veteran has not argued, and the record does not reflect, that these examinations were inadequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c)(4). The PTSD examination is adequate because it reflected review of the claim file and described the Veteran's psychiatric symptoms in sufficient detail so that the Board's evaluation of the disability is a fully informed one. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The hand, thumb, and fingers examination is also adequate. While the VA examiner indicated he did not review the Veteran's claim file, he did, in fact, review the medical records in the file. Moreover, a physical examination was conducted and the examiner provided extensive range of motion tests. The examination is adequate for rating purposes, as it is based on the Veteran's medical history and described the disability in sufficient detail so that the Board's decision is a fully informed one. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009); Dingess/Hartman, 19 Vet. App. at 486. II. PTSD In July 2010, the RO granted service connection for PTSD and assigned a disability rating of 30 percent pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411, effective February 1, 2010. The Veteran contends that he is entitled to an initial rating in excess of 30 percent. Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate rating codes identify various disabilities. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history. See generally 38 C.F.R. §§ 4.1, 4.2. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. With an initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119 (1999). PTSD is evaluated under a general rating formula for mental disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (2013). A 30 percent rating is warranted where there is an 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, recent events). Id. A 50 percent rating is warranted when 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 (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. Higher ratings are available for other, more significant manifestations. The Global Assessment of Functioning is a scale reflecting psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). A GAF score of 41 to 50 is defined as denoting serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A score of 51 to 60 is defined as indicating moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). A score of 61 to 70 is defined as indicating some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning but generally functioning pretty well, has some meaningful interpersonal relationships. The earliest treatment record for PTSD in the appellate period is a July 2010 note from the Orlando VA Outpatient Clinic that indicated PTSD on the Veteran's active "problems list." The Veteran was afforded a VA examination for PTSD in July 2010. The examiner, a clinical psychologist, indicated that the Veteran had been treated for an anxiety disorder and PTSD at the Orlando VAMC since February 2010 [although there are no written or electronic VA records reflecting PTSD earlier than July 2010]. The report reflects that the Veteran had never been hospitalized for a mental disorder, and had not been attending individual or group therapy. The Veteran reported one prior marriage and a current marriage of nine years. The Veteran reported good relationships with his four stepchildren, and also reported fishing with his wife, occasional church participation, and good relations with his neighbors. While he reported alcohol-related fights from the past, he stated that he had learned to "walk away". The examiner did not diagnose any drinking problems or any other substance abuse problems. While the examiner observed the Veteran's affect to be inappropriate, he reported the Veteran's mood as "pretty good," found him to be oriented to time, place, and person, with unremarkable thought process and content, and no delusions. The Veteran reported sleep impairment, and panic attacks that occurred "sometimes" if he got into an argument with someone who argued back. He reported the last panic attack occurred three months prior, lasted several minutes, but that he had been able to walk away and calm himself. The examiner found the Veteran's remote and recent memory to be normal. The examiner assigned a GAF score of 65. He opined that the Veteran's mental disorder symptoms were not severe enough to interfere with social or occupational functioning, and did not find any reduced reliability or productivity due to PTSD symptoms. The only other record of treatment for PTSD in the Veteran's claim file is an April 2011 treatment note by Dr. Lopez, a psychiatrist. The reason for the visit was medication management and monitoring of PTSD. The Veteran reported general concerns, including lingering anxiety and insecurity about his job situation. He stated that he had worked for the county as a painter for the past 18 years. He complained of periodic flashbacks and nightmares, and reported taking medication to help him sleep. The Veteran reported that he had not attended group therapy, nor had he approached his minister for support. He did not reference any ongoing individual therapy, but agreed to follow up and take psychotropic medications as recommended. The psychiatrist observed him to have a mildly anxious mood, appropriate affect, with thought processes logical, relevant, and goal directed. He found no obsessive or delusional thinking, memory for recent and remote events intact, and no suicidal or homicidal thoughts. He also found the Veteran's judgment and insight to be adequate, and assigned a GAF score of 55. The evidence of record does not support the assignment of a rating in excess of 30 percent under the General Rating Formula for Mental Disorders at any time during the appellate period. Importantly, as of the most recent PTSD treatment note of record (April 2011), the Veteran remained employed with the county, a job he had held for 18 years. During his VA examination, the Veteran reported a current marriage of nine years, and good relationships with his stepchildren and neighbors. The examiner found the Veteran's remote and recent memory to be normal. He found no impact on social or occupational functioning, nor any reduced reliability or productivity due to PTSD symptoms. In order for the Veteran to obtain the next higher disability rating (i.e. 50 percent), the evidence would need to show occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships, none of which have been noted. The Veteran's 18-year employment with the county, combined with his marriage and good relationships with his stepchildren and neighbors, does not present a picture of an individual who has difficulty in establishing and maintaining effective work and social relationships. Both the VA examiner and the VA psychiatrist found the Veteran's memory to be intact. There is no evidence during the appellate period of circumstantial, circumlocutory, or stereotyped speech, or difficulty in understanding complex commands. The VA examiner noted that the Veteran sometimes experienced panic attacks, and both the VA examiner and VA psychiatrist noted sleep impairment. However, these characteristics are already encompassed by the Veteran's current 30 percent rating. While the VA examiner indicated the presence of suicidal thoughts in July 2010, the VA psychiatrist found no indication of suicidal thoughts in the Veteran's later, April 2011 psychiatry note. In any event, there is no evidence in the record suggesting that suicidal thoughts led to occupational and social impairment to a degree that would warrant a higher rating. In fact, the VA examiner specifically stated that the Veteran's mental disorder symptoms were not severe enough to interfere with social or occupational functioning, nor did he find any reduced reliability or productivity due to the Veteran's PTSD symptoms. The most recent PTSD treatment note of record (April 2011) did not describe any additional symptoms or evidence not already considered and discussed in the earlier VA examination, other than a GAF score 10 points lower (from 65 to 55). However, GAF scores are only one factor to consider in determining disability levels for mental disorders, and the Board does not find this 10-point decline to be dispositive when considered against the other evidence of record. Importantly, the most recent psychiatry note indicated that the Veteran was not attending group therapy or seeking support from his minister; nor is there any indication that he had sought individual therapy. In his June 2012 Form 9 Appeal, the Veteran contended that the VA examination was not conducted in accordance with DSM-VI or -V standards and that a psychological report from a private psychologist, Dr. Eyring, dated prior to the appellate period, is of more probative value than the July 2010 VA examination report. There is no evidence of record to support the Veteran's contention that the VA examination was not conducted in accordance with DSM-VI or -V standards. In any event, the VA examination report indicated review of the Veteran's claim file, which included Dr. Eyring's psychological report. Significantly, Dr. Eyring's psychological report, dated December 2009, falls outside the appellate period, and the Board may not consider it for rating purposes. There is no indication that the Veteran sought ongoing treatment from Dr. Eyring, nor does the Veteran contend such. The schedular criteria for a higher rating were not met at any point during the course of the appeal and staged ratings are not warranted. See Fenderson, 12 Vet. App. 119 (1999). An extraschedular disability rating is warranted 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); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). The Veteran's symptoms are contemplated by the evaluation presently assigned. The competent, credible evidence of record indicates that the Veteran experiences anxiety, irritability, sleep impairment, occasional panic attacks, and requires continuous medication. As the rating criteria reasonably describe the Veteran's disability level and symptomatology, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is adequate. Thun v. Peake, 22 Vet. App. 111, 115 (2008). A referral for an extraschedular rating is not warranted. The preponderance of the evidence is against the claim; there is no doubt to be resolved; and an increased initial evaluation for PTSD is not warranted. III. Right Hand Disability In April 2011, the RO denied an increased disability rating for status post right hand fracture, arthralgia, and continued the noncompensable rating. The RO recognized that the Veteran's disability is not listed in the rating schedule, and rated it according to an analogous disability under Diagnostic Code 5299-5229 ("index or long finger, limitation of motion"). The Veteran contends that he is entitled to a compensable rating for his right hand disability. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45, see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. The Veteran is currently rated under Diagnostic Code 5299-5229 ("index or long finger, limitation of motion"). For limitation of motion in the index or long finger under Diagnostic Code 5229, if there is a gap of less than one inch (2.5 centimeters) between the fingertip and the palm crease, with the finger flexed to the extent possible, then it is given a 0 percent rating. However, if there is a gap of one inch (2.5 centimeters) or more between the fingertip and the palm crease, with the finger flexed to the extent possible, or with extension limited by more than 30 degrees, then a 10 percent rating is warranted. Id. In determining the degree of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, supra. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. 38 C.F.R. § 4.59. In February 2011, the Veteran was afforded a VA examination of his hand, thumb, and fingers. The Veteran reported experiencing increased pain in his hand. He stated that he worked full-time as a painter, and had worked for his current employer for more than 20 years. The Veteran reported that it was difficult for him to hold a paint gun due to the pain in his right hand. He stated that he was right-handed, and reported using over-the-counter medications to manage his pain. The examiner observed that the Veteran wore a hand brace, and noted an overall decrease in hand strength and dexterity. The examiner found no objective evidence of pain on range of motion testing of the right index finger, with normal extension of the DIP, PIP, and MP joints and no gap between the index finger and proximal transverse crease of the hand on maximal flexion of the finger. She found no additional or new limitation of motion after repetitive motion of the index finger. The examiner repeated this range of motion testing sequence for all of the Veteran's fingers, with the same results. She found no ankylosis of one or more digits, no amputation of a digit or part of a digit, and no deformity of one or more digits. She noted no decreased strength for pushing, pulling, and twisting, and no decreased dexterity for twisting, probing, writing, touching, and expression. The examiner diagnosed the Veteran with status post right hand fracture, arthralgia. She found the disability to have significant effects on the Veteran's usual occupation, with decreased manual dexterity. Specifically, it was difficult for him to hold a paint gun due to the pain in his right hand. VA treatment records from July to August 2011 reflect that the Veteran sought treatment for right hand pain. In July 2011, x-rays of the Veteran's right hand indicated old second and third metacarpal shaft fractures, with mild posttraumatic osteoarthritis of the third metacarpal joint, along with mild, age-appropriate osteoarthritis in the DIP joints of the fingers, IP joint of the thumb, and in the first CMC joint at the base of the thumb. In an August 2011 ambulatory care note, the Veteran reported constant pain and stiffness in his hand, with worsening while painting. He used a wrist splint, and took over-the-counter medications as needed to manage his pain. The physician diagnosed him with degenerative joint disease. As of August 2011, the Veteran was still employed. Degenerative arthritis (Diagnostic Code 5003) established by x-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. However, when the limitation of motion of the specific joint or joints involved is not compensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. The Veteran's July 2011 x-ray findings indicate "posttraumatic osteoarthritis" of the third metacarpal joint. The Veteran's metacarpal joints are considered a minor group of joints under the rating criteria, and the Veteran's right hand disability can be rated as ten percent disabling if there is evidence of limitation of motion. Although the VA examiner found no limitation on range of motion or objective evidence of painful motion, she also reported that the Veteran's disability had significant effects on the Veteran's usual occupation, with decreased manual dexterity, due to pain in his right hand when holding his paint gun. These findings constitute satisfactory evidence of painful motion under Diagnostic Code 5003. In any event, a painful or unstable joint due to healed injury is entitled to at least the minimum compensable rating for the joint under 38 C.F.R. § 4.59. The next higher rating possible under Diagnostic Code 5003 (i.e. 20 percent) requires additional major joints or groups of minor joints to be affected by limitation of motion, with supporting x-ray evidence. The Veteran only has one minor joint group affected by limitation of motion. The next higher rating is not warranted. The Board has considered other relevant diagnostic codes, which take into account the functioning of the hand, to determine if they would avail the Veteran of a higher disability rating. The other diagnostic codes are either inapplicable or would not afford the Veteran a higher rating. See 38 C.F.R. 4.71a, Diagnostic Codes 5216-19 (unfavorable ankylosis of multiple digits); Diagnostic Codes 5220-23 (favorable ankylosis of multiple digits); Diagnostic Codes 5224-5227 (ankylosis of individual digits). See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence). There is no probative medical evidence or lay allegation of ankylosis of individual or multiple fingers. Ordinarily, the VA Schedule of Ratings 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). An extraschedular disability rating is warranted 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); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Although the Veteran's particular disability is not specifically delineated in the rating schedule, the Veteran's symptoms are encompassed by the evaluation presently assigned. The evidence of record indicates that the Veteran experiences stiffness and pain in his right hand, which worsens when painting. The July 2011 x-rays showed posttraumatic osteoarthritis of the third metacarpal joint in the Veteran's right hand. The effects of arthritis, pain, stiffness, and limited range of motion are contemplated by the rating schedule, which also provides for disabilities more severe than the Veteran's - such as ankylosis of finger joints, or even loss of a finger. There is no evidence of unusual disability beyond the lack of motion; stiffness, pain, and arthritis contemplated in the rating schedule. As the rating criteria reasonably describe the Veteran's disability level and symptomatology, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is adequate. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Referral for an extraschedular rating is not warranted. The Veteran does not contend, and the evidence does not indicate, that the Veteran is rendered unemployable due to his service-connected disabilities. The most recent evidence of record, from August 2011, indicates that the Veteran is still employed, and he has not contended otherwise. Thus, a claim for TDIU is not raised in the context of these increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER Entitlement to an initial increased rating for posttraumatic stress disorder (PTSD), currently 30 percent, is denied. Entitlement to a compensable, 10 percent rating for status post right hand fracture, arthralgia (right hand disability), is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs