Citation Nr: 1337162 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 02-19 999A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD) from December 14, 2010 through September 9, 2013. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active military duty from October 1968 to May 1970. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a July 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, which granted service connection for PTSD and assigned a 10 percent rating effective March 3, 1999. Jurisdiction of the case was subsequently transferred to the RO in St. Louis, Missouri. During the pendency of the appeal, a rating decision in October 2000 awarded an increased 30 percent rating for PTSD, effective from April 13, 2000. In December 2011, the Board denied entitlement to an initial rating in excess of 10 percent for PTSD prior to February 14, 2000, granted entitlement to a disability rating of 30 percent from February 14, 2000 through December 13, 2010, and granted entitlement to a disability rating of 50 percent from December 14, 2010. The Veteran appealed the Board's December 2011 decision to the U.S. Court of Appeals for Veterans Claims (Court). In July 2012, his representative and VA's Office of General Counsel, representing the Secretary of VA, filed a Joint Motion For Partial Remand (Joint Motion) requesting that the Court vacate the Board's decision to the extent that it denied a rating in excess of 50 percent for PTSD from December 14, 2010, and remand the case for readjudication in compliance with directives specified. The Court issued an order that same month, granting the Joint Motion, and returned the case to the Board. In March 2013, the Board remanded the issue of entitlement to a disability rating in excess of 50 percent for PTSD from December 14, 2010 to the RO for additional development. A VA Disability Benefits Questionnaire (DBQ) was obtained on September 10, 2013, and a September 2013 rating decision granted a 70 percent rating for PTSD from December 14, 2010 through September 9, 2013 and a 100 percent rating effective September 10, 2013; this rating decision also granted basic eligibility to Dependents' Educational Assistance beginning September 10, 2013. Because the Veteran was not assigned a 100 percent rating throughout the appeal period in question, this is only a partial grant of benefits and the case is still on appeal. As a DBQ on the severity of the Veteran's PTSD was obtained and added to the claims file in September 2013, there has been substantial compliance with the March 2013 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998) (Holding that a remand by the Court or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders). FINDING OF FACT For the entirety of the rating period on appeal from December 14, 2010 through September 9, 2013, the most probative evidence of record failed to show symptomatology comparable to total occupational and social impairment. CONCLUSION OF LAW From December 14, 2010 through September 9, 2013, the criteria for an evaluation in excess of 70 percent for service-connected PTSD have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Assist and Notify The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied. The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Once service connection has been granted, the context in which the claim initially arose, the claim has been substantiated; therefore, additional VCAA notice under § 5103(a) is not required because the initial intended purpose of the notice has been fulfilled, so any defect in the notice is not prejudicial. Goodwin v. Peake, 22 Vet. App. 128 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Rather, thereafter, once a notice of disagreement (NOD) has been filed, for example contesting a downstream issue such as the initial rating assigned for the disability, only the notice requirements for a rating decision and SOC described in 38 U.S.C. §§ 5104 and 7105 control as to the further communications with the Veteran, including as to what evidence is necessary to establish a more favorable decision with respect to downstream elements of the claim. 38 C.F.R. § 3.159(b)(3). The RO has provided the Veteran the required SOC and SSOC discussing the reasons and bases for not assigning a higher initial rating and citing the applicable statutes and regulations. Therefore, the Board finds the Veteran has been informed of what is necessary to achieve higher ratings for the service-connected disability at issue. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton, 9 Vet. App. 553 (1996). VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. A psychiatric evaluation was conducted in December 2010. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the December 2010 VA examination report obtained in this case is adequate, as it provides the relevant symptomatology of the Veteran's PTSD for the appeal period at issue. There is adequate medical evidence of record to make a determination on the increased rating issue decided in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion on the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Veteran has been given ample opportunity to present evidence and argument in support of his claim. The Board additionally finds that general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claim. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2007). Analysis of the Claim As noted above, service connection has been established for PTSD, with a 70 percent rating assigned effective from December 14, 2010 through September 9, 2013. The Board must determine whether the Veteran's PTSD symptomatology would cause impairment sufficient to warrant a rating in excess of his current 70 percent rating during the period from December 14, 2010 through September 9, 2013. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Schedule). 38 C.F.R. Part 4 (2013). The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2013). Separate diagnostic codes identify the various disabilities. In considering the severity of a disability it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2013). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, see Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991), where service connection has already been established, and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, where the Veteran is appealing the initial assignment of a disability rating, as in this case, the severity of the disability is to be considered during the entire period from the initial assignment of the evaluation to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Pertinent to a claim for an increased rating, lay testimony is competent when it describes symptoms, which supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see Proscelle v. Derwinski, 2 Vet. App. 629 (1992) (holding that, in general, for the need for a VA examination to arise, a claimant would only need submit his competent testimony that symptoms, reasonably construed as related to the service-connected disability, have increased in severity since the last evaluation.). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). Under the current schedular criteria, a 70 percent evaluation is assignable for psychiatric disability 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 a worklike setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2013). A 100 percent evaluation for psychiatric disability is assignable for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The global assessment of functioning (GAF) score reflects the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996). A GAF score of 31 to 40 involves some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). A GAF score of 41 to 50 is defined as 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 GAF of 51 to 60 is defined as 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 GAF of 61 to 70 is defined as mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household) but generally functioning pretty well, has some meaningful interpersonal relationships. See QUICK REFERENCE TO THE DIAGNOSTIC CRITERIA FROM DSM-IV, 46-7 (1994). A GAF of 71 to 80 is assigned when symptoms, if present, are transient and are expected reactions to psychosocial stressors (e.g., difficulty concentrating after family argument), with no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). See QUICK REFERENCE TO THE DIAGNOSTIC CRITERIA FROM DSM-IV, 46-7 (1994). The only medical evidence of record relevant to the time period in question is a December 14, 2010 VA examination report. According to this report, the Veteran has difficulty with sleep, getting approximately three hours of sleep a night, except when he drank and might get five hours of sleep. He has nightmares approximately once a month. His energy was low. He reported poor attention, concentration, and memory. He reported getting nervous while driving and having a difficult time in check out lines. He continued to drink alcohol and noted that he feels better when drinking. He reported he visits his sister, brother, and their families for holidays, but has irregular phone contact. He works for a "couple of men on their farm" and considers them friends, although they do not interact much. He reported that he likes to read and goes to the library every day. It was noted that enjoys working, but has a hard time getting employment due to a history of felonies. He was neatly groomed and appropriately dressed. He was restless, and his attitude was cooperative and guarded. His affect was normal. His mood was anxious and depressed. He was intact to person, time, and place. His thought process was rambling. He had poverty of thought. He had no delusions. With regard to insight and judgment, he understands that he has a problem and understands the outcome of his behavior. He denied hallucinations. His inappropriate behavior was listed as procrastination. His obsessive/ritualistic behavior was described as keeping things straight and neat. He denied panic attacks, homicidal thoughts, and suicidal thoughts. The extent of his impulse control was fair. He had no episodes of violence. His memory was noted to be normal. The frequency, severity, and duration of his PTSD symptoms were noted to be "frequent and mild." It was also reported that the PTSD symptoms interfered markedly with his social, employment, cognitive and behavioral functioning. Psychometric assessment scores were noted to reflect a mild degree of severity of PTSD and a mild level of depression. The examiner noted that the Veteran had a GAF score of 35 due to PTSD and a GAF score of 35 due to alcohol dependence. She noted that the Veteran had a total GAF of 35 characterized as reflective of major impairment in several areas, including social, employment, judgment and mood. She further opined: It is evident that there is overlap of the impact of PTSD and alcohol dependence. It is impossible at this time to distinguish the relative amount of impact of PTSD and alcohol dependence on employment, social, judgment, and mood. Suffice it to say that it is determined that each disorder appears sufficiently seriously debilitating to cause major impairment in employment, social, judgment, and mood without contribution from the other. She further noted: [The Veteran] experiences both PTSD and alcohol dependence. It is noted that alcohol use is a major means of [the Veteran] coping with symptomatology and both alcohol dependence and PTSD symptomatology exacerbate the challenges of the other. It is not possible to separate the effects of the PTSD and the alcohol dependence. The examiner noted that there was not total occupational and social impairment due to PTSD signs and symptoms. The Board must now determine whether there is evidence that the Veteran's functional impairment due to PTSD symptomatology more nearly approximated the criteria for a 100 percent rating at any time during the period in question from December 14, 2010 through September 9, 2013. A Veteran need not demonstrate the presence of all, most, or even some, of the symptoms listed as examples in the rating criteria. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002); however, as the Court held in Mauerhan, without the examples noted in the rating criteria, differentiating a 50 percent evaluation from a 70 percent evaluation would be extremely ambiguous. The Board is to consider all symptoms of a Veteran's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV. If the evidence demonstrates that a Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating should be assigned. Id. In sum, the December 2010 VA examination report reflects that the Veteran was neatly groomed, his affect was normal, he was intact to person, time, and place, he had no delusions, he understood that he has a problem and understood the outcome of his behavior, his impulse control was fair, he had no episodes of violence, his attitude was cooperative, and his memory was normal. In addition, he denied hallucinations, panic attacks, homicidal thoughts, and suicidal thoughts. He worked on a farm, enjoyed working, considered the men at the farm as friends, enjoyed reading, and went to the library every day. On the other hand, he had repeated and disturbing memories of combat, intense psychological distress and physiological reactivity at exposure to cues that resemble any aspect of his combat service, avoidance behavior, emotional numbing, and hyperactivity. He had difficulty with sleep and concentration, low energy, was restless, had an attitude which was guarded, and had an anxious and depressed mood. His thought process was rambling and he had poverty of thought. He procrastinated and liked keeping things straight and neat to an obsession. He reported social isolation in that he had few intimate relationships and no marriages or children. He maintained a distant relationship with his siblings. Although the examiner assigned a GAF score of 35 in December 2010, she also noted that the frequency, severity, and duration of his PTSD symptoms were noted to be frequent and mild. In addition, while a GAF score of 35 indicates that the examinee has some impairment in reality testing or communication or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g. depressed man avoids friends, neglects family, and is unable to work), the Veteran reported that he enjoyed working and considered the men at the farm his friends. While a GAF score may be probative evidence, the reported psychiatric symptoms are more probative than a numerical figure. The evidence as a whole shows that while the Veteran's psychiatric symptomatology during the period at issue causes significant occupational and social impairment, as evidenced by the currently assigned 70 percent rating, the evidence does not show that manifestations of the Veteran's service-connected PTSD are productive of functional impairment comparable to the criteria for a 100 percent schedular rating. In fact, despite the GAF score of 35, there is no notation in the December 2010 evaluation of any psychiatric symptoms of similar severity. Although there was poverty of thought and the Veteran's thought process was described as rambling in December 2010, he was able to hold a job and communicate with his boss and the other employees. Despite the Veteran's general isolation, he was able to work on a farm, enjoyed working, and considered the men at the farm as friends. Additionally, he maintained adequate grooming and hygiene, did not have suicidal or homicidal ideation, had a normal affect, and was oriented. The Veteran's lay statements on file have been taken into consideration. The Veteran is competent to report his psychiatric symptoms. His observations are credible, but must be evaluated in light of the rating schedule described above. In this regard, he is not competent to assess whether his symptoms meet the rating criteria of a specific diagnostic code, as this requires medical training and technical knowledge which the Veteran has not been shown to possess. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has also considered whether the issue on appeal should be referred to the Chief Benefits Director or the Director, Compensation and Pension Service for consideration of an extraschedular evaluation under 38 C.F.R. § 3.321. In Thun v. Peake, 22 Vet. App. 111 (2008), the U.S. Court of Appeals for Veterans Claims (Court) clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. In this case, the schedular criteria are adequate for rating the disability at issue. A rating in excess of that assigned is provided for in the rating schedule for service-connected PTSD, as noted above, but the medical evidence reflects that the disability does not show the severity of symptomatology comparable to a higher rating for the appeal period in question. See 38 C.F.R. § 4.1 (1997). The record does not reflect (or suggest) any symptoms/impairment of the disability not encompassed by the schedular criteria. There is also no evidence of frequent periods of hospitalization due to this service-connected disability. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service- connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, a claim for TDIU has not been raised during the period in question, as the Veteran was working part time and the examiner noted in December 2010 that there was not total occupational and social impairment due to PTSD signs and symptoms. ORDER An initial evaluation in excess of 70 percent for PTSD from December 14, 2010 through September 9, 2013 is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs