Citation Nr: 1337184 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 09-31 276 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran served on active duty from May 1981 to September 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal from August 2008 and October 2008 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim for that disability when raised by the record. The Veteran has not raised the issue of TDIU. For this reason, the Board does not find that the issue of TDIU is before the Board at this time. The issue of service connection for Major Depressive Disorder has been raised by the record in a March 2007 letter, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT For the entire appellate period, PTSD has been manifested by occupational and social impairment, with deficiencies in most areas due to such symptoms as sleep disturbance, intrusive thoughts, near-continuous depression, impaired impulse control, difficulty in adapting to stressful circumstances including at work and an inability to establish and maintain effective relationships. Total occupational and social impairment has not been shown. CONCLUSION OF LAW The criteria for an initial evaluation of 70 percent, but not higher, for PTSD have been met for the entire period on appeal. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130; Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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 & Supp. 2012); 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 of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(b) (2011); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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. VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. A letter dated in February 2008 advised the Veteran of the evidence necessary to establish service connection for PTSD. He was encouraged to submit or identify evidence specific to his claim. The evidence of record was discussed and the Veteran was told how VA would assist him in obtaining additional relevant evidence. Service connection was granted for PTSD in an August 2008 rating decision. The RO also issued a second decision in October 2008 granting a increased evaluation of 50 percent for the Veteran's PTSD diagnosis, effective from the date of the Veteran's initial claim, October 29, 2007. The Veteran disagreed with the evaluation assigned. In February 2009, the Veteran was advised of the manner in which VA determines disability ratings and effective dates. See Dingess supra. He was also provided with the specific criteria under which mental disorders are evaluated. The content of the notice provided to the Veteran fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. The Board notes that this is a case in which the Veteran is challenging the initial evaluation assigned following the grant of service connection. In Dingess, the Court of Appeals for Veterans Claims held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. With respect to VA's duty to assist, VA records have been obtained and associated with the claims file. The Veteran has been afforded a VA (QTC) examination. The Board acknowledges that the Veteran's QTC examination was conducted in September 2008. The Veteran has not asserted that a new examination is warranted or that his disability has increased in severity since the time of the QTC examination. The Board finds that the QTC examination results are adequate for rating purposes and that the Veteran has sought extensive treatment for his PTSD since that time from the VA. These records of treatment have been associated with the claims file or uploaded to Virtual VA. The Board finds that these extensive VA treatment records, in combination with the Veteran's statements provide enough information to decide the Veteran's claim without obtaining a more recent VA examination. A new VA examination is not warranted based merely upon the passage of time. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). In sum, the Board finds that the overall lay and medical evidence of record is sufficient to evaluate the severity of the Veteran's PTSD. The Veteran has not otherwise identified any additional evidence or information which could be obtained to substantiate the claim. The Board is also unaware of any such outstanding evidence or information. Therefore, the Board is also satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Analysis Disability evaluations are determined by the application of a schedule of ratings, which is based on average industrial impairment. 38 U.S.C.A. § 1155 (West 2002). A proper rating of the Veteran's disability contemplates its history, 38 C.F.R. § 4.1, and must be considered from the point of view of a Veteran working or seeking work. 38 C.F.R. § 4.2 (2013). 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 observes that in cases where the original rating assigned is appealed, as is the case with the Veteran's PTSD claim, consideration must be given to whether a higher rating is warranted at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). The Board has considered whether staged ratings are warranted but has determined that the disability has not significantly changed, and that a uniform rating is for application. Under the rating criteria of 38 C.F.R. § 4.130, Diagnostic Code 9411 (2013), a 100 percent evaluation is provided for PTSD where there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. A 70 percent evaluation is provided where 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 or hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 50 percent evaluation is appropriate 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. 38 C.F.R. § 4.130 (2013). In evaluating psychiatric disorders, it must be shown that industrial impairment is the result of actual manifestations of the service-connected psychiatric disorder. The severity of a psychiatric disability is based upon actual symptomatology, as it affects social and industrial adaptability. Two of the most important determinants of disability are time lost from gainful employment and decrease in work efficiency. 38 C.F.R. § 4.130 (2013). The Secretary, acting within his authority to "adopt and apply a schedule of ratings," chose to create one general rating formula for mental disorders. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 4.130 (2013). By establishing one general formula to be used in rating more than 30 mental disorders, there can be no doubt that the Secretary anticipated that any list of symptoms justifying a particular rating would in many situations be either under- or over-inclusive. The Secretary's use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each Veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. This construction is not inconsistent with Cohen v. Brown, 10 Vet.App. 128 (1997). The evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, the rating specialist is to consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV. If the evidence demonstrates that a claimant 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 will be assigned. Mauerhan v. Principi, 16 Vet. App. 436 (1992). In assessing the evidence of record, it is important to note that the Global Assessment of Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). A score of 31-40 indicates some impairment in reality testing or communications or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. A score of 41-50 is assigned where there are, "[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." Id. A score of 51-60 is assigned where there are 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, conflict with peers or co-workers). Id. A score of 61-70 is assigned where there are mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, of theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. Id. Preliminarily, the Board first notes that service connection is only in effect for the Veteran's PTSD. Despite this, the Veteran has also been diagnosed in VA treatment records with major depressive disorder as well. The evidence of record suggests that the Veteran's depression is related to his military service. The April 2007 VA psychiatric evaluation noted that the Veteran's depressive symptoms appear to be related to his trauma history. In a March 2007 letter, the same VA treating mental health professionals who drafted the April 2007 VA psychiatric evaluation report opined that that the Veteran's co-morbid diagnosis of Major Depressive Disorder appeared to be directly related to his past trauma and the current PTSD symptoms. Furthermore, the QTC examiner opined that although the Veteran's symptoms of PTSD and major depressive disorder overlapped each other, the underlying entities could be distinguished from each other. Under Mittleider v. West, 11 Vet. App. 181, 182 (1998), when it is not possible to separate the effects of a nonservice-connected condition from those of a service-connected condition, the signs and symptoms can be attributed to the service-connected condition. Based on the opinions noted above, the Board will consider the signs and symptoms of his nonservice-connected depression as attributable to his service-connected PTSD diagnosis. During service, the Veteran noted in a Report of Medical History that he had depression or excessive worrying. The Report was undated but likely was completed around June 1992. In August 1997, the Veteran reported that he had homicidal thoughts but no plan or intent. The Veteran had difficulties with the management and his boss at work. In a May 2006 VA treatment record, the Veteran reported being over-whelmed with anger in-the-moment of the conflict with his supervisor. In a June 2006 VA treatment record, the Veteran reported an incident of hyperarousal that resulted in him physically pushing someone. In an April 2007 VA Psychiatric Evaluation, the examiner diagnosed the Veteran with major depressive disorder, recurrent, severe, dysthymic disorder and PTSD. The evaluation notes that the Veteran had been divorced previously and was currently married and had two children. The report noted symptoms of reliving negative past experiences, having recurrent and intrusive thoughts of traumatic events, having numbing and emotional isolation from family and friends, having ongoing nightmares, irritability with outburst of rage, difficulty sleeping, and hypervigilance. The Veteran also had passive suicidal ideation. The report noted that the Veteran had interpersonal difficulties and interpersonal isolation over which the Veteran had had minimal control. His interpersonal deficits had a negative impact on his ability to work. The report further noted that the Veteran had been receiving intensive psychotherapy weekly and medication management every month. The focus of his therapy has been on interpersonal skills. A GAF score of 45 was assigned. The Board acknowledges that the Veteran's treating VA mental health professionals wrote a letter explaining the nature of the Veteran's psychiatric disabilities in March 2007. The letter documented the symptoms noted in the April 2007 Psychiatric Evaluation explained in detail above. An April 2007 VA treatment record documents the Veteran's report of road rage. After another driver had "flipped" him off, the Veteran had chased him down, cut him off until the driver ended up on the shoulder. The Veteran acknowledged that he would have "beat him up" if he would have stopped his car. A January 2008 VA treatment record notes that the Veteran has very limited interactions with others and a GAF score of 48 was assigned. The treatment record documents marital difficulties and verbal fights between him and his wife. In September 2008, the Veteran was afforded a QTC examination. The Veteran's symptoms included difficulty falling asleep and remaining asleep nightly, troubling dreams possibly three times a week. The Veteran has also kicked and his wife during sleep. During the past year or two, the Veteran had become increasingly angry. On at least three occasions, he had "blown up" at coworkers. He had not been physically violent but had come close. The Veteran works best in isolation. At the time of the examination, he worked as a postman on a mail route and liked working alone. In the last year, he has become increasingly withdrawn. He has frequently missed work due to his depression and strong desire to be alone. The examiner noted that his work might be in jeopardy if he continued to miss work or have angry outbursts. His depression was manifested by depressed mood, a tendency to cry, social isolation, irritability, sleep-related problems, difficulty concentrating and concerns about the future. The Veteran had attempted suicide on three occasions, once in 1986, once in 1992 and another time several years after the 1992 incident, but the date is not noted. The Veteran has been seen continuously at the VA for treatment for his PTSD since the 1990's. The Veteran currently was taking Wellbutrin and Trazodone every day. Upon examination, the Veteran's mood and affect were significantly depressed, but the Veteran was not acutely suicidal or homicidal. As noted above, the examiner found that the Veteran had a diagnosis for moderate, chronic PTSD and moderate recurrent major depressive disorder. The examiner found that the Veteran was capable of continuing to work at his current job because he was relatively isolated. Despite this, the examiner acknowledged that the Veteran had difficulties completing the job and coping with interpersonal relationships at work. The Veteran tried to avoid interpersonal relationships whenever possible. A GAF score of 50 was assigned. In October 2008, the Veteran reported that he was angry because of vote taken at his workplace about days off. In a June 2009 VA treatment record, the Veteran reported that he struggles with interacting with some of his co-workers and so he avoided them. The Veteran also noted that he avoided his wife and children if they aggravate him. The Veteran also reported that his angry outbursts had somewhat declined. In a July 2009 VA treatment record, the Veteran reported being depressed and having difficulty in social interactions (i.e. he isolates and is uncomfortable in groups). The Veteran also reported having less trouble with his anger and irritability over the last two months. At this time, he reported that his marriage was good. In a December 2009 VA treatment record, the Veteran reported being withdrawn from his family. In April 2010, the Veteran became very angry with the treating psychologist. He was able to control his anger but the angry energy streamed through his tightly held but shaking arms and fists as he seemed to constrain his wish to hit. A July 2010 VA treatment record documents an incident where the Veteran reported at the VA explaining that he was lividly angry with his supervisor for rejecting his recent requests for time off for medical appointments. The Veteran expressed concern that he would not be able to manage his anger and would act out on the supervisor. The Veteran and his treating psychologist concluded that as the Veteran was unsure if he could contain himself, for the Veteran and the supervisor's safety, the Veteran would take the next day off of work. The psychologist noted that the Veteran presented with a great deal of anger that he was unable to fully calm himself. An October 2010 VA treatment record notes that the Veteran had been "written-up" at work due to verbal confrontation with his supervisor. A November 2010 VA treatment record documents the Veteran's marital unrest with his current spouse. A February 2011 VA treatment record notes a discussion with the Veteran about his persistent angry reaction to others and specifically with his wife and supervisor. A February 2012 VA treatment record discussed the Veteran becoming "heatedly" angry easily throughout the day. The psychologist discussed with him the possibility of the Veteran attending an anger management group. In a February 2013 statement, the Veteran's spouse described how she had to make sure the Veteran took care of his personal hygiene and personal appearance before going out. She described how she routinely had to get up in the middle of the night to comfort the Veteran because he would wake-up crying, trembling and really angry. She also explained that the Veteran has choked her or fought with her in his sleep. Other times, the Veteran would get out of the bed because he thinks someone is trying to break in. She also noted that his mood swings can be unbearable at times. Upon careful consideration of the evidence pertaining to this claim the Board has determined that for the entire appellate period, an evaluation of 70 percent is warranted for the Veteran's PTSD. In that regard, the Board observes that during this period, the Veteran has reported reliving negative past experiences, having recurrent and intrusive thoughts of traumatic events, having numbing and emotional isolation from family and friends, having ongoing nightmares, having irritability with outburst of rage, having difficulty sleeping, and hypervigilance. Although the Veteran is married, the treatment records show that the Veteran and his wife have verbal fights or remain isolated from one another in the relationship. The Veteran has related numerous times of problems with anger management with his spouse and with coworkers and supervisors at his job. Objectively, there is evidence of difficulty controlling his anger even with mental health professionals. In one incident, out of anger, he chased down another car on the road. The evidence also shows that the Veteran isolates himself from others. The evidence also shows that he has continuous depression. The Veteran has had past suicide attempts but none appear to be in recent years. In essence, the evidence reflects symptoms that are best contemplated by the criteria for a 70 percent evaluation in that the Veteran experiences deficiencies in most areas due to those symptoms. The Board has also determined that an evaluation in excess of 70 percent is not warranted for the period on appeal. While the Board accepts that the Veteran's PTSD has significant effects on his functioning, the lay and medical evidence of record does not demonstrate both total occupational and social impairment. The evidence also does not demonstrate gross impairment in thought processes or communication; persistent delusions or hallucinations, grossly inappropriate behavior, intermittent inability to perform activities of daily living, disorientation to time or place, memory loss for names of close relatives, own occupation or own name. The Board acknowledges that the Veteran has had incidents where he was worried about hurting his supervisor but this does not appear to be persistent danger. As for social impairment, the Veteran isolates himself from others and has difficulties with his marriage due to his PTSD symptoms. Even if the Board found that the Veteran had total social impairment, total social and occupational impairment is needed for a 100 percent evaluation to be warranted. Rather, the Veteran has been able to maintain a job at the U.S. Postal Service for several years. As noted by the QTC examiner, the Veteran generally works alone on his mail route which he likes. Although he has had verbal confrontations with his supervisors, he has been able to maintain in his job and work with this mental health professionals to avoid these types of interactions at work. GAF scores have ranged from 45 to 59 during the period on appeal which represents moderate to serious symptoms which contemplated already by a 70 percent evaluation. In summary, the overall disability picture does not more nearly approximate the criteria for a schedular evaluation of 100 percent. As such, the Board concludes that a 70 percent evaluation for the Veteran's PTSD for the entire period on appeal is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999). Extraschedular Consideration Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted 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) (2011); see also Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veterans entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the initial inquiry posed by Thun, the Board has been unable to identify an exceptional or unusual disability picture with respect to the Veteran's service-connected PTSD. The medical evidence fails to demonstrate symptomatology of such an extent that application of the ratings schedule would not be appropriate. In fact, as discussed in detail above, the symptomatology of the Veteran's disability such is impaired impulse control and inability to maintain effective relationships are specifically contemplated under the appropriate rating criteria. Accordingly, the Board finds that the Veteran's disability picture has been contemplated by the ratings schedule. Since the available schedular evaluation adequately contemplates the Veteran's level of disability and symptomatology, the second and third questions posed by Thun become moot. In short, the evidence does not support the proposition that the Veteran's service connected disability presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2013). ORDER Entitlement to an initial disability evaluation of 70 percent for PTSD is granted, subject to the controlling regulations applicable to the payment of monetary benefits. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs