Citation Nr: 1337331 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 13-01 165 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to an increased evaluation for posttraumatic stress disorder (PTSD), current evaluated as 50 percent disabling. REPRESENTATION Appellant represented by: West Virginia Division of Veterans Affairs ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran had active service from October 1942 to March 1946. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The RO in Huntington, West Virginia, has jurisdiction of the claims file. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The issue of entitlement to service connection for a cognitive disorder, secondary to service-connected PTSD, has been raised by the record, 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. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The competent medical, and competent and credible lay, evidence of record demonstrates that the Veteran's PTSD does not result in 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; spatial disorientation; neglect of personal appearance and hygiene; and difficulty in adapting to stressful circumstances (including work or a worklike setting). CONCLUSION OF LAW The criteria for an evaluation in excess of 50 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In an increased rating claim, VA must notify the Veteran to submit evidence showing (1) a worsening or increase in severity of the disability and (2) the effect that worsening has on the claimant's employment. Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). Notice was provided in July 2011. Accordingly, the duty to notify has been fulfilled. With regard to the duty to assist, the claim's file contains the Veteran's service treatment records, VA medical records, VA examination reports and the Veteran's statements. The Board has carefully reviewed the record and concludes that there has been no identification of further available evidence not already of record. VA examinations were conducted in July 2011 and January 2013. To that end, 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 VA examinations conducted in this case are more than adequate, as they reflect a review of the Veteran's claims file and VBMS, respectively. They consider all of the pertinent evidence of record, and provide rationales for the opinions offered. The examiners consider the Veteran's medical history, including his lay reports of his symptomatology; describe the Veteran's disability in sufficient detail; and fully describe the functional effects caused by the Veteran's disability. Stefl v. Nicholson, 21 Vet. App. 120 (2007). Thus, there is adequate medical evidence of record to make a determination in this case, and additional development by way of another examination would be redundant and unnecessary. See 38 C.F.R. §§ 3.326 and 3.327 and Green v. Derwinski, 1 Vet. App. 121 (1991). The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Legal Analysis With respect to the Veteran's claim, the Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran generally contends that his PTSD warrants an evaluation in excess of 50 percent. Disability evaluations are determined by comparing a veteran's present symptoms with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where an increase in an existing disability rating based upon established entitlement to compensation is at issue, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Reasonable doubt as to the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. The Veteran's PTSD is evaluated under Diagnostic Code 9411. The Rating Schedule provides that a 50 percent evaluation for PTSD is warranted 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 (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Diagnostic Code 9411. A 70 percent evaluation for PTSD is warranted for 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); and inability to establish and maintain effective relationships. Diagnostic Code 9411. The Federal Circuit recently addressed how to apply the criteria in 38 C.F.R. § 4.130. In affirming a 70 percent evaluation for PTSD, the Federal Circuit stated that "[e]ntitlement to a 70 percent disability rating requires sufficient symptoms of the kind listed in the 70 percent requirements, or others of similar severity, frequency or duration, that cause occupational and social impairment with deficiencies in most areas such as those enumerated in the regulation." Vazquez-Claudio v. Shinseki, 713 F.3d 112 (2013). The report of the July 2011 VA examination provides that the claims file did not contain any records of PTSD care. The Veteran had been married successfully to his present wife for 62 years. They had 3 daughters, grandchildren, and great grandchildren. The quality of the family relationship appeared good except that the Veteran avoided and withdrew from the family when they gathered due to his anxiety and panic. The Veteran had very few quality social relationships as he had a few golfing friends but had given that up. At one point he was involved in the Shriners but no longer did that. The Veteran's activity and leisure pursuits were limited as he stayed at home attempting to maintain safety in his own home from the panic he felt. On mental status examination, the Veteran's speech was relevant and coherent. His mood was anxious and at times depressed by what he experienced. It felt to him like he was on a never ending anxiety depressive cycle. He denied suicidal or homicidal ideation, intention, or plan. He experienced intrusive thoughts and nightmares, and he had been triggered by current events including combat experiences on TV. He admitted to poor sleep quality and being up in his wheelchair often after 1 a.m. and unable to return to sleep through the night. Impairment of his thought process included intrusive thoughts and nightmares. He communicated well. There were no frank delusions, actual visual hallucinations or auditory hallucination though he did have war-like illusions that had persisted since they began 10 to 15 years ago. The Veteran maintained his own minimal personal hygiene, and other basic activities of daily living. He remained oriented to person, place, and time. He suffered some memory loss which was mainly a peculiar amnesia for his dreams. Otherwise his memories were grossly intact. He was obsessed with his safety. He had a gun, double locks, and motion lights. He had no particular ritualistic behavior. His rate and flow of speech were within normal limits. He suffered panic attacks and woke up with sweat in the night. He had gone to a cardiologist and actually had 4-bypass surgery, so he had both real cardiac pain and related panic attack pain. He had no impulse control problem. The examiner stated that the Veteran did meet DSM-IV stressor criteria with behavioral, cognitive, social, affective, and somatic changes that were attributable to his combat experiences. Specific PTSD symptoms included trauma re-experiencing through nightmares and intrusive thoughts. He had avoidance and numbing, especially from his family, and had virtually isolated himself from the rest of the world. He had heightened physiological arousal with sweating at night. The duration, frequency, and severity of the symptoms had been progressive especially over the past year. The Axis I diagnosis was PTSD, combat related. The Axis V Global Assessment of Functioning (GAF) score was 50. The examiner stated that the Veteran was on the border between moderate and serious in symptomatology. Based on the progression of his symptoms, his further isolation and further sleep disturbance, and the amount of panic he was experiencing he qualified for serious rating at this time with his debility. As for the effects of the Veteran's PTSD on occupation and social functioning, the Veteran did not work so that was not an issue, but his recreation was hampered by his PTSD. There was no attempt to go to school but the Veteran was losing interest in his community. His family relations were hampered by his withdrawal from his children and grandchildren. His judgment remained intact but his thinking was rattled as he was losing more sleep and feeling more ill. His mood was very disturbed, including panic, depressive, depression, and anxiety symptoms that occupied his days and nights. The report of the January 2013 VA examination provides that the Veteran indicated increased hyperarousal symptoms. In public spaces he said he could not sit with his back to the door, but needed to see everything in his environment. He said he found loud noises unbearable and noted increased temper in the company of his grand-children and great-grandchildren. He said that he used to be able to walk away if someone said something derogatory, but now felt compelled to stay and tell the other person what he thought. He described a recent exchange at Wal-Mart when he ran his cart into another shopper who had resisted more polite requests to move. The Veteran said that he continued to sleep off and on through the night due to dreams and pain. He reported experiencing war-themed dreams 3-4 times weekly which occasionally caused him to yell and lash out. The Veteran said he continued to engage in avoidance behaviors, and avoided crowds as often as possible feeling boxed in and lacking freedom. Regarding the period since the last examination in July 2011, the Veteran and his wife noted the deaths of many family members and friends, and hence a decrease of their extended social support system. They reported continued close relations with visits from their 3 children, 6 grand-children and 7 great-grand-children. The Veteran continued go out for the occasional restaurant visits. Fatigue made it impossible for him to work in his garden. He indicated no mental health treatment but extensive medical procedures. The examiner indicated that the Veteran's mental diagnoses resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks although generally functioning satisfactorily with normal routine behavior self-care and conversation. The examiner explained that the Veteran had cognitive deficits beyond the concentration difficulties associated directly with mental health conditions. The Veteran's cognitive disorder was not considered directly due to PTSD but the sleep disturbance from the PTSD likely aggravated the cognitive disorder. The report sets forth the result of diagnostic studies. For the purpose of VA rating, the examiner indicated that the Veteran's mental diagnoses resulted in chronic sleep impairment, mild memory loss such as forgetting names directions or recent events, impairment of short- and long-term memory and disturbances of motivation and mood. The examiner did not endorse any other relevant symptoms. When viewed in the context of the report, it is clear that these identified symptoms result from the Veteran's PTSD, not his cognitive disorder. In this regard, the entire report describes the Veteran's PTSD. The report refers to the Veteran's cognitive disorder only to note that it was aggravated by the Veteran's PTSD. The examiner stated that the Veteran had considerable re-experiencing, and used avoidance as a strategy to manage his distress. His family had learned not to disturb him when he was asleep or distracted by re-experiencing. The examiner again noted that the diagnosis of cognitive disorder was not considered directly due to PTSD but the sleep disturbance from the PTSD likely aggravated the cognitive disorder. The report provided an Axis I diagnosis of PTSD and cognitive disorder, NOS. Regarding differentiation of symptoms between the Axis I diagnoses, the examiner stated that the Veteran had cognitive deficits beyond the concentration difficulties associated directly with mental health condition. His cognitive disorder was not considered directly due to PTSD but the sleep disturbance from the PTSD likely aggravated the cognitive disorder. The Axis V GAF score was 50. The GAF level of 50 applied to the PTSD and a GAF of 50 applied to the cognitive disorder. Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against an evaluation in excess of 50 percent for PTSD. In so finding, the Board recognizes that the Veteran's PTSD results in an inability to establish and maintain effective relationships. Nevertheless, the foregoing examination reports show that the Veteran does not have 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; spatial disorientation; neglect of personal appearance and hygiene; or difficulty in adapting to stressful circumstances (including work or a worklike setting). Diagnostic Code 9411. The Board is aware that the July 2011 VA examiner stated that the Veteran's PTSD warranted a serious rating. However, that same examiner stated that the Veteran's PTSD was on the border between moderate and serious in symptomatology. The January 2013 VA examiner described the Veteran's occupational and social impairment in language that tracks the diagnostic criteria for a 30 percent evaluation for PTSD. Diagnostic Code 9411. The Veteran's GAF scores fail to show that his PTSD symptoms warrant an evaluation in excess of 50 percent. By definition, the GAF scale considers psychological, social and occupational functioning on a hypothetical continuum of mental health-illness, and does not include impairment in functioning due to physical (or environmental) limitations. AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 32 (4th ed. 1994) [hereinafter DSM- IV]; 38 C.F.R. § 4.125 (2012). According to the GAF Scale, a score between 51 and 60 represents 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) (emphasis in original). A score between 41 and 50 represents serious 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). (emphasis in original). DSM-IV at 32; 38 C.F.R. § 4.125. Thus, the Veteran's GAF scores of 50 for PTSD show that this disability results in symptoms that are nearly moderate. Id. The Board is aware of the Veteran's reported complaints during examinations. As a general matter, lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995). Lay assertions may serve to support a claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed Cir. 2009). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report PTSD symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. The Veteran is not, however, competent to identify a specific level of disability of his PTSD according to the appropriate diagnostic code. See Robinson v. Shinseki, 557 F.3d 1355 (2009). Competent evidence concerning the nature and extent of the Veteran's PTSD has been provided by the medical personnel who have examined him during the current appeal. The medical findings (as provided in the medical records) directly address the criteria under which PTSD is evaluated. The observable symptoms that the Veteran described during the VA examinations simply do not satisfy the criteria for an evaluation in excess of 50 percent. As noted above, the clinical findings do not support a higher evaluation. Other Considerations The discussion above reflects that the rating criteria reasonably describes and contemplates the severity and symptomatology of the Veteran's service-connected psychiatric disability. The Veteran described such symptoms as avoidance, sleep impairment, depression and anxiety and his disability is manifested by impairment in social and occupational functioning. The rating criteria contemplate these impairments. Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). The Board finds that the record does not raise a claim of entitlement to a total rating for compensation based on individual unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran has not asserted, and the evidence does not show, that his PTSD renders him unable to secure and follow a substantially gainful occupation. The July 2011 VA examination report noted that the Veteran was able to work for 27 years before he retired. In sum, the medical evidence demonstrates that the Veteran is not entitled to an evaluation in excess of 50 percent for PTSD. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER An evaluation in excess of 50 percent for PTSD is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs