Citation Nr: 1337543 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 11-28 589 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an initial rating in excess of 10 percent for service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran served on active duty from December 1964 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) from a November 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for PTSD and assigned an initial 10 percent rating. In June 2012, the Veteran testified via videoconference before the undersigned Veterans Law Judge (VLJ), seated at the Board's Central Office in Washington, D.C. A transcript of the hearing has been associated with the claims file. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c) (2) (2013) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In the present case, the VLJ fully explained the issue on appeal. While the VLJ did not specifically inform the Veteran that in order to satisfy his claim, evidence that his PTSD was more severe than the initial rating assigned is required; she and the Veteran's representative asked the Veteran numerous questions to elicit from the Veteran testimony as to the severity of his PTSD. While the VLJ did not specifically suggest the submission of any evidence, she asked the Veteran a number of questions as to the locations of his past and current treatment. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c) (2), nor have they identified any prejudice in the conduct of the hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c) (2) and the Board can adjudicate the claim based on the current record. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDING OF FACT During the entire appellate period, the Veteran's service-connected PTSD most closely approximates 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, chronic sleep impairment, and mild memory loss. CONCLUSION OF LAW During the entire appellate period, the criteria for an initial rating of 30 percent, and no more, for service-connected PTSD, have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321(b) (1), 4.1, 4.2, 4.3, 4.6, 4.7, 4.130, Diagnostic Code (DC) 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist the Appellant The Veteran's claim on appeal arises from his disagreement with the initial rating assigned 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. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). As to VA's duty to assist, all VA and identified and authorized private treatment records are associated with the claims file. Also, the Veteran was afforded a VA examination in September 2010. The September 2010 evaluation is considered adequate for rating purposes as it is based on consideration of the Veteran's medical history and describes the relevant disability in sufficient detail to enable the Board to reach a fully informed decision. See Floyd v. Brown, 9 Vet. App. 88, 93 (1996); Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). No party has asserted that the Veteran's PTSD has worsened since the time of the last VA examination such that a new examination is required, and the Veteran reported recent symptoms at the time of his June 2012 Board hearing. As such, the Board finds that VA has satisfied its duty to assist and that no additional assistance is required. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Increased Rating The November 2010 rating decision on appeal granted service connection for PTSD and assigned an initial 10 percent rating under DC 9411. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disability. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, 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). Here, on appeal is the initial assignment of the 10 percent rating, and as such, the severity of the disability is to be considered during the period from the initial assignment to the present. Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Thus, where the evidence contains factual findings that show distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim, or whether a preponderance of the evidence is against the claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). DC 9411 provides, in pertinent part, for the following evaluations for psychiatric disabilities. A 10 percent rating is warranted where there is occupations and social impairment due to mild or transient symptoms which decrease work efficiency and the ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. A 30 percent rating is warranted where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted if it is productive of 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. A 70 percent rating contemplates 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 work like setting); inability to establish and maintain effective relationships. A 100 percent rating contemplates 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 ability 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. 38 C.F.R. § 4.130, DC 9411. The symptoms recited in the criteria in the rating schedule for evaluating mental disorders are "not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In adjudicating a claim for an increased evaluation, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. A Global Assessment of Functioning (GAF) rating 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 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994). GAF scores ranging between 61 and 70 are assigned when there are some 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 when the individual is functioning pretty well and has some meaningful interpersonal relationships. GAF scores ranging between 51 and 60 are assigned when there are moderate symptoms such as flat affect and circumstantial speech, and occasional panic attacks, or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). GAF scores ranging between 41 and 50 are assigned when there are 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). GAF scores ranging between 31 and 40 are assigned when there is 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). GAF scores ranging between 21 and 30 are assigned when behavior is considerably influenced by delusions or hallucinations, or there is serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation), or an inability to function in almost all areas (e.g., stays in bed all day; no job, home, or friends). See Diagnostic and Statistical Manual of Mental Disorders. The Board now turns to the medical and lay evidence of record. In a May 2010 letter, two of the Veteran's treating professionals at the Vet Center, reported that the Veteran had participated in treatment intermittently from 1986 to 2004, and that he suffered from irritability, anger, depression, emotional detachment, poor sleep, and intrusive thoughts, as well as resolved alcohol abuse. VA treatment records dated in May 2010 indicate that the Veteran reported that he was doing well, with a good mood, and "ok" sleep and appetite. He noted that he had been keeping busy at home and doing projects. However, he reported that his son was home from service in Iraq and was living at home and that such was a stress between him and his wife. He appeared for treatment alert and oriented, more animated, and with a good mood and a brighter affect. VA treatment records dated in August 2010 indicate that the Veteran continued to report excellent results from psychiatric medication, and a fairly good mood. He reported that he had a great 21-day visit with his son who was on leave from service, and that he was keeping busy chopping wood. He presented alert and oriented. On VA examination in September 2010, the Veteran reported that since the start of the war in Iraq, he had experienced daytime intrusive thoughts and restless sleep with nightmares about his own combat experience. He reported that he was currently married to his first and only wife, and had been married since 1971. He reported that they had two adopted children, and that he had a good relationship and weekly contact with his children. He noted that one of his children, a son, lived at home and their relationship had its "ups and downs." He reported that he had a close relationship with his sisters. He noted that that he had good friends at church and good relationships with friends, and that he enjoyed gardening, woodworking, and helping with a church fundraising program. He denied a history of suicide attempts or violence. He reported that he had been retired for 9 years, and was able to retire early as his employer offered him retirement after 34 years of employment. Mental status examination in September 2010 revealed that the Veteran was clean, neatly groomed, and appropriately dressed. He exhibited moderate, restless, and tense psychomotor activity; clear, coherent, and spontaneous speech; an appropriate affect; an anxious mood; normal memory; intact attention; good impulse control, orientation in all spheres; and an unremarkable thought process. There were no problems with the activities of daily living, delusions or hallucinations, suicidal or homicidal thoughts, deficiencies in judgment or insight, inappropriate behavior, or obsessive or ritualistic behavior. He did interpret a proverb incorrectly and reported sleep impairment to include only partially restorative sleep, without knowledge of a negative impact on his daily functioning. He reported panic attacks, about twice weekly, and was unable to identify any negative consequences such had on his daily functioning. The examiner assigned the Veteran a GAF score of 65 and opined that the Veteran had reduced reliability and productivity due to PTSD symptoms, such as easy irritability, anxiety, and difficulty trusting anyone outside of his immediate family and close circle of friends. VA treatment records dated in December 2010 indicate that the Veteran reported that he had a good visit with his son. He presented alert and oriented, with a restricted affect and a fair mood, without suicidal ideation. VA treatment records dated in March 2011 indicate that the Veteran was active with peace activism and building projects in the basement. He reported that his mood was "ok," however; he complained that he was "always somewhat depressed." He complained of daily depression and anxiety, frequent awakenings, and occasional nightmares. He reported that he had constant thoughts of the war in Vietnam, brought on in part by watching the news coverage about the current war. He presented for treatment alert and oriented, with a full-range affect, and a mildly-depressed mood, without suicidal ideation. In a June 2011 letter, one of the Veteran's VA treating professionals reported that the Veteran had significant symptoms of depression. In his October 2011 Substantive Appeal, the Veteran asserted that his ability to function on a day to day basis was greatly impaired due to his nightmares and lack of sleep. He asserted that his condition had a negative impact on his relationships with his wife, family, and friends. During his June 2011 Board hearing, the Veteran reported that his current treatment consisted of visits to VA treatment providers, about every three months, for psychiatric medication. He reported that he stopped going to the Vet Center for counseling years ago. He noted that while he reported to the VA examiner in September 2010 that he slept 8-9 hours each night, he did not report that the hours are broken up into 2-hour intervals, and that he had not slept a full 8 hours in over forty years. He complained of nightmares and night sweats, weekly, and reported that when he woke up during the night, he got up, looked around, used the restroom, and sometimes watched television. He reported that in the past few years, his son's military service as a pilot triggered his PTSD symptoms. He complained of experiencing "snapshots," or intrusive thoughts, of his service on board a helicopter during the Vietnam War. He noted that he and his wife were friends with two couples with whom they occasionally went out to dinner. He reported that he went to a church group monthly and a veterans' group weekly, but that he avoided large crowds. He complained that he was not a strong reader and had problems with concentration and reading, and watched the news fanatically. He complained of panic attacks more than once a week, and complained that he was easily angered, lacked motivation, and that he forgot the names of people he knew for years. He reported that sometimes he was startled by loud noises. He reported that while his relationship with one of sons was "touchy," he had a good relationship with his other son. Based on a review of the evidence of record, and resolving all doubt in favor of the Veteran, the Board finds that his disability picture for PTSD, during the entire appellate period, most closely approximates a 30 percent rating. In this regard, the Board finds the Veteran's consistent and credible account of psychiatric symptomatology, as recorded during VA examination and instances of treatment, as well as during his Board hearing, to be competent and credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In reaching this determination, the Board finds that the Veteran, during the entire appellate period, demonstrated a depressed mood, anxiety, panic attacks, chronic sleep impairment, and mild memory loss, as is contemplated by DC 9411 for a 30 percent rating. 38 C.F.R. § 4.130, DC 9411. However, there is no evidence of symptoms that more nearly approximate the symptoms, or symptoms similar in type and degree, contemplated by DC 9411 for the next higher rating, 50 percent. There is no evidence, medical or lay, of a flattened affect; circumstantial, circumlocutory, or stereotyped speech; impaired judgment; impaired abstract thinking, or difficulty in understanding complex commands. Id. While the Veteran has exhibited mild memory loss, in that he forgets the names of people he has known for years, contemplated by the criteria warranting a 30 percent rating, there is no evidence of impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks), such that an initial rating of 50 percent is warranted. Also, while the Veteran reported that his condition negatively impacts his relationships with his wife, family, and friends, and the VA examiner reported that the Veteran distrusts anyone outside of his close circle; the Board finds it significant that the Veteran has been in a long-term marriage and has close relationships with his wife, children, and siblings. He also participates as a church member in social groups and fundraising efforts, attends weekly veterans' meetings, is involved in peace activism, and has at least two couples with whom he and his wife sometimes go out. Thus, the Board finds that there is no evidence of difficulty in establishing and maintaining effective work and social relationships, such that an initial rating of 50 percent is warranted. The Board does not dispute that the Veteran has exhibited disturbances of motivation and mood during the appellate period. However, the Board finds that such does not support the conclusion that a 50 percent rating for PTSD is warranted under DC 9411. The Veteran presented on VA examination in September 2010 with an anxious mood, and presented for treatment in March 2011 with a mildly-depressed mood. While the Veteran reported during the June 2012 Board hearing that he has trouble with motivation, during the appellate period, in a number of statements made to treating professionals and the VA examiner, he has described keeping busy with gardening, yard work, woodworking projects, his veterans' group, fundraising for the church, and peace activism. The above-described disturbances of motivation of mood reported during the appellate period do not thus rise to the type and degree of the symptoms warranting a 50 percent rating. Based on his disturbances of motivation and mood, the Board finds that the Veteran's PTSD does not more closely approximate the symptoms contemplated by the criteria warranting a 50 percent rating. Mauerhan, 16 Vet. App. 436, at 442. The Board also does not dispute that the Veteran has reported panic attacks, on VA examination in September 2010 and during his June 2012 Board hearing, more than once weekly. It is not required that the Veteran exhibit each and every symptoms of PTSD contemplated by the rating criteria to warrant the next higher rating, and the symptoms contemplated by the rating criteria are examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Id. In this case, however, it is significant that while the Veteran reported panic attacks more than once weekly, when asked by the VA examiner in September 2010, he was unable to identify any negative consequences such had on his daytime functioning. The above-described panic attacks reported during the appellate period do not thus rise to the type and degree of the symptoms warranting a 50 percent rating. Based on his panic attacks, the Board finds that the Veteran's PTSD does not more closely approximate the symptoms contemplated by the criteria warranting a 50 percent rating. Id. The Veteran's only GAF scores during the appellate period was 65, as assigned on VA examination in September 2010. As described above, GAF scores ranging between 61 and 70 are assigned when there are some mild symptoms, or some difficulty in social, occupational, or school, but when the individual is functioning pretty well and has some meaningful interpersonal relationships. There is no evidence that the Veteran's GAF score of 65, reflecting only mild symptoms, indicates symptoms that warrant a 50 percent rating under DC 9411. See Diagnostic and Statistical Manual of Mental Disorders. Finally, the Board has considered whether the Veteran's claim warrants referral to the Chief Benefits Director of VA's Compensation and Pension Service under 38 C.F.R. § 3.321. The Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). The Court stated that 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 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. Id. The Board finds that the rating criteria contemplate the Veteran's PTSD. The Veteran's complaints, including depression, irritability, anxiety, sleep disturbance, intrusive thoughts, lack of motivation, disturbances of mood, panic attacks, memory loss, avoidance of crowds, and distrust of people outside of his circle of family and friends, are contemplated by the applicable rating criteria. The rating criteria are therefore adequate to evaluate the Veteran's disability and referral for consideration of extraschedular rating is not warranted. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a total disability rating based on individual unemployability (TDIU) claim is part of an increased rating claim when such claim is raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. Specifically, the Veteran reported on VA examination in September 2010 that he was offered early retirement after 34 years of employment. There is no evidence, medical or lay, that his PTSD renders him unemployable. Therefore, the Board finds that no further consideration of a TDIU is warranted. In sum, the Board has considered whether a higher rating might be warranted for any period of time during the pendency of this appeal. Fenderson, 12 Vet. App. 119; Hart, 21 Vet. App. 505. The weight of the probative evidence demonstrates that for the entire appellate period, the Veteran's PTSD warrants an initial 30 percent rating, and no more. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. 49. ORDER An initial rating of 30 percent, and no more, for service-connected PTSD is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs