Citation Nr: 1337945 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 10-21 935 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an increased initial rating for posttraumatic stress disorder (PTSD), currently rated at 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Archer, Associate Counsel INTRODUCTION The Veteran served on active duty from January 2004 to September 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which granted service connection for PTSD and assigned a 30 percent rating, effective September 20, 2007. In addition to the physical claims file, the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is associated with his appeal. The Board has reviewed the contents of both the paper and electronic the file in adjudicating the instant appeal. FINDING OF FACT Resolving all doubt in the Veteran's favor, since September 20, 2007, the service-connected PTSD has been manifested by moderate occupational and social impairment with reduced reliability and productivity. It has not been productive of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. CONCLUSION OF LAW Since September 20, 2007, the criteria for an initial 50 percent rating, but no higher, for PTSD, have been met. 38 U.S.C.A. §§ 1155, 5103, (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.3, 4.7, 4.21, 4.126, 4.130, Diagnostic Code (DC) 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 The appeal arises from an initial award of service connection. In Dingess/Hartman v. Nicholson, 19 Vet. App. 476, 490 (2006), the Court of Appeals for Veterans Claims (Court) held that in cases in which 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. See also 38 C.F.R. § 3.159(b)(3)(i). Thus VA's duty to notify in this case has been satisfied. See Fenderson v. West, 12 Vet. App. 119 (1999) (establishing that initial appeals of a disability rating for a service-connected disability fall under the category of "original claims"). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include VA treatment records, VA examination reports, service treatment records (STRs), statements from the Veteran, and statements from his wife. Further, the Veteran was medically evaluated in December 2007 and June 2012, in connection with his claim for PTSD. The resulting medical opinions are considered adequate for rating purposes as they are based on consideration of the Veteran's medical history and describe 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). The duty to assist has been fulfilled. The Veteran has not asserted, nor is it evident from the record, that any additional evidence is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Applicable Laws and Regulations Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 8 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2013). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21. A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the claim was filed until a final decision is made. See Fenderson, supra; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When it is not possible to separate the effects of a service-connected disorder and a nonservice-connected disorder, the principle of reasonable doubt dictates that such signs and symptoms be attributed to the service-connected disorder. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam) (medical evidence is required to differentiate between symptomatology attributed to a nonservice-connected disability and a service-connected disability). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When all the evidence is assembled, the determination must be made as to whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board has reviewed all the evidence in the claims file. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Analysis The Veteran contends that he is entitled to a higher disability rating for his PTSD. Throughout the rating period on appeal, from September 20, 2007, a 30 percent evaluation is in effect under Diagnostic Code 9411. That diagnostic code provides that a 30 percent rating is warranted for 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; and/or mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is warranted for 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/or difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating 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 work-like setting); and/or inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted 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; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and/or memory loss for names of close relatives, own occupation, or own name. Id. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (2013). One factor for consideration is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)). A GAF score of 71 to 80 indicates that if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). A GAF score of 61 to 70 indicates some mild symptomatology (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, with some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect 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). Scores ranging from 41 to 50 reflect 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). While the Rating Schedule does indicate that the rating agency must be familiar with the DSM-IV, it does not assign disability percentages based solely on GAF scores. See 38 C.F.R. § 4.130, Diagnostic Code 9411. On VA examination in December 2007, the Veteran reported that after returning from Iraq, he began drinking heavily and frequently fought with his wife. He had difficulty sleeping due to nightmares and awakened nightly. He further stated that he lost his job as a security guard at a bar because he was too afraid to get into fights with the patrons. He also missed work due to lack of sleep and irritability. The Veteran additionally reported that he was isolated from his friends and often stayed at home watching television and drinking alcohol. He reported drinking due to the difficulty he had with sleeping. The Veteran stated that he had a short fuse, felt depressed at times, and had difficulty trusting others. He complained of sleeping excessively at times. Upon examination, the VA examiner found the Veteran's mood to be very labile and irritable. He appeared anxious, avoided eye contact at times, and had difficulty concentrating on serial sevens. He also could not communicate well with the examiner. He appeared suspicious at times. The Veteran was alert and oriented and the examiner opined that he was not suicidal or assaultive. The examiner was diagnosed with mild to moderate PTSD and the examiner assigned a GAF score of 65. VA records dated from April 2008 to May 2010 reflect intermittent treatment for his PTSD. The Veteran primarily reported having nightmares, problems with sleep, feeling depressed, and drinking excessively. He also reported irritability. His insight was generally fair to good. An April 2008 record noted a positive suicide screen. In December 2008, the Veteran reported having hallucinations and hearing people hollering his last name. He also reported that he had thoughts of suicide but had no intentions of following through. Examination found the Veteran to be alert and orient, neatly groomed, pleasant and cooperative. His mood was depressed, with appropriate affect and he was teary eyed during the conversation. He maintained eye contact with frequent downward gaze. A GAF score of 60 was assigned. In April 2009, the Veteran reported that he would break down and cry for no apparent reason, had a low energy level, and did not have much ambition. He denied any hallucinations but admitted to delusions of persecutions and paranoia. A suicide screen was positive. After reporting such symptoms, a May 2009 VA treatment provider noted that the Veteran was alert and cooperative. His affect was depressed and his mood was a mixture of sadness and anxiety. He was oriented and his memory was good. In June 2009, the Veteran's spouse submitted a statement in support of his claim for PTSD. She stated that the Veteran had problems with sleep, nightmares, serious mood swings, and reported that sometimes he would not leave the house for an entire weekend. She also reported that he had been missing several days of school and work. She acknowledged that the Veteran was taking his prescribed medications but believed that his condition was worsening and feared that he might hurt someone if they pushed the wrong button. She reported that she even feared for herself. She had also witnessed the Veteran crying for hours at a time. A treatment report dated in June 2009 indicated the Veteran's reports of marital problems. Cognitively, his speech was clear and relevant. His GAF score was in the mid-50s. In July 2009, the Veteran reported that he felt guilty about "the gunner dying," and felt it should have been him instead. He denied any addictive behaviors and stated that he quit drinking and smoking. He also denied thoughts of suicide and wanting to hurt others. The VA examiner noted that his affect and mood were tearful and mildly depressed, and that he seemed to be under a great deal of pressure. He appeared oriented in all spheres. The Veteran appeared to be having some problems with depression in addition to his PTSD and it was recommended that he be seen by a psychiatrist for individual counseling. In May 2010, the Veteran stated that "he gets to the point where he feels like killing somebody," and prefers to be isolated from others due to his irritability and explosive anger. He reported that the felt detached from and had a mistrust of others. He also had difficulty concentrating; was hypervigilent, jumpy, had issues with memory loss, had feelings of a foreshortened future, and felt emotionally numb. The VA examiner observed that the Veteran was appropriately dressed, calm, and orderly in behavior and demeanor, and that his speech fell within normal limits with respect to articulation, rate, fluency, and content. The Veteran's attitude was cooperative, friendly and realized, with appropriate affect and euthymic mood. The Veteran's low risk of suicide was noted. The examiner assigned a GAF score of 55. In June 2012, another VA examination was conducted. The Veteran reported that he was an auto mechanic and that the only things he did when he was not working was sleep and watch television. He continued to have difficulty falling or staying asleep, was irritable, suspicious of others, anxious, unmotivated, depressed, and had difficulty in establishing and maintaining effective work and social relationships. The examiner found the Veteran to be pleasant and sincere, classified his symptoms as mild to moderate, and assigned a GAF score of 60. The examiner also diagnosed depressive disorder and noted that it was possible to differentiate what symptoms were attributable to what diagnoses. The examiner concluded that the Veteran's depression resulted in anhedonia, feelings of low self-esteem, and the tendency to isolate from others. The Board notes that as the VA examiner could differentiate the Veteran's symptoms of service-connected PTSD and non-service connected depressive disorder, it may only consider the symptoms attributed to service-connected PTSD in rating the same. Having carefully considered the Veteran's contentions in light of the evidence of record and the applicable law, the Board finds that the Veteran's PTSD has resulted in occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. See Vazquez-Claudio v. Shinseki, 2012-7114 (Fed. Cir. Apr. 8, 2013). Thus, affording the Veteran the benefit of the doubt, the Board finds that that the record supports the next-higher 50 percent rating for the entire appellate period. As outlined above, the evidence clearly shows that the Veteran's PTSD causes deficiencies at work. He has reported that the he lost his job as a security due to his irritability and fear of confrontation with others. Both the Veteran and his spouse have reported that his excessive sleep has caused him to miss days from work. The Veteran's PTSD also causes him to exhibit deficiencies in social and family relations. He reported having few friends and preferring to be alone. The VA treatment records confirm that the Veteran suffered from withdrawal. The evidence reveals that the Veteran married his first wife in November 2005 and divorced in December 2008. On a December 2007 VA examination, he noted that he and his wife had frequent fights since his return from Iraq. His current spouse reported the Veteran's mood swings and stated that she feared he might physically hurt her. Finally, the Veteran's PTSD causes disturbances in mood. The evidence consistently shows that the Veteran suffered from depressed mood, irritability, hypervigilence, and anxiety. The Veteran maintained that he had problems with sleep, which affected his mood and often led to excessive drinking. His spouse reported that his mood swings would result in the Veteran isolating himself for days. Both the Veteran and his spouse reported occasional crying spells. He has also endorsed occasional suicidal ideation. However, there is no evidence of symptoms that more nearly approximate the disability picture contemplated by DC 9411 for a 70 percent rating. There is no evidence of obsessional rituals, illogical speech, spatial disorientation, neglect of personal hygiene, impaired impulse control, or any comparable symptoms. As discussed above, the Board has considered the Veteran's report of suicidal thoughts; however, there were no findings of persistent danger to self or others. While the Veteran reported that working as a security guard in a bar was a stressful situation, there were no similar complaints with regards to subsequently held jobs. Even though he consistently complained of feeling depressed, there was no indication that it affected his ability to function independently. While he complained of some marital conflict, he has been able to maintain a marriage for the past several years. Additionally, he remains employed, as reported at his most recent VA examination. Overall, the Board finds that the Veteran's symptomology during the appellate period was not severe enough to cause occupational and social deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, or inability to establish and maintain effective relationships. Thus, a 70 percent rating under DC 9411 is not warranted. In reaching the above conclusion, the Board acknowledged the GAF scores of record, the worst of which was a 50. Such score is at the very top end of the scale for serious symptoms, as a score of 51 represents a more moderate disability picture. However, to the extent to the GAF scores indicate serious symptoms, this numerical rating, standing alone, does not compel assignment of a higher evaluation. Indeed, the GAF score is just one factor for consideration, and in this case, for the reasons already discussed, the overall evidence is simply more commensurate with the level of overall disability depicted by a 50 percent evaluation, rather than the next-higher 70 percent evaluation that is dependent on a finding of occupational and social deficiencies in most areas and/or an inability to establish and maintain effective relationships In exceptional cases, an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Veteran's disability picture, and the impairment caused therefrom, are fully contemplated by the rating schedule. Thus, the rating criteria are adequate to evaluate his disability and referral for consideration of extraschedular rating is not warranted. 38 C.F.R. § 3.321; Thun, 572 F.3d 1366. The Board has also considered whether the issue of entitlement to total disability individual unemployment (TDIU) has been raised by the record. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a 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. In this case, the Veteran consistently reported having employment and only reported having difficulty adapting to his position as a security guard back in 2007. Significantly, on VA examination in June 2012, he reported that he was currently employed. There is no evidence of unemployability related to the Veteran's PTSD. Thus, the Board finds that no further consideration of a TDIU is warranted at this time. ORDER Entitlement to an initial 50 percent rating for PTSD, but no higher, is granted. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs