Citation Nr: 1338480 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 08-31 149 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an evaluation above 30 percent for posttraumatic stress disorder (PTSD) for the period beginning May 29, 2007. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Megan Marzec, Associate Counsel INTRODUCTION The Veteran had active military service from May 2001 to September 2001 and from February 2003 to May 2004. The Veteran's decorations for his active service include a Purple Heart Medal. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. This case was previously before the Board in July 2010, at which time the issue currently before the Board was remanded for additional development. The case has now been returned to the Board for further appellate action. FINDING OF FACT From May 29, 2007, the Veteran's PTSD has been manifested by social and occupational impairment in most areas such as work, school, family relations, judgment, thinking, or mood. CONCLUSION OF LAW The criteria for a 70 percent evaluation for PTSD from May 29, 2007, have been met. 38 U.S.C.A. §§ 1155, 5107 (b) (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103 (a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that prior to the initial adjudication of the claim, the Veteran was mailed a letter in June 2006 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. The June 2006 letter also provided the Veteran with appropriate notice with respect to the disability-rating and effective-date elements of his claims. The Board also finds the Veteran has been afforded adequate assistance in response to his claim. The Veteran's service treatment records (STRs) are on file, the VA Medical Center treatment notes have been obtained, and the Veteran has been afforded appropriate VA examinations. Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claim. The Board is also unaware of any such evidence. The Board notes that the evidentiary development undertaken by the RO/AMC is in substantial compliance with the Board's prior remand instructions from July 2010, and therefore no further remand for additional corrective development with respect to the issues decided herein is necessary. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Otherwise, the Board finds no significant defects in the VA examination reports that would render them inadequate for VA adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Accordingly, the Board will address the merits of the claim. Legal Criteria Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2013). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1 (2013). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2 (2013); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2013). PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. This diagnostic code uses the general rating formula for mental disorders other than eating disorders. The Veteran's service connected PTSD is currently evaluated at 30 percent disabling from May 29, 2007. A 30 percent evaluation for PTSD is warranted when 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, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent evaluation for PTSD is warranted when there is 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 effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent evaluation for PTSD is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. The maximum schedular rating of 100 percent for PTSD is warranted when 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; and memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. In addition, when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the lengths of remissions, and the veteran's capacity for adjugment during periods of remission. 38 C.F.R. § 4.126 (a) (2013). The rating agency shall assign an evaluation based on all evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. However, 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 on the basis of social impairment. 38 C.F.R. § 4.126 (b). The Board notes that with regard to the use of the phrase "such as" in 38 C.F.R. § 4.130 (General Rating Formula for Mental Disorders), ratings are assigned according to the manifestations of particular symptoms. However, the use of the phrase "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve only 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 (2002). Accordingly, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). In rendering the decision below, the Board has relied, and least in part, on GAF scores that mental health professionals have assigned to evaluate the Veteran. The GAF score is based on all of the Veteran's psychiatric impairments. A GAF score of 31-40 indicates some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant), or a major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). A GAF score of 41-50 indicates 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). A GAF score of 51-60 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 coworkers). A GAF score of 61-70 represents mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. While particular GAF scores are not contained in the VA schedule of ratings for mental disorders, 38 C.F.R. § 4.130, they are a useful tool in assessing a Veteran's disability and assigning disability evaluations. However, they are just one of many factors considered when determining an evaluation. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2013) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. The Veteran has been clinically diagnosed with PTSD that was linked to confirmed stressors that occurred in service, including his being shot in the chest and foot while deployed in a combat zone in Iraq during Operation Enduring Freedom. By rating decision dated August 2006, he was granted service connection and an initial 10 percent evaluation for PTSD. The effective date for this award was ultimately determined to be April 7, 2006. In a March 2007 rating decision, the initial evaluation was increased to 30 percent. By rating decision on appeal, dated in July 2007, the Veteran's evaluation of 30 percent was continued. After appeal to the Board, the issue of entitlement to evaluation in excess of 30 percent for PTSD for the period beginning May 29, 2007, was remanded for further development. A review of the record shows that the Veteran has received regular mental health treatment at the VA Medical Center. Between May 2007 and July 2010 the Veteran was assigned GAF scores between 42 and 45 while on medication. The Veteran reported a variety of symptoms including irritability, flashbacks, intrusive thoughts, anxiety, depression, trouble sleeping, nightmares, hypervigilance, isolation, suicidal ideations, and difficulty with compliance in a work setting. In August 2008, the Veteran reported that he quit working for a specific trucking company because he had been in three crashes between April and June of 2008. In December 2009, the Veteran reported that after his divorce his panic attacks became more frequent. Upon mental status examination, between May 2007 and July 2010 the Veteran was described as having spontaneous speech, blunted and anxious affect, and being functionally limited both socially and occupationally. In July 2010, the Veteran was afforded a VA examination. At that time, the Veteran reported that he always felt sad. He attributed his sadness to "guilt" and "what went wrong" and what he could have done differently during an ambush in Iraq. The Veteran reported crying spells that sometimes occurred daily and usually when he was alone. He reported considering suicide, but he did not have any specific plans. The Veteran reported that his concentration and attention were poor and that he was easily districted. He reported that his interest in activities was decreased. The Veteran reported that his sleep was "not good." He reported staying awake for 30 to 60 hours in order to get "a good 10 hours" of sleep. The Veteran reported nightmares on average five times per week. He reported generalized anxiety and symptoms consistent with panic attacks when in a perceived threatening place such as crowds or settings that reminded him of Iraq. The Veteran reported avoiding such settings. The Veteran reported auditory and visual hallucinations such as hearing loud noises or gunshots, seeing people on overpasses, or seeing road side bombs. The Veteran reported that he was married in February 2005 and he separated from his wife in November 2009. The Veteran's divorce was final in April 2010. The Veteran attributed the divorce to his lack of communication and his desire to be by himself. He reported that his only communications with his former spouse were as needed in regards to their 3-year old daughter. He reported having custody of his daughter two days per week and he reported that his daughter was the one thing that he actually looked forward to. The Veteran also reported talking to his mother, step-father, and grandparents at least once or twice a week. The Veteran reported that he had a girlfriend but that they were "taking it slow." He reported no involvement in groups, clubs, organizations, church, or other social settings. The Veteran reported that his friends from high school had "moved on, married" or were "busy with something else." The Veteran reported that he preferred solitary activities or activities limited to immediate family members. He also reported that he did the minimum to get by. The Veteran reported having difficulty driving, doing household chores, shopping, and engaging in sports or exercise. The Veteran reported that his usual occupation was a truck driver, and that he was currently employed and had worked for a total of four companies since his discharge six years prior. Upon mental status examination, the Veteran was found to be clean, neatly groomed, and appropriately dressed. The Veteran's attitude toward the examiner was cooperative and guarded, and his affect was constricted. The Veteran's mood was anxious and dysphoric. The examiner attributed the Veteran's difficulty driving to his hypervigilance and physiological/psychological reactivity. The examiner noted that the Veteran's attention was intact, and the Veteran's thought process and thought content were unremarkable. The Veteran did not report delusions. The examiner noted that the Veteran understood the outcome of his behavior, and understood that he had a problem. The examiner noted that the Veteran did not have inappropriate behavior or obsessive/ritualistic behavior. The Veteran did not report homicidal thoughts. The examiner noted that the Veteran had good impulse control, and the Veteran did not report episodes of violence. The examiner noted that the Veteran's recent memory was mildly impaired. The examiner confirmed the Veteran's diagnosis of PTSD, and noted that the Veteran had some affective symptoms related to guilt associated with trauma, as well as anxiety symptoms (panic-like episodes) secondary to hypervigilance and physiological reactivity to triggers, and mild perceptual disturbances secondary to PTSD. The examiner noted that the Veteran's PTSD resulted in deficiencies in judgment, thinking, family relations, work, and mood. The examiner assigned a Global Assessment of Functioning scale (GAF) of 46 and noted that the Veteran's GAF was reflective of serious symptoms, moderate psychosocial impairment in social functioning, and severe psychosocial impairment in family role responsibilities. In December 2010, the Veteran reported to the emergency room for increased anxiety. The Veteran reported that he had increased depression and anxiety since his divorce, and that he had lost his only close friend over a misunderstanding. The Veteran reported that he had a poor appetite and poor sleep habits. The Veteran reported that he was afraid to be alone, but felt isolative, and he reported that he had feelings of guilt and paranoia. Upon mental status examination, the examiner assigned a GAF score of 35 and prescribed an increased dose of medication. Later in December 2010, the Veteran reported for a medication management meeting where he was assigned a GAF score of 51 and his medication was reduced. The Board has also considered various lay statements. The Veteran's former spouse, Mrs. S.W., submitted one letter of record, dated September 2008. Mrs. S.W. reported that the Veteran was withdrawing from her and the rest of the world, and would go days without saying a word. Mrs. S.W. reported that the Veteran had nightmares and would wake up frantic and yelling at Mrs. S.W. to "hurry and get out of there." Mrs. S.W. reported that the spells of emotional symptoms were becoming more frequent and more severe. Mrs. S.W. reported that there were times when the Veteran was up for the entire night and he could not tell her why he could not sleep. Mrs. S.W. reported that the Veteran showed no affection toward her and he just sat at his computer without talking to anyone. The Veteran also submitted statements of record describing his symptoms. In October 2008 the Veteran reported that he had difficulty having social relationships with his then-spouse and other close relatives. The Veteran reported that he had trouble focusing on his job and that irritability had become an everyday experience. He reported having suicidal thoughts on a "daily basis," which made him afraid to be alone. The Veteran reported seeing objects that were not there ("ex. foreign people with guns or explosives"). He reported that when driving he was constantly on the lookout for road-side bombs. The Veteran reported that he constantly dealt with depression and would be emotional for no reason. The Veteran also reported having constant mood swings and being constantly afraid of being shot because he was shot in Iraq. The Board has considered the aforementioned evidence and concludes that the Veteran's symptoms warrant a 70 percent evaluation for PTSD for the period beginning May 29, 2007. In this regard, the Board notes that a review of the July 2010 VA examination report, the VA Medical Center treatment notes, and the lay statements of record, show the Veteran to have occupational and social impairment, with deficiencies in most areas. This was manifested by such symptoms as suicidal ideation, anxiety, panic attacks, constant depression affecting his ability to function, irritability, mild memory loss, difficulty in work, and difficulty in establishing and maintaining relationships. The Veteran had intense anxiety and panic attacks that caused him to report to the emergency room. Further, the Veteran was consistently assigned GAF scores between 41 and 50, which is indicative of a serious impairment and generally commensurate with the criteria for a 70 percent rating. Moreover, the July 2010 VA examiner noted that the Veteran's PTSD caused deficiencies in most areas. These symptoms have been more or less consistent throughout the entirety of the period on appeal. Therefore, an evaluation of 70 percent is warranted for the period beginning May 29, 2007. 38 C.F.R. § 4.130, Diagnostic Code 9411. The Board acknowledges that the results of the VA examination and the symptoms described in the VA examination reports, and the various lay statements do not indicate that the Veteran experiences all of the symptoms associated with an evaluation of 70 percent for a psychiatric disability. However, the Court has held that the symptoms enumerated under the schedule for rating 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 disability rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Thus, a finding that there is occupational and social impairment resulting in reduced reliability and productivity is sufficient to warrant an evaluation of 70 percent, even though all the specific symptoms listed for an evaluation of 70 percent are not manifested. Consideration has been given to assigning the next higher evaluation of 100 percent; however, the Board finds that there is no reasonable basis for concluding that the Veteran has total occupational and social impairment. In this regard, while the Veteran is certainly suffering from significant impairment, he has not manifested symptoms so severe as to manifest a disorientation or impairment of his perception of reality. The assignment of a 100 rating would require symptoms such as gross impairment in thought processes or communication; grossly inappropriate behavior; persistent delusions or hallucination; persistent danger of hurting self or others; 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 medical and lay evidence of record simply does not evidence a collection of like symptoms. Indeed, the Veteran has maintained some occupational activities relating to truck driving. The evidence of record does not evidence inappropriate behavior, and the Veteran did not report homicidal thoughts. The Veteran has generally been found intact to time and place. While there were problems with sleep, concentration, anxiety, mood, etc., he has had normal remote and immediate memory, generally able to maintain hygiene, and is able to expresses his emotions and problems coherently. While there has been some intermittent suicidal ideation, the evidence clearly shows that the Veteran has not taken steps toward taking his own life. Further, the Veteran reported in his VA examination that he maintained a good relationship with his daughter. For all these reasons, an evaluation in excess of the 70 percent disability rating assigned herein is not warranted. 38 C.F.R. § 4.130, Diagnostic Code 9411. Consideration has been given to assigning staged ratings for this period. However, at no time during the period in question has the disability warranted higher schedular ratings than those assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration. 38 C.F.R. § 3.321 (b)(1) (2013). The threshold factor for extra-schedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008). In the case at hand, the record reflects that the manifestations of the disability are contemplated by the schedular criteria. In sum, there is no indication that the average industrial impairment from the disability would be in excess of that contemplated by the assigned rating. In addition, the evidence does not show frequent hospitalization or marked interference with employment beyond that envisioned beyond the currently assigned rating. Therefore, the Board has determined that referral of this case for extra-schedular consideration is not in order. 38 C.F.R. § 3.321 (b)(1). ORDER A 70 percent evaluation but no higher, for PTSD from May 29, 2007, is granted, subject to the criteria applicable to the payment of monetary benefits. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs