Citation Nr: 1338515	
Decision Date: 11/22/13    Archive Date: 12/06/13

DOCKET NO.  08-13 913	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUE

Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD).  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant and his wife


ATTORNEY FOR THE BOARD

Kalisse Anderson, Associate Counsel 

INTRODUCTION

The Veteran had active military service from April 1971 to April 1973.  

This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington.  

In a rating decision from April 2008, the RO in Denver, Colorado increased the rating for the Veteran's service-connected PTSD from 10 percent to 30 percent effective November 20, 2006.  The Veteran continued his appeal for a higher initial disability rating.  

In August 2009, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in Denver, Colorado.  A transcript of the hearing is in the claims file.  

In February 2010, the Board remanded the matter in order to provide the Veteran a new VA Compensation and Pension examination.  The requested examination having been completed in October 2010, and the requisite information having been provided, no further action to ensure compliance with the Board's February 2010 remand directive is required.  Stegall v. West, 11 Vet. App. 268 (1998).  Additionally, in August 2011, the Board remanded the matter to obtain further mental health records from the Colorado Springs VA Outpatient Clinic.  The requested records have been received; thus, no further action to ensure compliance with the Board's August 2011 remand directive is required.  Id.


FINDING OF FACT

The Veteran's PTSD is manifested by symptoms of blunted affect, depressed mood, chronic sleep impairment, irritability, panic attacks, unprovoked anger and disturbances of motivation and mood.  He is uncomfortable being in groups or working with others.  
CONCLUSION OF LAW

The criteria for an initial evaluation of 50 percent, but not greater, for PTSD have been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012).  


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

When VA receives a complete or substantially complete application for benefits, it must notify the claimant of (1) the information and evidence not of record that is necessary to substantiate a claim, (2) which information and evidence VA will obtain, and (3) which information and evidence the claimant is expected to provide. 38 U.S.C.A. § § 5100, 5102, 5103(a), 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

Further, with respect to the increased initial evaluation claim on appeal, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required, because the purpose that notice intended to serve has been fulfilled.  See Dingess v. Nicholson, 19 Vet. App. 473 (2006).  The appellant bears the burden of demonstrating prejudice from defective notice with respect to downstream elements.  See Goodwin v. Peake, 22 Vet. App. 128 (2008).  

In any event, VA's duty to notify has been satisfied through December 2006, June 2008 and September 2011 letters sent to the Veteran that fully addressed all notice elements.  These letters informed the Veteran of what evidence was required to substantiate his claim, and of the Veteran's and VA's respective duties for obtaining evidence.  The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond.  

The Board finds that all notices required by VCAA and implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review by sending out additional VCAA notice letters.  

Additionally, the Veteran testified at a hearing before the Board in August 2009.  A VLJ who conducts a hearing must fully explain the issues and suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010).  Here, during the hearing, the Veteran was assisted by a representative, and both the representative and the VLJ asked relevant questions concerning the Veteran's symptoms and the resulting impairment, as well as the effect of his disability on his daily life and his occupation.  Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2).

VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012).  

Service treatment records have been associated with the claims file.  All post-service treatment records and reports identified by the Veteran have also been obtained.  The Veteran has not identified any additional records that should be obtained prior to a Board decision.  Therefore, VA's duty to assist the Veteran in obtaining records has been satisfied.  See 38 C.F.R. § 3.159(c)(4).  The Veteran was afforded two VA examinations in December 2006 and October 2010.  See 38 U.S.C.A. § 5103A; see also 38 C.F.R. § 3.159(c)(4); Wells v. Principi, 327 F.3d 1339, 1341 (Fed. Cir. 2002).  The Board finds the VA examinations adequate for the purposes of the present claim, as they involved a review of the Veteran's pertinent medical history as well as a psychological examination and they provide a discussion of the relevant symptomatology.  See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  

In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the fullest extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist.  38 U.S.C.A. §§ 5103 and 5103A; see 38 C.F.R. § 3.159. 

Analysis

Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence.  The law requires only that the Board address its reasons and bases for rejecting evidence favorable to the claimant.  Timberlake v. Gober, 14 Vet. App. 122 (2000).  The Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzalez v. West, 218 F.3d 1378 (Fed. Cir. 2000).  

VA is responsible for determining 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.  38 U.S.C.A. § 5107; see Gilbert v. Derwinski, 1 Vet App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the appellant.  

Disability evaluations are determined by comparing a Veteran's present symptomatology with the criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment in earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  When a question arises as to which of the two ratings apply under a particular diagnostic code, the higher evaluation 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 C.F.R. § 4.3.  The Veteran's entire history is reviewed when making disability evaluations.  See generally, 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  

Evidence to be considered in the appeal of an initial assignment of a disability rating is not limited to that reflecting the current severity of the disorder.  Fenderson v. West, 12 Vet App. 119 (1999).  The Board is required to not only evaluate the medical evidence of record but also consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts).  Fenderson, at 126-128; see also Hart v. Mansfield, 21 Vet. App. 505 (2007).  

The Veteran's PTSD is currently evaluated as 30 percent disabling, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012).  Under this diagnostic code, a 30 percent evaluation is warranted where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational task (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).  Id. 

Under the 9411 diagnostic code, a 50 percent evaluation 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; difficulty in establishing and maintaining effective work and social relationships.  Id.

A 70 percent disability evaluation 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 worklike setting); inability to establish and maintain effective relationships.  Id. 

A 100 percent disability evaluation 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 and place; memory loss for names of close relatives, own occupation, or own name.  Id.

The classification outlined in the portion of VA's Schedule for Rating Disabilities that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV).  38 C.F.R. § 4.130 (2012).  The DSM-IV contains a Global Assessment of Functioning (GAF) scale, with scores ranging between zero and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness.  GAF scores included in the record are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness."  See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995).  The DSM-IV contemplates that the GAF scale will be used to gauge a person's level of functioning at the time of the evaluation (i.e., the current period) because ratings of current functioning will generally reflect the need for treatment or care.  The Board notes that while GAF scores are probative of the Veteran's level of impairment, they are not to be viewed outside the context of the entire record.  Therefore, they will not be relied upon as the sole basis for an increased disability evaluation.

With regard to the use of the phrase "such as" in 38 C.F.R. § 4.130, 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).  Thus, the evidence considered in determining the level of impairment under § 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 DSM-IV.

In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran does meet the criteria for an initial evaluation of 50 percent, but not greater, for PTSD.  See Fenderson, 12 Vet. App. 119.  

A 50 percent evaluation is warranted because the competent evidence of record demonstrates that the Veteran's current disability picture more closely approximates a 50 percent evaluation, but not more.  The Board acknowledges that the Veteran's VA examiner noted that the Veteran's PTSD causes him to suffer from circumstantial speech; panic attacks; impairment of short-term memory; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships.   Further, the Veteran suffers from mild-level panic symptoms more than once a week with severe panic symptoms at least once week.  The examiner noted that the Veteran requires continuous medication.  

Further, the Veteran reported to his VA psychiatrist that he has chronic sleep impairment, unprovoked irritability, angry outbursts and difficulty maintaining a healthy relationship with his wife.  See May 2010 VA Treatment Notes.  The Veteran denied suicidal or homicidal ideations, but admitted to the counselor that he often wonders if life "is worth the trouble." Id.  Additionally, the Veteran reported that he gets very upset when something reminds him of a stressful military experience and that he often feels irritable and prone to angry outbursts.  

The Veteran's colleague submitted a statement on behalf of the Veteran's claim.  In his statement, J.H. reports that he has known the Veteran for more than 22 years.  He states that the Veteran "keeps to himself, for the most part at work, and when he doesn't he is inclined to get into a little trouble."  See July 2012 Lay Statement from J.H.  The Veteran's colleague further reports that there have been "more than a few times that I have had to talk to him about something he said or done to another person in our shop.  He has had problems with management as well."  Id.  

At the Veteran's hearing, the Veteran's wife reported that the Veteran often isolates himself from others including his family.  See Travel Board Hearing Transcript at 9.  She further noted that the Veteran angers quickly without provocation.  Id.  The Veteran reported at his hearing that he has missed work due to his self-medicating of his PTSD symptoms.  Id. at 10.  

A Vet Center readjustment-counseling therapist has treated the Veteran and this therapist reports that the Veteran presented an anxious and blunted affect and had all the indicators of someone with severe depression.  The Veteran denied any incident of manic episodes to the therapist but did state that he thinks about combat trauma events daily and has difficulty maintaining a healthy relationship with his wife and son.  He did note that he has a couple of close friends that he maintains contact with, but that he has stopped going camping and fishing and has stopped attending any social events with the exception of meeting with his extended family on occasion.  See January 2007 Vet Center Treatment Notes.   

The symptoms reflected by the October 2010 VA Examination, lay statements from the Veteran, his wife, and his colleague J.H., treatment records from the Vet Center and the Colorado Springs VA from May and June 2010 indicate that the Veteran suffers from occupational and social impairment with reduced reliability and productivity due to his PTSD diagnosis warranting a 50 percent initial evaluation.  

The Board observes that a higher rating is not warranted because the competent evidence of record does not demonstrate that the Veteran's symptomatology more nearly approximates a 70 percent evaluation or higher during this period.  In this regard, the Veteran's treatment records do not contain evidence that supports a finding that he suffers from near-continuous panic attacks, delusions, or obsessive rituals.  Additionally, the evidence does not demonstrate that the Veteran suffers from suicidal or homicidal ideation, and it does not indicate that the Veteran is in persistent danger of hurting himself or others.  A 70 percent evaluation is not warranted, as there is no evidence of the Veteran being deficient in most areas of his life.  There is no evidence indicating obsessional rituals; depression so severe that it affects his ability to function independently; or neglect of personal appearance, as contemplated by a 70 percent evaluation.  See 38 C.F.R. § 4.130, Diagnostic Code 9411.  

With regard to the Veteran's ability to establish and maintain personal relationships, the Board notes that the Veteran and his wife have been married for more than 36 years and that he maintains contact with his son and his extended family.  However, both the Veteran and his wife admit that their relationship is strained by his anger, irritability and chronic sleep impairment.  See e.g. Travel Board Hearing Transcript.  The Veteran also has conflicts with his son.  See January 2007 Vet Center Treatment Notes.  In light of such evidence, the Board concludes that the Veteran exhibits some relationship difficulties, particularly with his wife and son.  However, the record reflects that he is capable of maintaining relationships as is evidenced by his long-term marriage, the concern from his colleagues and his relationship with his son and other Vietnam Veterans.  Therefore, the Veteran's impairment in this area does not more closely approximate the criteria for a 70 percent rating.  

The Board acknowledges that the evidence of record demonstrates that the Veteran has some difficulty in maintaing effective work relationships.  However, the Veteran has been successfully employed at the same place for more than 20 years.  The Veteran denies ongoing problems on the job.  The Veteran reports "that he is able to succeed at work because he works alone and never sees management."  See October 2010 Examination.  This leads the Board to conclude that the Veteran's overall disability picture continues to more closely approximate that contemplated by a 50 percent evaluation.  

The Veteran's GAF scores were reported as 58 at his October 2010 VA examination.  The Veteran's GAF score was reported as 52 on his May 2010 VA Outpatient Treatment Progress Report and as 51 on his June 2010 VA outpatient treatment progress report.  Scores of 51-60 represent "moderate" symptoms.  See DSM-IV.  Therefore, the Board observes that such GAF scores, when viewed in light of the Veteran's overall mental health picture, warrant an evaluation of 50 percent and this evaluation is consistent with the symptomatology contemplated by such Rating Schedule.  The Board acknowledges that a GAF score of 75 was assigned during the 2006 VA examination; however, considering the Vet Center notes dated shortly thereafter show a more moderate level of impairment, it appears this higher GAF score was an aberration.

The Board acknowledges that the Veteran does not meet all the criteria of a 50 percent evaluation.  For instance, the Veteran does not show symptoms such as stereotyped speech or difficulty understanding complex commands.  However, there is evidence that he has some level of depression, panic attacks, and difficulty acquiring or maintaining effective relationships.  Under such circumstances and resolving any doubt in the Veteran's favor, the Board concludes that the Veteran's PTSD disability picture more closely approximates the criteria for a 50 percent rating, but not either a 70 percent rating or a 100 percent rating.  38 C.F.R. § 4.7.  As such, the Board finds that the criteria for a 50 percent initial evaluation, but not more, for the Veteran's service-connected PTSD have been met.  38 C.F.R. § 4.7, Diagnostic Code 9411; see generally Mauerhan v. Principi, 16 Vet. App. 436 (2002). 

Additional Considerations

The Board has also considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis.  Under most circumstances, the VA Rating Schedule will apply unless there are exceptional factors that make the applicability of the Rating Schedule to a Veteran's case impractical.  See Fisher v. Principi, 4 Vet. App 57 (1993).  

The regulation states that the governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.321(b)(1).  

The discussion in the analysis section above reflects the notion that the symptoms and effects of the Veteran's PTSD, namely weekly panic attacks; chronic sleep impairment; and motivation and mood disturbances are fully contemplated by the applicable rating criteria in the VA Rating Schedule.  Therefore, 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.  See 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111 (2008).  

Entitlement to a total disability rating based upon individual unemployability (TDIU) is an element of all increased rating claims.  See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi 251 F.3d 1378 (Fed.Cir. 2001).  The Board has considered whether remand or referral for consideration of a TDIU is warranted.  However, the record is negative for evidence that the Veteran is unemployable due to his service-connected PTSD.  There has been no allegation, and there is no medical evidence that the Veteran's service connected disability has markedly interfered with employment at any time during the appeal.  Therefore, remand or referral of a claim for a TDIU is not necessary, as there is no evidence of unemployability due to the service-connected disability.  


ORDER

An initial evaluation of 50 percent, but not greater, for PTSD is granted, subject to the laws and regulations governing the payment of monetary benefits.  



____________________________________________
MICHELLE L. KANE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs