Citation Nr: 1338917 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 11-31 871 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an initial disability evaluation in excess of 10 percent for posttraumatic stress disorder (PTSD) from March 11, 2009, to November 10, 2011, and in excess of 30 percent for PTSD from November 10, 2011. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Budd, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1969 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In June 2013, the RO assigned a higher initial disability rating of 30 percent for PTSD, effective November 10, 2011. Accordingly, staged ratings have been created, and the Board has recharacterized the issue as shown on the title page. As the benefit awarded is still less than the maximum benefit available, the appeal is still pending. AB v. Brown, 6 Vet. App. 35, 38 (1993). FINDING OF FACT The Veteran's service-connected PTSD is manifested throughout the entire appeal period by a level of impairment most closely approximating occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW Since March 11, 2009, the criteria for an initial disability rating of 50 percent, but no higher, for PTSD, are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § § 3.159, 3.321, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. The appeal arises from the Veteran's disagreement with the initial evaluation 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 and will not be discussed. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration (SSA). 38 C.F.R. § 3.159(c)(2). A VA examination was conducted in February 2010. The evidence of record was reviewed and a history was elicited from the Veteran. The examination report stated the current level of severity of the Veteran's mental health symptoms, and is adequate for purposes of rating his disability. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). There is no indication in the record that any additional evidence, relevant to the issues decided, 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, any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Initial Rating Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. §4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). Evaluation of a service-connected disorder requires a review of the veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation 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. In determining the present level of a disability for any increased evaluation claim, staged ratings must be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). Where the evidence contains factual findings that demonstrate 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 is necessary. When evaluating a mental disorder, the rating is to be based on all the 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. The extent of social impairment must be considered, but a rating may not be assigned solely on the basis of social impairment. See 38 C.F.R. § 4.126. Age may not be considered as a factor in evaluating a service-connected disability. 38 C.F.R. § 4.19. A 10 percent disability rating is assigned for a mental disorder when there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms are controlled by continuous medication. 38 C.F.R. § 4.130, DC 9411. A 30 percent disability rating is assigned for a mental disorder 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, or mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent evaluation is warranted if the evidence establishes 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 and maintaining effective work or social relationships. Id. A 70 percent evaluation is warranted if the evidence establishes 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 worklike setting); or inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted if the evidence establishes 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 oneself or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. Id. The psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). 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 (DSM-IV) (4th ed. 1994). A GAF score ranging from 61 to 70 reflects the presence of some mild symptoms (e.g., depressed mood or mild insomnia) or some difficulties in social, occupational, or school functioning (e.g., occasional truancy or theft within the household), but generally indicates one is functioning pretty well, and has some meaningful interpersonal relationships. A GAF score of 51 to 60 is illustrative of 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). A GAF score of 41 to 50 is defined as serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). See Diagnostic and Statistical Manual of Mental Disorders, 46-47 (4th ed. 1994); 38 C.F.R. § 4.130 (2013). Analysis The Board finds that the Veteran's PTSD symptoms most closely approximate occupational and social impairment with reduced reliability and productivity. The Veteran was diagnosed with PTSD at a VA consult in March 2009. He was assigned a GAF score of 45, which is indicative of severe symptoms. The Veteran reported a low tolerance for frustration; isolating himself from others, including his family; feeling estranged from society; and failing to show affection to his family. Other reported symptoms included severe intrusive recollections; moderate dreams, flashbacks, and exposure distress; severe physiological reactivity; severe avoidance of thoughts, activities, and interests; severe estrangement; moderately restricted affect; severe sleep trouble, irritability, and difficulty with concentration; and moderate hypervigilance and startle. He was described as having dysphoric mood with blunted affect. Although the Veteran described a tendency to isolate himself from his family, he did have a relationship with them. He was described as having good grooming and hygiene, logical and goal directed thought process, and intact abstract ability. He stated that he did not believe that his PTSD symptoms caused his retirement. He also denied suicidal ideation. A VA examination was held in February 2010, which again addressed the Veteran's symptoms. The Veteran reported irritability and anger causing him to be short with his children and his wife, which he dealt with by working on the farm or riding his motorcycle. According to his wife, he would make a mountain out of a molehill and get very emotional over nothing, and he would turn small problems into big ones. The Veteran further described his difficulty in maintaining social relationships by stating that he no longer wanted to attend parties, hunt, or fish, and that he avoided the hunting and fishing buddies that he had known for years. He no longer enjoyed church socials and left them as soon he could. His wife had joked that his friendships had deteriorated to the point that she would need to hire pallbearers at his funeral. The Veteran also stated that he would wake up consistently at 3 or 4 AM, at which point he would usually fall asleep again after an hour or so, but occasionally could not return to sleep at all. He also described being woken by nightmares 2-3 times a month, causing him to be groggy and constantly tired the next day. The examiner noted an inability to recall an important aspect of in-service trauma; and a feeling of detachment or estrangement from others. In addition to his sleep and anger troubles, the Veteran struggled with hypervigilance and an exaggerated startle response. The Veteran denied that his PTSD symptoms had affected his work, but he did state that he was overly blunt with co-workers and that one factor in his choice to retire was that he noticed he had become short with the veterans he was helping as well as his co-workers. Notably, the examiner had worked in the same building as the Veteran in the past and had personally observed his demeanor at work, and noted in the examination report that if anything the Veteran had understated his shortness with co-workers. The Veteran was described as clean, with soft, slow speech and a tendency to wring his hands. He had a cooperative and attentive attitude, constricted affect, anxious mood, intact attention and orientation, a rambling thought process, no delusions, and was of average intelligence. The examiner found that the Veteran's symptoms were transient or mild, and decreased work efficiency and the ability to perform occupational tasks only during periods of significant stress. The Veteran was assigned a GAF score of 59, illustrative of moderate symptomatology. VA clinical notes indicate that the Veteran attended psychoeducational classes regarding PTSD and continued to be treated by VA mental health professionals following his PTSD diagnosis. He continued to struggle with his irritability and trouble sleeping, and was prescribed a variety of medications to address depressive symptoms, irritability, anxiety, and his difficulty sleeping. In contrast to the relatively mild characterization of the Veteran's symptoms by the February 2010 examiner, the Veteran's treating clinicians have consistently assigned a GAF score of 45 after each evaluation, with the exception of August 2012, when the Veteran was assigned a GAF score of 50. In an April 2010 medication check, the physician noted that the Veteran was having significant difficulty with his PTSD symptoms and that his rating percentage was unusually low for his symptoms. These symptoms were described as inability to sleep at night; irritability and difficulty communicating with his wife to the point that he felt that it had taken a considerable toll on his marriage; non-existent socialization with others; and a prominent hyperstartle and hypervigilence response. A November 2011 treatment note states that the Veteran endorsed feeling depressed, reported difficulty staying asleep resulting in an average of 4-5 hours of sleep each night, and described the habit of waking up early in the morning to set traps for animals, which put him in what was described as war mode. The Veteran reiterated that he was snapping at his wife, and had lost interest in doing things such as hunting and fishing. The Veteran expanded upon his nightmares by explaining that at times they left him feeling hysterical, clammy, anxious, and nervous. He reported experiencing what he called a worrying attack instead of a panic attack, which included an increased heart rate. The Veteran stated that he was isolated and startled by loud noises. The Veteran's PTSD symptoms were noted by the physician, and included but were not limited to severe avoidance of thoughts, activities, and interests; severe amnesia and estrangement; severe sleep and irritability difficulty; moderate concentration difficulty; severe hypervigilance; and moderate startle. The Veteran had a depressed, anxious, and nervous mood, restricted affect congruent with his anxiety, fair insight and judgment, and amnesia due to PTSD. He was described as being well dressed and groomed, having normal language and speech, coherent thought process, and without suicidal ideation. The doctor suggested an increase in medication for depression and irritability, and continued use of medication for nerves and sleep due to his PTSD nightmares. A February 2012 medication check reiterates the Veteran's depression, worrying attacks, agitation and tendency to snap at his wife, difficulty staying asleep, and practice of sleeping 4-5 hours a night and setting traps for animals while in "war mode." Notably, the physician wrote that the Veteran's symptoms were more severe than had been endorsed in the past. The Veteran denied suicidal ideation. The Veteran described his tendency to snap at his wife, as well as his attempts to be careful about expressing his anger when his grandchildren are in the car. In August 2012 the Veteran described himself as having an euthymic mood, although later in the note the physician describes the Veteran's mood as mildly dysphoric with constricted affect. The Veteran reported experiencing nightmares 4-5 times a month, and stated that when he experienced nightmares he received 2-3 hours of sleep, while he slept 3-4 hours on nights without nightmares. He was startled by unexpected noises and stayed to himself. He reported avoiding crowds, and stated the he did not like people getting behind him. He described the practice of sitting in restaurants in such a way that he could watch the door, and when necessary isolating himself by going to the family cemetery or a place that he described as an "old home place." He received a GAF score of 50. A treatment record from December 2012 reports that the Veteran's nightmares were getting worse, and were very violent in nature. The Veteran reported sleeping only 3-4 hours a night. The record noted PTSD symptoms in the areas of re-experiencing, avoidance/numbing, and altered arousal. The Veteran was assigned a GAF score of 45. The Veteran denied suicidal ideation, and was described as cooperative and alert with adequate hygiene, normal mannerisms, moderate eye contact, a mildly restricted, appropriate, congruent affect, and linear, logical, goal-oriented thought process. April 2013 treatment records indicate that the Veteran reported symptoms of re-experiencing, avoidance, and altered arousal, and that he denied suicidal or violent ideation. The Veteran was described as cooperative, alert, oriented, and not agitated with adequate grooming and hygiene, moderate eye contact, normal mannerisms and speech, mildly restricted, appropriate, and congruent affect, and a linear thought process. As the treatment records and VA examination discussed above indicate, the Veteran has been struggling significantly with his PTSD. He is described as having a blunted, constricted, or restricted affect at several points throughout the appeal period, including the March 2009 diagnosis, the February 2010 VA examination, and treatment notes in November 2011 and August 2012. The Veteran has reported experiencing worrying attacks that result in an elevated heart rate, although he has not indicated how often they occur. The Veteran's memory was noted as impaired in March 2009. The February 2010 examination also noted a memory irregularity in that the Veteran displayed an inability to recall an important aspect of in-service troubles, while the November 2011 treatment note indicated severe amnesia and estrangement. The Veteran has described struggling with irritation or anger as well as anxiety throughout his treatment. He has indicated a tendency to snap at his wife on several occasions, and in April 2010 stated that he felt that his irritability and difficulty communicating had taken a considerable toll on his marriage. He also noted a tendency to be overly brusque with co-workers before his retirement. The Veteran has described withdrawing from activities and people he had previously enjoyed, to the point where his wife joked that they would need to hire pallbearers at his funeral. The Veteran has also struggled significantly with sleep trouble. The nightmares and inability to sleep described by the Veteran were characterized as severe on several occasions. The Veteran does not appear to be generally functioning satisfactorily; rather, his PTSD symptoms have resulted in social impairment with reduced reliability and productivity. For this reason, the Veteran is entitled to a 50 percent rating. Throughout the appeal period, the Veteran's symptoms have remained fairly constant in their severity. With the exception of February 2010 and August 2012, his GAF scores have remained around 45 throughout the appeal period, reflecting that his serious symptoms have neither worsened nor improved significantly from his baseline. The February 2010 GAF score of 59 is an outlier that is not indicative of the Veteran's symptomatology throughout the appeal period because the symptoms described by the Veteran at the February 2010 examination were the same as those that he has struggled with throughout the appeal period, including severe sleep trouble including nightmares, anger or irritation, hypervigilance, and isolation from his previous friends. This single exam does not indicate that the Veteran was generally functioning satisfactorily, and so does not merit changing the Veteran's rating. The August 2012 GAF rating of 50 appears to signal some improvement, but a GAF score of 50 is still indicative of serious impairment. The nightmares, inability to sleep more than 2-3 hours a night, isolation and avoidance of crowds, and hyperstartle described in the August 2012 treatment note are still indicative of social impairment with reduced reliability and productivity, and so merit a continued 50 percent rating. The Veteran is not entitled to a rating of 70 percent or higher because he is not deficient in most areas such as work, school, family relations, judgment, thinking, or mood. Although the Veteran has described a deterioration of his social relationships, he has managed to retain his familial relationships, and so the record is not indicative of entirely deficient social functioning. He has been consistently described as having good personal appearance and hygiene. His thought process is described as logical and goal oriented on several occasions. He has consistently and repeatedly denied suicidal ideation. Although the Veteran was retired at the time he filed his claim, the record does not indicate that his PTSD symptoms played a significant role in his retirement, despite the observations by the Veteran and the VA examiner that the Veteran was known to be overly brusque in the workplace. The Board acknowledges that in February 2012 the Veteran's treating physician wrote that the Veteran's symptoms were more severe than had been endorsed in the past. However, there was no indication that the Veteran's grooming, hygiene, or thought process had deteriorated. The Veteran denied suicidal ideation. He described his tendency to snap at his wife, as well as his attempts to be careful about expressing his anger when his grandchildren are in the car, meaning that the Veteran had maintained his relationships with family members in spite of his PTSD symptoms. Similarly, the record reflects that in December 2012 the Veteran's nightmares were getting worse, and had become violent in nature. The Veteran still denied suicidal and homicidal ideation, and was affirmatively described as cooperative with adequate hygiene, and linear, logical, goal-oriented thought process. Therefore, even at his lower points, the Veteran's PTSD does not lead to deficiencies in most areas such as work, school family relations, judgment, thinking, or mood, and so is not entitled to a 70 percent rating. When taking the totality of the evidence into consideration, a rating of 50 percent and no higher is appropriate for the entire appeal period. Additional Considerations The above determinations are based upon consideration of applicable rating provisions. There is no showing that the Veteran's PTSD has reflected so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular evaluation. 38 C.F.R. § 3.321(b) (1). Otherwise, the schedular evaluation is adequate, and referral is not required. Thun, 22 Vet. App. At 116. In this case, the schedular rating is adequate. Ratings in excess of that assigned are provided for certain manifestations of the service-connected disability, but the medical evidence reflects that those symptoms are not present. The diagnostic criteria also adequately describe the severity and symptomatology of the Veteran's PTSD. Moreover, even if the Veteran's disability picture was exceptional or unusual, it still would not merit an extraschedular rating because there is no indication that the Veteran has been hospitalized during the appeal period due to his PTSD, nor does the record indicate that his PTSD has interfered with the Veteran's occupation. On the contrary, the Veteran stated in March 2009 that his retirement was not caused by his PTSD. Therefore, the Veteran's disability picture is contemplated by the Rating Schedule; no extraschedular referral is required. Finally, the Board is cognizant of the ruling in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the United States Court of Appeals for Veterans Claims held that a claim for a total rating based on unemployability due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran stated in March 2009 that his PTSD did not cause him to retire. Thus, the matter of entitlement to a total evaluation based on individual unemployability due to service-connected disabilities (TDIU) is not raised by the record. There is no doubt to be resolved; the preponderance of the evidence is in favor of an evaluation of 50 percent but no higher for the entire period of appeal. ORDER Entitlement to an initial disability evaluation of 50 percent but no higher for PTSD is granted for the entire period on appeal. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs