Citation Nr: 1339168 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 13-21 428 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from May 1969 to November 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. FINDING OF FACT The Veteran's PTSD is manifested by symptoms of depression, irritability, chronic sleep impairment and social isolation that have resolved into remission during the appeal period, resulting in no more than mild impairment to social and occupational functioning. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 30 percent for PTSD have not been met at any point during the appeal period. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 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 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. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In cases such as this, 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 the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The appellant bears the burden of demonstrating any prejudice from defective notice with respect to downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008). There has been no allegation of such error in this case. In any event, VA provided the Veteran a notice letter in February 2012 that fully addressed all notice elements. This letter informed the Veteran of what evidence was required to substantiate his underlying 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. In light of the above, 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 to send out additional VCAA notice letters. 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 are associated with claims file. All post-service treatment records 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 further assist the Veteran in locating additional records has been satisfied. The Veteran was afforded a VA examination in February 2012. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2012); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). This VA examination is adequate for the purposes of evaluating the Veteran's disability, as it involved a review of the Veteran's pertinent medical history as well as a clinical evaluation of the Veteran, and provides an adequate discussion of 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 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; 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 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. Gonzales 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; 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 the claimant. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on 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 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). In Fenderson, the Court also discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it is possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran asserts that his service-connected PTSD is more severe than contemplated by the assigned evaluation. Service connection for PTSD was granted by the February 2012 rating decision, and an initial 30 percent evaluation was assigned under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). Diagnostic Code 9411 is subsumed into the General Rating Formula for Mental Disorders (General Rating Formula). Under the General Rating Formula, a 30 percent evaluation contemplates 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, and recent events). Id. A 50 percent evaluation is warranted where the disorder is manifested by 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 for example, 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 evaluation is warranted where the disorder is manifested by 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 that is 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 an 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: 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 nomenclature employed in the rating schedule is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (also known as "the 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. 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. 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. Turning to the record, the Veteran began to receive mental health treatment at the Tampa VA Medical Center (VAMC) in January 2012. At his initial evaluation, the Veteran presented as casually dressed with good grooming and hygiene. His behavior was cooperative, mood euthymic, affect mildly restricted and was oriented in all spheres. He maintained good eye contact, spoke with normal rate and rhythm, and was found to have adequate insight and intact judgment, with logical and goal-directed through process with no indications of delusional or psychotic thinking. Finally, the Veteran denied suicidal or violent ideation, and reported occasionally "feeling down for a day or two" but denied any occurrences of prolonged periods of depressive symptoms. A diagnosis of chronic, combat-related PTSD was rendered, and a GAF score of 55 was assigned, representing "moderate" symptoms. See DSM-IV. The Veteran's VA treatment records indicate similar symptomatology during PTSD treatment. For example, a January 2012 PTSD follow-up note indicates the Veteran reported irritability and hypervigilence and feeling "a little depressed" since retiring in 2006. He denied hallucinations, suicidal/homicidal ideation, and spoke with a normal rate, volume and tone. While his memory and cognition were not formally tested, both appeared to be grossly intact. A GAF score of 60 was assigned at the time. An August 2012 VA treatment note indicates the Veteran reported symptoms of irritability, depression and feeling withdrawn. In September 2012, the Veteran presented with fair insight and judgment with memory intact. In February 2013, the Veteran reported that, while he still felt irritable occasionally with moderate depression, he stayed busy all day and had begun to socialize more. He denied any suicidal or homicidal ideation, hallucinations and delusions, and was alert and oriented in all spheres. Again, his memory and cognition were not formally tested, but appeared grossly intact. Finally, by June 2013, the Veteran reported allowing himself to habituate to previously avoided situations, thus decreasing anxiety, increasing self-esteem, and decreasing depression. The VA clinical psychologist sound that the Veteran's PTSD and depression symptoms were in remission, though such symptomatology may wax and wane in the future. As noted above, the Veteran was provided a VA examination in February 2012, at which he was diagnosed with PTSD related to his period of active service with a GAF score of 60. On examination, the Veteran described/endorsed symptoms of depression, increasing since retiring, without suicidal or homicidal ideation. These symptoms were noted to occur several times a week for several hours at a time, and determined to be mild. He reported being married to his current (third) wife for ten years, and reported having good friends with whom he kept in touch at least once per week. He reported liking to clean his car, work in the garage, and going to plays, movies, dinner and meeting other friends with his wife. Finally, he reported that, prior to his retirement in 2006, he got along well with others and never missed work due to PTSD symptoms. The examiner noted only anxiety and chronic sleep impairment as symptomatology related to PTSD, specifically finding the Veteran's memory, attention and concentration were within normal limits. A 50 percent evaluation contemplates occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect, impaired speech, panic attacks, difficulty in understanding complex commands or impairment of short- and long-term memory. See General Rating Formula. Such impairment and symptomatology is not demonstrated at any point during the appeal period. The Board has considered the lay statements of record, submitted by both the Veteran and his spouse. Specifically, the his spouse's April 2012 statement described the Veteran's sleep difficulties, "bouts of rage and anger," and lack of friends. In his substantive appeal, the Veteran described symptoms of progressively worsening depression, anger and long and short term memory problems. He also reported impaired judgment and abstract thinking with difficulty maintaining social relationships. In considering these lay statements, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). In this case, the Veteran and his spouse are competent to report symptomatology related to his PTSD, as this requires only personal knowledge as it comes through the senses. Layno, 6 Vet. App. at 470. However, the Board finds these lay reports, particularly as they pertain to the severity of the service-connected PTSD, are not as credible as the objective evidence of record, and therefore assigns less probative value to these lay statements. See Caluza v. Brown, 7 Vet. App. 498 (1995) (in determining credibility of lay statements, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant). In this regard, while the Veteran and his spouse report increasing depression and social isolation throughout the appeal period, the objective medical evidence of record indicates the Veteran's symptomatology has significantly decreased throughout the appeal period, to the point of full remission of PTSD and depressive symptomatology by June 2013. The Veteran reported to the VA examiner that he and his wife routinely go out with friends, and he maintains good contact with his friends. Further, the medical evidence consistently finds the Veteran's memory to be grossly intact, and has never found impairment to judgment or insight. The Board finds it reasonable to believe that, if the Veteran were experiencing increasing depression and social withdrawal and isolation, such symptomatology would be reflected in the contemporaneous objective medical evidence. Based on these inconsistencies between the lay statements and the contemporaneous objective medical evidence, the Board has assessed greater probative weight to the objective evidence although the lay statements in this regard have been given some consideration. Ultimately, in considering the evidence discussed above, as well as all other evidence of record, the Board finds that the evidence does not support the assignment of an initial evaluation in excess of 30 percent for PTSD at any point during the appeal period. The Veteran did not report difficulty in occupational or social functioning sufficient to more closely approximate a higher evaluation, and at no time does the objective evidence of record find the Veteran suffered from impaired memory, speech, judgment, insight or ability to understand complex commands. The Board finds the Veteran's symptomatology most closely approximates that contemplated by a 30 percent evaluation throughout the appeal. In reaching its decision, the Board considered the benefit-of-the-doubt rule. However, the preponderance of the evidence is against the Veteran's claim for an increased initial evaluation at any point during the Veteran's appeal. Therefore, an initial evaluation in excess of 30 percent is not warranted. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Additional Considerations The Board acknowledges the Veteran's contentions that his service-connected PTSD warrants an increased evaluation throughout the appeal. However, in determining the actual degree of disability, an objective examination is more probative of the degree of the Veteran's impairment. Furthermore, the opinions and observations of the Veteran alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.130 with respect to determining the severity of his service-connected PTSD. See Moray v. Brown, 2 Vet. App. 211, 214 (1993); 38 C.F.R. § 3.159(a)(1) and (2) (2012). The record does not establish that the rating criteria are inadequate for rating the Veteran's PTSD. The Veteran's disability is manifested by impairment in occupational and (primarily) social functioning. The effects of the Veteran's disability have been fully considered and are contemplated in the rating schedule. Thus, 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. 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). 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. While he is unemployed after retirement, there has been no allegation, and there is no medical evidence of record, that the Veteran's service-connected disability has markedly interfered with employment during the appeal period. 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 in excess of 30 percent for PTSD is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs