Citation Nr: 1339628 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 10-34 312 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to February 26, 2007, in excess of 50 percent for PTSD during the period from February 26, 2007 to January 7, 2010, and in excess of 70 percent for PTSD from January 7, 2010. REPRESENTATION Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel INTRODUCTION The Veteran had active service from March 1967 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. During the pendency of the appeal, a rating decision in June 2010 granted a 50 percent rating for PTSD, effective from February 26, 2009 and a 70 percent rating, effective from January 7, 2010. Because less than the maximum available benefit for a schedular rating was awarded and because the increases were not granted effective from the initial date that service connection was awarded, the issue, as described above, is properly before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). The Board notes that the Veteran filed a claim for a total disability rating based on individual unemployability (TDIU) in November 2009, and was granted that benefit with an effective date of November 30, 2009, the date of claim. The Veteran has not appealed that effective date, and therefore that issue is not before the Board. FINDINGS OF FACT 1. For the period prior to February 26, 2009, the Veteran's PTSD was manifested by problems with memory, self-esteem, nightmares, flashbacks, anger, difficulty with relationships, hyperarousal, avoidance symptoms, depression, flashbacks, and isolation, productive of functional impairment comparable to occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. For the period from February 26, 2009, the Veteran's PTSD was manifested by difficulty in relationships, hesitant speech with some thought blocking and constricted affect, irritability and depression, panic attacks related to intrusive thoughts, poor concentration and attention, depression, anxiety, and thoughts of unworthiness, productive of functional impairment comparable to occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood. CONCLUSION OF LAW 1. For the period prior to February 26, 2009, the criteria for an initial evaluation in excess of 30 percent for PTSD are not met. 38 C.F.R. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.21, 4.126, 4.130, Diagnostic Code 9411 (2013). 2. From February 26, 2009, the criteria for an initial evaluation of 70 percent, but no higher, for PTSD are met. 38 C.F.R. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.21, 4.126, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013). VA must inform the Veteran about the information and evidence that is necessary to substantiate the claim, the information and evidence that VA will seek to provide, and the information and evidence that the Veteran is expected to provide. 38 U.S.C.A. § 5103(a)(1); 38 C.F.R. § 3.159(b)(1). The appeal for a higher rating for PTSD arose from a disagreement with the initial evaluation assigned following the grant of service connection for PTSD. As such, there is no duty to provide further VCAA notice. 38 C.F.R. § 3.159(b)(3). Rather, VA is only required to provide notice of the decision (under 38 U.S.C. § 5104) and a statement of the case (under 38 U.S.C. § 7105). The record reflects that these notices have been provided to the Veteran. VA satisfied the duty to assist the Veteran under the VCAA by gathering relevant records. VA has a duty to assist in obtaining the Veteran's service medical records, VA medical records and other relevant records. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c). The Veteran's service treatment records and VA treatment records have been obtained and are in the claims file. Additionally, VA satisfied the duty to assist the Veteran by providing medical examinations to the Veteran. VA provided PTSD examinations to the Veteran in March 2008 and January 2010. Each examiner interviewed the Veteran and conducted a mental status examination, recorded clinical findings, and documented the Veteran's subjective complaints. As these examinations included sufficient detail as to the severity of the Veteran's service-connected disability, the Board concludes that these examinations are adequate for evaluation purposes. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) The Board finds the record as it stands includes adequate evidence to allow the Board to decide the issue on appeal. Additionally, the Veteran has not identified any relevant evidence that is outstanding. Thus, VA satisfied its duties to notify and assist the Veteran with his claim for an increased rating for his service-connected PTSD. As such, appellate review may proceed without prejudice to the Veteran. II. Merits of the Claim Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 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 (2013). It is not expected 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). This appeal arises from the rating decision in which service-connection was established for PTSD. As such, the Board has considered whether different ratings for different periods of time, based on the facts found, are warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). Criteria for rating disability due to PTSD are found in the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130 (2013). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the individual's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a) (2013). In addition, the evaluation must 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. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely the basis of social impairment. 38 C.F.R. § 4.126(b). The symptoms listed in Diagnostic Code 9411 are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). A 30 percent rating is warranted when the disorder is manifested by 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, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130. A 50 percent rating is warranted where 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; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted where 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; intermittently illogical obscure, or irrelevant speech; 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); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted where 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; memory loss for names of close relatives, own occupation, or own name. Id. The portion of VA's schedule 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. 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. Higher scores correspond to better functioning of the individual. GAF scores ranging between 31 and 40 are assigned when there is some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or 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). See QUICK REFERENCE TO THE DIAGNOSTIC CRITERIA FROM DSM-IV, 46-47 (1994). GAF scores ranging from 41 to 50 reflect serious symptoms (e.g. suicidal ideation or severe obsessional rituals), or any other serious impairment in social or occupational functioning. Id. GAF score from 51 to 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 peers or co- workers). Id. For the period prior to February 26, 2009, the Veteran's PTSD has been evaluated as 30 percent disabling. The pertinent evidence of record, which includes VA mental health outpatient treatment reports, dated from December 2007 to December 2008, as well as a March 2008 VA psychiatric examination, noted symptoms that included problems with memory, self-esteem, nightmares, flashbacks, anger, difficulty with relationships, hyperarousal, avoidance symptoms, depression, flashbacks, and isolation. The March 2008 VA psychiatric examination also noted restricted affect, diminished interest in activities with others and concentration problems. A December 2007 VA treatment record stated the Veteran reported suicidal thoughts in the past but not recently The Veteran reported suicidal issues in a March 2008 statement but this was not mentioned as a current issue in treatment records. GAF scores have ranged from 50 to 58, and the records have indicated the Veteran to be frequently alert and oriented, with logical and goal-directed thought, normal speech and no delusions or hallucinations. The Veteran's mood was described at times as anxious, irritable, and mildly depressed and different combinations thereof. The Veteran's affect was described several times as anxious and mildly dysphoric, and anxious and dysphoric. Regarding social contact, for the period prior to February 26, 2009, the Veteran reported at the March 2008 VA examination that he lived with wife and two children. He also reported that had not made any lasting friends in past 39 years. Occupationally, the Veteran explained that gets angry and overreacts at work. While he stated he has a hard time dealing with people, his psychiatric symptoms have not prevented him from performing his job functions, although he did take leave related to his back problems and his PTSD symptoms. The March 2008 VA psychiatric examiner stated that the Veteran's PTSD manifested with mild to moderate symptoms and caused occasional decrease in work efficiency as well as intermittent periods of inability to perform occupational tasks. In weighing the evidence, the Board finds that the Veteran is not entitled to an evaluation in excess of 30 percent prior to February 26, 2009. Indeed, the Veteran's assigned GAF scores, show a mode of 55, during the period prior to February 26, 2009, which is indicative of moderate symptomatology. Additionally, the evidence reflects that the Veteran was alert and oriented with logical and goal directed thought in the majority of the records. Furthermore, the evidence does not reflect any circumstantial, circumlocutory or stereotyped speech. The record does not reflect evidence of instances related to impaired judgment or impaired abstract thinking. The record does not reflect evidence related to difficulty in understanding complex commands. Some mild memory impairment was noted. The Veteran's representative argues, in the October 2013 informal hearing presentation, that the Veteran's failure to complete household tasks given to him by his wife showed a difficulty in understanding complex commands and impairment of short and long term memory; however, the referenced record later stated that the Veteran reported that he takes walks, cleans up the house and watches television. Thus, it does not appear that these sorts of tasks involve complex commands nor do they involve any long term memory function. The Veteran's representative also argues that the Veteran had to go on medical leave, partly due to his PTSD disability and thus, a higher rating category is warranted. However, the March 2008 VA psychiatric examiner was aware that the Veteran was on leave from his job, in part due to PTSD symptoms, and still characterized the Veteran's PTSD as mild to moderate with occasional decrease in work efficiency as well as intermittent periods of inability to perform occupational tasks. Thus, the criteria for a rating in excess of 30 percent were not met prior to February 26, 2009. The Veteran's PTSD prior to February 26, 2009 more closely approximates occupational and social impairment with occasional decrease in work efficiency or inability to perform occupational tasks. The Veteran had stable relationships with his wife and children and was working, although he missed some time at work. The missed time at work was noted by the VA examiner in March 2008 who found the Veteran's symptoms moderate. The Veteran's PTSD was able to be accommodated at work with intermittent leave under FMLA. For the period from February 26, 2009 to January 7, 2010 the Veteran's PTSD has been evaluated as 50 percent disabling. The pertinent evidence of record, which includes VA mental health outpatient treatment reports, dated from February 2009 to December 2009, as well as a VA traumatic brain injury examination, conducted in September 2009, noted symptoms that included panic attacks, flashbacks, decreased attention, difficulty concentrating, anxiety, depression, and nightmares. GAF scores have ranged from 36 to 55, and the VA treatment records have indicated the Veteran to be frequently alert and oriented, with logical and goal-directed thought. There was no report of hallucinations or delusions or indications of suicidal or homicidal ideation. The September 2009 VA traumatic brain injury examination noted moderately impaired judgment and mild memory impairment. The Veteran's affect was frequently characterized as anxious. Regarding social contact, for the period from February 26, 2009, in February 2009 the Veteran reported that he nearly hit a woman in a convenience store because he felt she cut in front of him and he prematurely left the store. In June 2009, the Veteran reported that when he encounters crowded areas, he fears that he is going to get physical with strangers if they look at him the wrong way. He also stated that he has gone out to the lake to get away. He also asked for the office door during the session to remain open due to anxiety during the treatment session. The Veteran reported, in December 2009, he needed to stay away from everybody this time of year and that he had made his college age daughter cry recently. It appears that the Veteran's PTSD symptomatology increased in severity, from the initial 30 percent rating assigned, based upon the evidence in this case, the earliest that that it can be factually ascertained that the Veteran met the criteria for the 70 percent rating category is February 26, 2009, the date of the VA treatment record. This treatment record also provided a GAF score of 36. Two other GAF scores of 36 were also assigned during this period; however, GAF scores of 55 were also assigned. This period is also characterized by difficulty in social relationships as the Veteran described an incident with his daughter, as noted above. The Veteran's representative contends that Veteran exhibited deficiencies in most area including work, family relations, judgment, thinking and mood during this time period. The Board agrees. The Veteran had serious deficiencies at work (and eventually left his job), has had incidents with his family, has had deficiencies in judgment, such as confrontations with strangers, and difficulty with mood including depression and isolation. Additional pertinent evidence of record, which includes VA mental health outpatient treatment reports, dated from January 2010 to June 2010, as well as a VA traumatic brain injury examination and VA PTSD examination, both conducted in January 2010, noted symptoms that included panic attacks related to intrusive thoughts, poor concentration and attention, depression, anxiety, thoughts of unworthiness and irritability. GAF scores have ranged from 46 to 58, and the records have indicated the Veteran to be frequently alert and oriented. The period was characterized by no delusions or hallucinations. The January 2010 traumatic brain injury VA examination noted no specific cognitive problems with attention, concentration or executive function but did note mild memory impairment. The January 2010 VA PTSD examination noted the Veteran was alert and well-oriented with overall intellectual and memory functioning within normal limits but attention and concentration were poor. The January 2010 VA PTSD examination revealed the Veteran's general appearance and hygiene were normal, but his speech was hesitant. The Veteran reported daily panic attacks related to intrusive thoughts. The January 2010 VA PTSD examiner noted the Veteran had severe impairment in social and vocational functioning and provided a GAF score of 45. The January 2010 VA PTSD examiner stated the Veteran's mood is frequently anxious, irritable and depressed with thoughts of unworthiness. The January 2010 VA examiner reported that the Veteran paced uncomfortably around the interview room. VA treatment records characterized the Veteran's affect as normal, less anxious and restricted at varying times. VA treatment records also indicated the Veteran's attention span was characterized as appropriate several times and once as inappropriate. Regarding social contact, the January 2010 VA PTSD examination revealed that the Veteran has no friends except for one buddy from Vietnam, who is located another state; however, he is married and credits his wife with putting up with his issues for many years. Occupationally, the January 2010 VA PTSD examiner stated that is likely that the Veteran is unemployable due to combat-related PTSD and traumatic brain injury. The January 2010 VA PTSD examiner noted the Veteran had severe impairment in social and vocational functioning and provided a GAF score of 45. Although a 70 percent rating is warranted for PTSD from February 26, 2009, a higher rating than that is not warranted. The evidence has not shown that the disability has resulted in total occupational and social impairment from February 26, 2009. Even the January 2010 VA PTSD examination, which reflected the most severe impairment, did not characterize the PTSD as total. Also, the while the Veteran quit his job due to problems with co-workers, and he generally has an inability to maintain relationships, he nevertheless still has had a relationship with his wife and his children. The types of symptoms that are examples of a total disability rating have not been shown by the evidence, such as persistent delusions, persistent danger of hurting oneself or others, and disorientation to time or place. Therefore, a total (100 percent) rating is not warranted because the Veteran does not have total occupational and social impairment. Also considered by the Board is whether referral is warranted for a rating outside of the schedule. To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2013). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, the Board or the RO must determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. Here, the symptoms of the Veteran's PTSD are contemplated by the schedular criteria. The criteria provide examples of the types and degrees of symptoms for each level of compensation and the Veteran's symptoms do not deviate from those types of symptoms or from the severity of symptoms. Essentially, he has reported sleep disturbances, nightmares, irritability, and difficulty in relationships, among other similar symptoms. These symptoms are consistent with those listed in the schedular criteria. As to the severity of the symptoms, the schedular criteria contemplate disability presenting a total occupational and social impairment, which is a level of disability that is greater than what the Veteran has been found to have. For these reasons, the Board declines to remand this matter for referral for extraschedular consideration. In sum, there is no basis for an initial rating in excess of 30 percent prior to February 26, 2009, for the Veteran's PTSD, but a rating of 70 percent, and no higher, is warranted for the Veteran's PTSD from February 26, 2009. 38 C.F.R. § 4.130, DC 9411 (2013). ORDER Entitlement to an initial evaluation in excess of 30 percent for PTSD is denied prior to February 26, 2009. Entitlement to an initial evaluation of 70 percent, but not higher, for PTSD is granted from February 26, 2009 to the present. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs