Citation Nr: 1340385 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 12-31 572 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUES Entitlement to an initial disability rating for posttraumatic stress disorder (PTSD) in excess of 30 percent prior to June 29, 2012. Entitlement to an initial increased disability rating for PTSD in excess of 50 percent from June 29, 2012. REPRESENTATION Veteran represented by: David Owens, Agent ATTORNEY FOR THE BOARD Michael J. Adams, Associate Counsel INTRODUCTION The Veteran had active service from December 1966 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Anchorage, Alaska. In a July 2012 rating decision, the RO assigned a higher disability rating of 50 percent for PTSD effective June 29, 2012. Accordingly, staged ratings have been created, and the Board has recharacterized this issue as it appears on the first page of this remand, and the Veteran's claim remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993) (in an appeal in which the veteran expresses general disagreement with the assignment of a particular rating and requests an increase, the RO and the Board are required to construe the appeal as an appeal for the maximum benefit allowable by law or regulation). FINDINGS OF FACT 1. Prior to June 29, 2012, the clinical signs and manifestations of the Veteran's PTSD more nearly approximate occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. Beginning June 29, 2012, the clinical signs and manifestations of the Veteran's PTSD more nearly approximate occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. Prior to June 29, 2012, the criteria for an initial rating in excess of 30 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2013). 2. Beginning June 29, 2012, the criteria for an initial increased rating in excess of 50 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). Once service connection has been granted, the context in which the claim initially arose, the claim has been substantiated; therefore, additional VCAA notice under § 5103(a) is not required because the initial intended purpose of the notice has been fulfilled, so any defect in the notice is not prejudicial. Goodwin v. Peake, 22 Vet. App. 128 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Rather, thereafter, once a notice of disagreement (NOD) has been filed, for example contesting a downstream issue such as the initial rating assigned for the disability, only the notice requirements for a rating decision and SOC described in 38 U.S.C. §§ 5104 and 7105 control as to the further communications with the Veteran, including as to what evidence is necessary to establish a more favorable decision with respect to downstream elements of the claim. 38 C.F.R. § 3.159(b)(3). The RO has provided the Veteran the required statement of the case, discussing the reasons and bases for not assigning a higher initial rating and citing the applicable statutes and regulations. Therefore, the Board finds the Veteran has been informed of what is necessary to achieve higher ratings for the service-connected disability at issue. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton, 9 Vet. App. 553 (1996). As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). In this case, the RO obtained the service treatment records, the reports associated with the VA examinations, along with VA treatment records and lay evidence. The Veteran has not reported receiving any private treatment for his PTSD. The Veteran was also offered a hearing before the Board but declined. The Veteran was provided with VA examinations in April 2011 and June 2012 (the reports of which have been associated with the claims file). The Board finds that these examinations are thorough and adequate upon which to base a decision with regard to the Veteran's claim. The VA examiners reviewed the claims file and medical history, and provided the information necessary to evaluate his disability under the applicable rating criteria. Moreover, neither the Veteran nor his representative have objected to the adequacy of the examinations and have not asserted that the Veteran's condition has gotten worse since the June 2012 examination. For the reasons expressed above, the Board finds that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of his claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002). II. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119, 126 (1999), the Court held that in initial rating claims evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of separate ratings for distinct periods of time is required (known as "staged ratings"). See Fenderson, 12 Vet. App. at 126. Service connection for PTSD was granted in the May 2011 rating decision on appeal with a 30 percent initial rating granted, effective from March 4, 2011. Thereafter, in a July 2012 rating decision a 50 percent rating was assigned effective June 29, 2012. The Veteran contends that an initial evaluation exceeding 30 percent is warranted prior to June 29, 2012, and an increased evaluation in excess of 50 percent is warranted thereafter. Considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The evaluation must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a) (2013). Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b) (2013). According to the Diagnostic and Statistical Manual of Mental Disorders, Fourth edition (DSM-IV), a global assessment of functioning (GAF) score reflects the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." DSM-IV, American Psychiatric Association (1994), pp. 46-47; 38 C.F.R. §§ 4.125(a), 4.130 (2013). A GAF score of 31-40 indicates some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or 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; child frequently beats up younger children, is defiant at home, and is failing at school). A GAF score of 41-50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF score of 51-60 represents moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). A GAF score of 61-70 indicates some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well and has some meaningful interpersonal relationships. The Veteran's service-connected PTSD has been rated under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9411, which provides: A 30 percent disability rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; and mild memory loss (such as forgetting names, directions, recent events). A 50 percent disability rating is warranted when the Veteran experiences 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 and social relationships. A 70 percent disability rating is warranted when the Veteran experiences 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 work-like setting); and inability to establish and maintain effective relationships. A 100 percent disability rating is warranted for 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name. 38 C.F.R. § 4.130. The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Veteran was provided a VA examination in April 2011. The claims file was reviewed. The Veteran reported the following symptoms of PTSD: difficulty sleeping; nightmares; shaking; anger; cold sweats; trouble with loud noises; hypervigilance; extreme startle response; and flashbacks. He also reported that he was married and had a good relationship with his wife and 4 children as well as with his siblings. The examination report indicates that the Veteran had not received any mental health treatment for his condition in the past year. The report also reflects that the Veteran had previously experienced alcohol dependence which was likely caused by his PTSD. The mental status examination revealed that the Veteran's affect and mood were normal. His thought process was appropriate with no evidence of delusions or hallucinations. His judgment was not impaired. Grooming and hygiene were appropriate and speech and communication were within normal limits. There was evidence of panic attacks that occurred less than once per week. No evidence of obsessional rituals, suicidal or homicidal ideation was noted. The diagnosis was listed as PTSD and Alcohol Abuse with physiological dependence in sustained partial remission. The examiner listed a GAF score of 60 for the Veteran's PTSD and stated that the alcohol dependence was more likely than not related to the Veteran's PTSD. The examiner noted that the Veteran was not employed and that his PTSD was not the cause of his retirement from work as a Ranger. The examiner opined that the best description of the Veteran's current psychiatric impairment was: psychiatric symptoms cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks although generally the person is functioning satisfactorily with routine behavior, self-care and normal conversation. The examiner noted that the Veteran's PTSD symptoms included depressed mood, anxiety, suspiciousness, panic attacks weekly or less often, and chronic sleep impairment. He also noted that the Veteran was able to maintain effective relationships and family role functioning. A second VA examination was provided in June 2012. The claims file was again reviewed. The Veteran reported the following symptoms of PTSD: difficulty sleeping; nightmares; shaking; anger; cold sweats; trouble with loud noises; hypervigilance; extreme startle response; and flashbacks. The Veteran reported that his marriage was mutually supportive and that he was closest to his 4 children and 9 grandchildren. He also reported that his symptoms had gotten worse and that the previous VA examination had understated his PTSD symptoms. The mental status examination revealed that the Veteran's PTSD symptoms included depressed mood, anxiety, panic attacks that occur less weekly or less often, chronic sleep impairment, mild memory loss, circumstantial speech, difficulty understanding complex commands, disturbances of motivation and mood, difficulty in establishing and maintaining effective relationships, and difficulty adapting to stress. The examiner noted that the Veteran's PTSD symptoms caused occupational and social impairment with reduced reliability and productivity. The examiner also opined that the Veteran's occupational and social impairment was moderate to severe due to PTSD. A GAF score of 50 was provided. The Veteran's wife also submitted a statement in July 2011. In her statement, she asserts that the Veteran is cautious and deliberate. She reports that the Veteran also has long periods of being quiet, deep thoughts for many days at a time and that he will snap out around his children or grandchildren. His wife also reported that the Veteran experienced disrupted sleep. The Veteran has been assigned an initial 30 percent disability rating, effective March 4, 2011, and assigned an initial 50 percent disability rating for his PTSD, effective June 29, 2012. Fenderson v. West, 12 Vet. App. 119 (1999). The Board finds that the evidence appropriately reflects these disability ratings for these periods and that a higher rating is not warranted for either period. After careful consideration, the Board finds that the criteria for a rating in excess of 30 percent prior to June 29, 2012 for PTSD symptoms have not been met. 38 C.F.R. § 4.130, DC 9411. The April 2011 VA examination report reflects that during this period the Veteran experienced difficulty sleeping, nightmares; shaking; anger; cold sweats; trouble with loud noises; hypervigilance; extreme startle response; and flashbacks. The Veteran reported good relationships with his wife, children, and siblings and that he had not sought mental health treatment in the previous year. His psychiatric symptoms associated with PTSD did not result in significant communication or cognitive impairments during this period and a GAF score of 60 was reported, indicating that the Veteran's symptoms were mild to moderate during this period. Moreover, the examiner reported that the Veteran's symptoms caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. As the Veteran's symptoms of PTSD more closely approximate a 30 percent rating, a higher rating is not warranted for this period. The Board also finds that the criteria for a rating in excess of 50 percent from June 29, 2012 for PTSD symptoms have not been met. DC 9411. The June 29, 2012 VA examination report reflects that the Veteran endorsed symptoms of difficulty sleeping; nightmares; shaking; anger; cold sweats; trouble with loud noises; hypervigilance; extreme startle response; and flashbacks. The Veteran reported that he was married and that his marriage was supportive. He stated that he was closest with his 4 children and 9 grandchildren. He also reported feeling detachment and a diminished interest or participation in activities. The Veteran's symptoms included depressed mood, anxiety, panic attacks that occur less weekly or less often, chronic sleep impairment, mild memory loss, circumstantial speech, difficulty understanding complex commands, disturbances of motivation and mood, difficulty in establishing and maintaining effective relationships, and difficulty adapting to stress. No hallucinations, delusions, suicidal or homicidal thoughts, or ritualistic behavior were reported. The examiner reported that the Veteran experienced occupational and social impairment with reduced reliability and productivity and that his symptoms were moderate to severe. These symptoms more closely approximate the criteria for a 50 percent rating. As discussed the Veteran did not report any suicidal or homicidal ideations, ritualistic behavior, inability to establish and maintain effective relationships, illogical speech, or impulse control problems. A GAF score of 50 was reported which is also consistent with a 50 percent rating. III. Extraschedular Consideration 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) (2013). Otherwise, the schedular evaluation is adequate, and referral is not required. Thun, 22 Vet. App. at 116. The schedular ratings assigned for the Veteran's PTSD within the set stages of the appeal period are adequate. Ratings in excess of those assigned are provided for certain manifestations of PTSD, but those symptoms are not present. The diagnostic criteria also adequately describe the severity and symptomatology of the Veteran's PTSD over the appeal period, as higher evaluations exist within the rating criteria which contemplate a more serious level of social and occupational functioning not present in the Veteran during the various stages in question. 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 of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total disability rating based on individual unemployability (TDIU) due to a 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. At the April 2011 VA examination the Veteran reported that he retired from his job as a Ranger. It was also noted that the Veteran had a history of alcohol abuse, related to his PTSD, which negatively affected his social and occupational status. However, the Veteran contended that his unemployment was not due primarily to his mental condition and there is no indication in the record, either from the Veteran or a VA examiner, that the Veteran was "unemployable" due to his PTSD. Accordingly, the Board concludes a claim for TDIU has not been raised. ORDER Entitlement to an initial disability rating for PTSD in excess of 30 percent prior to June 29, 2012, is denied. Entitlement to an initial staged disability rating for PTSD in excess of 50 percent from June 29, 2012, is denied. ____________________________________________ U.R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs