Citation Nr: 1340443 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 09-37 476 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an initial disability evaluation in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD L. M. Barnard INTRODUCTION The Veteran had active service from June 1967 to June 1969. This appeal arose before the Board of Veterans' Appeals (BVA or Board) on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which granted service connection for PTSD, with a 30 percent disability rating. In December 2011, the Board increased the evaluation assigned to the service-connected PTSD to 50 percent, but no higher. The RO issued a rating action in March 2012 that promulgated the Board's grant of a 50 percent disability evaluation. The Veteran appealed this evaluation to the Court of Appeals for Veterans Claims (CAVC); in May 2013, CAVC issued a Memorandum Decision that vacated the Board's 2011 decision and remanded the case back to the Board for reconsideration of the appeal consistent with its opinion. The appeal originally included a claim for a total disability evaluation based upon individual unemployability (TDIU). However, this issue was remanded by the Board as part of its December 2011 decision. This issue is still in remand status and is not before the Board for appellate consideration at this time. FINDING OF FACT During the entire appeal period, the Veteran's PTSD has been manifested by intrusive recollections; flashbacks; difficulties with sleep and distressing nightmares; avoidance of reminders; an exaggerated startle response; suspiciousness and guarding; detachment from others; irritability and anger outbursts; hypervigilance; panic; and impoverished, intermittent illogical speech, all resulting in deficiencies in most areas. CONCLUSION OF LAW The criteria for an initial evaluation of 70 percent, but no more, for PTSD have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA This appeal arises from disagreement with the initial evaluation following the grant of service connection for PTSD. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA has a duty to assist the Veteran in developing his claim. This duty includes assisting the Veteran in obtaining any outstanding records of identified VA or private medical treatment relevant to his claim, and affording him an examination when appropriate. With regard to records, VA has associated with the claims folder the Veteran's service treatment records and pertinent VA medical records. The record does not indicate that the Veteran received treatment for PTSD from VA. It appears he had treatment for PTSD through his private doctor. Records of such treatment are associated with the claims file. The Veteran has not indicated that there exist any records of VA or private VA medical treatment relative to this claim that are not already in the claims file. The Veteran has also been provided formal VA examinations in April 2007 and in April 2012. Significantly, the Veteran has not identified, and the record does not otherwise indicate, that any additional existing evidence is necessary for a fair adjudication of the claim that has not been obtained. While the Veteran has stated in his brief to CAVC that VA had failed to obtain records from Dr. J., the Board notes that in August 2013, he indicated that there was no further evidence to be submitted and that adjudication of the appeal should be undertaken. Clearly, the Veteran was aware that these records were not part of the claims folder, but he has, by indicating that there is no other pertinent evidence to obtain, conceded that they are not needed in order to fairly adjudicate his claim. Moreover, the Board is substantially granting the benefit requested, that is, an increase to a 70 percent disability evaluation. 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). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). APPLICABLE LAWS AND REGULATIONS Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian life. Generally, the degree of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity to the several grades of disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate Diagnostic Codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. While the Veteran's entire history is reviewed when making a disability determination, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, at the time of an initial rating, as is the situation in this case, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, 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 would be necessary. The VA rating schedule provides that psychiatric disorders other than eating disorders, including PTSD, are to be evaluated according to a General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Under that formula, a 30 percent rating is warranted for 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 rating is warranted for 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-term and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating may be assigned 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; obsessed 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 work-like setting); inability to establish and maintain effective relationships. 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. The symptoms and manifestations listed under the above rating formula are not requirements for a particular evaluation, but are examples providing guidance as to the type and degree of severity of these symptoms. Consideration also must be given to factors outside the rating criteria in determining the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In evaluating psychiatric disabilities, the Board has adopted the Diagnostic and Statistical Manual of Mental Disorders, 4th ed., American Psychiatric Association (DMS-IV). That manual includes a Global Assessment of Functioning (GAF) scale reflecting psychological, social and occupational functioning on a hypothetical continuum of mental illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996)(citing DSM-IV). A 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 score of 51-60 indicates 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 peer or coworkers). A score of 61 to 70 indicates some mild symptoms (e.g. depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning, but generally functioning pretty well with some meaningful interpersonal relationships. See Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Washington, DC, American Psychiatric Association, 1994. FACTUAL BACKGROUND AND ANALYSIS The Veteran, in his November 2008 notice of disagreement, indicated that he disagreed with the initial 30 percent disability evaluation assigned to his PTSD. He stated that his GAF Score of 40 and the findings of major impairment related to his PTSD symptoms warranted the assignment of either a 70 or 100 percent disability evaluation. A review of the record indicates that the Veteran had not received regular treatment for his PTSD from VA. However, a June 16, 2009 VA social work record indicated that his wife reported that he was anxious and easily angered. He was also isolating himself from others. On this same date, the Veteran reported that he was having marital problems and that he was seeking psychiatric treatment from a private provider. He denied depression, as well homicidal or suicidal ideation. The examiner commented that he appeared to be in a good mood. A February 2009 depression screening was negative. The Veteran reported seeing a private Licensed Psychological Associate, L.G., on several occasions. On December 5, 2005, he reported numerous PTSD symptoms, including flashbacks, traumatic nightmares, distress triggered by exposure to reminders of past trauma, avoidance of discussions about his service, detachment from others, hypervigilance, and an exaggerated startle response. He reported that he had used alcohol in the past to blunt his symptoms; this had affected both his personal and professional life. During the examination, he was cooperative and was soft spoken. He was oriented to person, place, and time, but had a dysphoric mood and a restricted affect. His thoughts displayed a linear process and his insight and judgment were fair. There was no indication of either homicidal or suicidal ideation. L.G. further commented that the Veteran's PTSD symptoms had significantly interfered with his social, work, and personal life. His hypervigilance had prevented him from being consistently productive and his difficulties with memory and concentration adversely affected his ability to learn new skills. His ability to sustain positive work relationships was severely compromised. She assigned his symptoms a GAF Score of 40. In treatment reports from December 29, 2008 and April 16, 2009, L.G. assigned the Veteran's PTSD symptoms a GAF Score of 38. She noted that his symptoms significantly interfered with all areas of his life, personal, social and work. She felt that his chances of recovery were poor. On June 25, 2009, she noted that the Veteran was having problems with co-workers, as well as marital discord and worsening issues with both memory and concentration. The Veteran was afforded a VA examination in April 2007. He indicated that he was not receiving any outpatient treatment for his PTSD and that he had never been hospitalized. In fact, he denied any symptoms over the preceding year. He had been married to his second wife for 6 years and had good relations with his family. The mental status examination noted that he was clean and well groomed. He appeared to be tense and his speech was impoverished, slow and hesitant, although it was clear and coherent. He had been out of work for the past 6 months. He was oriented and attentive. The examiner noted that the Veteran's thought processes were evasive and that he had a paucity of ideas; however, the content was unremarkable. He displayed no hallucinations or delusions. He displayed enough insight to be aware that he had a problem. Sleep impairment was reported, but he had appropriate behavior. He described having ritualistic behavior, noting that he checked his surroundings at night. He denied panic attacks and stated he had non-specific homicidal ideation (reportedly due to his training). However, he had good impulse control and there was no evidence of any violent behavior. His memory was moderately impaired. The Veteran was also noted to have recurrent intrusive thoughts of past trauma which also included dreams. He reported avoidance of reminders and he had decreased interest in activities. He had increased arousal that resulted in trouble falling and staying asleep, irritability with anger outbursts, trouble concentrating, hypervigilance, and a startle response. Following this examination, he was diagnosed with an anxiety disorder, not otherwise specified and a dysthymic disorder. He was assigned a GAF Score of 60. The examiner further determined that the Veteran had been unable to give a clear and consistent presentation of symptoms that could be directly related to a specific trauma. The examiner found an impression of reported anxiety and depressive symptoms that were not clearly related to PTSD. The examiner further found no total occupational and social impairment due to PTSD and specifically indicated that PTSD signs and symptoms did not result in deficiencies in judgment, thinking, family relations, work, mood, or school. The examiner did find reduced reliability and productivity, which the Veteran reported to be due to reduced socialization and increased irritability due to readjustment problems. The Veteran was also provided with a psychological assessment in conjunction with a claim for Social Security Administration (SSA) benefits. A mental residual functional capacity assessment was performed by a Dr. K.O.N in August 2009. It was concluded that the Veteran was not significantly limited in his ability to remember locations, work-like procedures, or short and simple instructions, or in his ability to carry out short and simple instructions, perform activities within a schedule, maintain regular attendance and be punctual, or in his ability to sustain an ordinarily routine without special supervision, and make simple work-related decisions. The Veteran was found to be moderately limited in the ability to remember and understand detailed instructions and to carry out detailed instructions. He was also found to be moderately limited in the ability to maintain attention and concentration for extended periods, coordinate with or be in proximity to others without being distracted by them, complete a normal workday and week without interruptions from psychologically based symptoms, and perform at a consistent pace without an unreasonable number and length of rest periods. This evaluation also found that the Veteran was not significantly limited in his ability to ask simple questions, to request assistance or maintain socially appropriate behavior, to adhere to basic standards of neatness and cleanliness, to be aware of normal hazards and take appropriate precautions, and to set realistic goals or make plans independently of others. It was further determined that the Veteran had a moderately limited ability to interact appropriately with the general public, to accept instructions and respond appropriately to criticism, to get along with coworkers or peers without distracting them or exhibit behavioral extremes, to respond appropriately to changes in the work setting, and to travel to unfamiliar places or use public transportation. Overall, the Veteran was found able to understand, retain and follow simple instructions, and to sustain attention and concentration sufficiently to perform simple work tasks. He would have some difficulties relating to peers and accepting criticisms from supervisors, but he was able to tolerate the stress and pressure associated with day-to-day work activities in a non-demanding low social setting. It was determined that the Veteran was considered mentally capable of simple basic work skills and tasks in a low stress, low demand setting that does not require social interaction in the performance of job duties. Dr. K.O.N. also performed a psychiatric review technique in August 2009 and found that the Veteran had PTSD. He had mild restriction in activities of daily living and moderate difficulties in maintaining social functioning and concentration, persistence, or pace. As to the Veteran's credibility, Dr. K.O.N. found allegations of impairment due to PTSD were partially credible, but not fully consistent with objective findings. Again, the Veteran was found to be mentally capable of simple basic work skills and tasks in a low stress, low demand setting that did not require social interaction in the performance of job duties. As part of the SSA claim, the Veteran's wife provided a statement in which she noted the Veteran's sleep disturbance and his preference to pursue hobbies and interests without her. She further noted his refusal to attend church, as well as his isolation from others. She commented that he was unable to handle change or stress. The Veteran was provided another VA examination in April 2012. The examiner noted that the Veteran's overall psychological issues had increased in severity, as had his psychosocial maladjustment. The Veteran stated that he was separated from his wife, who thinks he is too irritable and isolated. He denied having any hobbies or friends. He did attend church regularly but would immediately leave following the service. He would read and either watch television or listen to the radio. He indicated that he had taken an early retirement (the hard floors had aggravated his leg disorder); the examiner commented that he was employable but that he had moderate occupational impairment. The examiner elaborated that the Veteran would best be able to handle a job that was isolated with limited cognitive demands and minimal psychological stress. The Veteran admitted, other than a few sessions with a psychologist a couple of years before, he had had no treatment. He reported the following symptoms: recurrent intrusive, distressing recollections; distressing dreams; avoidance of reminders; decreased interest in activities; a restricted range of affect; a sense of a foreshortened future; difficulty falling asleep; irritability/outbursts of anger; trouble concentrating; hypervigilance; and a startle response. The mental status examination noted a depressed mood with anxiety; suspiciousness; panic attacks more than once a week; sleep impairment; mild memory loss; flattened affect; speech that was intermittently illogical, obscure or irrelevant; disturbances in motivation and mood; trouble establishing and maintaining social and work relationships; and obessional rituals that interfere with routine activities. The diagnosis was PTSD and a GAF Score of 52 was assigned. After reviewing the entire record, and after providing the Veteran the benefit of the doubt, the Board finds that there is sufficient competent evidence of record to award an initial evaluation of 70 percent to the service-connected PTSD. This evidence tends to suggest that the Veteran's symptoms have resulted in deficiencies in most areas of his life. He suffers from continual irritability with outbursts of anger, and he tends to self-isolate. His speech has been described as "impoverished," hesitant, as well as occasionally illogical and irrelevant. He suffers from difficulties with his sleep, primarily related to recurrent, distressing nightmares. His concentration and memory are both impaired to the extent that his ability to learn new skills is adversely affected. He has consistently displayed a constricted, flattened affect, as well as a depressed mood with anxiety. He is hypervigilant and displays ritualistic behavior (checking his surroundings on a nightly basis). While it was commented that he was employable, his symptoms are serious enough that he could only work in a minimally stressful environment that made limited cognitive demands. His private psychologist had consistently noted that the Veteran's PTSD symptoms had severely interfered with all areas of his life, personal, social and work. He persistently had discord on the job and had marital problems, leading to a separation from his wife. The Board has considered the various and very different GAF Scores assigned by the Veteran's private psychologist and the VA examiners. However, it is determined that the Veteran's actual symptoms provide the most accurate description of the degree of severity of his PTSD. See 38 C.F.R. § 4.126(a). When the record is considered in its entirety, and despite some inconsistencies between the report findings and the Veteran's statements, the Board finds that the 70 percent disability rating best describes the extent of the Veteran's symptomatology resulting from his service-connected PTSD. However, the Board does not find that a 100 percent schedular evaluation is warranted in this case. His symptoms, while serious, do not rise to the level contemplated by the 100 percent evaluation. For example, there is no suggestion that the Veteran has total occupational and social impairment due to his PTSD. In this regard, both the SSA and the most recent VA examiner had found that, while the Veteran had employment difficulties, he could engage in some employment that had low psychological stress and low cognitive demands. While he denied having friends, he did admit to attending church on a regular basis, which argues against total social impairment. His thought processes are not grossly impaired and he has consistently denied having any delusions or hallucinations. The record does indicate that he is irritable and can have outbursts of anger; however, his behavior has never been described as grossly impaired, nor is there any suggestion that he is a danger to himself or others. He has also always been fully oriented and able to maintain personal hygiene. Taken as a whole, his symptoms simply do not rise to the level of total impairment; thus, a 100 percent disability is not warranted. Extraschedular consideration The Board has also considered the potential application of various other provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and is therefore found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary of Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected PTSD is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. There is no evidence in the medical records of an exceptional or unusual clinical picture. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted. ORDER Entitlement to an initial evaluation of 70 percent, but no higher, for the service-connected PTSD is granted. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs