Citation Nr: 1340455 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 10-29 238 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement at an increased rating in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Virginia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Marne Marotta, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1965 to April 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. This matter was previously before the Board in April 2013, when it was remanded for further development. Review of the record indicates substantial compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDING OF FACT The Veteran's PTSD symptoms have most nearly approximated occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Veteran's PTSD symptoms have not manifested as reduced reliability and productivity or difficulty in establishing and maintaining effective work and social relationships CONCLUSION OF LAW The criteria for an increased rating in excess of 30 percent for the Veteran's service-connected PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In an increased rating claim, VA must notify the Veteran to submit evidence showing (1) a worsening or increase in severity of the disability and (2) the effect that worsening has on the claimant's employment. Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). The duty to notify was satisfied via a letter sent to the Veteran in March 2009. The duty to assist has also been satisfied. VA has obtained the Veteran's VA medical records and private treatment records identified by the Veteran as relevant to the appeal. The Veteran was also afforded VA examinations in March 2009 and June 2013. The VA examinations are sufficient, as the examiners considered the Veteran's statements and provided explanations for the opinions stated as well as the medical information necessary to apply the appropriate rating criteria. The Veteran has not identified any other relevant evidence that has not been requested or obtained. The Board finds that VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on his claim at this time. II. Principles for Rating Disabilities Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. Fenderson v. West, 12 Vet. App. 119 (1999). III. Rating Criteria for PTSD The Veteran's PTSD is currently evaluated as 30 percent disabling under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9411, which directs that the General Rating Formula for Mental Disorders be applied. The General Rating Formula for Mental Disorders provides that a 30 percent rating is assigned where 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, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted if the evidence establishes there is occupational and social impairment, with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation 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); and inability to establish and maintain effective relationships. A 100 percent evaluation 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; and memory loss for names of close relatives, own occupation, or own name. When determining the appropriate disability evaluation to assign, the Board's primary consideration is a veteran's symptoms, but it must also make findings as to how those symptoms impact the Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442; Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran's impairment must be "due to" those symptoms, a Veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score, which is defined by DSM-IV as number between zero and 100 percent, that represents 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. Under DSM-IV, GAF scores from 51 to 60 are indicative of moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Scores from 41 to 50 reflect 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). IV. Factual Background During a March 2009 VA examination, the Veteran reported that he had been working for a construction company mostly driving and transporting materials and equipment. The Veteran indicated that he quit because he was getting less work and was irritated by a female coworker. The Veteran obtained another job with similar duties. The Veteran reported showing up regularly and doing his job as scheduled. The Veteran reported being married for 11 years, but that his relationship with his wife was "so so" because they were having financial difficulties. The Veteran reported getting along with his son and sister, but being more distant with his daughter. The Veteran reported not getting along with his brother. The Veteran reported doing 90 percent of the grocery shopping and cooking. The Veteran denied substance abuse problems, assaultive behavior or suicide attempts. The examiner indicated that the Veteran was easily frustrated and somewhat dysphoric primarily related to his health problems. The Veteran did not have impairment of thought processing or communication. The Veteran did not have hallucinations or delusions. The Veteran did not show obsessive compulsive behavior. The Veteran reported ongoing problems with anxiety, irritability, and low frustration tolerance. The Veteran noted that he was able to enjoy things, but that he could not do as much as he wanted to because of his health. The Veteran reported that his sleep was poor, with nightmares occurring 3 to 4 times per week. The Veteran had a GAF score of 57. In his July 2010 substantive appeal, the Veteran indicated that he believes that he "shows signs of occupational and social impairment with reduced reliability and productivity, has stereotyped speech, panic attacks more than once a week, difficulty in understanding complex commands, impairment of both short and long term memory, impaired judgment and abstract thinking, disturbances of motivation and mood, difficulty maintain effective work and [social] relationships." During a June 2013 VA examination, the Veteran indicated that he and his wife divorced. The Veteran was vague about the reasons for his divorce, but indicated that his ex-wife would not travel with him or go places. The Veteran reported that his son lives with him to help with the Veteran's COPD and that they get along. The Veteran reported that he has been dating a woman for a couple of years. The Veteran indicated that he gets along with her and sees her almost every day. The Veteran reported that he goes fishing with his girlfriend on occasion and that he enjoys spending time with his grandkids. The Veteran reported that he sometimes takes his grandkids places and that he runs errands. The examiner indicated that the Veteran "seems to maintain interest[,] motivation and enjoyment in things, including a lot of recent travelling." The Veteran noted that aside from his girlfriend, he does not have close friends but that he sometimes sees people he knows. The Veteran reported occasionally visiting with other Veterans who get together and that he goes to church occasionally. The Veteran's symptoms included depressed mood, anxiety, and chronic sleep impairment. The Veteran reported recurrent war nightmares twice a week, difficulty falling or staying asleep, irritability or outbursts of anger, hypervigilance, and an exaggerated startle response. The examiner indicated that the Veteran's eye contact and behavior were appropriate, his memory was intact, and that he did not have delusions or hallucinations. The Veteran reported no panic attacks or suicidal or homicidal ideation. The examiner indicated that the Veteran's PTSD symptoms were "bothersome but not severe and would not significantly negatively impact employment." The examiner found that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran had a GAF score of 60. V. Analysis Having carefully considered all the evidence of record in light of the applicable rating criteria, the Board finds that the overall symptomatology and level of impairment have most nearly approximated those indicative of a 30 percent rating. An increased evaluation in excess of 30 percent is not warranted. 38 C.F.R. § 4.7. Examiners have noted that the Veteran has experienced recurrent unpleasant memories of traumatic events, interrupted sleep and some degree of voluntary social isolation. During his March 2009 VA examination, the Veteran reported having good relationships with his son and sister. The examiner noted that the Veteran suffered from anxiety, irritability, and low frustration tolerance. During his June 2013 VA examination, the Veteran reported having a good relationship with his son, girlfriend and grandkids. The examiner noted no abnormal mental trends involving delusions or hallucinations and indicated that the Veteran's thought content was devoid of homicidal and suicidal ideation. The Veteran reported recurrent war nightmares twice a week, difficulty falling or staying asleep, irritability or outbursts of anger, hypervigilance, and an exaggerated startle response. GAF scores assigned in March 2009 and June 2013 (57 and 60) are both indicative of moderate occupational and social impairment and are consistent with no more than the 30 percent rating assigned. A 50 percent rating is not warranted because the evidence does not show reduced reliability and productivity or difficulty in establishing and maintaining effective work and social relationships. The Veteran described his relationship with his girlfriend as positive, indicated that he has a good relationship with his son, and stated that he occasionally gets together with other Veterans or goes to church. Even considering the Veteran's statement that he has difficulty understanding complex commands, is forgetful, has panic attacks several times a week and has difficulty maintaining effective work and social relationships; the record contains no evidence that these symptoms have reduced the Veteran's reliability and productivity. And even if the Veteran has had difficulty maintaining effective relationships, there is no evidence of disruptive behavior of a degree that would impair routine activities. In addition, the Veteran has indicated that he has a good relationship with his girlfriend, son, and grandkids. The Veteran has also shown an interest in travelling, fishing, and concerts. As the criteria for the next, higher, 50 percent rating are not met, it logically follows that the criteria for an even higher rating-70 or 100 percent-are likewise not met. Therefore, the Board finds that the Veteran's PTSD does not more nearly approximate a rating in excess of 30 percent. The Board has considered whether staged ratings are appropriate for the Veteran's service-connected PTSD; however, the Board finds that his symptomatology has been essentially stable throughout the appeal. Therefore, assigning staged ratings for such disability is not warranted. V. Other Considerations The discussion above reflects that the rating criteria reasonably describes and contemplates the severity and symptomatology of the Veteran's service-connected psychiatric disability. The Veteran's disability is manifested by impairment in social and occupational functioning. The rating criteria contemplate these impairments; hence, referral for consideration of an extraschedular rating is not warranted. Thun v. Peake, 22 Vet. App. 111 (2008). The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) has been raised. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Veteran has an individual unemployability rating related to his service-connected ischemic heart disease. In summary, the Board finds that the Veteran's PTSD symptoms result in no more than 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, irritability, suspiciousness and chronic sleep impairment. Accordingly, the Board concludes that reasonable doubt does not apply, and the criteria for a rating in excess of 30 percent for the Veteran's PTSD have not been met. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An increased rating in excess of 30 percent for PTSD is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs