Citation Nr: 1340704 Decision Date: 12/10/13 Archive Date: 01/17/14 DOCKET NO. 13-14 528 ) DATE DEC 10, 2013 On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an initial rating in excess of 50 percent for the service-connected posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD J. Turner, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1966 to September 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. The Veteran's Virtual VA file has been reviewed and while there are additional treatment records, the records are not relevant to the present claim. FINDINGS OF FACT 1. During the appeal period, the Veteran's symptoms of PTSD have not been manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 2. The schedular criteria are adequate to rate the Veteran's PTSD. CONCLUSION OF LAW The criteria for an disability evaluation in excess of 50 percent for the service-connected PTSD have not been met or more nearly approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.125, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Procedural Duties VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claims for an increased rating for PTSD. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). -2- A. Duty to Notify When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Id. To satisfy the first notice element for an increased-compensation claim, 38 U.S.C.A. § 5103(a) compliant notice must notify the claimant that, 1) to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability, 2) a disability rating will be determined by applying relevant Diagnostic Codes based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment, and 3) provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 107 (2010). A letter dated July 2009 fully satisfied the duty to notify provisions as to all elements prior to initial adjudication of the Veteran's increased rating claim in August 2009. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). B. Duty to Assist The Board also concludes VA's duty to assist in obtaining records has been satisfied. The Veteran's service treatment records and VA medical records are in the file. The Veteran has not identified any private medical records. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state -3- of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2013). The RO provided the Veteran appropriate VA examination in November 2011. The Veteran has not reported receiving any recent treatment specifically for this condition (other than at VA and the private treatment mentioned above, records of which are in the file), and there are no records suggesting an increase in disability has occurred as compared to the prior VA examination findings. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disorder since he was last examined. 38 C.F.R. § 3.327(a). The examination report provides sufficient evidence to apply the ratings schedule and to determine that the schedular rating is adequate to rate the disability. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (mere passage of time does not require VA to provide a new medical examination); see also VAOPGCPREC 11-95. The November 2011 VA examination report is thorough and supported by VA outpatient treatment records. The examination in this case is an adequate basis on which to adjudicate the claim. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). II. Increased Rating The Veteran contends that he is entitled to a rating in excess of 50 percent for his service-connected PTSD. For the reasons that follow, the Board concludes that an increased rating is not warranted. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her -4- 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 occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2013); 38 C.F.R. § 4.1 (2013). 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 to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2013). However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2013). The Veteran's service-connected PTSD is evaluated as 50 percent disabling under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Under the provisions for rating psychiatric disorders, a 50 percent disability rating requires evidence of the following: 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 -5- of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. The criteria for a 70 percent rating are: 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 a worklike setting; inability to establish and maintain effective relationships.) The criteria for a 100 percent rating are: 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. In addition to evidence regarding the Veteran's symptomatology and its impact on his social and occupational functioning, a Global Assessment of Functioning (GAF) score is another component considered to determine the entire disability picture for the Veteran. The GAF score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness" from 0 to 100, with 100 representing superior functioning in a wide range of -6- activities and no psychiatric symptoms. Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (quoting DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 32 (4th ed. 1994)). According to DSM-IV, a score of 61-70 illustrates "[s]ome 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, has some meaningful interpersonal relationships." Id. A score of 51-60 represents "[m]oderate 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 coworkers)." Id. In September 2006, the Veteran received treatment at a VA Medical Center ("VAMC") for his PTSD. He reported a history of homelessness for the past four years, stated he had a girlfriend of the last thirty years, that he enjoyed movies, pool, and had some friends. The Veteran reported minimal problems with sleep, and stated that he believed he was "doing well" with PTSD issues. An April 2007 treatment record shows that the Veteran was not having nightmares, but did have occasional intrusive memories. He stated "every once in a while" he jumps easily or is startled by loud noises. He denied depression and hallucinations, and stated his sleep was on and off, but that he got his rest nevertheless. The Veteran had no suicidal ideation. He was calm, coherent, and cooperative. In April 2008 the Veteran underwent a VA examination. He reported symptoms of depression, as well as intrusive thoughts, flashbacks, nightmares, and avoidance of war movies. He said he experienced short-term memory problems, as well as insomnia and exaggerated startle response. The examiner noted the Veteran was unshaven and thin. He had poor eye contact, was fidgeting, and had slow speech. He was cooperative, had a range of affect that was full and appropriate to content, was well organized, goal directed, and had thought content that was intact. He had no present suicidal or homicidal ideation. He was oriented to time, place and person, and able to manage financial affairs and take care of daily living skills. -7- In a May 2008 statement, the Veteran asserted that he had poor short term memory, emotions that went "up and down," trouble sleeping, and trouble controlling his emotions. He stated that if he did not try to control his emotions, he would have to later ask for forgiveness from those he yelled at or offended. In a separate statement submitted by the Veteran also in May 2008, he said it was hard "staying on the right track," and not "thinking of ending it all." In an August 2009 statement, the Veteran again mentioned trouble sleeping at times, and forgetfulness. He stated he suffered from depression, and was fearful of being alone in the future. An August 2009 VA examination indicates that the Veteran was living with family, and maintaining a close relationship with his son and granddaughter, and said he had a few close relationships. He reported that he retired in 2005, and then performed "odd jobs" for friends, though this had ceased about one year prior to the exam because of medical complications related to his eye. He felt those medical problems prevented him from working. These medical problems and a present inability to function physically as well he had as in the past, he felt, were mainly the cause of the depression he experienced a few times a month. The Veteran stated he had trouble sleeping, and was able to sleep only about one hour at a time for a total of four hours per night. He also described problems with his short-term memory, often losing things and not remembering where he put them. He denied combat-related nightmares of flashbacks, hypervigilance or startle response. He was appropriately dressed and groomed, with full and appropriate affect, linear and logical thought processes, and good insight. The Veteran was able to spell words backwards, was oriented to time, place and person, and his mood was noted as "good." Regarding the Veteran's impulse control, the examiner noted the Veteran denied any physical altercation, though he reported some mood irritability. The Veteran stated his appetite was poor, and that he did not generally feel hungry. He denied panic attacks, as well as suicidal and homicidal ideation. He stated he was capable of managing his own finances, and specifically denied any acute psychiatric distress. The examiner found the Veteran did not appear to be struggling with symptoms of PTSD, and further commented that the Veteran's complaints were related mostly to his ongoing physical health issues. The examiner assigned a GAP score of 55. -8- In a July 2010 statement, the Veteran again reported trouble with his memory. VA examination records from November 2011 reflect that the Veteran is currently unemployed after losing his job with a cleaning company, where he worked from 2007 to 2009. He stated he lost his job due to a "bad economy," but reported no problems at that job. He stated that he is currently living with a cousin, and searching for permanent housing. He reported that relationships with his son and granddaughter are "great, couldn't be better," and that he has an ongoing romantic relationship that is without problems. He stated he had friends, and denied any problems in these relationships. The Veteran complained of difficulty sleeping and occasional situational depression. He reported mild memory loss that included forgetting names, directions or recent events. Specifically, the Veteran said he forgot his PIN, and where he had left items. He also reported that he no longer engaged in some activities that he previously enjoyed such as playing cards and shooting pool but attributed this to his age and visual impairment. He denied current mental health treatment or persistent avoidance of stimuli associated with the trauma. The examiner did not note any severe memory loss, flattened affect, or circumstantial, circumlocutory or stereotyped speech. Further, the examiner did not find impaired judgment, difficulty in understanding complex commands, or speech that was intermittently illogical, obscure, or irrelevant. The examination did not report impaired abstract thinking, gross impairment in though process or communication, or disturbance in motivation and mood. There was no finding of difficulty in establishing and maintaining effective work and social relationships, including obsessional rituals which interfere with routine activities. The examiner indicated that a mental condition had been diagnosed previously, but symptoms were not presently severe enough to interfere with occupational and social functioning or to require continuous medication. The examiner found the Veteran did not presently meet the criteria for PTSD. The examiner stated that similar to the previous examination in August 2009, the Veteran did not endorse symptoms of PTSD with the exception of sleep impairment. He did not meet the criteria for PTSD at that time. His psychological symptoms remained the same, including problems with sleep, occasional depressed -9- mood and memory difficulties. The examiner noted that the Veteran did not report impairment with regard to social or occupational functioning. In his May 2013 VA Form-9, the Veteran again mentioned persistent problems with "part-time" sleep, poor memory, and periods of depression. He also stated he suffered from mood swings. The Board finds that the Veteran's PTSD does not rise to the level of occupational and social impairment with deficiencies in most areas, as required for a higher disability rating of 70 percent under Diagnostic Code 9411. As previously stated, a 70 percent rating is warranted when 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; 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 worklike setting; inability to establish and maintain effective relationships.). Presently, the evidence does not show these symptoms, or symptoms that indicate the level of occupational and social impairment associated with a 70 percent rating. The evidence shows that deficiencies in work, family relations, judgment, and thinking are absent. Specifically, the examiners in August 2009 and November 2011 found the Veteran had no obsessive rituals, was dressed and groomed appropriately, had no spatial disorientation, and was able to establish and maintain effective relationships, with family members and with friends. Though the Veteran is presently unemployed, he credited this to a poor economy, as well as his physical disabilities. In the April 2008, August 2009, and November 2011 examinations and September 2006 VA treatment, the Veteran exhibited no difficulty in understanding complex commands, and had no illogical, obscure, or irrelevant speech. He reported intermittent periods of depression but continued to function independently, appropriately, and effectively. Further, the August 2009 examiner attributed the -10- Veteran's depression to his physical disabilities. The Veteran also endorsed forgetfulness, but was repeatedly found to have an intact memory. The Veteran made a possible reference to suicidal ideation in his May 2008 statement where he stated it was hard "staying on the right track," and not "thinking of ending it ail"; however, there is no other mention of suicidal thoughts, and the Veteran specifically and consistently denied suicidal and homicidal ideation in all examinations. The Veteran also noted that he occasionally struggled to control his emotions, and he would have to later ask for forgiveness from those he yelled at or offended. Though this could be characterized as lack of impulse control, it does not rise to the level of severity required under the diagnostic code, which describes something akin to unprovoked irritability with period of violence. Here, the Veteran stated in his August 2009 exam that he had some irritability but no physical altercations. Overall, these symptoms do not suggest occupational and social impairment with deficiencies in most areas, including work, family relations, thinking, and mood, which is the level of impairment consistent with a 70 percent rating. The Board further finds that the assigned GAF score is not consistent with a 70 percent rating. In April 2009, the VA examiner assigned a GAF score of 55. A GAF score of 51-60 represents "[m]oderate 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 coworkers)." This symptomatology is fully considered by the currently assigned 50 percent disability evaluation. Therefore, the GAF scores of record fail to demonstrate that the Veteran is entitled to an increased evaluation of 70 percent at any time during the pendency of his claim. As noted previously, the symptoms listed for the rating criteria for 70 percent are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify" a 70 percent rating. Mauerhan, 16 Vet. App. 436,442 (2002). The focus of the analysis is on whether the evidence presented supports the level of impairment on occupational and social functioning contemplated by a 70 percent rating, rather than on how many of the listed -11- symptoms the Veteran exhibits. Mauerhan, 16 Vet. App. 436,442 (2002); Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, Diagnostic Code 9411. The examiners' dual assessments that the Veteran did not meet the requirements of PTSD, along with the GAF score of 55 is against a finding that the Veteran's PTSD symptomatology and deficiencies more closely approximate those necessary for a 70 percent evaluation. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411; see also Vazquez-Claudio, supra. The Veteran does not exhibit symptoms of PTSD that demonstrate social and occupational functioning. Though the Veteran has mentioned some sleep, memory and mood disturbances, he reports that is he has a healthy relationship with family members, and maintains friendships as well as a romantic relationship. He further asserted that his unemployment and depression were largely due to his physical disabilities. For these reasons, the Board finds that the Veteran does not have occupational and social impairment, with deficiencies in most areas due to his PTSD, and a 70 percent evaluation for the service-connected PTSD is not warranted. Id.; 38 C.F.R. § 4.3; Fender son, supra. Therefore, the Veteran is not entitled to an increased rating under 38 C.F.R. § 4.130. If the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total disability rating due to individual unemployability (TDIU) as a result of that disability is warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board finds that TDIU is not raised by the record. Though the Veteran mentioned that he has been unemployed for several years, he stated that he had no problems with his job while employed, and attributed his unemployment to a bad economy. The evidence of record fails to show that the Veteran is unable to secure or follow a substantially gainful occupation as result of his service-connected PTSD disability. Therefore, the Board finds that no further consideration of a TDIU is warranted. Id. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2013). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. -12- Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. The Board finds that the symptomatology and impairment caused by the Veteran's PTSD is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria, expressed in Diagnostic Code 9411, specifically provide for disability ratings based on a combination of history and clinical findings. In this case, considering the lay and medical evidence, the Veteran's PTSD has manifested sleep impairment, mild memory impairment, and occasional episodes of depression and mood swings. These symptoms and areas of impairment are either explicitly part of the schedular rating criteria or are "like or similar to" those symptoms and impairment explicitly listed in the schedular rating criteria. Mauerhan, 16 Vet. App. at 443. In addition, the GAF scores are incorporated as part of the schedular rating criteria as they tend to show the overall severity of symptomatology or overall degree of impairment in occupational and social functioning. The Board finds that the scheduler rating criteria reasonably describe the claimant's disability level and symptomatology and are therefore adequate to rate the current disability. Therefore, the criteria for submission for assignment of an extraschedular rating are not met. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Consistent with the facts found, the rating may be higher or lower for segments of the time under review on appeal, i.e., the rating may be "staged." Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has considered the possibility of staged ratings. The Board, however, concludes that the criteria for a increased rating in excess of 50 percent have at no time been met. Accordingly, staged ratings are inapplicable. See id. -13- There is insufficient evidence to award a rating in excess of 50 percent based on either scheduler or extraschedular considerations. As such, the Board finds that the preponderance of the evidence is against the Veteran's increased rating claim. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to a rating in excess of 50 percent for service connected PTSD is denied. K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals -14-