Citation Nr: 1340965 Decision Date: 12/12/13 Archive Date: 12/20/13 DOCKET NO. 10-16 604 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for service-connected posttraumatic stress disorder (PTSD). WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Tyson, Associate Counsel INTRODUCTION The Veteran served on active duty from June 2000 to August 2000 and from October 2003 to April 2005. This matter comes before the Board of Veterans' Appeals (Board) from a January 2009 rating decision issued by the above Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at an August 2013 Travel Board hearing before the undersigned Veterans Law Judge. A complete transcript of the hearing is of record. The Board has reviewed the physical claims file, as well as the electronic file on the Virtual VA and VBMS systems, to ensure a complete review of the evidence. FINDING OF FACT The Veteran's overall psychiatric disability picture encompasses an occupational and social impairment with an occasional decrease in work efficiency. CONCLUSION OF LAW An initial disability rating of 30 percent, but no higher, for service-connected PTSD, is warranted for the entire appeal period. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.21, 3.321(b), 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Disability evaluations (ratings) 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 (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness. See Layno, 6 Vet. App. at 469; 38 C.F.R. § 3.159(a)(2). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Increased Rating for PTSD The Veteran contends that he has PTSD of a severity that warrants an initial disability rating higher than the 10 percent as previously determined by the RO, which requires an occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress or; symptoms controlled by medication. PTSD, as a psychiatric disability, is evaluated under a general rating formula for mental disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. All psychiatric disabilities are evaluated together regardless of the diagnoses. A higher 30 percent disability 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). Id. A higher 50 percent disability rating is assigned 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 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; difficult establishing and maintaining effective work and social relationships. Id. A higher 70 percent disability rating is 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; 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 work-like setting); and inability to establish and maintain effective relationships. Id. A 100 percent disability rating is assigned 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. Id. 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). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126(b). The Global Assessment Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (1996). A score of 31 to 40 reflects some impairment in reality testing or communication or major impairment in several areas such as work or school, family relations, judgment, thinking, or mood. A score of 41 to 50 is assigned where there are "[s]erious 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)." DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS(DSM-IV) 47 (4th ed. 1994). A score of 51 to 60 is appropriate where there are "[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 co-workers)." Id. A GAF score of 61 to 70 indicates the examinee has some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functions pretty well with some meaningful interpersonal relationships. Id. at 46. While particular GAF scores are not contained in the VA schedule of ratings for mental disorders, 38 C.F.R. § 4.130, they are a useful tool in assessing a Veteran's disability and assigning disability evaluations. However, they are just one of many factors considered when determining an evaluation. Analysis After reviewing all evidence of record, the Board finds that the evidence is in favor of an increased initial rating of 30 percent. The symptoms exhibited by the Veteran cause interference in occupational and social activity beyond periods of significant stress. In evaluating the severity of the Veteran's PTSD, the Board reviewed a November 2008 VA PTSD examination, the Veteran's hearing testimony, and prepared statements from the Veteran and his wife regarding the effects of PTSD on the Veteran's life. As noted above, a higher 30 percent disability 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). The Veteran is an electrician. Although he has been generally able to perform self-care tasks to get ready for work such as grooming, and is able to consistently perform the duties of his job, the Veteran's PTSD has caused a number of symptoms including anxiety, some panic attacks, suspiciousness, and sleep difficulties resulting in an occasional decrease in work efficiency and intermittent periods of an inability to perform occupational tasks. During the November 2008 PTSD examination, the VA examiner noted the Veteran's anxiety and panic attacks. The Veteran's anxiety is often triggered by ambient sounds such as someone putting a lid on a metal garbage can. That and similar sounds will startle the Veteran and cause him to feel overwhelmed. When he experiences these feelings, he shuts down and will be nonresponsive, according to his wife. The Veteran also experiences another extreme, when he becomes angry over relatively minor workplace issues. This has caused the Veteran complications in his business life. He has lost some clients due to his outbursts. He also experiences heightened suspiciousness at night which interferes with his sleep. At nighttime, the Veteran feels that he is in constant danger of someone breaking into his home. As a result, he constantly listens for every sound. When the Veteran eventually falls to sleep, he experiences nightmares. A recurring one is where the Veteran is surrounded by enemy combatants and his weapon will not fire. These nightmares, which occur at least once a week, will often cause the Veteran to wake up once or twice each night. In rating the Veteran's PTSD, the Board also considered the GAF score of 68 assigned by the VA examiner, which indicates the Veteran has some mild symptoms in social, occupational, or school functioning, but generally functions pretty well with some meaningful interpersonal relationships. The GAF is but one of many factors the Board considers. In assessing the totality of the Veteran's symptoms the Board finds that the Veteran's symptoms correspond with a higher 30 percent disability rating. The Board, however, does not find that his symptoms correspond with a higher 50 percent disability rating. The record demonstrates no evidence of reduced reliability or productivity. The Veteran has maintained employment over four years as an electrician despite his interpersonal issues. Additionally, there is no evidence of any significant memory deficits or difficulty in establishing and maintaining work and social relationships. He self-reports that he has a good relationship with his wife, who has only known him with PTSD, has a number of friends, and has good relationships with co-workers especially on a one-on-one basis. The Board has also considered the applicability of other diagnostic codes for rating the Veteran's disability, but finds that none apply. There are no other diagnostic codes that fit the description of the service-connected PTSD other than contemplated in this appeal. The Board next considers whether referral for an extraschedular evaluation is warranted for the Veteran's service-connected PTSD. Extraschedular Considerations In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. 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. 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. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step, a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds the rating criteria specifically contemplates the symptomatology of the Veteran's psychiatric disability. Ratings in excess of that assigned are provided for certain manifestations of the service-connected PTSD such as occupational and social impairment with deficiencies in most areas to include for example, but not limited to, suicidal ideation, obsessional rituals, illogical or irrelevant speech, and other serious symptoms, however those manifestations are not present in this case. The evidence demonstrates that the schedular criteria reasonably describe the Veteran's disability level and referral for consideration of an extraschedular evaluation is not warranted here. Next, the Board considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU), as recognized in Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised by the Veteran or the evidence in this case. Implied TDIU The Board finds that a TDIU claim has not been raised. In this case, the Veteran has worked at least on a part-time basis for the pendency of the claim and has made no claims of being unemployable due to his service-connected PTSD. The Board will next consider whether the VA met its duties to notify and assist the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326. VA Duties to Notify and Assist After review of the claims file, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions in this case with respect to the issue herein decided. Regarding VA's duty to notify, the Veteran has not pled to prejudicial error with respect to the content or timing of the October 2008 VCAA notice or subsequent February 2010 Statement of the Case. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the 2013 Board hearing, the undersigned Veterans Law Judge specifically addressed the rating criteria for psychiatric disorders by asking the Veteran a series of questions to elicit information as to the social and occupational impairment resulting from his PTSD. He was also asked questions to determine whether additional relevant evidence existed that had not been obtained, such as whether he had recently received any treatment. There is no indication that the Veteran was prejudiced in any way by the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2), and that any error in notice provided during the hearing constitutes harmless error. Regarding VA's duty to assist, the VA obtained evidence pertaining to the Veteran's claim including service treatment records and post-service pertinent medical records, including VA examination reports. There is no indication of any additional relevant evidence that has not been obtained. With respect to the VA examination, the Board finds that the Veteran was provided a VA examination to evaluate his PTSD in November 2008, which is deemed adequate for rating purposes. Furthermore, additional evidence submitted by the Veteran at the Travel Board Hearing provided additional basis for rating the Veteran's PTSD. The Veteran testified that his condition had remained stable since 2008 so there is no indication a more current examination is needed. Accordingly, there is no duty to provide another examination or a medical opinion. See 38 C.F.R. §§ 3.159, 3.326, 3.327; see also Barr v. Nicholson, 21 Vet. App. 303 (2007). ORDER Entitlement to an initial disability rating of 30 percent for service-connected PTSD is warranted, subject to the applicable laws and regulations governing the payment of monetary awards. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs