Citation Nr: 1342628 Decision Date: 12/24/13 Archive Date: 12/31/13 DOCKET NO. 09-42 193 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an initial evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active military duty from January 1992 to December 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, which granted service connection for PTSD and assigned a 30 percent rating effective January 15, 2008. During the pendency of the appeal, an April 2009 rating decision awarded a 50 percent rating for PTSD, effective from January 15, 2008; and a November 2011 rating decision granted a 70 percent rating for PTSD, effective January 15, 2008. The Veteran continued his appeal. FINDING OF FACT The evidence of record fails to show symptomatology comparable to total occupational and social impairment. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 70 percent for service-connected PTSD have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Assist and Notify The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2013); see 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied. The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO sent the Veteran a letter in January 2008, prior to adjudication, which informed him of the requirements needed to establish entitlement to service connection. Service connection was subsequently granted for PTSD by rating decision in November 2008. Although the Veteran was not notified of the requirements to establish entitlement to an increased rating until a letter dated in April 2009, VA's General Counsel has held that 38 U.S.C.A. § 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate newly raised or "downstream" issues, such as the claims for increased compensation following the initial grant of service connection for a disability, in response to notice of its decision on a claim for which VA has already given the appropriate section 5103(a) notice. See VAOPGCPREC 8-2003 (Dec. 22, 2003). The appropriate notice has been given in this case with respect to the increased rating claim on appeal. In accordance with the requirements of VCAA, the January 2008 and April 2009 letters informed the Veteran what evidence and information he was responsible for obtaining and the evidence that was considered VA's responsibility to obtain. No additional private medical evidence was subsequently added to the claims files. The Veteran was also informed in these letters about effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. Psychiatric evaluations have been conducted, with the most recent VA evaluation in March 2011. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the medical records on file are adequate for rating purposes, as they provide the relevant symptomatology of the Veteran's PTSD for the appeal period at issue. There is adequate medical evidence of record to make a determination on the increased rating issue decided in this case and there is no indication of a worsening since the most recent VA examination. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion on the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Veteran has been given ample opportunity to present evidence and argument in support of his claim. The Board additionally finds that general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claim. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2007). Analysis of the Claim As noted above, service connection has been established for PTSD, with a 70 percent rating effective January 15, 2008. The Board also notes that a total disability rating based on individual unemployability due to service-connected disability (TDIU) was granted by rating decision in November 2011, effective January 15, 2008; and a November 2012 rating decision granted a temporary total rating (TTR) for PTSD, based on hospitalization for greater than 21 days, effective from March 1, 2012 through March 31, 2012. The Board must determine whether the Veteran's PTSD symptomatology would cause impairment sufficient to warrant a rating in excess of his current 70 percent rating at any time since January 15, 2008. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Schedule). 38 C.F.R. Part 4 (2013). The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2013). Separate diagnostic codes identify the various disabilities. In considering the severity of a disability it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2013). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, see Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991), where service connection 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. Francisco v. Brown, 7 Vet. App. 55 (1994). However, where the Veteran is appealing the initial assignment of a disability rating, as in this case, the severity of the disability is to be considered during the entire period from the initial assignment of the evaluation to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). 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. 38 C.F.R. § 4.7 (2013). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr, 21 Vet. App. at 308 (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Pertinent to a claim for an increased rating, lay testimony is competent when it describes symptoms, which supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see Proscelle v. Derwinski, 2 Vet. App. 629 (1992) (holding that, in general, for the need for a VA examination to arise, a claimant would only need submit his competent testimony that symptoms, reasonably construed as related to the service-connected disability, have increased in severity since the last evaluation). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). Under the current schedular criteria, a 70 percent evaluation is assignable for psychiatric disability 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. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2013). A 100 percent evaluation for psychiatric disability is assignable for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent 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. Id. The global assessment of functioning (GAF) score reflects the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996). A GAF score of 31 to 40 involves some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). A GAF score of 41 to 50 is defined as serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF of 51 to 60 is defined as moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). A GAF of 61 to 70 is defined as 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. A GAF of 71 to 80 is assigned when symptoms, if present, are transient and are expected reactions to psychosocial stressors (e.g., difficulty concentrating after family argument), with no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). See DSM-IV. The Veteran noted on VA psychiatric evaluation in September 2008 that he worked on racetracks and on a farm but had to cut back on being a driver over the past 3-4 years because pain in his right wrist limited his ability to drive. He was working part time. He complained of being nervous and anxious, of getting only 4-6 hours of sleep a night, and of being unable to handle crowds. The Veteran reported a problem at work, as he had been thrown out of a race and started smashing windows. He had nightmares where he was "always hiding." He was not taking any medication for his psychiatric problems. On mental status examination, the Veteran was described as well groomed, alert, and oriented. He did not have any delusions or auditory hallucinations. His thought processes were coherent, and he had good judgment. The diagnosis was PTSD, noncombat type, due to being shot while in Mexico during service. His GAF score was 47. It was noted that the Veteran had had mild occupational and interpersonal difficulties ever since service. VA treatment reports dated from 2008 through January 2011 reveal that, when seen in November 2008, the Veteran was described as agitated and irritable, with a constricted and worrisome affect, anxious mood, impaired memory, and difficulty with concentration and recall. It was noted in December 2008 that the Veteran had severe, chronic PTSD. It was reported in March 2009 that the Veteran had a blunted affect and his mood was despondent and depressed. He had attempted to work full time as an office manager at a collision shop but his stress increased, including from child care issues, until he was unable to maintain employment. He also had problems with poor concentration and poor short-term memory. When treated later in March 2009, the Veteran reported significant difficulties with motivation, energy, and life outlook, as well as a panic attack due to financial problems. When seen in April 2009, the Veteran had recently lost his job; his GAF score was 53. The Veteran was admitted to a VA hospital in June 2009 after claiming to have taken 10 extra Clonazepam; he was under a significant amount of stress at home and was feeling depressed and anxious and was worried that he might hurt himself or someone else. It was noted in July 2009 that the Veteran had obtained a job training horses and that there had been a significant improvement in his mood. When seen later in July 2009, the Veteran said that he felt more energetic and motivated; he was exercising daily and had lost weight. He was working as a horse trainer but had issues with anxiety. He did not talk about any nightmares or flashbacks, and he did not have suicidal or homicidal ideation. He complained in September 2009 that he had "overextended himself" by working over 40 hours a week at the stables. He was in pain, had no energy, and had difficulty sleeping. He had been accepted in vocational rehabilitation and was looking forward to starting vet school in January 2010. On mental status evaluation in September 2009, the Veteran's appearance was described as disheveled, his affect was constricted, and his mood was depressed. His speech was normal, with intact thought processes and no hallucinations or delusions. When treated by VA in November 2009, it was reported that the Veteran was no longer working after suffering a stroke in October 2009. It was noted in December 2009 that the Veteran complained of worsening nightmares and anxiety since his stroke; his GAF score was 48. The Veteran was treated in February 2010 for heroin dependency. He was treated at the Substance Abuse Service in July 2010 for complaints of not having slept for over two days; it was noted that he had run out of Ambien and his antidepressant. He was depressed, had no motivation and no interest in anything, was irritable and pessimistic, and had fleeting suicidal ideation. It was reported in November 2010 that the Veteran was in an Opiate Recovery Program and had lapsed; his GAF score was 55. A VA PTSD examination was conducted in March 2011. The Veteran said that he had difficulty getting employment and was to the point where he felt very uncomfortable leaving his house. He said that he had no friends and that he stayed in bed most of the day. He had been with one woman for the previous 14 years; their relationship was described as "rocky." He had a fair relationship with his 5-year-old daughter and 2-year-old son. The Veteran met the criteria for a diagnosis of PTSD. His psychiatric symptoms consisted of depressed mood, anxiety, chronic sleep impairment, mild memory loss, panic attacks more than once a week, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and suicidal ideation. It was concluded that the Veteran had occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking and/or mood. He did not have any of the symptoms listed above that are indicative of total occupational and social impairment. The examiner noted that there was not total occupational and social impairment due to PTSD signs and symptoms. His GAF score was 41, with no friends, a troubled relationship with his significant other, difficulty maintaining employment or school for a month or two, and suicidal ideation with no intent. VA treatment records for 2012 reveal that the Veteran complained in February 2012 of being very depressed; it was noted that he was not taking his medications. He felt better after restarting his medications. He was hospitalized in March 2012 to work on cocaine abuse and to continue to improve his symptoms of PTSD. The Veteran's GAF score at discharge was 65. He was hospitalized in July 2012 for alcohol and cocaine abuse. When seen in October 2012, the Veteran mood was described as generally positive, as he felt that his medications were working. He said that his PTSD symptoms arose on occasion. He was alert and oriented with coherent speech and no delusions, hallucinations, suicidal or homicidal ideation. The Board must now determine whether there is evidence that the Veteran's functional impairment due to PTSD symptomatology more nearly approximates the criteria for a 100 percent rating at any time during the appeal period, other than the period for which he was assigned a TTR in March 2012. See 38 C.F.R. § 4.29 (2013) (termination of these total ratings will not be subject to § 3.105 reduction provisions). A Veteran need not demonstrate the presence of all, most, or even some, of the symptoms listed as examples in the rating criteria. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, as the United States Court of Appeals for Veterans Claims (Court) held in Mauerhan, without the examples noted in the rating criteria, differentiating a 50 percent evaluation from a 70 percent evaluation would be extremely ambiguous. The Board is to consider all symptoms of a Veteran's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV. If the evidence demonstrates that a Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating should be assigned. Id. While symptomatology should be the primary focus when deciding entitlement to a given disability rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused the requisite occupational and social impairment. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). The evidence on file shows that the Veteran is oriented without delusions or hallucinations. He was working as a horse trainer for part of the appeal period but reported in September 2008 that he had had to cut down on working with horses over the previous 3-4 years due to physical problems with his wrist; he appears to have stopped working in October 2009 after he suffered a stroke. GAF scores during the appeal period ranged from 41, which indicates serious functional impairment, to 55, which shows moderate functional impairment. A GAF score of 65 was reported on hospital discharge in March 2012. The evidence shows that while the Veteran's psychiatric symptoms cause significant occupational and social impairment, as evidenced by the assigned 70 percent rating, the evidence does not show that manifestations of the Veteran's service-connected PTSD are productive of functional impairment comparable to the criteria for a 100 percent schedular rating. In fact, there is no notation in the March 2011 evaluation, or in the prior treatment reports, of psychiatric symptoms of similar severity; and the evaluator indicated in March 2011 that the Veteran's psychiatric symptomatology did not cause total social and occupational impairment. The Veteran's lay statements of record have been taken into consideration. The Veteran is competent to report his psychiatric symptoms. His observations are credible, but they must be evaluated in light of the rating schedule described above. In this regard, neither the medical or lay evidence reflects total occupational and social impairment at point since the award of service connection. The listed symptoms and their representative impairment level have not been approximated. Thus, an initial rating in excess of 70 percent for PTSD is not warranted. See 38 C.F.R. § 4.130, Diagnostic Code 9411. The above determination is based upon consideration of applicable rating provisions. It should also be pointed out that there is no showing that the Veteran's PTSD has reflected so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (2013). The symptoms of his disability have been accurately reflected by the schedular criteria. This is particularly so since the rating criteria includes a nonexhaustive list of symptoms and encompasses all symptoms based on their impairment level up to total. Without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral for a determination of whether the Veteran's disability picture requires the assignment of an extraschedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). For all the foregoing reasons, the Board finds that the claim for an initial rating in excess of 70 percent for PTSD must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim a higher initial rating, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER An initial evaluation in excess of 70 percent for PTSD is denied. ____________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs