Citation Nr: 1342632 Decision Date: 12/24/13 Archive Date: 12/31/13 DOCKET NO. 10-18 751 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to an initial evaluation in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jack S. Komperda, Associate Counsel INTRODUCTION The Veteran served on active duty from May to October 1965, and from May 1968 to September 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho, which granted service connection and assigned a 30 percent rating for PTSD, effective March 20, 2009. In addition to the paper claims file, the Board has reviewed the record maintained in the Virtual VA and Veterans Benefits Management System (VBMS) electronic claims files associated with the Veteran's claim, which includes a statement from the Veteran's representative dated October 2013. FINDING OF FACT Throughout the appeal period, the Veteran's PTSD symptoms caused occupational and social impairment with reduced reliability and productivity, but not impairment or deficiencies in most areas. CONCLUSION OF LAW The criteria for an initial disability rating of 50 percent, but no more, for PTSD are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). 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); Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). This appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection for PTSD. 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, 21 Vet. App. at 112. No additional discussion of the duty to notify is therefore required. VA also has a duty to assist the Veteran in the development of the claim, which is not abrogated by the granting of service connection. The duty to assist has also been satisfied. The Veteran's pertinent military service records, service treatment records and post-service VA medical records have been secured. The Veteran has not identified any additional outstanding evidence in these matters that could be used to substantiate the claim. The Board is also unaware of any such outstanding evidence or information. The RO provided the Veteran a VA examination in May 2009 for an initial evaluation of PTSD. The examination was performed by a competent medical professional and the examination report contained the findings needed to determine whether the rating for the service-connected psychiatric disorder should be increased. The examination considered the Veteran's records, statements and reported history. Although the Veteran's representative noted in a statement dated October 2013 that the VA examination was conducted more than four years ago, the representative did not argue and there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected PTSD since he was last examined. 38 C.F.R. § 3.327(a). Further, the examination report provides sufficient evidence to apply the ratings schedule and to determine that the schedular rating is adequate to rate the disability. Accordingly, the Board finds that the May 2009 VA examination was an adequate basis on which to adjudicate the Veteran's claim, and VA has satisfied its duty to assist the Veteran in this regard. II. Increased Rating Claim The Veteran seeks an increased initial evaluation for service-connected PTSD, contending that manifestations of that disability are more severe than presently evaluated and productive of a greater degree of impairment than is reflected by the schedular evaluation now assigned. For the reasons that follow, the Board concludes that an increased rating of 50 percent, but no greater, is warranted. Disability evaluations, in general, are intended to compensate for the average impairment of earning capacity resulting from a service-connected disability. They are primarily determined by comparing objective clinical findings 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. 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; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 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 for that rating. 38 C.F.R. § 4.7. Any reasonable doubt as to the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. 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). Since the Veteran appealed the initial rating assigned for his PTSD, the entire body of evidence is for equal consideration. 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). When evaluating a mental disorder, VA shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. 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. 38 C.F.R. § 4.126. The Veteran's service-connected PTSD is presently assigned a 30 percent disability rating under the Ratings Schedule. See 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. Ratings are assigned according to the manifestation of particular symptoms. PTSD is rated pursuant to the General Rating Formula for Mental Disorders. Id. Under the provisions for rating psychiatric disorders, a 30 percent disability rating requires evidence of the following: 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, or recent events). A 50 percent disability rating requires: 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 of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability rating requires: 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, DC 9411. 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 a 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. Mauerhan at 442; see also 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 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. The Global Assessment of Functioning (GAF) Scale is used to report the clinician's judgment of the individual's overall level of functioning. The GAF Scale is to be rated with respect only to psychological, social and occupational functioning. See American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders 44 (4th ed. 1994). While not determinative, a GAF score is highly probative as it relates directly to the veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. See Massey v. Brown, 7 Vet. App. 204, 207 (1994). GAF scores range from 1-100 with the higher numbers representing higher levels of functioning. A GAF score of 41 to 50 is defined as denoting serious symptoms or any serious impairment in social, occupational, or school functioning. A GAF score between 51 and 60 reflects moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupation, or school functioning (e.g., few friends, conflicts with peers or co-workers). A GAF score ranging from 61 to 70 reflects some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupation, or school functioning (e.g., occasional truancy or theft within the household), but generally functioning pretty well with some meaningful relationships. The relevant medical evidence of record consists of VA treatment records and lay statements from the Veteran and his representative. The Board finds that this evidence, the most pertinent of which is summarized below, shows that the Veteran's condition as a whole more closely approximates the criteria for a 50 percent disability rating. VA treatment records show that the Veteran was seen in a PTSD assessment group in April 2009, where he was diagnosed with PTSD and depression was ruled out. According to a May 2009 addendum report, the Veteran denied any history of physical, emotional or sexual abuse. He indicated that his father and older brother had died, and he was still in touch with his mother and siblings. The Veteran reported having a good relationship with his wife of 41 years, and a close relationship with his three daughters. He reported being self-employed for the past 22 years as a landscaper. The Veteran stated he had never been fired from a job, but did report he was difficult to get along with and had past conflicts with some of his employees. He denied any legal troubles or substance abuse, and reported that he drank two to four times a month and smoked half a pack of cigarettes a day. His hobbies include fishing and playing golf. The Veteran stated that in the two weeks prior to the PTSD meeting, he had been bothered with feelings of depression, hopelessness and lack of interest in doing things, adding that it was probably due to lack of work and job worries. He stated having suicidal thoughts, but denied any active plan or intent to follow through because of his family. The examiner noted that the Veteran was neatly groomed and casually dressed, appeared quiet and reserved, was alert and oriented to person, place, time, day and date, and his affect was appropriate to his thought content. The Veteran became emotional and teary eyed when asked to describe his deployment experiences. He reported being extremely bothered by repeated disturbing memories of his military experiences. He reported having nightmares about his combat experience after separating from service, but denied having any such nightmares in the last 10 to 12 years. He reported that certain noises make him feel like he is back on guard duty in Vietnam. The Veteran said he avoids talking or thinking about his military experiences, avoids crowded places like movie theaters, and described himself as feeling distanced from others, emotionally numb, and a "loner" since returning from active duty. He reported that it usually takes him three hours to fall asleep because of ringing in his ears and feelings of anxiety, and has about five to six hours of restless sleep a night. The examiner assigned the Veteran a GAF score of 42, indicating serious impairment in social functioning. The Veteran underwent a mental health diagnostic interview in May 2009, according to VA treatment records. He reported an increase in anxiety and depression, with an impending sense of doom, as his health recently began failing. The Veteran stated having suicidal thoughts, but denied any attempts or plans, and also denied any homicidal ideation. He also denied a history of violence or aggression, but relayed an incident where he attempted to confront a neighbor who left his dog outside barking all night. He reported having frequent anxiety that disturbs his sleep and some anger issues that he is able to control. He reported that both his brother and father committed suicide. Based on the interview, the examiner diagnosed the Veteran with PTSD and tobacco use disorder, noted the Veteran's self-induced isolation and assigned the Veteran a GAF score of 42. The examiner attributed the Veteran's ability to function "remarkably well despite severe PTSD" in part to his relationship with his wife and daughters. The Veteran was afforded a VA examination in May 2009. He reported being employed as a self-employed landscaper who works seasonally. He has been married to his wife for 42 years, three adult children and nine grandchildren whom he sees occasionally. He reported having a fair relationship with his children and noted that he tries to stay out of their personal affairs. He does not see his mother or siblings much and otherwise does not socialize with people. He reports having a couple of friends whom he sees a few times per year, but does not call people very often, does not go to places to meet people, does not make new friends easily and works by himself. The examiner noted that the Veteran became tearful when describing the unwelcoming reception he received when he returned from Vietnam. His leisure activities include fishing, golfing and watching television. The Veteran reported being startled awake about twice a night. He reports having nightmares once every couple of months, and about once a year on Vietnam. The Veteran denied suicidal or homicidal thoughts, but he reported having a sense of a foreshortened future. The examiner noted that the Veteran was tearful at several points during the interview and reported being tearful two times per month. He reported having decreased interest and enjoyment in most activities, a decreased sex drive, and occasionally feels a sense of hopelessness. He reported having a poor concentration and occasionally experiences angry outbursts. The Veteran denied having any spontaneous panic attacks, but did report having anxiety, especially when preparing to go to sleep at night. He exhibits some compulsive behavior, such as frequently checking locks and counting his steps. He has occasional peripheral illusions but no visual or auditory hallucinations. He does experience some tactile hallucinations, such as feeling the presence of a granddaughter who died in a car accident years ago and occasionally smells odors that are not there that remind him of Vietnam. The examiner noted that the Veteran had signs and symptoms of a depressive illness, but the symptoms appeared to be directly related to his PTSD. The Veteran appeared neat, clean and well-groomed. He had a slight psychomotor retardation. His speech was at a normal rate, tone and volume, and he was cooperative with the examiner. The examiner noted that the Veteran's affect was constricted and he appeared depressed during the interview, although he was able to laugh and smile at times. His thought processes were linear, there were no evident delusions or hallucinations, and his judgment seemed adequate. Based on these findings, the examiner diagnosed PTSD secondary to military combat experiences with depressive features, and possible cognitive disorder, not otherwise specified (NOS) and assigned the Veteran a GAF score of 52, specifically for PTSD. He characterized the Veteran's PTSD symptoms - which include sleep disturbance, decreased energy and interest in activities, intrusive disturbing memories, loss of interest in socializing and hyperarousal - as moderate to serious. In summarizing the extent of the Veteran's social and work impairment, the examiner noted that the Veteran cannot work well with others and does better with self-employment, he is alienated from his mother and siblings and has some distance from his wife and children. Further, the Veteran has few friends and stays mostly at home. The examiner also noted an occasional decrease in work efficiency with intermittent periods where the Veteran was unable to perform occupational tasks due to his PTSD symptoms but was generally satisfactory functioning. In his September 2009 notice of disagreement, the Veteran maintained that the currently assigned rating for PTSD does not accurately represent his level of disability. He states experiencing severe panic attacks about once a month that occasionally force him to stop working for the day. He does not work at all from November to March, and his problems with working with and for others has made it difficult to obtain and retain employees. Further, the Veteran stated that during golf outings, he usually goes alone and stays away from others. In a statement in support of his claim filed in April 2010, the Veteran detailed several outbursts and interpersonal conflicts in his work and personal life that he contends reflect a disability greater than the rating assigned for his PTSD. In particular, he stated that he and his wife separated on two occasions during their marriage, he shot his brother-in-law's dog with a shotgun after it tried to breed with his dog, he killed another neighbor's dog with a pitch fork after it got into his chicken coop, and he threatened to kill a home builder he worked for who he felt was treating him unfairly. After considering the evidence of record, the Board finds that the overall disability picture for the Veteran's PTSD most closely approximate a 50 percent rating during the appellate period. The Veteran has received GAF scores of 42 and 52, which indicate moderate to severe difficulty in functioning. He lives with his wife and appears to maintain a healthy relationship with her. But he has few friends, is alienated from his mother and siblings, infrequently sees his children and avoids social situations, which is reflective of his difficulty in establishing and maintaining effective social relationships. Further, the Veteran is self-employed as a landscaper, makes enough money to work seasonally, does not work well with others and occasionally experiences a decrease in work efficiency due to his PTSD symptoms. The Veteran's symptoms include: depression; frequent sleep disturbances; decreased interest and withdrawal from social activities; difficulty concentrating; decreased energy and interest in activities; intrusive disturbing memories; hyperarousal and irritability. The Veteran has also reported having suicidal thoughts and feelings of a foreshortened future and tactile hallucinations that include smelling scents related to his experiences in Vietnam that are not present. Further, he has some problems with concentration and memory loss. The type and degree of the Veteran's symptoms rise to the level of such contemplated by the regulatory criteria warranting a 50 percent disability rating. However, the evidence does not show findings that more closely approximate the criteria required for a 70 percent rating under the rating schedule at any time during the appeal period. The record does not show that the Veteran suffered occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood. The Veteran reported experiencing instances of suicidal ideation, which is consistent with a 70 percent disability rating. But the record also shows that he has maintained a long work history that includes work as a self-employed landscaper. He has also been married to the same wife for more than 40 years and maintains a relationship with his children, details which reflect that the Veteran retains some ability - albeit with difficulties - to establish and maintain effective relationships. Further, the Veteran reported severe panic attacks once a month. However, the record does not show that the panic attacks occurred on a near-continuous basis. And there is no indication of neglect of his personal appearance or hygiene. As such, the Veteran's symptoms are more closely approximated by the criteria for a 50 percent disability rating. The evidence also does not show that the Veteran's symptoms resulted in total occupational and social impairment due to his PTSD. As discussed above, the Veteran has been married for over four decades, maintains some regular contact with his children and some close friends, and has been self-employed for 30 years. The overall evidence of record reveals that the Veteran had some occupational impairment due to his PTSD symptoms. However, the Board finds that the severity of the Veteran's PTSD symptoms do not reflect total occupational and social impairment warranting a 100 percent disability rating. The Board concludes that the medical findings on examination and assessment are of greater probative value than the Veteran's allegations regarding the severity of his PTSD. The extent and severity of the Veteran's actual PTSD symptoms reported and/or shown are suggestive of occupational and social impairment, with reduced reliability and productivity due to such symptoms as disturbances of motivation and mood, impaired memory; depression; anxiety; and difficulty in establishing and maintaining effective work and social relationships; i.e., the level of impairment contemplated in the assignment of a 50 percent rating for psychiatric disabilities. See Mauerhan, supra, Vazquez-Claudio, supra. More severe symptomatology has not been shown. The Board has also considered whether a higher rating might be warranted for any period of time during the pendency of this appeal. Fenderson, 12 Vet. App. 119; Hart v. Mansfield, 21 Vet. App. 505 (2007). Considering the applicable rating criteria, the Board finds that during the entire appellate period, the level of impairment presented by the Veteran's PTSD warrants a 50 percent disability rating. As discussed above, there are higher ratings available under the Diagnostic Code, but the Veteran's disability does not reflect such manifestations. Consequently, the Board finds that the disability picture during the pendency of this appeal warrants an initial 50 percent schedular evaluation, but no more. The evidence in this case does not show that the Veteran has manifestations of his service-connected PTSD that are not contemplated by the rating criteria or such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. The rating criteria contemplate the Veteran's PTSD symptoms, as well as those which are not listed but cause a level of occupational and social impairment. Therefore, a further analysis under Thun v. Peake, 22 Vet. App. 111 (2008) and referral for consideration of 38 C.F.R. § 3.321(b)(1) are not warranted. A total rating for compensation based on individual unemployability (TDIU) is an element of all appeals of an initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to TDIU is raised where a Veteran : (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). However, TDIU is not raised in an increased rating claim unless the Roberson requirements are met. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). While there is evidence of severe economic inadaptability, there is no evidence of unemployability. The Veteran has reportedly been employed throughout the appeal period. Hence further consideration of TDIU is not warranted. ORDER Entitlement to an initial disability rating of 50 percent, but no more, for PTSD is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs