Citation Nr: 1342883	
Decision Date: 12/26/13    Archive Date: 01/07/14

DOCKET NO.  13-03 323	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to an initial rating greater than 30 percent disabling for posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	North Carolina Division of Veterans Affairs


ATTORNEY FOR THE BOARD

J. M. Kirby, Counsel



INTRODUCTION

The Veteran served on active duty from January 1988 to September 1991, to include service in Southwest Asia theater of operations from January 1991 to April 1991.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.  

Consideration has been given to whether the record reflects an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009).  Here, the Veteran is employed and he has not, alleged that he is unemployable on account of his posttraumatic stress disorder (PTSD).  Thus, a referral for consideration of TDIU under Rice is not required.


FINDING OF FACT

The Veteran's PTSD is manifested by near-continuous anxiety in the form of very frequent panic attacks, depressed mood, suicidal ideations, impaired judgment in the form of angry outbursts, and severely, but not totally, impaired social and occupational functioning.


CONCLUSION OF LAW

The criteria for an initial rating of 70 percent disabling for PTSD, but no greater, have been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2013).




REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran's claim arises from his disagreement with the initial evaluation following the grant of service connection.  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 v. Nicholson, 21 Vet. App. 112 (2007).

As to VA's duty to assist, the Veteran's service treatment records, VA medical treatment records, and identified private medical records have been obtained.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  The record does not reflect that the Veteran is in receipt of disability benefits from the Social Security Administration.  38 C.F.R. § 3.159 (c) (2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010).  The March 2011 VA examination was adequate for rating purposes.  38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  

The record does not indicate that additional evidence pertinent to the issue is available, but not associated with the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication VA did not provide sufficient notice or assistance, such that it reasonably affects the outcome of the case, the Board finds that any such lack of sufficient notice is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).  

Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2013).  Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21 (2013); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002).  

The primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability.  Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply.  Fenderson v. West, 12 Vet. App. 119 (1999).  Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports.  Id.  VA has a duty to consider the possibility of assigning staged ratings in all claims for increase.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  

Service connection for the Veteran's PTSD was granted in a April 2011 rating decision, and an initial 30 percent rating assigned under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9411 (2013).  Diagnostic Code 9411 is subsumed into the General Rating Formula for Mental Disorders (General Rating Formula), under which a 30 percent rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation, due to such symptoms as: depressed mood, anxiety, suspiciousness, weekly or less often panic attacks, chronic sleep impairment, and mild memory loss, such as forgetting names, directions, recent events.  38 C.F.R. § 4.130, Diagnostic Code 9411, General Rating Formula.

A 50 percent rating is warranted where the disorder is manifested by 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 for example, 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.  Id. 

A 70 percent rating is warranted where the disorder is manifested by 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 that is 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 work-like setting; and an inability to establish and maintain effective relationships.  Id.  The maximum 100 percent rating is warranted where the disorder is manifested by 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.

When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and a veteran's capacity for adjustment during periods of remission.  38 C.F.R. § 4.126(a) (2013).  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.  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).  Ratings are assigned according to the manifestation of particular symptoms, but the use of a 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 determining the appropriate disability evaluation to assign, however, the Board's "primary consideration" is the Veteran's symptoms.  See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118   (Fed. Cir. 2013).

The evidence of record supports a 70 percent rating for the Veteran's PTSD.  The Veteran's depression and anxiety, nightmares, panic attacks, angry outbursts, and impaired social and occupational functioning, while severe, do not result in total social or occupational impairment as to warrant the maximum schedular rating.

The hallmark characteristics of the Veteran's PTSD are his depressed moods and high levels of anxiety, to include panic attacks.  He reported to both the August 2010 private clinician and the March 2011 VA examiner that he was hypervigilant; he reported to the August 2010 private clinician that he had an exaggerated startle response to surprise noises.  His symptoms as described to the March 2011 VA examiner were even more severe, nothing that he experienced anxiety with air travel, and automobile travel over bridges and tunnels (to the point that he once got halfway across a bridge and had to have the car's other passenger drive the rest of the way).  He stated that his panic attacks as occurring often, even hourly when he was at work due to the nature of his employment working with the mentally ill in a prison environment, but that they were also triggered by his alarm clock going off in the morning, and when he backs out of his driveway.

Although he denied having them to the August 2010 private clinician, the Veteran reported experiencing daily suicidal ideations to the March 2011 VA examiner.  While the Veteran discussed in detail how he had no plan to commit suicide, giving the reasons of wanting not to abandon his children, he admitted that these thoughts occurred when he was alone, and stated at another time during the examination that he was no longer living in his family home and had access to firearms.  Additionally, the evidence establishes that the Veteran has, to some degree, neglected his self-care and personal hygiene.  The March 2011 VA examination report indicates that household chores such as laundry, ironing, and other cleaning tasks are completed by his wife or his children.  He reported wearing his work uniform 3 to 4 days in a row.  Finally, the Veteran reported angry non-violent outbursts at work, up to 12 per week, against both prisoners and coworkers.  

The Global Assessment of 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 GAF score of 31-40 is defined as exhibiting some impairment in reality testing or communication (speech is at times illogical, obscure, or irrelevant), or any major impairment in several areas, such as work or school, family relations, judgment, thinking or mood, (a depressed man that avoids friends, neglects family, and is unable to work; a child that frequently beats up younger children, is defiant at home, and is failing at school).  American Psychiatric Association, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th Edition (1994) (DSM-IV).  A GAF score of 41-50 is assigned where there are serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).  Id.  Assigned GAF scores are not dispositive of the evaluation issue; rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned.  See 38 C.F.R. § 4.126(a) (2013).

The GAF scores assigned, of 37 in the August 2010 private clinician letter and 47 in the March 2011 VA examination report, suggest a severe clinical picture.  As noted above, assigned GAF scores are not dispositive of the evaluation issue, but in this case, they do identify a significant impairment in occupational and social functioning.  Even though the Veteran remains employed full-time, and has been employed at the same correctional facility for over 20 years, he indicated that his ability to remain employed is due in part to his taking on tasks that allow him to be alone and isolated, and work independently or individually with prisoners as opposed to collectively with other guards or directly with supervisors.  Specifically, he stated to the examiner that he can "act like an animal in the hole, but cannot act like that when [he] has to work with others."  When forced to work with others, which occurs once in approximately every 2 years, he "hides;" he fears evaluations because he is not sure he would be deemed fit for duty.  Simply put, the degree to which his occupational functioning is reliant on his specific, current employment is important; it is not clear to the Board whether the Veteran would be similarly employed in the long-term, were he working in a different environment or job capacity.  

To that end, the evidence establishes social and occupational impairment that is closer to an inability rather than a difficulty in creating and maintaining social and occupational relationships.  The August 2010 private clinician found that the Veteran was severely compromised in initiating and sustaining work or social relationships.  Similarly, the Veteran reported to the March 2011 VA examiner that he had no friends, and no relationship with his siblings, as well as a strained relationship with his parents due to their religious beliefs.  He reported to the March 2011 VA examiner that he was legally separated from his wife, had separated from her multiple times during the course of their 14-year marriage, and that she now refused to recommit to the marriage until he was of better mental health.  He reported having twice-monthly visitation with his children, with whom he described a good relationship, and that they were the primary motivation for him to work through his suicidal ideations and other symptoms, as he wanted to be a good father and provide for them.  But, he reported, he was unable to participate in their school events, admitting that he feared speaking to a group of 12-year-olds.  

In exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321.  The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  

The Board finds that the rating criteria contemplate the Veteran's PTSD symptoms.  Ratings in excess of those assigned are provided for certain manifestations of PTSD, but those symptoms are not present.  The diagnostic criteria also adequately describe the PTSD's severity and symptomatology over the appeal period, as higher evaluations exist within the rating criteria which contemplate a more serious level of social and occupational functioning not present in the Veteran.  Indeed, while the Veteran's clinical picture clearly reflects significant occupational impairment, he remains employed, and higher ratings exist to compensate for total social or occupational impairment.  Therefore, the Veteran's disability picture is contemplated by the Rating Schedule; no extraschedular referral is required.

The preponderance of the evidence is against the 70 percent initial rating for PTSD assigned by this decision.  There is no doubt to be resolved.  Greater than 70 percent disabling for PTSD is not warranted.  See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

A 70 percent initial rating, but no greater, for PTSD is granted, subject to the applicable regulations concerning the payment of monetary benefits.




____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs