Citation Nr: 1343045 Decision Date: 12/27/13 Archive Date: 01/07/14 DOCKET NO. 11-05 923 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) with major depressive disorder. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran served on active duty from July 1967 to July 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Newark, New Jersey. The Veteran testified in June 2012 at the RO before a Veterans Law Judge. A transcript of this hearing has been added to the claims file. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT PTSD has been characterized by social isolation, heightened anger and irritability, and other symptoms resulting in serious social and occupational impairment. CONCLUSION OF LAW The criteria for a 50 percent rating, but no higher, for PTSD with major depressive disorder have been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.157, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks an initial rating in excess of 30 percent for PTSD with major depressive disorder. He contends this disorder has resulted in a higher level of social and industrial impairment, due to such symptoms as a depressed mood, irritability, limited social contact, insomnia, and poor focus, concentration, and memory. PTSD is rated under DC 9411 and utilizes the General Rating Formula for Mental Disorders. A 30 percent rating is warranted where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of an 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, chronic sleep impairment, and mild memory loss. A 50 percent rating is warranted where there is 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted 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; 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 work-like setting); and inability to establish and maintain effective relationships. The use of the term "such as" in the general rating formula for mental disorders 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 symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation. VA examinations and clinical evaluations reflect assignment of various Global Assessment of Functioning (GAF) scores. The Global Assessment of Functioning is a scale reflecting the subject's psychological, social, and occupational functioning. Carpenter v. Brown, 8 Vet. App. 240 (1995). A GAF score of 40-31 is indicative of 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; child frequently beats up younger children, is defiant at home, and is failing at school.). A GAF score of 41-50 is indicative of serious symptoms (e.g., suicidal ideation, severe obsessive rituals, frequent shoplifting), or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF of 51-60 indicates moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (few friends, conflicts with peers or co-workers). A GAF of 61-70 reflects some 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, and has some meaningful interpersonal relationships. See American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM- IV) (4th Ed.). During the pendency of this appeal, the Veteran was afforded examinations and treatment summaries dated in September 2008, December 2009, and October 2010. He has also received VA outpatient treatment for his psychiatric symptoms. Records of this treatment have been obtained and reviewed. Finally, he has submitted a written statement from his wife to VA. In a September 2008 examination, the Veteran reported witnessing the death of two sailors during service. He stated those deaths continued to haunt him to the present. His reported symptoms included social isolation and heightened anger and irritability. He was employed and had been married to his wife for many years. He socialized with some members of his extended family, but reported few other non-family social contacts. A history of drug and alcohol abuse was reported by the Veteran, but he voiced a desire to quit this abuse. On objective evaluation, the Veteran was alert and oriented. His appearance was casual and appropriate, and he was cooperative with the examiner. His concentration was good but the examiner noted the Veteran's attention wandered during the examination. His long term memory was within normal limits, but occasional short term memory problems were reported. He denied any recent history of violence or homicidal thoughts or plans. Some suicidal thoughts, but no plans, were reported. Reasoning, judgment, and impulse control were all fair. His affect was appropriate but nervous. He denied nightmares but reported some night sweats and flashbacks. His history of polysubstance abuse had resulted in some hallucinations in the past. PTSD, chronic, was diagnosed, along with major depression. A GAF score of 55 was assigned, and he started individual and group psychotherapy. In December 2009, a psychotherapy treatment summary was received. Ongoing social isolation was reported but the Veteran continued to socialize with family. The examiner stated that the Veteran struggled with maintaining abstinence from drugs and alcohol, but was improving in this regard. He continued to experience anxious and sad moods, but reported a decrease in his suicidal thoughts. His range of affect was constricted. His appearance was casual and appropriate, and he continued to cooperate with his treatment. Some difficulty with concentration and short term memory were reported but his long term memory, reasoning, judgment, and impulse control were all fair, according to the examiner. The diagnosis of PTSD with major depression was confirmed, and a GAF score of 57 was assigned. In December 2009, the Veteran was afforded a VA psychiatric examination. Reported symptoms included poor sleep, nightmares, a depressed mood, a loss of interest in pleasurable activities, and social isolation. He remained married to his wife of many years. On objective evaluation, he was alert and fully oriented. His appearance was clean and appropriate. His thought processes were clear, coherent, and relevant. His mood was depressed. He reported some suicidal thoughts but denied any such plans. He also denied any homicidal thoughts or plans. He denied any hallucinations, delusions, or other impairment of thought processes or reality testing. His long and short term memory were within normal limits, and he was capable of abstract thought. A diagnosis of PTSD with major depressive disorder was confirmed and a GAF score of 50 was assigned. Another treatment summary was received in October 2010. The Veteran continued to be employed full time. He also remained married to his wife of many years, although he reported very little socializing outside of his family. The examiner described the Veteran as having thought processes which were generally logical, although occasionally overproductive and somewhat circumstantial. His speech was clear and coherent, and he was cooperative with treatment. In treatment, the Veteran exhibited no delusions, hallucinations, or thought disorders, and his range of affect was full. His mood was anxiety, nervous, and depressed. Although he still experienced suicidal thoughts, these had diminished recently, according to the Veteran. He denied any attempts. Some survivor guilt was present in his cognitive functioning, which was otherwise within normal limits. Judgment and impulse control were also good. He stated his sleep was poor, and his nightmares were more frequent recently. A diagnosis of PTSD was confirmed, and a GAF score of 50 was assigned. He was considered competent. At his June 2012 personal hearing, the Veteran testified that he experienced such symptoms as a short-temper, hypervigilance, and nervousness. He had been in regular counseling for the last four years. Outside of his family, he found social interaction with other people to be difficult. He also reported arguing with his wife on a frequent basis. He presented a written statement from his wife who wrote that he had a significant temper and they frequently argued. After considering the totality of the record, the Board finds the evidence more nearly approximates the criteria for a 50 percent rating. According to the examination reports and other treatment records, the Veteran has been socially isolated, with little to no social contact with people outside his immediate family. His mood was depressed and he reported frequent nightmares and flashbacks that interrupted his sleep and triggered recurrent thoughts of his experiences in Vietnam. Additionally, examiners have assigned GAF scores of between 50 to 57, indicative of moderate to serious symptomatology and/or serious impairment in occupational or social functioning. Upon review of the entire record and in light of the provisions of 38 C.F.R. §§ 4.3 and 4.7, the Board finds that a 50 percent rating is warranted for the entire time on appeal. The Board must next consider entitlement to rating in excess of 50 percent. Upon review of the totality of the record, the Board finds the preponderance of the evidence weighs against the award of a rating in excess of 50 percent. Although the Veteran reported some occasional suicidal thoughts, he denied any such intent to harm himself or to harm others. He also denied or otherwise did not display obsessional rituals which interfered with routine activities. His speech was not intermittently illogical, obscure, or irrelevant; at all times of record during this period, he was been able to converse with examiners and others in a clear, coherent manner. Although he reported some drug-induced hallucinations in the past, he denied any recent hallucinations, delusions, or other indicators of impaired reality testing. Though he has exhibited a depressed mood, he did not exhibit near-continuous panic or depression affecting his ability to function independently, appropriately and effectively, as all examiners of record have found him able to maintain his personal hygiene, finances, and household without assistance. He also has not displayed impaired impulse control, such as unprovoked irritability with periods of violence, and he has denied any recent legal difficulties during the pendency of this appeal. All VA and private examination reports indicate he had been fully alert and oriented at all times of record, and he has been employed for many years. The GAF scores were shown to be between 50 to 57 during this period, indicating moderate to serious, but not major, impairment during this period. Thus, the Board concludes a rating in excess of 50 percent is not warranted. Additionally, because the Veteran has not displayed an increased level of impairment at any time during the pendency of this appeal, a staged rating is not warranted at the present time. The Board has also considered whether referral for adjudication of an extraschedular rating is warranted. In this case, 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 for psychiatric disorders specifically provide for ratings based on a combination of occupational and social impairment, reported symptoms, and clinical findings. In this case, considering the lay and medical evidence, the Veteran's PTSD is manifested by heightened anger and irritability, social isolation, and a depressed mood. These symptoms are part of or like or similar to symptoms listed under the schedular rating criteria at 38 C.F.R. §§ 4.130. The schedular rating criteria specifically address the psychiatric symptomatology, including his depression, anxiety, and loss of interest in pleasurable activities. Therefore, referral for an extraschedular evaluation is not warranted. In conclusion, resolving reasonable doubt in the Veteran's favor, the Board finds that a 50 percent rating, but no more, is warranted for PTSD with major depressive disorder. As a preponderance of the evidence is against the award of a rating in excess of 50 percent, the benefit of the doubt doctrine is not applicable for the rating period on appeal. Finally, the Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The Veteran was advised of VA's duties to notify and assist in the development of the claims prior to initial adjudication. July 2008 and July 2009 letters explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. The July 2008 notice letter also informed him as to how ratings and effective dates are assigned. Concerning the appeal for a higher initial rating, because it is an appeal that arises from the Veteran's disagreement with the initial evaluation following the grant of service connection, no additional notice is required. Once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). With regard to the duty to assist, the Veteran's service treatment records and pertinent post-service treatment records, including private treatment reports, have been secured. The RO arranged for several psychiatric examinations, the most recent in December 2009. This examination is found to be adequate for rating purposes of the issue. The examiner reviewed the Veteran's medical history and complaints, made clinical observations, and rendered opinions regarding the severity of the disability. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). At the June 2012 hearing, the Veteran discussed submitting additional treatment records from various sources; however, to date, no additional records have been submitted, and he has not submitted addresses or authorizations for any additional treatment providers. Thus, as he has failed to follow up regarding the claimed treatment records, VA is not required to provide any more assistance to him with regard to any outstanding treatment records. Pursuant to Bryant v. Shinseki, 23 Vet. App. 488 (2010), the judge who conducts a hearing has a duty to (1) fully explain the issues and (2) suggest the submission of evidence that may have been overlooked. In this case, during the June 2012 Board hearing, the judge identified and fully explained the issue on appeal, and asked questions focused on the elements needed to substantiate the initial rating claim. Furthermore, the VLJ specifically questioned the Veteran regarding outstanding and potentially pertinent records that may have been overlooked, and suggested that such records be obtained. He was assisted at the hearing by an accredited representative; neither he nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ 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. As such, VA has provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal. Mayfield at 1328. Hence, no further notice or assistance is required to fulfill VA's duty to assist the Veteran in the development of the claim. ORDER An initial rating of 50 percent, but no higher, for PTSD with major depressive disorder is granted. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs