Citation Nr: 1343093 Decision Date: 12/27/13 Archive Date: 01/07/14 DOCKET NO. 13-08 972 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Spinnicchia INTRODUCTION The Veteran served on active duty from April 1967 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. FINDING OF FACT The evidence demonstrates that the Veteran's PTSD has been manifested by occupational and social impairment with reduced reliability and productivity but not deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. CONCLUSION OF LAW The criteria for an initial evaluation of 50 percent, but no higher, for PTSD have been met. 38 U.S.C.A. §§ 1101, 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.125-4.130 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Procedural Duties As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify claimants of the requirements for substantiating their claims for VA benefits and to assist in the development of their claims. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002). VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.159 and 3.326(a) (2013). The notice and assistance requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim, what subset of the necessary information or evidence, if any, the claimant is to provide, and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2013). The United States Court of Appeals for Veterans Claims (Court) has stated that the VCAA requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the Veteran's service and the disability, the degree of disability, and the effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). Insufficiency in the timing or content of VCAA notice is harmless, however, if the errors are not prejudicial to the claimant. See Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (noting that VCAA notice errors are reviewed under the prejudicial error rule). The Board notes that the claim for a higher initial rating for PTSD arises from the initial award of service connection. In Dingess v. Nicholson, the Court held that in cases in which service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. 19 Vet. App. 473, 490 (2006); see also Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007) ("[S]uch notification is required before, not after, the initial VA decision awarding service connection and assigning an initial disability rating." (citing Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006))). Nevertheless, in this case, notice was provided to the Veteran in November 2010, prior to the initial adjudication of his claim in June 2011. The notice letter contained information regarding what evidence and information is needed to substantiate a claim for service connection as well as what evidence and information must be submitted by the Veteran and what evidence and information will be obtained by VA. The November 2010 letter also provided information on how VA determines disability ratings and effective dates as well as on the types of information that impacts those decisions. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment records, private treatment records, VA treatment records, statements from the Veteran and his representative, and the reports from the Veteran's VA examinations. Additionally, the June 2011 and February 2013 VA examinations obtained in this case are adequate, as they are predicated on a review of the Veteran's medical history, contain a description of the history of the disability at issue, document and consider the Veteran's complaints and symptoms, and fully provide medical evidence that is relevant to the governing rating criteria. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion."). As discussed above, the Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Merits of the Claim Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411 for PTSD. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. In this case, the Board finds no other applicable rating criteria, and the Veteran has not requested evaluation under any alternative rating criteria. The General Rating Formula for Mental Disorders is used to rate Veterans who have been assigned Diagnostic Code 9411. In its June 2011 rating decision, the RO assigned the Veteran a disability rating of 30 percent for his PTSD with an effective date of October 2010. Based on the rating criteria, there are three disability ratings that are in excess of 30 percent: 50 percent, 70 percent, and 100 percent. The rating criteria for a 50 percent disability rating is "[o]ccupational 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." 38 C.F.R. § 4.130. The criteria for a 70 percent disability rating is "[o]ccupational 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. Finally, a 100 percent disability rating entails "[t]otal 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. As stated by the Court in Mauerhan v. Principi, when assigning a disability rating, the focus should be on the level of impairment on the Veteran's occupational and social functioning rather than how many of the listed symptoms the Veteran exhibits. 16 Vet. App. 436, 442 (2002). The Diagnostic and Statistical Manual of Mental Disorders, 4th ed., American Psychiatric Association (DMS-IV), includes a Global Assessment of Functioning (GAF) scale which takes into consideration psychological, social and occupational functioning on a hypothetical continuum of mental illness. A score of 31-40 indicates 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 score of 41-50 indicates 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). A score 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 (e.g., few friends, conflicts with peer or coworkers). See Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Washington, DC, American Psychiatric Association, 1994. In his December 2010 statement, the Veteran described his life as being hell for the last 40 years. He stated that he has gone through two marriages and countless jobs, and currently described himself as divorced and alone. He reported that while serving in Vietnam, his group of servicemen were attacked and over-run by the enemy. He said that many servicemen in his group died and that he continues to feel guilty that he survived. The Veteran also described having countless nightmares and stated that he is not able to be around a lot of people. In the June 2011 VA examination, the Veteran reported that he was working as a delivery truck driver and living in the basement of a friend's house. He reported that he had lost a previous job as a manager due to his impatience in dealing with union issues. He stated that he no longer wants to be a manager since now that he works alone, he is less troubled with reminders about how managing his men did not keep them safe, and in fact, contributed to their harm. He reiterated the fact that he has nightmares about Vietnam (usually three times a month) and continues to feel guilty that he survived while others died. He also has startled reactions to certain triggers, noting that he once punched a man who touched him at a flea market. The Veteran reported having become estranged from more and more people. He claimed that he did very little outside of his job and no longer participates in activities that he had previously enjoyed such as bicycling, hunting, and going to church. He indicated that he stopped attending church because he felt that other church goers saw a "mark on [his] forehead" and would turn their backs on him. The Veteran also stated that he has anger issues which is the reason his first wife left him. His said his irritability has been a longstanding issue both at home and in the workplace. He stated that every day, he does not like his life. The Veteran reported previously attempting suicide in 1973 and 2008. He stated that he feared going to sleep. He also reported difficulty concentrating. The Veteran did report that he still had a close relationship with his son from his first marriage. The Veteran reported no psychiatric treatment for about two years. On mental status examination, the Veteran was fully oriented and responsive. Short-term attention was retained although he reported losses of concentration in paying bills. There was no evidence of a formal thought disorder or hallucinations and his communication style was within normal limits. There was no clinically significant suicidal or homicidal ideation present. The Veteran was dysphoric with a relatively full range of affects observed. His appetite, insight and judgment were retained. His sleeping pattern was described as truncated with early awakenings. The examiner noted that the Veteran has functional impairments described as insufficient sleep hygiene and mood management skills. He noted that the Veteran had been treated with medication management which was ineffective. The Veteran was deemed competent to manage his VA benefits. The examiner assigned a GAF score of 55. The Veteran underwent an additional VA exam in February 2013. In the exam, the Veteran reported renting an independent home that he maintains himself. He reported getting five hours of sleep a night but he normally wakes up twice a night and has nightmares three times a week. During these nightmares, the Veteran stated that he sees the men in his unit who died and they are calling for him to join them. The Veteran also reported spending 20 minutes every day recalling a soldier who had died in front of the Veteran and had asked the Veteran why he had to die. During this exam, the examiner noted that the best summary of the Veteran's occupational and social impairment was "occupational and social impairment with reduced reliability and productivity (primarily social)." The report from the exam stated that the Veteran had a poor relationship with his wife and children, even though he used to be a social butterfly. The examiner found the Veteran's great deal of social and interpersonal estrangement to be an indicator that he was fearful of almost any contact with other people. The Veteran also avoids conversations with others. The Veteran claimed hypervigilance and an exaggerated startle response. He reported stopped biking and hiking because he was hyperresponsive to any type of noise change and he spends minimal time watching television or listening to the radio because he is afraid of what he might see or hear. The examiner found that in general, the Veteran avoids thoughts, feelings, or conversations associated with the trauma he experienced and avoids activities, places, or people that arouse recollection of that trauma. The Veteran was also found to have anxiety, chronic sleep impairment, and negative expectations for the future. He was noted to be highly anxious. Nevertheless, the report acknowledged that the Veteran was working three days a week as a driver for an auto parts firm and that he had been at this job for five years and had no disciplinary problems on the job. He also reported bathing every day, cooking his own meals, cleaning his house once a week, cleaning his dishes nightly, and doing his laundry once a week. The examiner reported that the Veteran's thought content was relevant, coherent, and goal-directed with no evidence of psychosis or a concentration problem. The Veteran was deemed capable of managing his financial affairs. The Veteran had no serious suicidal ideation in the past year and denied any history of homicidal ideation. He was found to have a GAF of 54. After reviewing the evidence in the claims file and resolving any benefit of the doubt in favor of the Veteran, the Board finds that the Veteran's current symptomatology more closely approximates the criteria for a 50 percent rating. In particular, the February 2013 VA examination report reflects that the examiner noted "reduced reliability and productivity" consistent with the criteria for a 50 percent disability rating. Since the total level of occupational and social impairment is the primary consideration when assigning a disability rating for PTSD, the Board finds this characterization by the VA examiner to be highly probative. Additionally, the evidence shows the Veteran has experienced significant social and occupational impairment due to his PTSD, as shown by his poor family relationships and difficulty maintaining a management position. He avoids contact with other people and deliberately seeks out a lower paying, non-management position in order to reduce his stress levels. However, the evidence does not demonstrate that a 70 percent disability rating is warranted for the Veteran's PTSD. The record reflects that the Veteran has been employed for five years as a driver for an auto parts firm with no history of disciplinary problems. The Veteran demonstrates no evidence of a thought disorder and presents appropriately at VA examinations. He maintains a relationship with his son and reports that he is capable of taking care of his activities of daily living, including cooking and cleaning. Although he has a history of remote suicide attempts, there was no evidence of suicidal or homicidal ideations currently. His hygiene has observed to be adequate at all examinations. His memory and concentration are largely intact and the Veteran is capable of handling his own finances. In summary, the Veteran is clearly impacted by his PTSD symptoms. Nonetheless, he is still capable of employment, maintaining at least one family relationship, and maintaining a household, his hygiene and his finances. His thought content and concentration are not impaired in any significant manner, and he is fully oriented on all occasions. In addition, the Veteran had GAF scores of 55 and 54 in his two VA examinations, which suggest his symptoms are moderate rather than severe or totally incapacitating. Thus, the Board finds the Veteran's current symptoms do not result in occupational and social impairment with "deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood." See 38 C.F.R. § 4.130. Accordingly, a disability of 70 percent is not warranted for the Veteran's PTSD. The Court has held that a request for total disability rating based on individual unemployability due to service connected disability (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather, is part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In other words, if a claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue of whether TDIU is warranted as a result of that disability. Id. In this case, however, neither the Veteran nor the evidence of record has reasonably raised such a claim. As noted, the Veteran reports continued employment with no disciplinary problems. Moreover, the Veteran has not alleged, nor does the record reflect, an inability to obtain and maintain substantially gainful employment. Therefore, the Board finds the issue of TDIU has not been raised by the record and is not before the Board at this time. The Board has considered whether staged ratings are appropriate in this case. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007) (holding that "staged" ratings are appropriate where the "factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings"). Based on the evidence in the record, the Veteran's PTSD symptoms have not undergone any significant increase or decrease so as to warrant any rating other than 50 percent at any time during the appeal period. Accordingly, staged ratings are not warranted. The Board has also considered whether referral for an extraschedular rating is appropriate. In exceptional cases where schedular disability ratings are found to be inadequate, consideration of an extra-schedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id. at 115-16; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination concerning whether, to accord justice, the claimant's disability picture requires the assignment of an extra- schedular rating. Thun, 22 Vet. App. at 116. The Veteran's PTSD has resulted in social and occupational impairment from difficulty in establishing and maintaining effective work and social relationships. Such impairment is specifically contemplated by the rating criteria and the Veteran has been evaluated on that basis. Hence, the rating criteria reasonably describe the Veteran's disability and the Veteran's disability picture is not shown to be exceptional or unusual. Therefore, referral for assignment of an extraschedular evaluation in this case is not in order. In conclusion, the evidence shows that the Veteran's PTSD symptomalogy meet the criteria for a disability rating of 50 percent, but no higher, during the appeal period. As the preponderance of the evidence is against the claim for a higher rating, the "benefit-of- the-doubt" rule does not apply, and the claim must be denied to the extent that a disability rating in excess of 50 percent is concerned. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 50 (1990). ORDER A disability rating in excess of 50 percent, but no higher, is granted for the Veteran's service-connected PTSD. ____________________________________________ M. N. HYLAND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs