Citation Nr: 1400115 Decision Date: 01/02/14 Archive Date: 01/16/14 DOCKET NO. 12-26 246 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: James G. Fausone, Attorney at Law ATTORNEY FOR THE BOARD Ashley Martin, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1966 to July 1968. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a July 2011 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Denver, Colorado which granted service connection and assigned an initial 30 percent rating for PTSD, effective March 25, 2011. In an April 2012 rating decision, the RO increased the rating to 50 percent, effective the date of the grant of service connection. In his August 2011 notice of disagreement (NOD), the Veteran contested earlier effective dates assigned for his service-connected PTSD, bilateral hearing loss, and tinnitus. Although the RO included those issues in an April 2012 statement of the case, the Veteran limited his appeal to the initial rating for PTSD. See 38 C.F.R. § 20.202 (2013). The Board has reviewed the Veteran's physical claims file and his Virtual VA electronic claims file to ensure a total review of the evidence. FINDING OF FACT The preponderance of the evidence indicates that the Veteran's PTSD is productive of no more than occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for an initial rating in excess of 50 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has duties to notify and assist a claimant 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). 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 v. Nicholson, 21 Vet. App. 112 (2007). 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. VA has obtained the Veteran's service treatment records and VA medical records identified by the Veteran as relevant to the appeal. The Veteran was also afforded VA examinations in June 2011 and January 2012. The VA examinations are sufficient, as they are based on consideration of the Veteran's prior medical history, and described his PTSD disability in sufficient detail to enable the Board to make a fully informed evaluation of this disability. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran has not identified any other relevant evidence that has not been requested or obtained. The Board finds that VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on his claim at this time. II. Analysis The Veteran asserts that he is entitled to a higher initial rating for his PTSD, which is currently evaluated at 50 percent disabling. Disability evaluations are determined by application of the VA Schedule for Rating Disabilities, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and there must be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In general, when 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). However, when the current appeal arises from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating a mental disorder, the rating agency 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(a). When evaluating the level of disability from a mental disorder, VA also will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Under the applicable criteria, a 50 percent rating is assigned when 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 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 rating is assigned for 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); inability to establish and maintain effective relationships. Finally, a 100 percent rating is warranted when there is 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. 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. Id. 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 rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. One factor for consideration is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996). A GAF score of 51 to 60 reflects moderate symptoms, such as flat affect and circumstantial speech, occasional panic attacks, or moderate difficulty in social or occupational functioning (e.g., few friends or conflicts with peers or co-workers). Scores ranging from 41 to 50 reflect 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). Scores ranging from 31 to 40 reflect 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). See Carpenter v. Brown, 8 Vet. App. 240, 242-244 (1995). While the Rating Schedule does indicate that the rating agency must be familiar with the DSM IV, it does not assign disability percentages based solely on GAF scores. See 38 C.F.R. § 4.130. Accordingly, GAF scores do not automatically equate to any particular percentage in the Rating Schedule. Rather, they are but one factor to be considered in conjunction with all the other evidence of record. The Veteran underwent a VA examination in June 2011. He reported symptoms of depression, occasional panic attacks, hypervigilance, irritability, and difficulty concentrating. The Veteran reported that he avoids crowds and does not maintain relationships with others. At times he feels anxious, and overacts out of frustration. The Veteran stated that he experiences trouble sleeping, often waking in the middle of the night. He reported that he had been unemployed for "less than 1 year" because he was laid off. He did not attribute his unemployment to his PTSD symptoms. The Veteran indicated that he enjoys social activities, such as playing the guitar, golf, and fly fishing. The Veteran also reported that he has had two marriages. He married his second wife in 1971. He has a good relationship with his daughter from his second marriage. The examiner noted that the Veteran was oriented, without delusions or hallucinations. The Veteran did not exhibit any irrelevant, illogical, or obscure speech patterns. The examiner also noted the Veteran had no suicidal or homicidal ideation. He had no problems with memory loss and dressed appropriately. The examiner diagnosed PTSD and assigned a GAF score of 70. The examiner opined that the Veteran's PTSD symptoms resulted in a decrease in work efficiency and intermittent periods of inability to perform occupational tasks. In a September 2011 letter, a VA clinician who indicated he saw the Veteran on "only one occasion," wrote to clarify the Veteran's PTSD based on the clinician's intake note. The clinician noted the Veteran has had some markedly diminished interest in participating in significant activities; feelings of detachment; restrictive range of affect; and persistent pattern of increased arousal, to include difficulty falling and staying asleep at times. He also had problems with irritability and outburst of anger which seem to be getting worse. He has difficulty concentrating and does not like to be around crowds. He is hypervigilant and has an exaggerated startle response. The Veteran was evaluated again in January 2012. During this examination, the Veteran reported difficulty falling asleep, irritability, outbursts of anger, difficulty concentrating, hypervigilance, and exaggerated startle response. The Veteran also indicated that he experiences, anxiety, suspiciousness, daily depression, nightmares involving Vietnam, and panic attacks more than once a week. The Veteran reported that he avoids people and isolates himself from others. He stated that he has only one friend. The Veteran reported that he enjoys playing the guitar, cooking, and painting. The examiner noted that the Veteran's symptoms also include flattened affect and obsessional rituals which interfere with the Veteran's routine activities. The Veteran reported that he was still unemployed. On mental status examination, the Veteran was appropriately dressed, with average to low average hygiene. He showed no symptoms of impaired thought or communication. The Veteran did not exhibit any irrelevant, illogical, or obscure speech patterns. He was not delusional or experiencing hallucinations. He denied any suicidal or homicidal thoughts. The diagnosis was PTSD. The examiner assigned a GAF score of 55 and characterized the Veteran's level of occupational and social impairment as having reduced reliability and productivity. The Veteran's treatment records from April 2012 to July 2012 also reflect symptoms of anxiety, nervousness and depression. In April 2012, the Veteran reported feeling anxious about his finances and unemployment. He was assigned a GAF score of 45, which reflects serious symptoms or serious impairment in social, occupational or school functioning. June 2012 treatment records indicate that the Veteran exhibited linear thoughts and normal speech. The Veteran denied experiencing nightmares, suicidal thoughts, hallucinations, or delusions. The Veteran was seen again in April 2013. The VA psychologist noted that the Veteran appeared to be stabilized. There was no evidence of psychotic, suicidal, or homicidal ideation. The Veteran was verbal and willing to discuss his issues with his therapist. The Veteran was assigned a GAF score of 70. Based on the foregoing, the Board finds that, throughout the appeal period, the Veteran's PTSD resulted in occupational and social impairment with reduced reliability and productivity and difficulty in establishing and maintaining effective work and social relationships. Specifically, the Veteran suffered from depression, hypervigilance, sleep impairment, occupational impairment, with some social isolation. The Veteran was also irritable at times and could have outbursts of anger. The Veteran's GAF scores from treating clinicians ranged from 45 to 70. GAF scores assigned during VA PTSD examinations in June 2011 and January 2012 ranged from 55 to 70. The Board notes that GAF scores are just one component of the Veteran's disability picture and the Board considers the Veteran's entire disability picture when assigning PTSD disability ratings. See 38 C.F.R. § 4.126(a). During the appeal period, the Veteran did not demonstrate any serious symptoms or serious impairment in social, occupational or school functioning, indicative of a GAF score of 45. At no point during the appeal did the Veteran exhibit symptoms, such as suicidal ideation, severe obsessional rituals, or frequent shoplifting, which are characteristic of a 45 GAF score. The overall symptomatology associated with the Veteran's PTSD did not more closely approximate the schedular criteria required for the next higher 70 percent disability rating. The evidence does not show the Veteran had occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking or mood. Additionally, the Veteran did not experience obsessional rituals which interfered with routine actives, speech intermittently illogical, obscure, or irrelevant, spatial disorientation, or neglect of personal appearance and hygiene The Board recognizes that the January 2012 VA examiner noted that the Veteran engages in obsessive rituals, isolates himself from others, and has difficulty in adapting to stressful circumstances. However, the evidence as a whole does not support a higher initial rating for these symptoms. The Veteran is able to maintain some effective relationships, such as with his wife and daughter. This is not indicative of an inability to establish and maintain effective relationships. Moreover, although the Veteran may have difficulty adapting to stressful circumstances, the record contains no evidence that this symptom results in deficiencies in most areas. The evidence does not show that the Veteran demonstrated symptoms of the severity, frequency or duration similar to those associated with the 70 percent rating at any time during the appeal. Overall, during the appeal period, the Board finds that the weight of the credible evidence demonstrates that the Veteran's PTSD symptomatology more closely approximates the schedular criteria for the 50 percent disability rating. The Board is sympathetic to the Veteran's contentions that his service-connected PTSD warrants an increased evaluation. However, in determining the actual degree of disability, an objective examination is more probative of the degree of the Veteran's impairment. Furthermore, the opinions and observations of the Veteran alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.130 with respect to determining the severity of his service-connected PTSD. See Moray v. Brown, 2 Vet. App. 211, 214 (1993); 38 C.F.R. § 3.159(a)(1) and (2) (2013). As the criteria for the next, higher, 70 percent rating are not met, it logically follows that the criteria for an even higher rating of 100 percent-is likewise not met. The discussion above reflects that the rating criteria reasonably describes and contemplates the severity and symptomatology of the Veteran's service-connected psychiatric disability. The Veteran's disability is manifested by impairment in social and occupational functioning. The rating criteria contemplate these impairments; hence, referral for consideration of an extraschedular rating is not warranted. Thun v. Peake, 22 Vet. App. 111 (2008). The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) has been raised. 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). Although the Veteran has been unemployed during the course of the appeal, he has not asserted that it is due to PTSD. Here, there is no evidence of unemployability due to the Veteran's service-connected PTSD. Further consideration of TDIU is not warranted. ORDER An initial disability rating in excess of 50 percent for PTSD is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs