Citation Nr: 1410101 Decision Date: 03/12/14 Archive Date: 03/20/14 DOCKET NO. 10-27 882 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii THE ISSUE Entitlement to an increase in the 10 percent evaluation currently assigned for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from February 1960 to February 1963. This matter comes before the Board of Veterans Affairs (Board) on appeal from a September 2009 decision by the RO which denied, in part, the benefits sought on appeal. A videoconference hearing before the undersigned was held in October 2011. The Veterans Benefits Management System and Virtual VA paperless claims processing system do not contain additional evidence relevant to this appeal. FINDING OF FACT The Veteran's symptoms of PTSD more nearly approximate the degree of occupational and social impairment contemplated by a 30 percent schedular rating, and no higher. CONCLUSION OF LAW The criteria for an increased evaluation to 30 percent, and no higher, for PTSD have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.156(b), 3.159, 4.1-4.14, 4.130, Part 4, Diagnostic Codes 9411-9440 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Before addressing the merits of the Veteran's claim, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in July 2009. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); see also, Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). As to VA's duty to assist, the Board finds that all necessary development has been accomplished and that appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records (STRs) and VA and private medical records have been obtained and associated with the claims file. The Board has also reviewed the Veteran's Virtual VA records. The Veteran contended at his Board hearing that the most recent VA examination was inadequate because the examiner had formed an opinion at the outset of the examination. The Board finds that the VA examinations, in particular, the February 2011 VA examination, were thorough and adequate upon which to base a decision concerning the claim for increased rating. The examiner noted the Veteran's reports and contentions and the clinical observations and conclusions of the examiner indicate consideration of the reports and an unbiased clinical assessment. There is no competent or credible evidence indicating that there has been a material change in the severity of the Veteran's PTSD since the most recent examination in February 2011. The examiners personally interviewed and examined the Veteran, elicited a medical history and provided the information necessary to evaluate his disability under the applicable rating criteria. The Veteran was also afforded a hearing before an Acting Veterans Law Judge (AVLJ) in which he presented oral argument in support of his PTSD claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2013) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the AVLJ did not note the bases of the prior determinations or the elements that were lacking to substantiate the PTSD claim. The AVLJ asked questions, however, directed at identifying the location of any outstanding medical evidence. The AVLJ did not ask whether the Veteran had symptoms meeting the schedular criteria for a higher rating, however, the Veteran's representative did so. This was not necessary, however, because the Veteran volunteered his treatment history. The Veteran's Board hearing testimony regarding his current symptoms and impairment is consistent with that reported to and observed by the previous examiners and outpatient clinicians. Accordingly, the Veteran is not shown to be prejudiced on this basis. Additionally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. The hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the undersigned has complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Based on a review of the claims file, the Board concludes that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. In adjudicating the claim below, the Board has reviewed all of the evidence in the Veteran's claims file including those found in Virtual VA. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the Veteran's claims folder shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Increased Ratings - In General 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). When the appeal arises from an initial assigned rating, consideration must be given 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). However, staged ratings are also 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). Disability evaluations are determined by the application of a schedule of ratings, 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. The percentage ratings in VA's Schedule for Rating Disabilities (Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Under Diagnostic Code (DC) 9411, a 10 percent evaluation is assigned when there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication; a 10 percent rating is awarded. A 30 percent evaluation is assigned 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 conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events), a 30 percent rating is awarded. A 50 percent evaluation is assigned when PTSD results in occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereo-typed 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 evaluation is contemplated 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent evaluation is warranted when there is evidence of 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, Diagnostic Code 9411 (2013). 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. Id. The use of the phrase "such symptoms as" followed by a list of examples, provides guidance as to the severity of 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 the claimant's social and work situation. Id. In evaluating psychiatric disorders, the VA has adopted and employs the nomenclature in the rating schedule based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). See 38 C.F.R. § 4.130. As such, the diagnosis of a mental disorder should conform to DSM-IV. See 38 C.F.R. § 4,125(a). Diagnoses many times will include an Axis V diagnosis, or a Global Assessment of Functioning (GAF) score. The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). Consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, 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. See 38 C.F.R. § 4.126(a). Furthermore, when evaluating the level of disability arising from a mental disorder, the rating agency 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). It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2 (2013). Factual Background The Veteran contends that his PTSD is more severe than reflected by the 10 percent evaluation currently assigned. At the videoconference hearing, the Veteran testified that he has difficulty getting along with people, has outbursts of anger, and tends to isolate himself, preferring to keep to himself and avoids crowds or going into town. He also reported flashbacks, survivor guilt, and intrusive thoughts, and believes that his disability should be rated higher than 10 percent. The pertinent evidence of record includes an August 2009 and February 2011 VA psychiatric examination reports, and numerous VA outpatient notes showing treatment for various maladies including mental health disorders from 2007 to 2011. On VA QTC examination in August 2009, the examiner indicated that the claims file was reviewed and included a description of the Veteran's complaints and medical history. The Veteran reported disturbing dreams two to three times a week and hypervigilance -easily startled by loud noise or easily awakened from sleep by noise. He reported anger issues, avoidance behavior, depression related to his health issues (lymphoma) and decreased appetite since his last surgery. He exercised three times a week in a water aerobics class and swimming. On mental status examination, the examiner indicated that the Veteran's communication ability was impaired by his anger and isolation, that he avoided people and tended to isolate himself, and that he had panic attacks when in crowded places. The Veteran reported disturbing dreams, elevated arousal (anger/irritability), avoidance behavior and hypervigilance. The examiner commented that the Veteran had serious symptoms, some difficulty in social functioning and serious occupational impairment due to his health problems but not due to his PTSD. The examiner indicated that the Veteran continued to have a mild form of PTSD, and assigned a Global Assessment of Functioning (GAF) score of 75 for PTSD, alone. When examined by VA in February 2011, the examiner indicated that the claims file was reviewed and included a description of the Veteran's complaints, medical history, and clinical findings on examination. The Veteran reported nightmares twice a month, occasional intrusive thoughts, avoidance/detachment behavior, diminished interests, irritability, increased arousal, impaired sleep and concentration, and occasional exaggerated startle response. The Veteran reported that he had difficulty finding work because of his impaired hearing and because he lived in an isolated area where there is little employment. He said that he got along well with his coworkers and supervisors where he previously worked for 22 years, and said that he experienced only mild impairment due to irritability. The Veteran has been married for over 50 years and reported some marital problems due to losing his temper. The Veteran reported that he engaged in occasional social and leisure activities and denied any impairment of daily activities. On mental status examination, there was no impairment of thought processes or communication, and no delusions, hallucinations, or inappropriate behavior. The Veteran was well oriented, his speech was normal, and he denied any suicidal or homicidal ideations. There was no memory impairment, impaired impulse control, sleep impairment or panic attacks. The Veteran reported ritualistic behavior in checking around the house, and an occasional depressed mood. The diagnosis was PTSD and the GAF score was 68. The examiner indicated that the Veteran experiences mild occupational and social impairment due to irritability and detachment, but that it did not prevent him from finding or maintaining gainful employment consistent with his education and experience. The Veteran reported that he lived in a remote area and that this was a major factor in limiting his employment opportunities. He also reported being turned down for jobs in the past because of his hearing impairment. The examiner indicated that the Veteran's PTSD resulted in occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to signs and symptoms of his PTSD, but that he was generally functioning satisfactory. The evidence of record also included numerous VA outpatient notes showing treatment for various maladies from 2007 to 2011, including periodic evaluations for medication management and psychotherapy by VA psychiatric services. A treatment note in July 2007, indicated that the Veteran's PTSD symptoms were relatively quiescent and that he was managing well without psychotropic medication. The GAF score was 60. A treatment note in June 2008, noted that he had been diagnosed with non-Hodgkin's lymphoma a few months earlier, but had not had any follow-up since then. The Veteran reported a lot of distressing dreams that caused him to wake up, but that he could not identify any consistent theme or content. Some of his dreams related to his military experiences, but not consistently. Other than a dysphoric mood, all mental status findings were essentially normal. There was no evidence of any unusual thought content, perceptual disturbances, or suicidal or homicidal ideations. The Veteran was well oriented, his memory was intact and his speech was normal. The diagnosis was PTSD and the GAF score was 55. When seen in December 2008, the Veteran complained that he was in the military for 22 years and could not get anything out of it. His mood was disgruntled and worried but not pervasively depressed. His affect was full, his speech was normal, and his thought processes were linear and goal directed. The Veteran was well oriented, his hygiene was good, and there were no ideas of reference or any suicidal or homicidal ideations. The diagnosis was mild PTSD, and the GAF score was 65. Also of record is a letter from the Veteran's wife, dated in August 2009, in which she offered a general description of the Veteran's deteriorating health problems and his daily activities. In this case, the clinical findings on the two VA examinations as well as the VA outpatient notes during the pendency of this appeal were not materially different and showed no more than mild psychiatric impairment associated with the Veteran's PTSD. While the Veteran reported a history of depression, anxiousness and occasional sleep disturbance, the clinical findings on all of the medical reports of record showed that he was alert and well oriented on all occasions. His speech was coherent, logical and goal directed, and his judgment and insight was intact at all times. Moreover, the examiners who evaluated the Veteran during the pendency of this appeal described his symptoms as causing only mild impairment. The GAF score is an indicator of the examiner's assessment of the individual's overall functioning. A GAF score between 51 and 60 contemplates 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 peers or co-workers). A GAF score between 61 and 70 contemplates 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 with the household), but generally functioning pretty well, has some meaningful interpersonal relationships. American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (4th. ed., 1994) (DSM-IV). However, the Board is not required to assign a rating based merely on such score. In this case, the GAF scores assigned by the various healthcare providers during the pendency of this appeal ranged principally from 60 to 75, with a single score of 55 on a June 2008 VA outpatient note. As to that report, the Board notes that the examiner did not describe any increased or abnormal clinical findings that suggested a worsening of the Veteran's PTSD, nor did the examiner provide any discussion or analysis as to the basis for the assigned score. Given the Veteran's description of mild symptoms on the VA examinations and the other outpatient visits during the pendency of this appeal, as well as at the videoconference hearing, the Board finds that the one-time GAF score of 55, does not warrant the assignment of a staged rating. The Veteran's complaints and symptoms prior to, and after the June 2008 outpatient note did not suggest that the manifestations of his PTSD were significantly different and showed that he was well oriented, and had no cognitive impairment or difficulty establishing or maintaining effective relationships. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). As the June 2008 outpatient note did not show any actual clinical findings suggesting an increase or worsening of the Veteran's PTSD or provide any explanation for the assigned score, the Board finds that the GAF score, itself, is of little probative value and declines to assign it any significant evidentiary weight. The evidence required to warrant a grant of disability benefits does not have to be conclusive. The question is whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The material question at issue is whether the Veteran has sufficient occupational and social impairment to disrupt his performance of occupational tasks to the extent set forth in the rating criteria described above for a higher evaluation of 30 percent or greater at any time during the pendency of this appeal. 38 C.F.R. § 4.130 (2013). After reviewing the evidence of record, the Board concludes that the Veteran's psychiatric disability picture more closely approximates the criteria for a 30 percent schedular rating, and no higher. The Veteran's complaints and the clinical findings during the pendency of this appeal have consistently shown that he was well oriented, his thought processes were well organized and goal directed, and that his speech was relevant and coherent. The Veteran testified that he got along well with his co-workers and supervisors prior to his retirement, and that he had no problems at work due to his PTSD. The Veteran has been married for over 50 years and has a good relationship with his wife and two adult children. On the other hand, the Board does not discount the effect of the Veteran's symptoms of sleep disturbance, avoidance behavior and depression on his daily life. The records showed that he has some difficulty interacting with people and that he apparently displays periods of frustration and mood disturbance. The fact that he is able to deal with his symptoms without medication does not diminish the degree of his psychiatric impairment. However, the evidence of record does not show that the Veteran's symptomatology is reflective of the severity and persistence to warrant an evaluation in excess of 50 percent at any time during the pendency of this appeal. The Veteran does not demonstrate occupational and social impairment due to symptoms related to PTSD, such as, obsessional rituals which interfere with routine activities; intermittent, illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control; disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances, or an inability to establish and maintain effective relationships. The Board has also considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321(b)(1). 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). For the reasons discussed above, the Board finds that the manifestations of the Veteran's PTSD is consistent with the schedular criteria, and there is no objective or competent medical evidence that any manifestation related to the service-connected disability is unusual or exceptional. The schedular rating criteria adequately contemplate the degree of impairment caused by the Veteran's disability, and provides for increased ratings for additional symptoms. In view of this, referral of this case for extraschedular consideration is not in order. Id. See also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). Finally, the Board notes that, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part of the claim for benefits for the underlying disability. Id. Here, the Board finds that a claim for a TDIU was not expressly raised by the Veteran or reasonably raised by the record. The Veteran is currently retired and reported that his PTSD did not cause him any significant problems when he was employed. Furthermore, the Veteran has never alleged that he is unable to work because of his PTSD, nor is there any objective or competent medical evidence that suggest that his psychiatric symptoms would cause more than mild occupational or social impairment. Based on the evidence of record, the Board finds that further consideration of a TDIU is not warranted. ORDER An increased evaluation of 30 percent, and no higher, for PTSD is granted, subject to VA laws and regulations pertaining to the payment of monetary benefits. ____________________________________________ J.W. FRANCIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs