Citation Nr: 1410156 Decision Date: 03/12/14 Archive Date: 03/20/14 DOCKET NO. 13-02 114 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an increased rating for posttraumatic stress disorder (PTSD), currently rated at 30 percent. REPRESENTATION Appellant represented by: Sean Kendall, Attorney at Law ATTORNEY FOR THE BOARD K. Archer, Associate Counsel INTRODUCTION The Veteran had active duty service from August 1965 to April 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, that denied a PTSD rating in excess of 30 percent. The Board has reviewed all evidence of record, including that found on Virtual VA. FINDING OF FACT Throughout the rating period on appeal, the Veteran's PTSD has been manifested by occupational and social impairment with deficiencies in most areas, such as family relations, judgment, thinking, and mood; but not by total occupational and social impairment. CONCLUSION OF LAW The criteria for a 70 percent rating for PTSD have been met. 38 U.S.C.A. §§ 1155, 5103, 5110(b)(2) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.321(b)(1), 3.400(o)(2), 4.3, 4.7, 4.21, 4.126, 4.130, Diagnostic Code (DC) 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist Veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Adequate VCAA notice in an increased rating claim requires that the claimant be told that to substantiate a claim the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; that should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008); vacated and remanded in part Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The notification letter sent in January 2009, provided the required notice. The purpose of VA's notice requirements have been met, and VA has no outstanding duty to inform the Veteran that any additional information or evidence is needed. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include VA treatment records, VA examination reports, and statements from the Veteran. Further, the Veteran received adequate VA examinations in April 2009 and July 2010. The rating examinations contained the necessary findings to rate the Veteran's disability. The duty to assist has been fulfilled. The Veteran has not asserted, nor is it evident from the record, that any additional notice or evidence would be reasonably likely to aid the Veteran in further substantiating his claim. Further notice or assistance is not required. 38 U.S.C.A. § 5103A(a)(2). Applicable Laws and Regulations Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 8 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2013). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21. A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the claim was filed until a final decision is made. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When all the evidence is assembled, the determination must be made as to whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Analysis PTSD was initially rated as 30 percent disabling by an October 2007 rating decision, effective March 21, 2007. In December 2008, the Veteran claimed entitlement to an increased rating. PTSD is rated under Diagnostic Code 9411, which provides a 30 percent rating is warranted for 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; and/or mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is warranted for 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; and/or difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted 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); and/or inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted for 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; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and/or memory loss for names of close relatives, own occupation, or own name. Id. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (2013). One factor for consideration is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). A GAF score of 71 to 80 indicates that if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). A GAF score of 61 to 70 indicates some mild symptomatology (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, with some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect 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). 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). Although 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, Diagnostic Code 9411. The Veteran was afforded an April 2009 VA PTSD examination. He reported that he had completed a year-long group therapy program and found the treatment helped him to develop more adaptive coping strategies to deal with his PTSD. The Veteran stated that although he continued to experience intrusive thoughts, frequent nightmares, and avoided anything that would remind him of events in Vietnam, he no longer engaged in many of the dysfunctional coping strategies that he had in the past. He described PTSD symptoms consisting of nightmares 1-3 times per week, intrusive thoughts about friends that died in Vietnam, efforts to avoid thoughts about traumatic events in Vietnam, and avoiding crowds and people. He reported that his mood fluctuated from feeling good and pleasant to feeling irritable, anxious, and depressed. However, he did not feel as anxious as he did in the past. He denied any incidence of violence, including assaults, or suicidal ideation. The Veteran currently lived with partner of two years. He stated that he appreciated his partner's support through his medical problems and planned to marry her in the future. He was heavily involved in church and had a deep spiritual faith and belief system that helped him cope with numerous stressors. He also had a very close relationship with his adult son and two grandchildren. He explained further that he took great joy in his relationship with them and played and spoke with them on regular basis. Objective examination revealed that the Veteran was appropriately dressed, pleasant, open, and cooperative. He made good eye contact and engaged in spontaneous speech and conversation. His affect was dysphoric at times, which was congruent with a mildly depressed mood. His thinking was tangential at times, somewhat circumstantial, but otherwise logical and coherent. He displayed adequate attention and concentration and his recent and remote memory were intact. He had no problems with impulse control and he denied symptoms of psychosis, including hallucinations. The examiner found that the overall severity of the Veteran's symptoms appeared to have remained the same compared to the previous VA mental health examination in September 2007. The examiner assigned a GAF score of 50. At a June 2009 PTSD consult, the Veteran asked to resume individual therapy sessions with the VA. He reported that he continued to re-experience traumatic events, daily intrusive thoughts, and weekly nightmares regarding combat. He reported poor sleep, noting difficulty with falling and staying asleep. He shared that he continued to find it difficult to trust and consequently tends to isolate and avoid being around others. He reported that he had significantly reduced his participation in activities and had pulled away from friends and family. At an August 2009 individual therapy session, the Veteran reported severe nightmares related to combat experiences. His sleep was disrupted and he was unable to return to sleep after the nightmares. In a September 2009 session, the Veteran reported a constant fear of death and noted difficulties in maintaining relationships. In November 2009, he expressed fear of commitment and the effect his PTSD symptoms would have on his relationship with his long-term partner. In January 2010, the Veteran indicated that attempts to improve his mood were failing. In all sessions he was alert, attentive, and oriented times four, and denied any suicidal or homicidal ideation. At a July 2010 VA examination, the Veteran continued to report a loving and close relationship with his partner, son, and grandchildren. He stated, however, that his social relationships were primarily limited to his family and he did not go anywhere except to attend church. He enjoyed reading and occasionally spoke with some friends with whom he served in Vietnam. He denied a history of violence or assaultivness and suicidal attempts. He continued to report sleep impairment related to combat and stated he frequently had panic attacks at night when trying to sleep due to fearful and racing thoughts. The Veteran reported difficulty with concentration, hypervigilence, exaggerated startled responses, diminished interest or participation in significant activities, and sad and dysphoric thoughts. Examination revealed that the Veteran was neatly groomed and cooperative but guarded. His speech was clear but his thought process was circumstantial. His remote and recent memories were intact. His affect was constricted and his mood was noted as anxious. His attention was intact but he was unable to do serial 7s. He was oriented to time, person, and place. His judgment and insight were deemed fair and there was no indication of delusions or hallucinations. The examiner noted ritualistic behavior consisting of checking locks and doors at night. The examiner also noted that the Veteran had no homicidal or suicidal thoughts, he had good impulse control, and he was able to maintain his personal hygiene. The examiner concluded that the Veteran's PTSD did not result in total occupational and social impairment; but did result in deficiencies in family relations, mood, and thinking. There were no deficiencies in the areas of work or judgment. The examiner noted the Veteran's fear of commitment, social avoidance, anxiety, and sad and melancholy thoughts to support his conclusion. He assigned a GAF of 45. The GAF scores of 50 and 45, assigned by the April 2009 and the July 2010 VA examiners, respectively, are indicative of serious symptoms or serious impairment in social and occupational functioning and the July 2010 examiner found deficiencies in most of the areas for a 70 percent rating. Thus, affording the Veteran the benefit of the doubt, the Board finds that that the record supports 70 percent rating for the entire appellate period. The Board leaves it to the RO to assign a specific effective date in the first instance. The Veteran's PTSD has not resulted in total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent danger of hurting self or others; intermittent inability to perform activities of daily living; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. As outlined above, the Veteran consistently denied suicidal and homicidal ideations, hallucinations, and delusions. Further, the evidence includes findings of normal thought processes, communication, memory, grooming, hygiene, judgment, and abstract thinking. Other symptoms indicative of total occupational and social impairment were not shown. The Veteran has maintained close relationships with his partner, son, and grandchildren. He also has reported occasional contact with a few friends and church participation. The recent examiner found that he did not have deficiencies in the area of work. Thus, the evidence is against a finding that PTSD causes total social and occupational impairment. Extraschedular Considerations In exceptional cases, an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The PTSD rating is intended to encompass all social and occupational impairment resulting from the disability. Veteran has not reported any symptoms attributed to his PTSD not contemplated by the rating criteria. The rating criteria specifically contemplates the Veteran's functional impairment as well as his subjective complaints of panic attacks, depressed mood, anxiety, sleep impairment, and difficulty concentrating. Thus, the rating criteria are adequate to evaluate his disability and referral for consideration of extraschedular rating is not warranted. 38 C.F.R. § 3.321; Thun, 572 F.3d 1366. TDIU In addition, the Board notes that if the claimant or the 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 to that claim for a higher rating is whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran is service-connected for coronary artery disease (CAD) at a 100 percent disability rating, effective August 18, 2005. In a June 2011 rating decision, the RO referenced the Veteran's May 2010 application for TDIU benefits but determined that the request was moot because the Veteran was already found to be totally disabled by his service-connected CAD. The Court has held that the receipt of a 100 percent schedular rating for a service-connected disability does not necessarily render moot any pending claim for a TDIU. Bradley v. Peake, 22 Vet. App. 280 (2008). Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the Court's decision in Bradley recognizes that a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation at the housebound rate. 38 U.S.C.A. § 1114(s) (West 2002 & Supp. 2013); However, as the Veteran is already in receipt of special monthly compensation at that rate, effective October 31, 2008, further consideration of the claim under Rice is not warranted. ORDER Entitlement to an increased, 70 percent, rating for PTSD is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs