Citation Nr: 1428599 Decision Date: 06/24/14 Archive Date: 07/03/14 DOCKET NO. 12-02 066 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial rating in excess of 30 percent for a psychiatric disability also claimed as posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Dworkin, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1968 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) from an April 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that granted service connection and assigned an initial 30 percent rating for a psychiatric disability. This matter was previously remanded in December 2013. The Board finds substantial compliance with the requested development for the psychiatric disability claim. Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT During the entire appeal period, the Veteran's service-connected psychiatric disability has not resulted in occupational and social impairment with reduced reliability and productivity and difficulties in establishing and maintaining effective relationships. CONCLUSION OF LAW The criteria for an initial rating in excess of 30 percent for a psychiatric disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.20, 4.130, 4.132, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified by letter dated in November 2006. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by claimant or representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied the duty to notify the appellant and had satisfied that duty prior to the adjudication of the March 2014 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, or available evidence. VA provided the appellant with an adequate examinations and obtained an adequate opinions concerning the Veteran's psychiatric disabilities in October 2007, October 2009, and January 2014. Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Rating Disability ratings are determined by application of the criteria set forth in the VA Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7 (2013). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2013). The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1 (2013); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of assignment of different ratings for distinct periods of time, based on the facts found, is required. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting a decision, there is no requirement that all of the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claim file shows, or fails to show, with respect to the claim. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). When rating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant's capacity for adjustment during periods of remission. VA shall assign a rating 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) (2013). When rating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign an rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b) (2013). The Veteran is currently assigned an initial 30 percent rating for a psychiatric disability claimed as PTSD pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411 (2013). Pursuant to the General Rating Formula for Mental Disorders, 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, mild memory loss (such as forgetting names, directions, recent events). 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 per 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 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 work like setting); inability to establish and maintain effective relationships. 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; 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. 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 the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." VA considers psychiatric disabilities based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). 38 C.F.R. §§ 4.125, 4.130 (2013). The DSM-IV contains a Global Assessment of Functioning (GAF) scale, with scores ranging between 0 percent and 100, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. Higher scores correspond to better functioning of the individual. GAF scores ranging between 61 and 70 are assigned when there are some mild symptoms (e.g., depressed mood and mild insomnia), or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but when the individual is functioning "pretty well" and has some meaningful interpersonal relationships. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 4th. ed. (1994). GAF scores ranging between 51 and 60 are assigned when there are moderate symptoms (like flat affect and circumstantial speech, and occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 4th. ed. (1994). GAF scores ranging between 41 and 50 are assigned when there are 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). American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 4th. ed. (1994). The Veteran underwent a VA examination in October 2007 regarding his claim for a psychiatric disability. The Veteran denied a history of suicide attempts or violent episodes. The Veteran reported that for the past three years he had been consuming 12 beers per day. He described having a "good marriage" where he and his wife have "differences like everybody else." He also endorsed having close relationships with this four children and having three close friends. He reported full-time employment. The VA examiner described the Veteran's general appearance as clean, neatly groomed, and appropriately dressed. His psychomotor activity and speech were noted as unremarkable. The Veteran's attitude was cooperative, friendly, and attentive. His affect was normal and mood was reported by the Veteran as O.K. His memory was noted as normal. The Veteran was found to be oriented in all three spheres. The Veteran did not show or report any inappropriate behavior, ritualistic behavior, panic attacks, homicidal thoughts, or suicidal thoughts. The Veteran did report that he was only sleeping 4 hours per night. The VA examiner found that the Veteran's psychiatric disability did not impair either his occupational or social functioning. His GAF was assessed as 75 A December 2008 VA treatment record shows that the Veteran registered a negative depression screening. A December 2008 VA treatment note reported that the Veteran had occasional intrusive memories, nightmares, sleeping difficulties, hypervigilance, exaggerated startled response, and noise/crowd avoidance behaviors. The Veteran did not report any homicidal or suicidal ideations. He was diagnosed with an adjustment disorder with anxiety and registered a GAF of 65. A January 2009 VA treatment record shows that the Veteran was casually dressed, well groomed, pleasant, and cooperative. The Veteran's thought process was noted as logical, linear, and goal oriented. There was no evidence of psychosis and his mood/affect was noted as congruent. The Veteran reported drinking 12 beers per day. A March 2009 alcoholics anonymous consultation note reported that the Veteran was casually dressed as well as prompt and pleasant for his appointment. The Veteran's mood and affected were noted as congruent. No suicidal thoughts were reported. An October 2009 VA examination report concerning the Veteran's claim for a psychiatric disability shows that the Veteran reported situational stress due to family issues and financial issues due to his inability to work post a hip replacement and hernia repair. He described himself as being retired. He endorse mild symptoms of anxiety on a daily basis. The VA examiner noted that the Veteran was clean and neatly groomed. His speech was noted as unremarkable and his attitude was cooperative, friendly, and relaxed. The Veteran affect was appropriate and mood was good. The Veteran did not report any delusions, homicidal thoughts, or suicidal thoughts. The Veteran denied episodes of hallucinations and showed no indications of ritualistic behaviors or panic attacks. While he said he was forgetful, he was able to recall three items after several minutes. The VA examiner indicated that the Veteran was able to maintain minimum personal hygiene. The Veteran reported that he had withdrawn from people as he feels that others do not accept him. The VA examiner diagnosed the Veteran with an adjustment disorder with anxiety and assigned a GAF of 77. The VA examiner also indicated that the Veteran's psychiatric disability did not having any social or occupational impairment. The VA examiner reported that the Veteran did not have reduced reliability and productivity due to his psychiatric disability. He specifically noted that the Veteran's unemployment was due to his recent surgeries. A November 2011 VA treatment note reported that a depression screening was suggestive of moderate depression. The Veteran was assessed with a dysthymic disorder. The Veteran's demeanor was noted as pleasant and cooperative. His speech was normal and affect was appropriate. The VA medical personnel reported that the Veteran's mood was euthymic. A December 2011 VA psychiatric consultation note reported that the Veteran was having conflict with his spouse. He reported that he was having difficulties sleeping which affected his concentration and energy level. The Veteran reported that he was not eating as much. He reported current stressors of financial struggles and caring for his autistic son. The Veteran reported that before his hip replacement he enjoyed hunting, fishing, gardening, shooting pool, and spending time with his grandchildren. The VA examiner noted that the Veteran did not have any suicide attempts, no psychomotor abnormalities, and no suicidal ideations. The Veteran's mood was noted as sad, his affect was noted as tearful, cheerful, and euthymic. He was diagnosed with an adjustment disorder with a depressive mood and alcohol abuse. His GAF was assessed as 60. A November 2012 VA treatment record shows that the Veteran had a positive indication for depression. A PTSD screening showed a positive indication as the Veteran reported nightmares, avoidance behaviors, hypervigilance, and felt numb and detached from others. A December 2012 VA psychiatric assessment report showed that the Veteran displayed mild-moderate depressive and anxiety symptoms. The Veteran endorsed difficulty relaxing, indecisiveness, a highly sensitive response, and symptoms such as heart palpitations with excessive sweating. The Veteran symptoms were reported to not appear to be in response to specific stimuli or past traumatic events. His psychiatric symptoms were classified as a more generalized nature. The Veteran showed little interest in establishing and maintain relationships with others, detached and withdrawn and indifference toward others. The Veteran's communications were vague, unfocused, and distant. A February 2013 VA PTSD consultation report showed that the Veteran was alert with a normal affect. His mood was noted as euthymic, anxious, with limited judgment and insight. The Veteran's thoughts were logical and goal directed. His memory and concentration appeared fair. VA medical personnel reported that the Veteran showed no depression or anxiety verbally, but did endorse that his wife thought he had withdrawn from the world. The Veteran reported that he usually stayed in the house except for church and visiting his grandchildren. He reported dreams of coming under fire from mortars but also sleeping a total of 6 to 7 hours. VA medical personnel indicated that the Veteran had anxiety symptoms with some PTSD symptoms and avoidance related to PTSD. He was diagnosed with anxiety not otherwise specified. A February 2013 VA treatment report showed that the Veteran did not present a full range of PTSD symptoms. His martial issues were noted as prominent with alcohol and relational issues. He also showed a socially isolating lifestyle. Psychiatric testing did not suggest PTSD and he was referred to couples counseling. A January 2014 VA examination report showed that the Veteran's psychiatric disability manifested in occupational and social impairment due to mild or transient symptoms which decreased work efficiency and the ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. He described being actively involved in his church - "I'm full time, I go on Sundays." He said he used to be a part of church leadership but that changes at the church had changed that. He again described healthy relationship with his wife of over 40 years and four children as well as have a couple of close friends. He said he had recently returned to work on a part-time basis. The Veteran did not report any suicidal or homicidal thoughts. The VA examiner noted that the Veteran's psychiatric disability caused symptoms such as anxiety and chronic sleep impairment. The Veteran reported intrusive memories regarding Vietnam, worrying, flashbacks, avoidance thinking, sleeping difficulties, irritability, and being watchful. The Veteran's previous diagnosis of unspecified anxiety disorder was confirmed by the VA examiner. A February 2014 statement submitted by the Veteran's spouse reported that she had been married to the Veteran for 41 years. She reported that the Veteran was short tempered, irritable, and did not like to be around his family. She indicated that the Veteran avoids noises and sports events. She also reported that the Veteran did not go to church or read the bible like he used to. Based on the above, the Board finds that a disability rating in excess of 30 percent is not warranted. The Veteran has not demonstrated symptoms such as flattened affect, 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, or impaired abstract thinking. There is also no evidence of weekly panic attacks. His speech has been normal through this period of time. It is true that there is evidence of that the Veteran had some disturbances of mood, i.e. depression. Crucially, the presence or absence of certain symptoms is not necessarily determinative. These symptoms must ultimately result in the occupational and social impairment in the referenced areas. See Vazquez-Claudio, supra. The treatment records and multiple VA examination reports were not indicative of occupational and social impairment that approximate the criteria for a 50 percent or higher rating. The findings of the VA examiners and treatment records demonstrated that the Veteran had occupational and social impairment with difficulty in establishing effective work and social relationships. Indeed, as highlighted, the records from this period show that the Veteran had a productive work history up until the time when his hip disability forced him to undergo surgery and enter into a period of rehabilitation. He now states that he has returned to work on a part-time basis. There is no indication that his psychiatric disorder has had any negative effect on his ability to work. He was also shown to enjoy a positive home and family life. While there are findings that the Veteran's marital relationship was strained at time, the fact that he report that he has been married for over 40 years, that he has three daughters and an adopted son with special needs, and that he has at least two friendship that he describes as fun is evidence against the claim for an increased rating. Accordingly, in this case, the Board finds that the existence and severity of the Veteran's psychiatric symptoms are adequately contemplated by the relevant rating criteria. Many of the symptoms are specifically listed in the General Rating Formula for Mental Disorders, and the others are common psychiatric symptoms that-while not specifically listed-are comparable indicators of the type of occupational and social impairment contemplated in the Rating Formula. The Board finds that the Veteran's symptoms as described above are consistent with the currently assigned 30 percent disability rating. With respect to the Veteran's GAF scores, the evidence of record documents GAF scores of 75, 65, 77, and 60, which contemplate mild impairment in several areas to moderate symptoms. According to the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (1994) (DSM-IV), a GAF score is a scale indicating psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. The GAF score and the interpretations of the score are important considerations in rating a psychiatric disability. Richard v. Brown, 9 Vet. App. 266 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). The GAF score assigned, like an examiners assessment of the severity of a condition, is not dispositive of the percentage rating issue. Rather, it must be considered in light of the actual symptoms of a psychiatric disorder, which provide the primary basis for the rating assigned. 38 C.F.R. § 4.126(a) (2013). Thus, GAF scores are not, in and of themselves, the dispositive element in rating a disability, and the Board generally places more probative weight on the specific clinical findings noted on examinations. In this case, the clinical findings during the time period at issue do not substantiate GAF scores indicative of more than mild symptomatology. Although some of the medical evidence suggests that the Veteran's psychiatric symptomatology fell into the moderate range, the evidence does not establish that the Veteran's psychiatric symptomatology resulted in moderate deficiencies or met the symptomatology for an initial rating greater than 30 percent. The Board finds that the clinical findings of records demonstrate a degree of impairment consistent with no more than the currently assigned 30 percent rating. According to DSM-IV, GAF scores between 61 and 70 indicate mild symptoms such as depressed mood and mild insomnia, or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but when the individual is functioning "pretty well" and has some meaningful interpersonal relationships. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 4th. ed. (1994). The reported symptomatology is consistent with no more than mild symptoms or mild difficulty in social, occupational, or school functioning. The Veteran is shown to have family that he socializes with and was not found to have suicidal ideations or obsessional rituals, panic attacks, neglect of personal appearance and hygiene, impaired judgment, impaired memory, or impaired abstract thinking. The Board acknowledges that the Veteran and his wife are competent to report symptoms of his psychiatric disability. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). There is likewise no basis to question the credibility of these statements. Neither of them however are competent to identify a specific level of disability of his disability according to the appropriate diagnostic code. Such competent evidence concerning the nature and extent of the Veteran's service-connected psychiatric disability has been provided by VA medical professionals who have examined him. The medical findings directly address the criteria under which this disability is evaluated. The Board finds these records to be the only competent and probative evidence of record, and therefore is accorded greater weight than the Veteran's subjective complaints of increased symptomatology. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Board has also considered whether the Veteran's claim for a higher initial rating should be referred for consideration of an extraschedular rating. 38 C.F.R. § 3.321(b)(1) (2013). The Board concludes that referral is not warranted. The Veteran's symptoms of sleeping impairment, flashbacks, anxiety, depression, irritability, and avoidance behavior are fully contemplated by the schedular rating criteria. A higher rating is available for his psychiatric disability. However the Veteran does not meet the criteria for a higher rating. There is nothing in the record to suggest that his disability picture is so exceptional or unusual as to render impractical the application of the regular schedular standards, and the evidence does not show marked interference with employment or frequent hospitalization due to the disability. Thun v. Peake, 22 Vet. App. 111 (2008). The Veteran has never claimed that his psychiatric disability has markedly interfered with employment and has denied any hospitalization for treatment of psychiatric symptoms. Therefore, the Board finds that referral for consideration of an extraschedular rating is not warranted. ORDER Entitlement to an initial rating in excess of 30 percent for a psychiatric disability also claimed as PTSD is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs