Citation Nr: 1428784 Decision Date: 06/25/14 Archive Date: 07/03/14 DOCKET NO. 13-30 101 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) from September 17, 2008 to December 29, 2010 and in excess of 70 percent prior to April 27, 2012. ATTORNEY FOR THE BOARD Cheryl E. Handy, Counsel INTRODUCTION The Veteran served on active duty from June 1971 to June 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in April 2012 of the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii, which granted service connection for PTSD and assigned an initial disability rating of 30 percent, effective September 17, 2008. A September 2012 rating decision awarded a 100 percent rating effective April 27, 2012. A February 2014 rating decision awarded a 70 percent disability rating effective December 29, 2010. Although the Veteran has at times couched his appeal in terms of the effective date for these ratings, the Veteran's appeal is in actuality the appeal of an initial staged rating; and the Board is required to consider his entitlement to the maximum rating at any point since the effective date of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran had also filed an appeal for entitlement to an effective date earlier than May 23, 2012 for service connection of coronary artery disease. However, he withdrew that claim in writing in January 2014. 38 C.F.R. § 20.204 (2013). FINDINGS OF FACT 1. Prior to June 25, 2009, the Veteran's PTSD was manifested by occupational and social impairment with occasional decrease in work efficiency although generally functioning satisfactorily, due to such symptoms as: depressed mood, anxiety, suspiciousness, chronic sleep impairment, and mild memory loss. 2. Between January 30, 2009, and April 27, 2012, the Veteran's PTSD was manifested by occupational and social impairment with deficiencies in most areas and such symptoms as suicidal ideation, homicidal ideation, difficulty establishing and maintaining relationships, irritability, paranoia, severe depression, and ideas of reference. Total occupational and social impairment was not demonstrated. CONCLUSIONS OF LAW 1. The criteria for a disability rating higher than 30 percent for PTSD were not met prior to January 30, 2009. 38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.130, Diagnostic Code 9411 (2013). 2. As of January 30, 2009, the criteria for a disability rating of 70 percent for PTSD were met. 38 U.S.C.A. §§ 1155; 38 C.F.R. §§ 3.321, 4.130, Diagnostic Code 9411. 3. The criteria for a 100 percent disability rating for PTSD were not met prior to April 27, 2012. 38 U.S.C.A. §§ 5101(a), 5110(a); 38 C.F.R. §§ 3,151(a), 3.400, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran's appeal arises from disagreement with the initial rating following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as 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). Therefore, no further notice is needed under VCAA. Next, VA has a duty to assist the Veteran in the development of claims. This duty includes assisting him in the procurement of pertinent treatment records and providing an examination when necessary. 38 C.F.R. § 3.159. All pertinent, identified medical records have been obtained and considered. The Veteran was afforded VA examinations in December 2010, July 2012, and February 2014. While the Veteran has argued that the December 2010 VA examination was inadequate because it contained some mistaken information regarding his stressors and because it lasted less than an hour, the report of examination contains all findings needed to rate the disability and there has been no specific allegation that the information in the examination report is inaccurate. The Veteran was granted service connection based on the information of record regarding his stressors, so any errors in the VA examination report did not prejudice him. In addition, the February 2014 examiner noted that the length of time of the examination was within clinical norms for diagnosing and assessing mental health disabilities. There is no argument or indication that the other examinations or opinions are inadequate. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). As VA satisfied its duties to notify and assist the Veteran, no further notice or assistance is required. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §3.159. Disability Ratings and Effective Dates A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides the following ratings for psychiatric disabilities: 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), is assigned a 30 percent rating. 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, is assigned a 50 percent rating. 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 worklike setting); inability to establish and maintain effective relationships, is assigned a 70 percent rating. 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, is assigned a 100 percent rating. 38 C.F.R. § 4.130 Global Assessment of Functioning (GAF) scores are 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 the American Psychiatric Association 's Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM IV), page 32). 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. Rather, GAF scores are but one factor to be considered in conjunction with all the other evidence of record. In this instance, the GAF scores assigned by the Veteran's treating mental health provider have remained within a very narrow range despite fluctuations in symptoms and severity of symptoms, rendering them of little probative value in assessing the Veteran's disability picture. A veteran may only qualify for a given initial or increased rating based psychiatric disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and Although a veteran's symptomatology is the primary consideration in assessing disability rating based on a mental disorder, the regulation also requires an ultimate factual conclusion as to the veteran's level of impairment in "most areas" for the 70 percent rating. 38 C.F.R. § 4.130. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Facts and Analysis The Veteran has been receiving regular mental health treatment through VA since the effective date of service connection. The symptoms attributed to his PTSD include flashbacks, nightmares, disturbed sleep, anxiety, depression, irritability, problems with personal and work relationships, paranoia, a tendency to isolate himself, ideas of reference, and passive suicidal and homicidal ideation. The frequency and severity of these symptoms has fluctuated, but his disability picture has gradually worsened over time. Prior diagnoses of the Veteran's condition include anxiety, depression, and adjustment reaction or adjustment disorder, which a VA mental health expert explained in February 2014, reflected a milder version of PTSD. In addition, to the reports of VA examinations in December 2010, July 2012, and February 2014, there are statements by the Veteran's treating mental health provider and a September 2011 psychiatric evaluation done for the Veteran's employer. A December 2006 mental health screening showed complaints of stress at work and intrusive memories of Vietnam. The Veteran was the guardian of his niece, with whom he had a good relationship. He had reduced his drinking, but was stressed and depressed, and reported problems with short term memory. A mental health evaluation on January 29, 2009 related to issues at work showed concern over anxiety, depression, agitation and reactivity to work situations. While the provider mentioned the possibility of PTSD, the discussion appears to have been limited to problems at work. A GAF score of 70 was assigned. At a regular mental health treatment visit on June 25, 2009, the Veteran reported that increased stress levels had triggered recurring thoughts of killing his supervisor. His mood was "horrible" and he was having trouble sleeping. The provider recommended that the Veteran resume antidepressants. The Veteran had increased alcohol intake; and was noted to have paranoia and ideas of reference. Psychological testing in September 2009 showed that the Veteran had severe depression and he reported increased irritability at work with continued homicidal thoughts about his supervisor. Although he became involved in a romantic relationship, things with his significant other were tense and difficult for much of the time, with frequent break-ups. At times of relationship stress, the Veteran had increased PTSD symptomatology, including suicidal ideation. Based on this evidence, a disability rating of 70 percent is warranted as of June 25, 2009. This record indicates that the Veteran's disability became worse at some time between the January 29, 2009 evaluation and the June 25, 2009 mental health treatment. The date of increase is not precisely documented, but resolving reasonable doubt in his favor, the 70 percent rating is granted effective the day after his January 29, 2009 evaluation. As of January 30, 2009, it was at least as likely as not that he was experiencing deficiencies in most of the areas contemplated in the criteria for a 70 percent rating. Prior to that time he was not experiencing deficiencies in the areas of family relations, judgment, thinking or mood and he had not attempted schooling. Although his mood was depressed prior to January 30, 2009, the criteria for the 30 percent rating contemplated a depressed mood. While there were fluctuations in specific symptoms, including alcohol use, nightmares, depression, difficulty getting along with his significant other and his supervisor, and suicidal ideation, the disability picture as a whole remained one of occupational and social impairment with deficiencies in most areas. Prior to April 27, 2012, there was no showing of total social and occupational impairment due to PTSD; notwithstanding that some of the symptoms listed as examples in the 100 percent criteria were reported. Prior to April 27, 2012, the Veteran was maintaining employment in airport maintenance and relationships with his family; hence, there was not total social and occupational impairment. After April 27, 2012, the Veteran had informed his treatment providers that he was prone to violent outbursts, that he scared his wife, and that she frequently threatened to call the police or to leave him. The record also shows that he lost his job in May 2012 because of complications of his coronary artery disease, but that he had been having relationship problems with his superior for some time prior to that. The evidence does not support an earlier effective date for the 100 percent disability rating. Finally, the Board acknowledges the Veteran's repeated statements of concern regarding acceptance of his stressor incidents in service and regarding alteration of his claims documents by a former representative. While this information has been reviewed and considered, the rating for PTSD is assigned on the basis of its impact on his social and occupational functioning, and not on the nature or severity of the stressors that gave rise to that disability. In assigning the Veteran's ratings the Board has resolved reasonable doubt in the Veteran's favor, where applicable. 38 U.S.C.A. § 5107(b). Extraschedular Rating The Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular rating if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). The Board must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). Here, the rating criteria contemplate all social and occupational impairment resulting from PTSD. The criteria reasonably describe the Veteran's disability level and symptomatology, specifically his occupational and social impairment due to PTSD symptoms. The assigned schedular ratings are, therefore, adequate and referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). ORDER Entitlement to a disability rating higher than 30 percent for PTSD prior to January 30, 2009 is denied. Entitlement to a 70 percent disability rating for PTSD is granted effective January 30, 2009. ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs