Citation Nr: 1432016 Decision Date: 07/16/14 Archive Date: 07/22/14 DOCKET NO. 10-47 471 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to an initial rating higher than 30 percent for the service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty from November 1965 to June 1967. This included service in the Republic of Vietnam. He was awarded the Vietnam Service Medal, the National Defense Service Medal, and a Purple Heart. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in September 2009 by the RO in Louisville, Kentucky, which granted service connection for PTSD and assigned an initial noncompensable rating. In July 2012, the Board remanded the issue for the RO to afford the Veteran a VA examination. Such an examination was conducted in June 2013. In a July 2013 decision, a Decision Review Officer (DRO) assigned an initial rating of 30 percent effective on February 18, 2009, which is the date service connection for PTSD was granted. Thus, the 30 percent rating has been granted for the entire appeal period. The Virtual VA paperless claims processing system and the Veterans Benefits Management System have been reviewed. A PTSD VA examination dated in June 2013 is part of Virtual VA. The other documents in the electronic files are either duplicative of the evidence of record or are not pertinent to the present appeal. FINDING OF FACT For the period of the appeal, the service-connected PTSD is shown to have been manifested by a disability picture that more nearly approximates that of occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for the assignment of an initial higher rating of 50 percent, but no higher for the service-connected PTSD have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9413 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) VCAA amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159. In a brief dated in June 2012 and in a statement dated in July 2012, the Veteran's representative stated that the Veteran is entitled to a 50 percent rating for his service-connected PTSD. A veteran is presumed to be seeking the maximum evaluation possible, unless he specifies otherwise. AB v. Brown, 6 Vet. App. 35 (1993). Here, the Veteran through his representative has limited his appeal to a 50 percent evaluation. Thus, in light of the Board's grant of an initial rating of 50 percent, the Veteran's claim has been fully granted and VA's duties to notify and assist are deemed fully satisfied. There is no prejudice to the Veteran in proceeding to decide the issue on appeal. See 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159. Increased Rating for PTSD Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the Veteran's favor. 38 C.F.R. § 4.3. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's PTSD has been rated as 30 percent disabling under the General Rating formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Codes (DC) 9411. Under these criteria, the next higher rating of 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to particular symptoms such 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. 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 mere examples of the type and degree of symptoms, or their effects, which 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. The evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to symptoms provided in that diagnostic code. Id. at 443. Instead, the rating specialist is to consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, as revised in the 1994, fourth edition (DSM-IV). Id. If the evidence demonstrates that a claimant suffers symptoms or effects that cause an occupational or social impairment equivalent to what would be caused by the symptoms listed in a particular diagnostic code, the appropriate, equivalent rating will be assigned. Id. Further, when evaluating the level of disability from a mental disorder, the rating agency shall consider the extent of social impairment, but shall not assign an evaluation based solely on the basis of social impairment. The focus of the rating process is on industrial impairment from the service-connected psychiatric disorder, and social impairment is significant only insofar as it affects earning capacity. 38 C.F.R. §§ 4.126, 4.130. One factor for consideration is the GAF score, which is based on a scale reflecting the "psychological, social, and occupational functioning in 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 OF MENTAL DISORDERS (4th ed.), p.32.). GAF scores ranging from 61 to 70, reflect 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 generally functioning pretty well, has some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect more 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). Analysis As discussed, the service-connected PTSD is rated as 30 percent disabling. For the following reasons, the Board finds that the evidence supports a 50 percent rating for PTSD for the entire appeal period. While the Board acknowledges that the evidence shows that the Veteran has symptoms that are included in the criteria for ratings lower than 50 percent, the evidence overall reflects that the service-connected disability picture more closely resembles that of occupational and social impairment with reduced reliability and productivity On VA examination in June 2013, the examiner opined that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. With regard to medical opinions, the credibility and weight to be attached to a medical opinion are within the Board's province as finder of fact. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). In the instant case, the VA examiner opined that the Veteran was experiencing occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. However, during the June 2013 VA examination, the symptoms also were noted to include flattening of affect, concentrating trouble and often having to read things over two or three times. He was noted to have significant anxiety, unhappiness, moodiness, tension and pessimism. The examiner found that the Veteran's PTSD was accompanied by significant dysphoria and panic attacks. Significantly, the mental health treatment records dated in December 2012 and January 2013 from the North Carolina Department for Correction showed that the Veteran's PTSD symptoms were manifested by mild to moderate distress. In reviewing the entire record, the Board finds that the service-connected PTSD is productive of disability picture that equates with a level of impairment reflective of occupational and social impairment with reduced reliability and productivity. Hence, on this record, an initial rating of 50 percent for the service-connected PTSD is warranted. See AB v. Brown, 6 Vet. App. 35 (1993). Extraschedular Consideration The Board has considered whether referral for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) is indicated. Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for a rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the schedular ratings for the service-connected disability are inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. Thun v. Peake, 22 Vet. App. 111, 115 (2008); aff'd Thun v. Peake, 572 F.3d 1366 (Fed. Cir. 2009). If the criteria reasonably describe a veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate and referral for an extraschedular rating is not required. Thun, Id. Here, the rating criteria reasonably describe and assess the Veteran's disability level and symptomatology. The diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder during the appeal period, as the criteria assess the level of occupational and social impairment attributable to the Veteran's symptoms. The rating schedule fully contemplates all symptomatology and treatment associated with PTSD. Significantly, there is no indication or argument that the applicable criteria are otherwise inadequate to rate the disability. Thus, no basis for referring the case for an extraschedular consideration is presented in this case. ORDER An initial rating of 50 percent for the service-connected PTSD is granted, subject to the regulations governing the payment of monetary benefits. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs