Citation Nr: 1451981 Decision Date: 11/24/14 Archive Date: 12/02/14 DOCKET NO. 12-17 266 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD) with anxiety and agoraphobia. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his spouse, J.N. ATTORNEY FOR THE BOARD J. Murray, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from November 1967 to September 1969. This matter comes on appeal to the Board of Veterans' Appeals (Board) from a March 2011 rating decision by the Department of Veterans Affairs, Regional Office located in Denver, Colorado (RO), which awarded service connection for PTSD and assigned an initial 30 percent evaluation, effective from February 14, 2011. The Veteran appealed the initial assigned evaluation and effective date. In a May 2012 rating decision, the RO awarded an earlier effective date of July 26, 2010 for the award of service connection for PTSD, which satisfied the Veteran's appeal on that matter. In May 2014, the Veteran and his wife testified before the undersigned during a Board hearing held via videoconference capabilities. A copy of the hearing transcript has been associated with the claims folder. The Board hearing was sufficient to fulfill his right to a hearing under 38 C.F.R. § 20.700(a) (2014). After the hearing, the Veteran submitted additional evidence and a waiver of RO review. See 38 C.F.R. § 20.1304 (2014). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. FINDING OF FACT The severity of the Veteran's disability due to his PTSD with anxiety and agoraphobia more closely approximates the symptoms consistent with occupational and social impairment with reduced reliability and productivity; neither occupational and social impairment with deficiencies in most areas nor total occupational and social impairment is shown. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 50 percent, and no higher, for PTSD have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION 1. VA's Duty to Notify and Asset As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim. VA will inform the Veteran of the type of information and evidence that VA will seek to provide, and of the type of information and evidence, the claimant is expected to provide. 38 C.F.R. § 3.159(b). VA must provide such notice to the claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). VA must also specifically provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In this case, the Veteran is challenging the initial evaluation assigned following the grant of service connection for PTSD. In Dingess, the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. See also VAOPGCPREC 8- 2003 (December 22, 2003). Thus, VA's duty to notify has been satisfied with respect to the issue of entitlement to a higher initial evaluation for PTSD. In addition to its duty to notify, or inform, the Veteran with regard to his claim, VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and records of pertinent medical treatment since service, and providing the Veteran a medical examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, VA has obtained the Veteran's service records, post-service VA and Vet Center mental health treatment records, as well as his lay statements. VA has also provided the Veteran with psychiatric examination in March 2011, in which the examiner addressed the severity of the Veteran's PTSD. The Board finds that the VA examination is well-supported by clinical findings and a full rationale. The examination report reflects a review of the claims file, a pertinent history, and all clinical findings and opinions necessary for proper adjudication of the Veteran's claim, and is therefore adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Moreover, the Veteran has not asserted, and there is no objective evidence indicating, that there has been a material change in the severity of his service-connected disability since he was last examined in March 2011. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. The Veteran has been accorded ample opportunity to present evidence and argument in support of his claims. See 38 C.F.R. § 3.103. He has retained the services of a representative, and he has had the opportunity for a personal hearing before a member of the Board. Accordingly, the Board will address the claims on appeal. 2. Initial Increased Rating Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4. Where a veteran appeals the initial rating assigned for a disability when a claim for service connection for that disability has been granted, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous . . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id.; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending). The Veteran seeks a higher evaluation for his PTSD disability. He is currently assigned a 30 percent rating, effective from July 26, 2010, the date of receipt of his claim. His disability is currently rated under a general set of criteria applicable to psychiatric disabilities found at 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the criteria found at Diagnostic Code 9411, a 30 percent rating is warranted when psychiatric disability causes 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 mild memory loss. A 50 percent evaluation requires 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 difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating may be assigned where there is 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; obsessed 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); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 100 percent rating is warranted where there is 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. In rating the severity of the Veteran's service-connected psychiatric disability under the criteria listed above, the Board is aware of the fact that psychiatric health care providers have their own system for rating psychiatric disability. This is the Global Assessment of Functioning (GAF) rating scale, and it is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM- IV); Richard v. Brown, 9 Vet. App. 266, 267 (1996)(citing DSM-IV). The GAF scale score assigned does not determine the disability rating VA assigns, however, it is one of the medical findings that may be employed in that determination, and it is highly probative, as it relates directly to the Veteran's level of impairment of social and industrial adaptability. VAOPGCPREC 10-95; See Massey v. Brown, 7 Vet. App. 204, 207 (1994). Under DSM-IV, a GAF score of 61 to 70 indicates the examinee has some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functions pretty well with some meaningful interpersonal relationships. See Quick Reference to the Diagnostic Criteria from DSM-IV, 46-47 (1994). A GAF score from 51 to 60 represents moderate symptoms, or moderate difficulty in social or occupational functioning. The symptoms and manifestations listed under the above rating formula are not requirements for a particular evaluation, but are examples providing guidance as to the type and degree of severity of these symptoms. Consideration also must be given to factors outside the rating criteria in determining the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In this case, the Veteran seeks a higher initial evaluation for his PTSD disability. His disability due to PTSD is currently assigned a 30 percent evaluation. As explained in more detail below, the evidence of record shows that the signs and symptoms of the Veteran's psychiatric disorder are more consistent with the criteria reflected by a 50 percent disability rating. As the evidence does not reflect any increase in symptomatology during the period under appeal, staged ratings are not appropriate. See 38 C.F.R. § 4.1. A review of the record shows that the Veteran has undergone a March 2011 VA psychiatric during the period under appeal. The record also contains his VA and Vet Center mental health service treatment records as well as the Veteran's and his wife's testimony during the May 2014 Board hearing. Collectively, the evidence of record shows that the Veteran's disability is primarily manifested by anxiety, daily panic attacks, social isolation and withdrawal, avoidance of crowds, and sleep impairment. The Veteran has a good relationship with his wife since he stopped drinking, but he denies having any more than causal friendships with others. He spends most of his days at home and alone. He complains of significant anxiety in groups of people, even with small crowds of people, and he is unable to drive on the interstate because of his anxiety symptomatology. See March 2011 VA examination report as well as VA and Vet Center treatment records dated from 2011 to 2014. The Veteran described experiencing daily panic attacks manifested by symptoms of increased heart rate and dizziness. He felt that his anxiety was better with medication but he continues to experience daily panic attacks. See May 2014 Board hearing transcript pages 5 and 8. The Board finds that these symptoms more closely approximate the criteria for a 50 percent disability rating. 38 C.F.R. § 4.130, Diagnostic Code 9411. The Board acknowledges that the March 2011 VA examiner concluded that the Veteran's PTSD disability only resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. This medical conclusion primarily appears to be related to the Veteran's occupational impairment, as it was noted that the Veteran had been able to maintain employment despite his symptomatology until he retired in 2002. Notably, the VA examiner further concluded that the Veteran's PTSD with anxiety and agoraphobia "significantly impairs his ability to participate in any activities even small crowds." The Veteran and his wife have provided competent testimony as to how the severity of the Veteran's anxiety symptoms have limited his ability travel or participate in family functions. Moreover, the Veteran has been assigned a GAF scaled score of 60, which is indicative of moderate impairment due his symptomatology. The Board finds that the Veteran's disability due to PTSD with anxiety and agoraphobia more closely approximates occupational and social impairment with reduced reliability and productivity which supports the assignment of a 50 percent evaluation. 38 C.F.R. § 4.130, Diagnostic Code 9411. At no point during the appeal period does the Veteran's overall symptomatology meet the criteria for a rating in excess of 50 percent. In this regard, the medical evidence does not show that the Veteran's disability is so severe as to result in deficiencies in most areas, or that he experiences the severity of symptomatology contemplated by the criteria for the next higher, 70 percent, rating. Specifically, the evidence does not show that the Veteran has obsessive 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, spatial disorientation, or neglect of personal appearance and hygiene. While the Veteran reports that he experiences daily panic attacks, he has not described or been noted to have near-continuous panic that affects his ability to function independently. The Veteran's overall disability picture does not more closely approximate the criteria for either of the higher ratings. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). With respect to the Veteran's employment history, the Board notes that the Veteran reported that he had retired from work and he has not indicated that he was no longer able to work because of his PTSD disability. Even though he reported having difficulty working with multiple people at once and he was unable to pursue a supervisory position because of his anxiety symptoms, the Veteran did not report having problems with his co-workers or supervisors. Also, the Veteran has consistently reported that he has a good relationship with his wife since he stopped drinking. In addition to the objective medical findings of record and the detailed statements from the Veteran and his wife, the Board has also considered the GAF scale score of 60, which is indicative of no more than moderate or serious symptoms. These scores do not indicate severe symptoms, which must be shown to warrant the higher, 70 or 100 percent disability ratings. See 38 C.F.R. § 4.130, Diagnostic Code 9411. The objective medical findings recorded and tracked throughout the appeal period most closely approximate the symptoms listed under the criteria for the 50 percent disability rating. The GAF scores assigned are consistent with such a conclusion. Accordingly, an increased disability rating of 50 percent, and no higher, is warranted from the beginning of the appeal period. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Other Considerations The Board has also considered whether an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). 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. This means that 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. 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 adequate, and no referral is required. If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made 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"). See id. In this case, there is no basis to find that the service-connected disability present such exceptional disability pictures that the applicable schedular criteria are inadequate. Rather, the VA schedular criteria for general rating of mental health disorders in 38 C.F.R. § 4.130 takes into account occupational and social impairment as well as identifies what sympatology is indicative of at each level of severity. Notably, higher evaluations are available for the Veteran's PTSD disability under the applicable diagnostic criteria. There is no indication of alleged or observed symptomatology of the Veteran's disability that is not already generally recognized through the existing rating criteria. As his symptomatology is contemplated by the rating schedules, referral for extraschedular consideration is not appropriate here. The Board notes that under Johnson v. McDonald, 762 F.3d 1362 (2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. Notably, the Veteran is also service-connected for diabetes mellitus. His symptomatology of management by restricted diet is adequately addressed by the current assigned evaluation under the rating schedules. In this case, he has not alleged additional symptoms or manifestations of his disabilities, either individually or in combination, that have not been taken into account by his assigned disability ratings. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. See Thun v. Peake, 22 Vet. App 111, 115-16 (2008). In short, the rating criteria contemplated not only his symptoms but the severity of service-connected disabilities as are reflected by the currently assigned disability ratings. Therefore, as the currently assigned ratings are adequate, analysis of the next step of whether an exceptional disability picture is presented is not for consideration and referral for extraschedular consideration is not warranted. Lastly, the Court has held that a request for a total disability rating due to individual unemployability (TDIU), whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran has not asserted, nor does the evidence show, that he is unemployed due to his PTSD disability. While the Veteran has been retired from his employment since 2002, he has not attributed the reason for his retirement to his PTSD disability. Rather, during the March 2011 VA examination, the Veteran clearly stated that he retired from his employment in 2002 because of age or duration of his work. As the issue of entitlement to a TDIU has not been raised as part of the increased rating claim for the residual scars, it is inapplicable in this case. ORDER Entitlement to an initial evaluation of 50 percent, and not higher, for PTSD is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs