Citation Nr: 1521423 Decision Date: 05/19/15 Archive Date: 05/26/15 DOCKET NO. 12-32 201 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to an initial schedular evaluation in excess of 70 percent for service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD Steven D. Najarian, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1967 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, which granted service connection for PTSD with an evaluation of 50 percent effective May 11, 2010. In December 2013, the Board remanded in order for the RO to obtain all outstanding VA and private treatment records relating to the Veteran's claim and to readjudicate the claim. In March 2014, the RO issued a rating decision that increased the evaluation of PTSD to 70 percent effective May 11, 2010. The appeal has now been returned to the Board for further appellate review. The Board has reviewed the record maintained in the Veteran's Virtual VA paperless claims processing system folder. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDING OF FACT The Veteran's PTSD is manifested by nightmares, hypervigilance, anger, and difficulty in establishing and maintaining effective relationships which results in occupational and social impairment in most areas; total occupational and social impairment is not shown upon consideration of all the evidence. CONCLUSION OF LAW The criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran seeks entitlement to an initial evaluation in excess of 70 percent for service-connected PTSD. The Board will first discuss certain preliminary matters. The issue on appeal will then be analyzed and a decision rendered. Stegall concerns The Board errs as a matter of law if it fails to ensure compliance with its remand order. See Stegall v. West, 11 Vet. App. 268, 271 (1998). By a remand order of December 2013, the Board ordered the agency of original jurisdiction (AOJ) to obtain any outstanding VA treatment records from the VA Medical Center in East Orange, New Jersey, and any associated outpatient clinics, dated from 2000 to the present, as well as any records of the Vet Center in New York, New York, dated from April 2010 to the present. Thereafter the RO was to readjudicate the claim. A review of the Veteran's virtual claims folder reflects that this development has occurred and that the Board's remand instructions have been substantially complied with. The requested development having been completed, the case is again before the Board for appellate consideration. Veteran's Claims Assistance Act of 2000 Under 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 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). A letter of May 2010 satisfied the duty-to-notify provisions and informed the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. See 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b)(1) (2014); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Relevant VA records identified by the Veteran have been obtained. A VA compensation and pension examination was conducted in July 2010. The examiner made all clinical findings necessary for application of the rating criteria for PTSD. The VA examination is adequate for adjudication purposes. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2014). There is no indication in the record of additional, relevant evidence that is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Because nothing indicates that any failure by VA to provide additional notice or assistance would reasonably affect the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). The Board further observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2014). The Veteran has been given the opportunity to present evidence and argument in support of his claim. He has retained the services of a representative. In his November 2012 appeal to the Board (VA Form 9), the Veteran declined the option of testifying at a personal hearing. Initial higher rating for PTSD Rating criteria Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2014). An appeal from the initial assignment of a disability rating requires consideration of the entire time period involved, and contemplates "staged ratings" where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate for when the factual findings show distinct time periods in which the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA will give the benefit of the doubt to the claimant. See 38 U.S.C.A. § 5107 (West 2014); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's current 70 percent rating contemplates 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 that 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. See 38 C.F.R. § 4.130 (2014), General Rating Formula for Mental Disorders (General Rating Formula). A 100 percent disability rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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. See id. The symptoms recited in the criteria in the rating schedule for evaluating mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In adjudicating a claim for an increased disability rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. In evaluating the Veteran's PTSD, the Board may consider Global Assessment of Functioning (GAF) scores assigned to the Veteran. The GAF scale reflects 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 Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV) at 32). GAF scores ranging between 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning, but generally functioning pretty well, and with 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). 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). Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or family relations, judgment, thinking, or mood. A score from 21 to 30 is indicative of behavior which is considerably influenced by delusions or hallucinations or serious impairment in communications or judgment or inability to function in almost all areas. A score of 11 to 20 denotes some danger of hurting one's self or others or occasionally fails to maintain minimal personal hygiene or gross impairment in communication (e.g., largely incoherent or mute). See 38 C.F.R. § 4.130 (2014) (incorporating by reference the VA's adoption of the DSM-IV for rating purposes). Analysis An April 2010 VA treatment record states, "Pt has been nervous and agitated and very irritable and wife states that he gets angry easily. Sleeps very poorly, very light sleeper, easily awoken and sometimes hits." The Veteran was evaluated as "positive" for "depression, anxiety, sleep disturbance, social withdrawal." He was "negative" for "suicidal ideations, homicidal ideations, visual or auditory hallucinations, change in appetite, and decreased memory." The record also contains a detailed VA (Vet Center) report from June 2010. At that time the Veteran scored 35 points on the BECK Depression Inventory (BDI-II), which "interprets a score of 17 and above as indicating a need for 'professional treatment.'" The report states that "a score of 35 is regarded by the BECK as 'severe' depression." The Veteran was also assigned a GAF score of 35. The June 2010 record also documents the results of testing according to the Posttraumatic Stress Diagnostic Scale. The Veteran was assessed as having severe impairment in functioning, chronic duration of symptoms, arousal, avoidance, and reexperiencing which affected "work, household chores and duties, relationships with friends and family, fun and leisure activities, sex life, school work, general satisfaction with life, and overall level of functioning in all areas of life." According to the counselor who evaluated and was treating the Veteran, "The Veteran has identified the following symptoms of chronic PTSD: feelings of grief and loss, anger/rage, disturbing memories, trouble relaxing, trouble sleeping usually associated with bad dreams/nightmares, hypervigilance, extreme sensitivity to news reports of war, fear of people/crowds/social situations, use of alcohol or other drugs to medicate PTSD symptoms, difficulty in personal relationships, including wife/family/friends, excessive desire for isolation/privacy, resentment/suspicion regarding authority, an exaggerated startle response, feelings of survival guilt, and efforts toward emotional numbing." The VA counselor further noted that the Veteran lost his eleven-year Post Office job in 1982 due to misconduct. The Veteran also reportedly attempted suicide in 1983, was recovering from years of chemical dependency, was arrested once for disorderly conduct, is divorced, and has remarried. In the counselor's opinion, "[The Veteran's] profound and chronic PTSD has made his life unmanageable. . . . He has been chronically underemployed since [1983]. . . . It is my view that [the Veteran] is profoundly and completely impaired with chronic PTSD. . . . His life has . . . been negatively and thoroughly impacted by his psychopathology." In a June 2010 statement, the Veteran's first wife asserts that the Veteran would on occasion wake up in middle of the night "in cold sweats" or from violent nightmares and would sometimes talk to himself and be unresponsive upon waking in the middle of the night. The Veteran also reportedly had "temper issues." According the Veteran's ex-wife, these behaviors were among those that led her to seek a divorce. Vet Center intake records dated in June 2010 indicate that the Veteran was not having suicidal thoughts at that time, although he did have feelings of hopelessness or despair. He reported a significant history of substance abuse or dependency but was currently abstinent. Mental status evaluation revealed that the Veteran was anxious and had rapid, pressured speech. He was oriented to time, place and person, although his memory function was impaired and his affect was anxious. His associations were within normal limits, and judgment was fair. The Veteran reported sleep disturbance and hypervigilance. The Veteran thereafter participated in group and individual counseling. In July 2010, the Veteran underwent a VA compensation and pension examination for PTSD. The Veteran reported symptoms of depression, nightmares, and "recurrent daily recollections of his service in Vietnam." The Veteran also attested to "continuous irritability and anger, trouble at work and discomfort at crowds and fireworks since he turned from Asia." The July 2010 examiner noted that the Veteran had a job from 1974 to 1983 and was "unable to keep this job because of his poor performance and trouble getting along with others." It was also noted, however, that the Veteran "works second shift." The report further stated that the Veteran "spends his time in his room watching TV and reading passages from the Bible. . . . He is not involved in any community, social or church activities." Mental status examination revealed that the Veteran was alert and oriented in all three spheres, mood was guarded and unhappy and affect was constricted. The rhythms and patterns of speech were unremarkable and content of speech was clear, coherent and goal directed without evidence of dysarthria or paraphasic errors. He denied suicidal ideation or intent but did say he would become very irritable and have homicidal thoughts with no intent. He denied psychotic symptoms including auditory or visual hallucinations, paranoid ideation or ideas of reference. No behavioral disturbances were described. Insight and judgment were good. In his summary of social and vocational functioning, the examiner stated the following: "This is a 62 year-old married male vet who . . . describes depression irritability, poor work performance and social isolation related to his service ... He says that he is able to work only because it is second shift and he is able to avoid people. This vet is employable and able to manage his own financial affairs." It was further noted that the Veteran's "father in law [is] a pastor who counseled him." The examiner diagnosed the Veteran as having "chronic, moderate PTSD." He assigned to the Veteran a GAF score of 50, "based on vet's depression, isolation and irritability." A VA treatment record of March 2011 reflects that the Veteran worked about 35 to 40 hours per week on a night shift. A VA treatment record of August 2013 notes that the Veteran had a head injury 10 months prior and "has experienced memory loss, insomnia, outbursts of anger, marital discord, headaches, dizziness, sensitivity to bright lights since. . . . He had passive suicidal ideations 6 months ago when marital discord started. He denies plan or prior suicide attempt. Future outlook hopeful." It was also noted that he was having more frequent flashbacks. Symptomatic TBI was diagnosed. A VA treatment record of September 2013 notes "no suicidal ideation and no evidence of severe emotional distress, panic symptoms, hopelessness, obsessionality, or hallucinations." A further VA treatment record of September 2013 notes a "worsening of PTSD symptoms after head injury in Nov/2012 . . . at which time he had head injury and loss of consciousness for half an hour. . . . His sleep is disturbed because of flashbacks, and some time headaches wake him up. . . . His wife is finding his behavior difficult to deal with because he yells at her, and screams at night. He is concerned that his wife might leave him and he doesn't want that." A VA treatment record of November 2013 states that "pt is a minister at a Baptist Church" and that "marital discord has resolved." In addition, the Veteran reported "improvement in sleep, mood since starting prazosin." A VA mental health note of November 2013 describes the Veteran as follows: "Calm and pleasant. Presented early today. Pt noted no appetite changes, significant weight changes, or symptoms suggestive of mania. Pt had no active hallucinatory symptoms at present, and reality testing was intact." It was further noted in November 2013 that the Veteran had "noted no suicidal or homicidal ideations, intentions, or plans, and did not exhibit signs of extreme irritability, mood lability, severe anxiety, obsessionality, uncontrolled pain, despondency, or hopelessness." The Veteran "noted concurrent illicit substance abuse." The clinician characterized the Veteran's "thought process" as "generally linear and logical" and his mood as "euthymic." Cognition, insight, and judgement were termed "fair." A VA treatment record of January 2014 states that the Veteran "had worsening of his PTSD and headaches [sic] symptoms since he had injury to his head during hurricane Sandy a year ago." The Veteran reported that "he continues to have flashbacks 2 to 3 times per week" and that "he has started to go back for group therapy this week." A VA treatment record of March 2014 states that the Veteran is a "night shift worker, works 11 pm until 7 am as a school janitor." The Veteran reported that he "sleeps fairly well during the day" and "sometimes changes to night sleep schedule when off from school." A further record of March 2014 noted the Veteran's mental status as "alert and oriented to person, place and time." VA treatment records and lay testimony from the Veteran and his spouse show the Veteran's continuing symptoms of anger, difficulty getting along with people, and depression. The Veteran has been assigned GAF scores of 35 and 50, which indicate serious impairment. However, the preponderance of the evidence is against a finding of total occupational and social impairment due to PTSD. Neither the Veteran nor the mental health evaluations and treatment records indicate the presence of such symptoms as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting himself or others, intermittent inability to perform activities of daily living, disorientation to time or place, memory loss for names of close relatives or one's own name, or symptoms of a similar frequency and severity. The Veteran is not shown to have persistent suicidal ideation and is generally not viewed as being a threat to others. While he reported that he sometimes has homicidal thoughts he also indicated that he does not have homicidal intent. He has relationships with his wife and father-in-law and thus does not exhibit total social impairment. Although his PTSD symptoms possibly caused his dismissal from his Post Office job and ensuing underemployment, the Veteran has maintained employment ("35 to 40 hours per week") at night. Although a VA counselor characterized the Veteran as "profoundly and completely impaired with chronic PTSD" in June 2010, the Veteran has reported that he has, in fact, maintained employment. See VA treatment records of March 2014 and March 2011. There is no indication that he fails to maintain his personal hygiene, and he is able to manage his own financial affairs. The Board notes the Veteran's reports of intrusive thoughts and flashbacks, but he has not reported having persistent delusions or hallucinations. The Veteran has some memory impairment but not to the level of forgetting information well known to him, such as names of his close relatives, his occupation or his own name. He has also been able to communicate effectively with clinicians and the VA examiner and his thought process did not manifest with paranoid ideation or ideas of reference but rather was assessed as "generally linear and logical." The evidence of record does not show that the overall level of severity of the Veteran's PTSD more closely approximates the criteria for a 100 percent disability rating under 38 C.F.R. § 4.130. Nor are there other factors that would lead the Board to conclude that a 100 percent disability rating is warranted. See Mauerhan v. Principi, 16 Vet. App. 436 (2002) (stating that the factors specified for each incremental rating are examples rather than requirements for a particular rating and that analysis should not be limited to those listed symptoms). A review of the lay and medical evidence indicates that the Veteran's psychiatric symptomatology centers on his nightmares, anger, irritability, hypervigilance, exaggerated startle response, severe depression, suicidal thoughts, flashbacks, anger, and social isolation. As noted above, the Veteran has reported that he works 35 to 40 hours per week and while he works the second shift to avoid interaction with people, he has been able to work and maintains several relationships. Accordingly, the symptoms are more congruent with the assigned 70 percent disability rating than a 100 percent rating. A review of the evidence clearly indicates that the symptomatology associated with the Veteran's PTSD most closely approximates a 70 percent disability rating. See 38 C.F.R. § 4.7 (2014). As noted above, separate, "staged" ratings may be assigned for separate periods of time based on the facts found. In the case at hand, the competent and credible evidence of record, as discussed above, indicates that the Veteran's PTSD has not changed appreciably since the Veteran filed his claim. Specifically, as discussed above, the July 2010 VA medical examination, as well as VA treatment records and statements from the Veteran and his wife, document the Veteran's continued symptoms such as nightmares and impaired social relationships. At no point in time covered by this claim are the schedular criteria for a 100 percent rating met or approximated. It is noted that the Board has considered all psychiatric symptoms in reaching this conclusion. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Extraschedular and TDIU consideration The Board has also considered whether the Veteran is entitled to a greater level of compensation for the disability at issue on an extraschedular basis pursuant to 38 C.F.R. § 3.321(b)(1) (2014). Ordinarily the VA Schedule will apply unless exceptional or unusual factors render its application impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). The first of the three elements of an extraschedular rating is an exceptional or unusual service-connected disability for which the available schedular evaluations are inadequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (Fed. Cir. 2009). Determining whether a disability is exceptional or unusual requires a comparison of the severity of the symptomatology of the claimant's service-connected disability with the established criteria in the rating schedule for that disability. If the rating criteria reasonably describe a claimant's disability level and symptomatology, the assigned schedular evaluation is adequate, and no referral for an extraschedular evaluation will be required. Id. In the case at hand, the first Thun element is not satisfied. The schedular criteria are adequate, as they fully contemplate the Veteran's psychiatric symptoms, including nightmares, anger, irritability, hypervigilance, exaggerated startle response, severe depression, suicidal thoughts, flashbacks, anger, and social and work impairments. They also allow for a higher level of disability for symptomatology that has not been shown. To the extent that the Veteran has referenced headaches, dizziness and sensitivity to bright lights following a head injury that was diagnosed as symptomatic TBI, the Board notes that he is not service-connected for TBI. The Board concludes that the schedular rating criteria reasonably describe the Veteran's PTSD disability picture. Therefore the Board determines that referral of this case for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) (2014) is not warranted. Furthermore, while a June 2010 Vet Center record referred to job termination and underemployment caused by the Veteran's PTSD, the evidence of record indicates that the Veteran works 35 to 40 hours per week. See July 2010 Vet Center record, and March 2011 and March 2014 VA treatment records. The evidence does not suggest that he is unable to secure and maintain a "substantially gainful occupation" within the meaning of 38 C.F.R. § 4.16(a) (2014), and the Veteran has not alleged that he was unemployable due to service-connected PTSD at any time during the course of the appeal. Thus, a total rating for compensation purposes based on individual unemployability (TDIU) claim is not raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Board finds the preponderance of the evidence is against finding that a total disability rating is warranted for the Veteran's PTSD disability at any time since the grant of service connection. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). ORDER Entitlement to an initial rating in excess of 70 percent for service-connected PTSD is denied. ______________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs