Citation Nr: 1523873 Decision Date: 06/04/15 Archive Date: 06/16/15 DOCKET NO. 11-00 955 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Finn, Counsel INTRODUCTION The Veteran served on active duty from April 1981 to May 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran and his spouse testified at a hearing before the undersigned Veterans' Law Judge (VLJ) in June 2013. A transcript is of record. The Board remanded this claim in January 2014 and October 2014 for further development. A June 2014 rating decision increased the Veteran's PTSD evaluation from 10 percent to 30 percent, effective December 18, 2008, the date of the service connection claim for PTSD. Because this increased rating does not represent a grant of the maximum benefits allowable, the claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a grant of a higher rating during the course of an appeal, but less than the maximum benefits allowable, does not abrogate the appeal). FINDING OF FACT The clinical signs and manifestations of the Veteran's service-connected PTSD are shown to be characterized by anxiety, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, intrusive distressing memories, avoidance, feelings of detachment or estrangement from others, persistent inability to experience positive emotions (e.g., inability to experience happiness, satisfaction, or loving feelings), irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects, hypervigilance, suicidal ideation reported once without intent, and disturbances in motivation in mood. CONCLUSION OF LAW The criteria for the assignment of an initial 50 percent disability rating, but not more, for PTSD for the entire appeal period have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA's duties to notify and assist under the Veterans Claims Assistance Act of 2000 (VCAA) have been satisfied. See 38 U.S.C.A §§ 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.326(a) (2014). A January 2009 letter provided all notice required under the VCAA. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b). The letter was followed by adequate time for him to submit additional information and evidence in response before initial adjudication of his claim. See Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2007). Further, because this appeal stems from a granted service connection claim for PTSD, the issue of whether there was adequate VCAA notice is moot, as the purpose of such notice was fulfilled with the grant of service connection. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Concerning the duty to assist, the Veteran's service treatment records (STRs) and VA treatment records have been associated with the claims file. See 38 U.S.C.A § 5103A; 38 C.F.R. § 3.159(c). He has not identified any other records or evidence he wished to submit or have VA obtain. VA examinations were performed to evaluate the Veteran's PTSD in December 2010, April 2009, and March 2014 (with a December 2014 addendum). See 38 C.F.R. §§ 3.159(c)(4), 3.326(a), 3.327. These examination reports, taken in conjunction with one another, are adequate as they include a review of the Veteran's medical history, the clinical findings on examination, and supporting explanation for the conclusions reached, enabling the Board to make a fully informed decision on this claim. See Monzingo, 26 Vet. App. at 107; D'Aries, 22 Vet. App. at 104; see also Barr, 21 Vet. App. at 312. In addition, there is no evidence indicating that there has been a material change in the severity of the Veteran's PTSD since the last examination. Thus, further examination is not warranted. See 38 C.F.R. § 3.327(a); see also Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (holding that a new VA examination is not required simply because of the passage of time since an otherwise adequate examination was conducted); accord VAOPGCPREC 11-95 (April 7, 1995). There has been substantial compliance with the Board's January 2014 and October 2014 remand directives, which instructed that a new VA psychiatric examination be performed and that a Global Assessment of Functioning (GAF) score be provided in the examination report, together with an explanation of the significance of that score. See Stegall v. West, 11 Vet. App. 268, 271 (1998); (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall). A December 10, 2014 addendum from the Portland VA Medical Center was associated with the electronic claims file, explaining that a GAF scale score could not be assigned in accordance with the DSM-V and providing alternative, sufficient information concerning the severity of the Veteran's PTSD. Therefore, further examination and/or opinions are not required. Accordingly, the Veteran has had a meaningful opportunity to participate effectively in the processing of the claim for a higher initial rating of PTSD, and no prejudicial error has been committed in discharging VA's duties to notify and assist. See Shinseki v. Sanders, 556 U.S. 396, 407, 410 (2009); Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004); Arneson v. Shinseki, 24 Vet. App. 379, 389 (2011); Vogan v. Shinseki, 24 Vet. App. 159, 163 (2010). Finally, the Veteran testified at a hearing before the undersigned in June 2013. Under 38 C.F.R. § 3.103(c)(2) (2014), the hearing officer has the responsibility to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant's position. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that the hearing officer has two duties under § 3.103(c)(2). First, the hearing officer must explain fully the issues still outstanding that are relevant and material to substantiating the claim by explicitly identifying them for the claimant. Id. at 496. Second, the hearing officer must suggest that a claimant submit evidence on an issue material to substantiating the claim when such evidence is missing from the record or when the testimony at the hearing raises an issue for which there is no evidence in the record. Id. at 496-97. At the hearing, the Veteran had an opportunity to provide testimony in support of her claim, facilitated by questioning from the undersigned and his representative. There is no indication that any outstanding evidence might exist that would provide additional support for the claim. See id. Moreover, the Board undertook additional development after the hearing was conducted, including arranging for a VA examination to address the outstanding issue of whether his PTSD meets or approximates the criteria for a higher rating. See id. at 498-99 (finding that any deficiencies in discharging the hearing officer's duties under § 3.103(c)(2) were rendered harmless when the record was otherwise developed). Given this development, in addition to the Veteran's testimony at the hearing and the evidence in the claims file, the 'clarity and completeness of the hearing record [is] intact' and there is no prejudicial error concerning the hearing officer's duties under § 3.103(c)(2). See Bryant, 23 Vet. App. at 498 (holding that the rule of prejudicial error applies to the hearing officer's duties); see also Sanders, 556 U.S. at 407, 410. II. Higher Initial Rating for PTSD 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. 38 U.S.C.A. § 1155. If 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. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). This is an initial rating case and consideration will be given to "staged ratings" (e.g., different percentage ratings for different periods of time) from the date service connection was made effective. See Fenderson v. West, 12 Vet App 119, 126 (1999). Diagnostic Code 9411, which is governed by the General Rating Formula for Mental Disorders set forth in 38 C.F.R. § 4.130, provides that: A 30 percent disability rating for PTSD is warranted when the veteran exhibits 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 (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130. A 50 percent disability rating for PTSD is warranted when the veteran exhibits 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. Id. A 70 percent disability rating for PTSD is warranted when the veteran exhibits 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 work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent disability 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. Id. The symptoms associated with each evaluation under the Rating Formula do not constitute an exhaustive list, but rather 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). Thus, the evidence considered in determining the appropriate evaluation of a psychiatric disorder is not restricted to the symptoms set forth in the Rating Formula. See id. Rather, VA must consider all symptoms of a claimant's condition that affect his occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (4th ed. 1994) (DSM-IV). Id. at 443. If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned. Id. In this regard, VA shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126 (2014). While VA considers the level of social impairment, it shall not assign an evaluation based solely on social impairment. Id. In evaluating psychiatric disorders, VA also considers a claimant's Global Assessment Functioning (GAF) scores, which are based on a scale set forth in the DSM-IV 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); DSM-IV. According to DSM-IV, a score of 61-70 indicates '[s]ome 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.' A score of 51-60 indicates '[m]oderate 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).' Id. A score of 41-50 indicates '[s]erious 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).' Id. A score of 31-40 indicates '[s]ome impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) OR major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work).' Id. A GAF score thus may demonstrate a specific level of impairment. See Richard, 8 Vet. App. at 267; Bowling v. Principi, 15 Vet. App. 1, 14-15 (2001) (both observing that a GAF score of 50 indicates serious impairment). While an examiner's classification of the level of psychiatric impairment reflected in the GAF score assigned can be probative evidence of the degree of disability, such a score is by no means determinative of the rating assigned by VA in evaluating a psychiatric disorder under the rating criteria. See 38 C.F.R. §§ 4.2, 4.126 (2014); VAOPGCPREC 10-95 (March 31, 1995). Rather, VA must take into account all of the Veteran's symptoms and resulting functional impairment as shown by the evidence of record in assigning the appropriate rating, and will not rely solely on the examiner's assessment of the level of disability at the time of examination. See 38 C.F.R. § 4.126. VA treatment records reflect complaints of nightmares, anger issues, hypervigilance, startle response, flashbacks, depression, but a denial of suicidal or homicidal ideation. (See April 2009 VA treatment records). A May 2009 VA treatment record reflects a GAF score of 68. An April 2009 PTSD evaluation reflects a diagnosis of PTSD with mild social and occupational impairment, and a GAF score of 65. The Veteran was alert and oriented with an appropriate appearance. His thought process was clear, logical, and sequential. His affect was appropriate. The Veteran reported mood swings and temper dyscontrol that interfered with his relationship with his wife, although he felt emotionally close to her. He lived with his wife of 19 years and his 10 year old son. He got along well with his son. He had several friends and was active in some clubs. With regard to work history, he reported that he worked as a heavy equipment operator throughout his adult life. He had been with his present company for 7 years. At his prior job, he frequently lost his temper with managers or co-workers. He indicated that he can lose his temper quickly. He complained of nightmares, irritability, temper dyscontrol, and poor sleep. He denied suicidal and homicidal ideation, intention and plan. A December 2009 VA treatment reflects no reports of depression or anxiety. (See also August 2009). A May 2010 VA treatment record reflects that the Veteran's PTSD was stable with no sleep trouble. The Veteran underwent an additional VA examination in December 2010. He reported that he has been in a relationship with his wife for 20 years and they have one child. His occupational history consists of working as a logger for 20 years, 6 years for a sand and gravel company, and construction for eight years. He stated that he enjoyed his job and did well, except for occasional road rage incidents. The Veteran reported he had an excellent social life with more than 12 friends. He volunteered, in part, with the fire department, and was active with a snow mobile club and the American Legion. He reported that his main complaint was his ongoing anger issues with traffic and road rage. Upon mental status examination, he was cooperative, casually dressed, and adequately groomed. He was oriented to person, place, time, and purpose of the evaluation. There was no evidence of hallucinations, delusions, or significant cognitive impairment. His recent and remote memory abilities were within the average range. He denied having recent difficulties with suicidal, homicidal, or psychotic ideation. There was no impairment of' thought process of communication. He was assessed with PTSD with mild social, occupational, and emotional impairment. He was assigned a GAF score of 65. A March 2012 VA treatment record reflects complaints of poor sleep, nightmares, and depression over the recent death of his close friends. He also began drinking "hard alcohol" drinks prior to going to bed to help him help him fall asleep. The Veteran was diagnosed with moderate situational depression. A September 2012 reflects that the Veteran was prescribed fluoxetine for anger issues and irritability. A November 2012 VA treatment record reflects that the fluoxetine did not help with his symptomatology. His other reported symptoms were sleep disorder, moderate depression, and irritability from work stress. A March 2014 VA treatment record reflects that he indicated presence of hopelessness without suicidal ideation, nightmares, avoidance, constantly on guard, watchful, easily startled, numbness, and detachment. The Veteran was afforded a VA examination in March 2014. He reported having irritability, nightmares, intrusive thoughts, avoidance (difficulty feeling close to others and difficulty expressing his feelings), sleep disruption, irritability, and hypervigilance. He also reported mild and periodic depression. He had difficulty with irritability with others socially and at work, and had a received a verbal counseling at work. The examiner indicated that the Veteran's PTSD resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily. The Veteran had been working at his current job for 4 years and was a lead employee with no reported formal disciplinary actions or missed time from work due to mental health issues (other than verbal counseling). He lived with his wife and son. He said that his marriage was generally going well and he was active in parenting his son. He stated that he did not have many friends. His symptoms included anxiety, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, intrusive distressing memories, avoidance, feelings of detachment or estrangement from others, persistent inability to experience positive emotions (e.g., inability to experience happiness, satisfaction, or loving feelings), irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects, hypervigilance, and sleep disturbance (e.g., difficulty falling or staying asleep or restless sleep). Upon mental status examination, the Veteran showed good verbal fluency. He was correctly oriented to person, place, time, and purpose. Thoughts were logical and goal-directed. There were no symptoms of hallucinations, delusions, or preoccupations. His affect was within normal limits and mood was neutral. Attention and concentration were intact. A July 2014 VA treatment record reflects that the Veteran was diagnosed with PTSD and traumatic grief. His symptoms included anger issues, road rage, hypervigilance, and nightmares. He continued to be involved in community activities, but he had ongoing avoidance response. He had no thoughts of suicide, self-harm, or aggression. Upon mental status examination, the Veteran was alert and oriented. His hygiene was fair and he was calm and cooperative. He had good eye contact, psychomotor agitation or retardation, and normal speech. There was no thought disorder, but his affect was anxious and constricted. The Veteran denied hallucinations and delusions. His insight and judgment were fair. He denied suicidal or homicidal ideations. A September 2014 VA treatment record showed that the Veteran reported that he had been busy with work and had been free of any depression. He was sleeping better. The hypervigilance and the avoidance of people/drivers had improved and was more controllable. He had been free of any thoughts of suicide, self-harm or violence. Mental status examination showed that his affect was anxious and constricted. A December 2014 addendum to the March 2014 VA examination reflects that the current DBQ templates used DSM-V which eliminated the GAF score. The GAF score was now considered obsolete and this psychologist cannot provide a GAF score due to DSM-V being in effect. The DSM-IV GAF score was a functional rating score of psychological, social and occupational functioning. The examiner stated that the GAF score is roughly equivalent to the current DBQ Section 1, Part 4 occupational and social impairment and Section 2, Part 4 symptoms. Combining these 2 sections essentially provides similar information to the GAF score. Based on the above two sections of the DBQ report, the examiner stated that the Veteran has mild to moderate psychological, social, and occupational impairment based on his service-connected PTSD. After a careful review of the record, the Board finds that based on the evidence currently of record, for the entire period of the appeal, the service-connected disability picture most closely resembles the criteria for the assignment of a 50 percent rating. 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411; see also Fenderson, supra. In short, the Veteran's PTSD is shown by the evidence of record to have been manifested by anxiety, chronic sleep impairment, intrusive distressing memories, avoidance, feelings of detachment or estrangement from others, persistent inability to experience positive emotions (e.g., inability to experience happiness, satisfaction, or loving feelings), irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects, hypervigilance, suicidal ideation reported once without intent, and disturbances in motivation and mood and difficulty in establishing work and social relationships. Resolving any doubt in favor of the claim, the Veteran's PTSD symptoms more nearly approximate the criteria for a 50 percent rating. See 38 C.F.R. § 4.130, DC 9411. However, the criteria for a 70 percent rating are not met or approximated, as the Veteran's PTSD has not been shown to result in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Rather, the Veteran is employed full time and has been married to his wife for more than 20 years. He gets along well with his son and maintains some friendships. He has also been active in some clubs. While he has some mood disturbance, including anxiety, irritability, and depression, his judgment and thinking have been essentially normal. The Board further finds probative the March/December 2014 DBQ VA examiner's description of the Veteran's overall PTSD symptomatology as being of mild to moderately severe in nature. Therefore, a rating in excess of 50 percent for PTSD is not warranted at any point during the appellate period. Referral of the Veteran's PTSD for extraschedular consideration is not warranted. See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111, 114 (2008). A comparison of his symptoms and resulting functional impairment with the schedular criteria does not show 'such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards.' 38 C.F.R. § 3.321(b). In this regard, the Veteran's PTSD symptoms, as well as their effects on occupational and social functioning and general level of severity, as described above, are contemplated by the Rating Formula, which takes into account both symptoms and the degree of occupational and social impairment they cause. See 38 C.F.R. § 4.130, DC 9411. Although a given symptom may not be specifically mentioned in the Rating Formula, the symptoms set forth therein are not meant to constitute an exhaustive list but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan, 16 Vet. App. at 442. There is no indication that the symptoms and clinical findings are otherwise exceptional or unusual for the Veteran's PTSD, and the evidence shows that they are adequately compensated by the rating already assigned, as explained above. Accordingly, the first step of the inquiry is not satisfied. Thus, absent this threshold finding, consideration of whether related factors are present under the second step of the inquiry is not warranted. See Thun, 22 Vet. App. at 118-19. Consequently, the evaluation of the Veteran's PTSD will not be referred for extraschedular consideration. ORDER An initial rating of 50 percent, but not higher, for PTSD is granted, subject to the regulations controlling the disbursement of VA monetary benefits. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs