Citation Nr: 1529980 Decision Date: 07/13/15 Archive Date: 07/21/15 DOCKET NO. 09-19 963 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) with major depressive disorder prior to February 22, 2008. 2. Entitlement to a rating in excess of 50 percent for PTSD with major depressive disorder prior to March 17, 2013. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and MC ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran had active service from March 1964 to March 1968. This case comes before the Board of Veterans' Appeals (BVA or Board) from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. This case was most recently before the Board in July 2014. A December 2014 rating decision subsequently increased the rating for this service-connected disorder to 50 percent, effective February 22, 2008, and following a 100 percent rating due to a hospitalization beginning on March 17, 2013, assigned a 100 percent rating effective June 1, 2013. In May 2013 the Veteran testified via video conference hearing at the RO before the undersigned. FINDINGS OF FACT 1. Prior to February 22, 2008, the Veteran's PTSD and depressive disorder were manifested by symptoms productive of occupational and social impairment comparable to no more than reduced reliability and productivity. 2. Prior to March 17, 2013, the Veteran's PTSD and depressive disorder were manifested by symptoms productive of occupational and social impairment comparable to no more than reduced reliability and productivity. CONCLUSIONS OF LAW 1. The criteria for a rating of 50 percent for PTSD with major depressive disorder prior to February 22, 2008, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Codes 9411, 9434 (2014). 2. The criteria for a rating in excess of 50 percent for PTSD with major depressive disorder for the period prior to March 17, 2013, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Codes 9411, 9434 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). By correspondence, including that dated in March 2008, the Veteran was informed of the evidence and information necessary to substantiate the claim, the information required to enable VA to obtain evidence in support of the claim, the assistance that VA would provide to obtain evidence and information in support of the claim, and the evidence that should be submitted if there was no desire for VA to obtain such evidence. 38 U.S.C. § 5103(a). The Veteran has been informed of the need for evidence demonstrating an increase in the severity of the disability on appeal and the effect that the service-connected disability has on employment. Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). In the March 2008 letter the Veteran received notice regarding the assignment of a disability rating and/or effective date in the event of an award of VA benefits. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice was completed prior to the initial AOJ adjudication of the claim. Pelegrini. Importantly, the Board notes that the Veteran is represented in this appeal. Overton v. Nicholson, 20 Vet. App. 427, 438 (2006). The Veteran has submitted argument in support of the appeal. Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of the increased rating claim such that the essential fairness of the adjudication is not affected. Duty to Assist The Veteran's service treatment records are associated with the claims file, as are VA and private medical records. The Veteran has also undergone VA examinations that addressed the rating matter presented by this appeal. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the examinations obtained in this case are adequate, as they considered the pertinent evidence of record, and included an examination of the Veteran and elicited his subjective complaints and clinical measures and observations reported. The examinations described the Veteran's disability in sufficient detail so that the Board is able to fully evaluate the claimed disability. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). During the May 2013 Board hearing, in order to assist the Veteran, the undersigned asked the Veteran questions to determine if there was any evidence outstanding pertinent to the claim. This action fulfilled the duties in Bryant v. Shinseki, 23 Vet. App. 488 (2010), and the Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the hearing. As such, the Board finds that, consistent with Bryant, the Board complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. The Board finds that there has been substantial compliance with its prior remand instructions. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Veteran has not referenced any other pertinent, obtainable evidence that remains outstanding. VA's duties to notify and assist are met, and the Board will address the merits of the claim. Legal Criteria Disability evaluations are determined by comparing a veteran's present symptoms with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Staged ratings are appropriate for increased rating claims when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. Under Diagnostic Codes 9411 and 9434, a 30 percent evaluation is provided where there is 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). A 50 percent rating is appropriate when there is 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. A 70 percent rating is provided for 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. A 100 percent rating for generalized anxiety disorder is provided 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; the Veteran's 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. The above symptoms 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." Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002). In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect his level of occupational or social impairment. Id. at 443; 38 C.F.R. § 4.126. A Global Assessment of Functioning (GAF) rating is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. Richard v. Brown, 9 Vet. App. 266 (1996) (citing Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994)). GAF scores ranging from 61 to 70 reflect 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 indicate that the individual is able to function "pretty well," and has some meaningful interpersonal relationships. Scores from 51 to 60 are indicative of 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). GAF scores 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 from 31 to 40 indicate 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). An examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the VA disability rating assigned. See 38 C.F.R. § 4.126; VAOPGCPREC 10-95 (Mar. 31, 1995). It should be noted that use of terminology such as "moderate" by VA examiners or other physicians, although an element of evidence to be considered by the Board, also is not dispositive of an issue. Rather, all evidence must be evaluated in arriving at a percentage disability rating. 38 C.F.R. §§ 4.2, 4.6, 4.126. Before undertaking analysis, it is notable that the Veteran is service connected for PTSD and major depressive disorder. The Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so. Mittleider v. West, 11 Vet. App. 181 (1998). As such, the Board shall consider all psychiatric symptomatology to be attributable to the Veteran's PTSD and depressive disorder. Doing so results in no prejudice to the Veteran since it means that the evidence in its entirety will be reviewed. The Veteran was initially granted service connection for his PTSD in April 1998 and was assigned a rating of 30 percent. The present appeal ensued following the Veteran's July 30, 2007, claim for an increased rating for his PTSD. The Veteran is in receipt of a 50 percent rating for PTSD and depression, effective February 22, 2008, and a rating of 100 percent, effective March 17, 2013. At the May 2013 Board hearing, the Veteran stated that he had received VA mental health treatment for PTSD since the early 1970s. He would generally be seen about once a month. He stated that his grandchildren were afraid of him and he had almost beaten his daughter in July 2012. Beginning three or four years ago, the Veteran had begun to sleep in a different room than his spouse. He felt as if he was in a near continuous state of panic. He had problems with relationships and had not spoken to his sister in years and had not talked to his youngest son in 16 years. He would go to maybe two movies a year. He would self-medicate with alcohol. He last worked in May 2009 and had stopped mainly due to his heart disability. He would shower once a week and had started doing so about three or four years prior. He would have nightmares two or three times a week. The Veteran's wife noted that the Veteran was unable to focus and was not making sense or being very logical. He was also tending to isolate himself more and more. I. Rating in excess of 30 percent for PTSD prior to February 22, 2008. Evidence from this time period includes VA treatment records dated from April 2007 showing symptoms such as anger, irritability, flashbacks, problems sleeping, hypervigilance, tearfulness, and difficulty concentrating. The symptoms and medications appear similar to those noted in the December 2014 RO decision that awarded the 50 percent rating, effective February 22, 2008. As such, a rating of 50 percent for the Veteran's service-connected psychiatric disability prior to February 22, 2008, is warranted. II. Rating in excess of 50 percent for PTSD prior to March 17, 2013. Evidence from this time period includes March 2008 and June 2011 VA examinations and VA treatment records. Symptoms noted during this time period include flashbacks and nightmares, periods of crying (especially around issues of survivor guilt), irritability, difficulty with sleep, some exaggerated responses to certain kinds of situations, and hypervigilance. The Veteran has also expressed feeling hopeless and trying to cope with his intrusive thoughts about Vietnam. The Veteran's medications have included Prozac and Trazodone. The Veteran has indicated that he does not trust people and avoids crowds. He has rated his depression as being 7-8/10 with mood changes. The Veteran denied panic attacks or suicidal plans. He reported that he had a few friends but felt detached from others and would avoid social situations. There was no inappropriate behavior noted. A review of the claims file with respect to the entire time frame on appeal reveals that symptoms such as obsessional rituals which interfere with routine activities, depression affecting the ability to function independently, and spatial disorientation have not been shown. The Board observes that no formal speech or cognitive disorder has been noted, and it does not appear that the Veteran has ever asserted as much. While the Veteran has testified that his showering had not been frequent as of late, neglect of personal appearance and hygiene have not been consistently shown during this time period. Further, it appears that the Veteran has had some "fleeting" suicidal thoughts but had not been suicidal since 2004. While it is clear that the Veteran's PTSD has impacted his social functioning, the Veteran indicated that he had some friends and has been able to maintain his marriage and relationships with other relatives, including a step-daughter and grandson. The Veteran's GAF score was 66 at the March 2008 VA examination and was 70 for PTSD and 60 for depression on the June 2011 VA examination. Such findings tend to reflect at most moderate levels of PTSD symptoms, and a review of the clinical findings from the psychiatric records do not reveal symptoms which more closely approximate the criteria for a rating of 70 percent. As such, a rating in excess of 50 percent for PTSD and depression is not warranted at any time during the entire appeal period. In adjudicating the claims the Board must assess the competence and credibility of the Veteran. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges that the Veteran is considered competent to give evidence about what he observes or experiences concerning his PTSD. See Layno v. Brown, 6 Vet. App. 465 (1994). The Board in this case has relied, in part, on the Veteran's and his wife's own credible testimony in assigning an increased rating in this case prior to February 22, 2008. The Veteran is not, however, competent to identify a specific level of disability of his psychiatric disability according to the appropriate diagnostic code. Such competent evidence concerning the nature and extent of the Veteran's psychiatric disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings directly address the criteria under which the Veteran's PTSD and depression are evaluated. In conclusion, the evidence does not support a rating in excess of 50 percent for PTSD and depression from February 22, 2008 through March 16, 2013. The Board has been mindful of the "benefit-of-the-doubt" rule, but, in this case, there is not such an approximate balance of the positive evidence and the negative evidence to permit a more favorable determination. As for extraschedular consideration, the threshold determination is whether the disability picture presented in the record is adequately contemplated by the rating schedule. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Court clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If so, then the assigned schedular evaluation is adequate, referral for extra-schedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation fails to reasonably describe or to contemplate the severity and symptomatology of the Veteran's service-connected disability, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment or frequent periods of hospitalization. Id. At 116. If additional factors are found, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether justice requires assignment of an extra-schedular rating. Id. The evidence of record does not reveal that the Veteran's psychiatric disability on appeal and additional service-connected disabilities (left and right thigh, tinnitus, coronary artery disease, right thumb) are so unusual or exceptional in nature as to render his schedular rating inadequate prior to March 17, 2013. The Veteran's disabilities have been evaluated under the applicable diagnostic codes that have specifically contemplated the level of occupational and social impairment caused by the service-connected disabilities. In addition, the Veteran's psychiatric symptoms such as his sleep difficulties, anger, irritability, and concentration difficulties are specifically enumerated under the applicable Diagnostic Codes. Therefore, referral for assignment of an extra-schedular evaluation in this case is not in order. Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). ORDER A rating of 50 percent for PTSD with major depressive disorder prior to February 22, 2008 is granted, subject to the law and regulations governing the payment of monetary benefits. A rating in excess of 50 percent for PTSD with major depressive disorder prior to March 17, 2013, is denied. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs