Citation Nr: 1601988	
Decision Date: 01/19/16    Archive Date: 01/27/16

DOCKET NO.  09-49 205	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Baltimore, Maryland


THE ISSUE

Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

A. Dean, Associate Counsel


INTRODUCTION

The Veteran had active military service from January 1966 to October 1967.

This matter comes before the Board of Veterans Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland.

The Veteran testified before the undersigned at an October 2015 Central Office hearing. The undersigned noted the issue on appeal and engaged in a colloquy with the Veteran toward substantiation of his claim. See Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A transcript of the hearing is in the claims file.

This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Any future consideration of the appeal should take into consideration the existence of the electronic record.


FINDINGS OF FACT

With resolution of the doubt in the Veteran's favor, his service-connected PTSD is manifest by occupational and social impairment with reduced reliability and productivity.


CONCLUSION OF LAW

The criteria for an initial rating of 50 percent for PTSD are approximated throughout the pendency of this appeal. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.130, Diagnostic Code (DC) 9411 (2015).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, sets forth VA's duties to notify and assist appellants in substantiating a claim for VA benefits. See 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Because the Veteran's claim is granted in full, any error related to the VCAA is harmless. See October 2015 Hearing Transcript, pp. 20-21 (requesting that a 50 percent disability rating be assigned); see also Shinseki v. Sanders, 556 U.S. 396, 407, 410 (2009).

VA has adopted a Schedule for Rating Disabilities (Schedule) to evaluate service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R., Part IV. Disability evaluations assess the ability of the body as a whole, the psyche, or a body system or organ to function under the ordinary conditions of daily life, to include employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Id.

The Schedule assigns DCs to individual disabilities. DCs provide rating criteria specific to a particular disability. If two DCs are applicable to the same disability, the DC that allows for the higher disability rating applies. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the claimant. 38 C.F.R. § 4.3. The Schedule recognizes that a single disability may result from more than one distinct injury or disease; however, rating the same disability or its manifestation(s) under different DCs - a practice known as pyramiding - is prohibited. Id.; see 38 C.F.R. § 4.14.

In initial disability rating cases, VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims).

The Veteran's PTSD has been evaluated as 30 percent disabling under the General Rating Formula for Mental Disorders, which assigns ratings based on particular symptoms and the resulting functional impairment(s). See 38 C.F.R § 4.130, DC 9411, 9434. The General Rating Formula is as follows:

A 50 percent rating is assigned for 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 30 percent rating is assigned for 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).

The symptoms associated with each rating in 38 C.F.R. § 4.130 are not intended to constitute an exhaustive list; rather, they 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 level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the DC. See id. VA must consider all symptoms of a claimant's disorder that affect his or her occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 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 DC, 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 claimant's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126. Although VA considers the level of social impairment, it does not assign an evaluation based solely on social impairment. Id.

The Veteran's records include an evaluation based on the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV), which includes a Global Assessment Functioning (GAF) score. This is 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. The Court has found that certain scores may demonstrate a specific level of impairment. See Richard, 8 Vet. App. at 267 and Bowling v. Principi, 15 Vet. App. 1, 14-15 (2001) (observing that a GAF score of 50 indicates serious impairment).

Although an examiner's classification of the level of psychiatric impairment reflected in the assigned GAF score is probative evidence of the degree of disability, such a score is not 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 claimant'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 moment of examination. See 38 C.F.R. § 4.126.

In November 2008 VA medical records (VAMRs), the Veteran reported sleep disturbances due to dreams and nightmares, tendency to isolate, and loneliness. In December 2008, he stated he was sleeping better with medication, although he continued to have dreams about Vietnam almost every other night. In January 2009, the Veteran reported continued recurrent nightmares and flashbacks two or three times per week. He denied overt depression, anhedonia, or suicidal ideation.

In February 2009, a VA examiner noted the Veteran maintained a stable marriage and job for many years, until his wife passed away in 2005. Since his wife's death he had manifested intrusive recollections of events, flashbacks, increased arousal with irritability, social isolation, poor sleep, and tendency to avoid situations or people that reminded him of Vietnam. The examiner noted his symptoms occurred at least twice a week and were moderate in severity. The duration of symptoms was intermittent and the effects of PTSD symptoms on his social functioning were moderately severe since his wife's death. The examiner noted the Veteran's mood was moderately anxious and depressed and that his cognitive functions were moderately impaired in the area of concentration and attention. The diagnosis was PTSD with a GAF score of 60.

In March 2009, VAMRs indicated the Veteran was not overtly depressed, but he reported nightmares three or four times per week and flashbacks when triggered by sounds or TV footage. In December 2009, the Veteran reported he continued to have nightmares, as well as daytime memories of Vietnam. In February 2010, the Veteran reported infrequent nightmares once or twice every other week.

During his October 2015 Board hearing, the Veteran testified that he experienced difficulty sleeping, nightmares "just about every night," and few friends. He reported he lived with his daughter, who did most of the household chores, and his two grandchildren.

Although most of the Veteran's symptoms do not approximate particulars for a rating in excess of 30 percent, he has had persistent symptoms of frequent nightmares causing sleep disturbance and social isolation. Consequently, taking into consideration these symptoms, the Veteran's PTSD warrants an initial disability rating of 50 percent for the entire appellate period.

The Board has considered whether to the address the issue of a total disability rating based on individual unemployability (TDIU). See 38 C.F.R. §§ 3.340, 4.16 (2015); see also Rice v. Shinseki, 22 Vet. App. 447, 453 and 455 (2009). The Veteran has not stated and the evidence does not otherwise suggest that PTSD is so incapacitating as to prevent him from obtaining or maintaining substantially gainful employment. In fact, the Veteran is currently employed as a truck driver on a full-time basis. See October 2015 Hearing Transcript. Thus, the issue of entitlement to TDIU has not been raised.

The Board has also considered whether the evaluation of the Veteran's service-connected PTSD should be referred for extraschedular consideration. See 38 C.F.R. § 3.321(b) (2015); Thun v. Peake, 22 Vet. App. 111, 114 (2008). Because the ratings provided under the VA Schedule for Rating Disabilities are averages, an assigned rating may be adequate to address the average impairment in earning capacity caused by the disability, but not completely account for the Veteran's individual circumstances. Thun, 22 Vet. App. at 114. When an assigned rating is deemed inadequate, the case may be referred for extraschedular consideration. Id.

In Thun, 22 Vet. App. at 115, the Court held that the determination of whether a claimant is entitled to an extraschedular rating under 38 C.F.R. § 3.321(b) is a three-step inquiry. First, there must be a finding that the evidence of record presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Id. This first element is a threshold element and requires the Board to compare the severity and symptomatology of the claimant's service-connected disability with the rating-schedule for that disability. See id. If the rating criteria reasonably describe the claimant's disability level and symptomatology, the assigned schedular evaluation is adequate and no referral is required. Id. Second, if the schedular criteria are found to be inadequate to evaluate the claimant's disability, the Board must determine whether the exceptional disability exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Id. If so, then under the third step of the inquiry the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether the claimant's disability picture requires the assignment of an extra-schedular rating. Id.

Referral for extraschedular consideration is not warranted. A comparison of the Veteran's current mental health symptoms and the relevant rating 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). The Veteran's PTSD is manifest mainly by sleep disturbances and nightmares. See 38 C.F.R. § 4.130, DC 9411. Thus, the Veteran does not have symptoms that have been left uncompensated or unaccounted for in the assignment of his schedular rating. See Thun, 22 Vet. App. at 115.

In summary, the available schedular evaluations are adequate to rate the Veteran's PTSD and the first step of the inquiry is not satisfied. See Thun, 22 Vet. App. at 115. In the absence of this threshold finding, there is no need to consider the second step of the inquiry, namely whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization. See id. at 118-19. Thus, the schedular criteria are adequate to rate the Veteran's PTSD and referral for extraschedular consideration is not warranted.

The benefit-of-the-doubt rule applies and an initial rating of 50 percent, but no higher, for service-connected PTSD is granted. See 38 C.F.R. 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991).


ORDER

A 50 percent initial rating for PTSD is granted.



____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs