Citation Nr: 1604915 Decision Date: 02/09/16 Archive Date: 02/18/16 DOCKET NO. 08-12 421 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder, prior to April 25, 2011. 2. Entitlement to an evaluation in excess of 50 percent for posttraumatic stress disorder, since April 25, 2011. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from June 1975 to June 1978, from November 1990 to June 1991, from February 2003 to May 2004, and from February 2012 to June 2014. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In June 2010, the Veteran testified at a hearing held at the RO before the undersigned. A transcript of this hearing has been added to the record. In December 2010, and again in March 2014, the Board remanded this matter for additional evidentiary development. FINDINGS OF FACT 1. Throughout the course of this appeal, the Veteran's posttraumatic stress disorder (PTSD) has been manifested by no more than occupational and social impairment with reduced reliability and productivity due to symptoms of sleep impairment, nightmares, intrusive memories, irritability, anxiety, depression, hypervigilance, exaggerated startle response, flattened affect, and difficulty in establishing and maintaining effective work and social relationships. The evidence of record also shows that the Veteran was alert and fully oriented, with good hygiene, normal speech, clear and logical thought processes, and no homicidal or suicidal ideation. 2. Throughout the course of this appeal, the Veteran's PTSD has not been manifested by symptoms analogous to 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; intermittently illogical obscure, or irrelevant speech; 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. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation of 50 percent, but no more, for PTSD, prior to April 25, 2011, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2015). 2. The criteria for an evaluation in excess of 50 percent for PTSD, since April 25, 2011, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015). The Veteran's claim arises from his disagreement with the initial evaluation assigned to his PTSD following the grant of service connection. Once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The duty to assist the Veteran has also been satisfied. The RO has obtained the Veteran's service treatment records, as well as his identified VA and private post service treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Most recently the RO provided the Veteran with a VA psychiatric examination in April 2014. This examination was performed by an examiner that had reviewed the Veteran's claims file, reviewed with the Veteran his psychiatric history, examined the Veteran, and included rationales for the conclusions reached therein. The Board finds this examination to be adequate for evaluation purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Pursuant to the Board's March 2014 remand, the Veteran was scheduled for the above-referenced April 2014 VA psychiatric examination. The RO also requested that the Veteran submit or identify any additional evidence which may be available in an April 2014 letter, and obtained additional VA treatment records identified by the Veteran. Accordingly, the RO has substantially complied with the directives of the Board's March 2014 remand. See Stegall v. West, 11 Vet. App. 268 (1998). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran served on active duty in the Army from June 1975 to June 1978, from November 1990 to June 1991, from February 2003 to May 2004, and from February 2012 to June 2014. In August 2004, the Veteran filed his original claim seeking service connection for PTSD. A February 2006 rating decision granted service connection for PTSD, at a 30 percent initial evaluation, effective from May 6, 2004. The Veteran timely filed an appeal of this decision. In November 2011, the RO issued a rating decision granting an increased evaluation of 50 percent for the Veteran's PTSD, effective April 25, 2011. The Veteran continues to seek a higher evaluation for this condition. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2015). The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2015). Pursuant to Diagnostic Code 9411, used in rating PTSD, a 30 percent rating contemplates 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 behaviour, self-care, and conversation normal, due to such symptoms as depressed mood; anxiety; suspiciousness; weekly or less often panic attacks; chronic sleep impairment; and mild memory loss, such as forgetting names, directions, recent events. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is warranted when there is evidence demonstrating 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, such as 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 rating is warranted when there is evidence demonstrating occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to 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, or 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; and the inability to establish and maintain effective relationships. Id. A rating of 100 percent is warranted when the evidence shows 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, to include maintenance of minimal personal hygiene; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. Id. The "such symptoms as" language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means "for example" and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App.436, 442 (2002). The list of examples provides guidance as to the severity of symptoms contemplated for each rating. While each of the examples need not be proven in any one case, the particular symptoms must be analyzed in light of the given examples. Put another way, the severity represented by those examples may not be ignored. Effective August 4, 2014, VA amended the portion of the Rating Schedule dealing with mental disorders so as to replace outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), with references to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094 (August 4, 2014). VA directed that the changes be applied only to applications for benefits received by VA or pending before the agency of original jurisdiction (AOJ) on or after August 4, 2014, but not to claims certified to, or pending before, the Board, the CAVC, or the United States Court of Appeals for the Federal Circuit. Id. As the Veteran's claim was certified to the Board in November 10, 2009 (prior to August 4, 2014), this regulatory amendment does not apply in this matter. It is worth noting, however, that this regulatory amendment does not affect evaluations assigned to mental disorders because the update did not change the disability evaluation criteria in 38 C.F.R. § 4.130, the Schedule for Ratings for Mental Disorders. Id. In evaluating the evidence, the Board has considered the various Global Assessment of Functioning (GAF) scores that clinicians have assigned. The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See DSM-IV; Carpenter v. Brown, 8 Vet. App. 240 (1995). For example, a score of 41-50 illustrates "[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)." See 38 C.F.R. §§ 4.125, 4.130. A GAF score between 51 and 60 reflects moderate symptoms, such as flat affect and circumstantial speech, occasional panic attacks, or moderate difficulty in social, occupational, or school functioning. Id. While a GAF score can be highly probative as it relates directly to the Veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders, the GAF scores assigned in a case are not dispositive of whether a higher evaluation is warranted; rather, they must be considered in light of the actual symptoms of the Veteran's disorder. See 38 C.F.R. § 4.126(a) (2014). Throughout the course of this appeal, the Veteran's service-connected PTSD has been assigned GAF scores ranging from 50 to 71. Specifically, a June 2004 VA psychiatric examination concluded with a GAF score of 71. VA treatment reports dated in August 2004, November 2004, September 2007, and October 2011, concluded with GAF scores of 50. VA psychiatric examinations conducted in October 2007 and April 2011 listed GAF scores of 57 and 62, respectively. While the Board has considered the degree of functioning as evidenced by this reported range of GAF scores, it is but one factor for consideration in assigning a rating in this case. See Brambly v. Principi, 17 Vet. App. 20, 26 (2003). After a longitudinal review of the entire record, the Board concludes that a 50 percent evaluation is warranted for the Veteran's service-connected PTSD, prior to April 25, 2011. 38 C.F.R. § 4.130, Diagnostic Code 9411; Fenderson v. West, 12 Vet.App. 119 (1999). Since the initial grant of service connection, the Veteran's PTSD has been manifested by sleep impairment, nightmares, intrusive memories, irritability, anxiety, depression, hypervigilance, exaggerated startle response, flattened affect, and difficulty in establishing and maintaining effective work and social relationships. The Board also concludes, however, that the evidence does not reflect that the Veteran's service-connected PTSD has been manifested by symptoms of such severity to warrant an evaluation in excess of 50 percent at any time throughout the course of this appeal. At his June 2010 hearing before the Board, the Veteran testified that his PTSD was manifested by nightmares, difficulty sleeping, exaggerated startle response, social isolation, and avoidance of stimuli. At no point since the initial grant of service connection does the evidence of record reflect symptoms that resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Veteran's PTSD has not been manifested by symptoms analogous in severity to 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, or 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; and the inability to establish and maintain effective relationships. Id. To the contrary, the evidence of record shows that the Veteran was alert and fully oriented, with good hygiene, normal speech, clear and logical thought processes, and no homicidal or suicidal ideation. Although the Veteran does have significant occupational impairment, this is acknowledged in the 50 percent disability evaluation currently assigned, which contemplates occupational impairment with reduced reliability and productivity. Moreover, the evidence of record, including the Veteran's statements and testimony, VA examinations, and VA treatment records, indicate that he has been employed throughout this appeal. The Veteran's level of social impairment is also appropriately recognized in the current assignment of the 50 percent disability rating. As noted above, a 50 percent evaluation includes consideration of difficulty in establishing and maintaining effective work and social relationships. A January 2007 VA treatment report noted that the Veteran gets along with two or three of his coworkers. The October 2007 VA psychiatric examination noted that he was married and that he has a fair relationship with his children. At his June 2010 hearing before the Board, the Veteran testified that he gets along pretty good with his coworkers. The April 2011 VA psychiatric examination noted that he functions reasonably well with a coworker, who is an Army friend of the Veteran. The VA examiner also indicated that the Veteran's psychological symptoms affect but do not preclude his ability to interact with supervisors, coworkers and customers. Finally, a January 2015 VA neuropsychological consultation report noted that the Veteran has a fear of showing his deficits and problems to his "friends". Thus, the Veteran exhibits an ability to establish and maintain effective relationships. Finally, the October 2007 VA psychiatric examination noted that the degree of severity of the Veteran's PTSD symptoms based upon psychometric data was moderate. His April 2014 VA examination for PTSD noted that the level of occupational and social impairment exhibited by the Veteran's PTSD was best summarized by a finding of occupational and social impairment with reduced liability and productivity. The examiner also noted that the Veteran's PTSD was manifested by anxiety, chronic sleep impairment, flattened affect, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. This symptomatology is directly in line with the severity of symptoms considered in a 50 percent disability rating under Diagnostic Code 9411. See 38 C.F.R. § 4.130, Diagnostic Code 9411. There is no evidence of symptoms of the severity required for assignment of a 70 percent evaluation, such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical obscure, or irrelevant speech; 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. While there may have been day-to-day fluctuations in the manifestations of the Veteran's service-connected PTSD, the evidence shows no distinct periods of time throughout the course of this appeal which the Veteran's service-connected PTSD varied to such an extent that a rating lesser or greater than 50 percent would be warranted. See Fenderson, 12 Vet.App. at 119. Consideration has been given regarding whether the schedular evaluation assigned is inadequate, requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extra-schedular evaluation where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2015). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating, otherwise, the schedular evaluation is adequate, and referral is not required. Id. at 116. The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render the already assigned rating inadequate. The Veteran's service-connected PTSD is evaluated as a mental disorder pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411, the criteria of which is found by the Board to specifically contemplate the level of occupational and social impairment caused by this disability. Id. Throughout the course of this appeal, the Veteran's PTSD been manifested by to symptoms of sleep impairment, nightmares, intrusive memories, irritability, anxiety, depression, hypervigilance, exaggerated startle response, flattened affect, and difficulty in establishing and maintaining effective work and social relationships. When comparing the disability picture of the Veteran's PTSD with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's symptoms are more than adequately contemplated by the 50 percent disability rating being assigned herein. Ratings in excess of the 50 percent currently assigned are provided for certain manifestations of PTSD, but the medical evidence of record does not demonstrate that such manifestations were present in this case. The criteria for the assigned 50 percent rating reasonably describes the Veteran's disability level and symptomatology and, therefore, the currently assigned schedular evaluation is adequate and no referral is required. The preponderance of the evidence of record does not show occupational and social impairment that meets the criteria for a rating in excess of 50 percent for the Veteran's service-connected PTSD at any point since the initial grant of service connection. Accordingly, the doctrine of reasonable doubt is not for application, and therefore, a rating in excess of 50 percent for the Veteran's service-connected PTSD is not warranted. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). ORDER An evaluation of 50 percent, but no more, for PTSD, prior to April 25, 2011, is granted. An evaluation in excess of 50 percent for PTSD, since April 25, 2011, is denied. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs