Citation Nr: 1607973 Decision Date: 03/01/16 Archive Date: 03/09/16 DOCKET NO. 11-20 726 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) with panic disorder without agoraphobia, prior to February 2, 2015 and in excess of 70 percent thereafter. (The issue of whether the overpayment in the amount of $2,941.81 is proper is addressed in a separate decision.) REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from April 1970 to April 1973. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In a February 2015 Decision Review Officer decision, an increased rating of 70 percent was assigned, effective February 2, 2015. However, as this rating is still less than the maximum benefit available, the appeal is still pending. AB v. Brown, 6 Vet. App. 35, 38 (1993). FINDINGS OF FACT 1. Prior to February 2, 2015, the Veteran's PTSD with panic disorder without agoraphobia resulted in mild impairment of recent and immediate memory, disrupted sleep, constricted affect, depressed mood, panic attacks, recurrent thoughts of suicide, decreased concentration, significant impairment of family and social relationships, and a need to work alone in an isolated setting. 2. From February 2, 2015 onward, the Veteran displayed occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood as a result of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, flattened affect, impaired judgment, disturbances of motivation or mood, and difficulty establishing and maintaining effective work and social relationships and adapting to stressful circumstances. CONCLUSIONS OF LAW 1. The criteria for a rating of 50 percent, but no greater, for PTSD with panic disorder without agoraphobia have been met for the period prior to February 2, 2015. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2015). 2. The criteria for a rating in excess of 70 percent for PTSD with panic disorder without agoraphobia have not been met for the period from February 2, 2015. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes certain duties upon VA to notify the claimant of the shared obligations of the claimant and VA in developing his or her claim and to assist the claimant by making reasonable efforts to obtain relevant evidence in support of the claim. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). In April 2009, the Veteran was provided with a notice letter that satisfied the duty to notify provisions with respect to increased rating claims. Accordingly, the Board determines that the content requirements of VCAA notice have been met and the purpose of such notice, to promote proper development of the claim, has been satisfied. See Mayfield v, Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). Based on the above, the Board finds that further VCAA notice is not necessary prior to the Board issuing a decision. VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim and providing him with a VA examination. The Veteran's VA medical records and the reports April 2009, December 2010, February 2015, and May 2015 VA examinations were reviewed by both the AOJ and the Board in connection with adjudication of his claim. The Veteran has not identified any additional, relevant treatment records the Board needs to obtain for an equitable adjudication of the claim. Once VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this case, each examiner documented the Veteran's subjective complaints and medical history, and evaluated the Veteran. Thereafter, in the reports, they provided information sufficient in detail and relevance to the rating criteria to allow for determination of the appropriate disability ratings for the Veteran's PTSD. The April 2009 VA examiner did not review the claims file, but the absence of claims file review alone does not render an examination inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). In an increased rating claim, it is the findings at the examination that are most salient to the claim, and nothing suggests that any examiner documented findings inconsistent with the medical history outlined in the claims file. Thus, the Board does not find the April 2009 examination to be inadequate for rating purposes. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159 (c)(4). In light of the above, the Board concludes that the medical evidence of record is sufficient to adjudicate the Veteran's claim without further development and additional efforts to assist or notify the Veteran in accordance with VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran). Therefore, the Board determines that the Veteran will not be prejudiced by the Board proceeding to the merits of the claim. II. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2015). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Where 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 for that rating; otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the "present level" of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. Thus, VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's PTSD with panic disorder without agoraphobia, has been assigned a staged rating of 30 percent prior to February 2, 2015 and of 70 percent thereafter pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411 (2015). The Veteran contends that his symptomatology is worse than contemplated by these ratings. The regulations establish a General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Ratings are assigned according to the manifestations of particular symptoms. However, the use of the phrase "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve only 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 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). The criteria for a 30 percent rating are: 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 criteria for a 50 percent rating are: 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. The criteria for a 70 percent rating are: 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. The criteria for a 100 percent rating are: 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. Evidence relevant to the appeal includes the reports of April 2009, February 2015, and May 2015 VA examinations and VA treatment notes. In addition, a December 2010 VA examiner offered an opinion that the Veteran's panic Disorder with agoraphobia is most likely caused by or a result of his PTSD. The Veteran reports that he does not seek treatment for his acquired psychiatric disorder because of the negative effect of psychotropic medications. However, he was evaluated by a VA social worked in February 2014. The social worker noted that the Veteran was casually dressed and appeared adequately groomed. His speech was normal and his thoughts were goal-directed and relevant. The Veteran's mood was irritable and he was uncooperative; his affect was congruent to content. The social worker noted that the Veteran seemed paranoid when asked about his guns for safety purposes. He was oriented to person, place, time, and date and denied suicidal or homicidal ideations. The social worker indicated that the Veteran seemed to have poor judgment and poor insight. At the April 2009 VA examination, the Veteran reported that he had been married four times and that his current wife was planning to divorce him. He indicated that he had reasonable relationships with his adult daughter and son and also several friendships that he enjoyed. The Veteran endorsed irritability, impatience, anger-management deficits, and social avoidance in most cases. He related experiencing daily episodes of intense stress and uneasiness resulting in a need to urinate, which the examiner described as an odd variant of panic. The Veteran's speech was slow, affect constricted, and his mood depressed. He was oriented to person, place, and time. He had recurrent thoughts of suicide. The examiner noted no deficiencies of insight or judgment. The examiner documented disrupted sleep, mildly impaired immediate and recent memory, decreased concentration, and poor social interaction. The examiner indicated that the Veteran was able to maintain employment due to the solitary nature of his job as a long-distance truck driver, but his ability to maintain family and social relationships was significantly impaired. He stated that that the Veteran had PTSD symptoms that were transient or mild resulting in a decrease in work efficiency and ability to perform occupational tasks only during periods of significant stress. The GAF score assigned was 52. The February 2015 VA examiner stated that the Veteran exhibited occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Veteran's appearance and behavior was appropriate to the situation. The Veteran reported that his family and social relationships had been negatively impacted by symptoms of anger control problems, anxiety, social isolation, exaggerated startle response, and being suspicious and avoiding most social situations. The Veteran was self-employed as a truck driver and reported feeling road rage, but indicated that he was able to control it. Mood was depressed and affect was dysphoric and irritable. The Veteran was fully oriented x4, and his attention, concentration, and memory was intact. He denied suicidal ideation, plan, or intent. There were no hallucinations, delusions or other indication of psychosis. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, flattened affect, impaired judgment, disturbances of motivation or mood, and difficulty establishing and maintaining effective work and social relationships and adapting to stressful circumstances. The May 2015 VA examiner reiterated the findings of the February 2015 VA examiner. In addition, the examiner stated that it is possible to differentiate the symptoms of the Veteran's Panic Disorder and Enuresis form the manifestations of PTSD. However, the examiner also indicated that these disabilities are caused by PTSD and should be considered additional (additive) challenges. Consequently, even if the manifestations of each disability can be differentiated, they are all manifestations of a service-connected psychiatric disability and are all rated under the same criteria. Therefore, the Board determines that the totality of the Veteran's psychiatric symptoms is a result of his service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998) (when it is not possible to separate the effects of the service-connected condition from a nonservice-connected condition, 38 C.F.R. § 3.102 requires that reasonable doubt on any issue be resolved in the Veteran's favor and that such signs and symptoms be attributed to the service-connected condition). The Veteran has been assigned a GAF score of 52. A GAF score of 51-60 reflects 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). While a GAF score is 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 overall improvement has been established; rather, they must be considered in light of the actual symptoms of the Veteran's disability. See 38 C.F.R. § 4.126(a). Prior to February 2, 2015, the Veteran's acquired psychiatric disorder was evaluated as 30 percent disabling. The April 2009 VA examination findings are somewhat inconsistent in relation to the rating criteria in that the Veteran's overall impairment as described by the VA examiner is contemplated by a 10 percent rating for mild symptoms, but his GAF score of 52 reflects moderate symptoms. Moreover, the Board finds that the manifestations of his disability at the April 2009 VA examination are at least as representative of the rating criteria for a 50 percent rating as for a 30 percent rating. Specifically, the Veteran's mild impairment of recent and immediate memory, disrupted sleep, constricted affect and depressed mood suggest a 30 percent rating, but his "odd variant" orf panic attacks, which he said occurred daily, recurrent thoughts of suicide, decreased concentration, significant impairment of family and social relationships, and his need to work alone in an isolated setting suggest a 50 percent rating. In light of the above and affording the benefit of the doubt to the Veteran, the Board determines that the Veteran's symptoms more closely approximated a 50 percent rating prior to February 2, 2015. However, the Board determines that a rating in excess of 50 percent is not warranted as the Veteran did not have symptoms that interfered with his ability to perform routine activities or to function independently, appropriately, and effectively. While he had deficiencies in family and work relationships, he was able to maintain relationships with his children and friends. Further, he was not neglectful of personal hygiene, and he did not exhibit impairment of thought processes or content of speech. He was also gainfully employed. Consequently, the Board determines that a rating in excess of 50 percent for the period prior to February 2, 2015 is not warranted. For the period from February 2, 2015 onward, the Board concludes that a rating in excess of 70 percent is not supported by the evidence. A rating in excess of 70 percent requires total occupational and social impairment, which the Veteran does not exhibit. The Veteran's deficiencies of mood and affect, anger, and social avoidance had negatively impacted his social relationships. However, he did not have impairment of his thought processes or speech, and even though he experienced road rage, he did not act on those feelings. The Veteran continued to maintain his employment as a truck driver. Hence, he does not demonstrate the total occupational and social impairment to warrant a rating in excess of 70 percent. The Board finds that the Veteran's symptoms throughout the appeal period are most similar to those contemplated by a 50 percent rating prior to February 2, 2015 and a 70 percent rating thereafter. These symptoms include Veteran's mild impairment of recent and immediate memory, disrupted sleep, constricted affect, depressed mood, panic attacks, recurrent thoughts of suicide, decreased concentration, significant impairment of family and social relationships, social isolation and avoidance, suspiciousness, impaired judgment, and need to work in isolation. 38 C.F.R. § 4.130. As discussed, the Veteran's symptoms prior to February 2, 2015 do not rise to the level of a 70 percent rating. While he endorsed recurrent suicidal thoughts, he intimated no plan or intent, and his other symptoms are not supportive of a 70 percent rating. From February 2, 2015, the manifestations of the Veteran's disability do not support a 100 percent rating. Further, simply because this Veteran has some symptoms that are contemplated at a higher rating level does not mean the impact of his PTSD overall rises that level. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). The Board must look to the frequency, severity, and duration of the impairment. Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2014); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board has applied the benefit of the doubt in assigning the 50 percent rating prior to February 2, 2015, and as demonstrated by the above discussion, the preponderance of the evidence is against a rating in excess of 70 percent from February 2, 2015 to the present. Therefore, a rating of 50 percent, but no greater, prior to February 2, 2015 is granted, and a rating in excess of 70 percent thereafter is denied. Extra-schedular rating and Total Disability Rating due to Individual Unemployability (TDIU) Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2015). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. In exceptional cases where the rating is inadequate, it may be appropriate to assign an extra-schedular rating. 38 C.F.R. § 3.321(b) (2015). The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate, a task performed either by the RO or the Board. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, and no referral is required. The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render the applicable rating criteria inadequate. PTSD with panic disorder without agoraphobia is rated under the General Formula for Rating Mental Disorders, which criteria the Board has found to specifically contemplate the level of occupational and social impairment caused by this disability. 38 C.F.R. § 4.130, Diagnostic 9411. The Veteran's PTSD is manifested by depressed mood, flattened affect, memory loss, panic attacks, irritability, sleep impairment, and difficulties with family and social relationships, which all vary in degree across the appeal period. When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's symptoms are congruent with the disability pictures represented by the 50 and 70 percent disability ratings assigned by the RO and the Board. Evaluations in excess of those assigned are provided for certain manifestations of PTSD, but as noted above, the evidence demonstrates that those manifestations are not present in this case. The criteria for the 50 and 70 percent ratings assigned reasonably describe the Veteran's disability level and symptomatology. Consequently, the Board concludes that a schedular evaluation is adequate and that referral of the Veteran's case for extra-schedular consideration is not required. See 38 C.F.R. § 4.130, Diagnostic Code 9411; see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996). Finally, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for TDIU claim is part and parcel of an increased-rating claim when raised by the record. The Board has jurisdiction to consider the Veteran's possible entitlement to a TDIU rating in this circumstance when the TDIU issue is raised by assertion or reasonably indicated by the evidence and is predicated at least in part on the severity of the service-connected disability in question, regardless of whether the RO has expressly addressed this additional issue. See VAOPGCPREC 6-96 (Aug. 16, 1996); see also Caffrey v. Brown, 6 Vet. App. 377 (1994); Fanning v. Brown, 4 Vet. App. 225, 229 (1993); EF v. Derwinski, 1 Vet. App. 324 (1991). In this case, the Veteran has not claimed entitlement to TDIU, and the record reflects that he has been gainfully employed throughout the appeal period. Therefore, the Board finds that further consideration of a TDIU rating is not warranted. ORDER Entitlement to a rating of 50 percent, but no greater, for PTSD with panic disorder without agoraphobia prior to February 2, 2015 is granted. Entitlement to a rating in excess 70 percent from February 2, 2015 onward for PTSD with panic disorder without agoraphobia is denied. ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs