Citation Nr: 1609601 Decision Date: 03/09/16 Archive Date: 03/15/16 DOCKET NO. 11-13 271 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to initial disability ratings for posttraumatic stress disorder (PTSD) in excess of 30 percent prior to November 17, 2014, and in excess of 70 percent thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served on active duty from September 1969 to April 1971, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In April 2014, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. In July 2014, the Board remanded this issue for further development. The case has returned to the Board for appellate review. The issue of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability will be addressed in a separate decision. The issue of entitlement to an effective date prior to March 24, 2010 for service connection for PTSD has been raised by the record in February 2015 and June 2015 statements, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. Prior to November 17, 2014, the Veteran's PTSD was manifested by depression, anger, crying spells, sleep disturbance, low energy, mild difficulty concentrating, feelings of hopelessness, visual and auditory hallucinations, homicidal thoughts, mild social avoidance, irritability, and suicidal ideation. 2. As of November 17, 2014, the Veteran's PTSD is manifested by anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, obsessional rituals which interfere with routine activities, and persistent delusions or hallucinations. CONCLUSIONS OF LAW 1. Prior to November 17, 2014, the criteria for an initial disability rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.125, 4.130, Diagnostic Code 9411 (2015). 2. As of November 17, 2014, the criteria for an initial disability rating in excess of 70 percent for PTSD have not been met. 38 U.S.C.A. §§ 1154(a), 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.125, 4.130, Diagnostic Code 9411 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b). This issue arises from a disagreement with the initial disability ratings that were assigned following the grant of service connection. Courts have held that 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). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all relevant facts have been properly developed, and that all available evidence necessary for equitable resolution of the issue has been obtained. The Veteran's available service treatment records, post-service treatment records, Social Security Administration (SSA) records, and lay statements have been obtained. The medical examinations of record are adequate. In November 2014 and November 2010, VA examiners used their expertise to draw conclusions from the totality of the evidence. Their reports discussed the medical and lay evidence of record sufficiently to render complete opinions and rationales. Monzingo v. Shinseki, 26 Vet.App. 97, 105 (2012); Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008). This claim was remanded by the Board for additional development in July 2014. There has been substantial, if not full, compliance with the Board's remand directives, insofar as VA has obtained all identified outstanding evidence as well as an adequate medical opinion. D'Aries v. Peake, 22 Vet. App. 97 (2008); Stegall v. West, 11 Vet. App. 268 (1998). VA provided the Veteran with a hearing before the undersigned VLJ in April 2014. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). See Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Veteran has not indicated there are any additional records that VA should obtain on his behalf. Thus, the Board finds that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim, and no further assistance to develop evidence is required. Analysis The Veteran contends in his January 2011 notice of disagreement that his PTSD should be rated as more than 30 percent disabling. In a January 2015 statement, the Veteran contends that his disability rating as of November 17, 2014 should be rated as more than 70 percent disabling. Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C.A. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. Where, as here, the question for consideration is the propriety of the initial evaluations assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged ratings" is required. Fenderson v. West 12 Vet. App. 119, 126 (1999). The Veteran is rated at 30 percent under DC 9411 for PTSD prior to November 17, 2014, and at 70 percent as of that date. The Veteran's PTSD has been evaluated under the General Rating Formula for Mental Disorder. 38 C.F.R. § 4.130, DC 9411. Under the General Rating Formula, a 30 percent rating is warranted when 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, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted 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; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability rating is warranted when there is 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. Id. A 100 percent disability rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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 listed in Diagnostic Code 9411 are not intended 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. Mauerhan v. Principi, 16 Vet. App. 436 (2002). In addition, in Mittleider v. West, 11 Vet. App. 181 (1998), the U.S. Court of Appeals for Veterans Claims (Court) held that VA regulations require that when the symptoms and/or degree of impairment due to a veteran's service-connected psychiatric disability cannot be distinguished from any other diagnosed psychiatric disorders, VA must consider all psychiatric symptoms in the adjudication of the claim. In evaluating psychiatric disorders, the VA has adopted and employs the nomenclature in the rating schedule based upon the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association (DSM-V). See 38 C.F.R. § 4.130. As such, the diagnosis of a mental disorder should conform to DSM-V. See 38 C.F.R. § 4,125(a). Diagnoses many times will include an Axis V diagnosis, or a Global Assessment of Functioning (GAF) score. The GAF is a scale 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). GAF scores ranging between 71 and 80 reflect that if symptoms are present they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). A GAF of 61 to 70 is indicative of some 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 GAF score of 51 to 60 is defined as 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). A GAF score of 41 to 50 indicates 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). A GAF score of 31 to 40 is meant to reflect an examiner's assessment of some 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). Following a review of the evidence of record, the Board finds that a rating of 70 percent, but no higher, is warranted throughout the appeal. In reaching this decision, the Board has reviewed the evidence of record, to include VA treatment and examination reports, and the Veteran's statements. In July 2010, the Veteran told his treating VA clinician that he was experiencing depression and anger. VA provided the Veteran with an examination of his PTSD in November 2010. The Veteran reported experiencing depression, crying spells, sleep disturbance, low energy, mild difficulty concentrating, and feelings of hopelessness. The Veteran also reported visual hallucinations consisting of "eyes, whirlwind of black smoke, pictures forming on the walls, [and] flashing lights." The Veteran also reported hearing noises of movement in his house. The Veteran's other symptoms of PTSD included homicidal thoughts, mild social avoidance, sleep disturbance, irritability, and outbursts of anger. The VA examiner found that the Veteran's "PTSD has had [a] mild effect [on his] functioning," and found an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to PTSD signs and symptoms. The VA examiner assigned a GAF score of 64. In December 2010, the Veteran's treating VA psychologist observed that the Veteran "is experiencing visual and auditory hallucinations which he thinks are accounted for by spirits." In June 2011, the Veteran's treating VA psychiatrist recorded that the Veteran "says that 'paranormal' things are still happening--like the telephone light flashing, hearing 'some kind of noise,' music etc....Spoke to his girlfriend who co-habits with him. She reports having had the same experiences....In addition she reports that her children have reported occasional episodes of things being thrown from the refrigerator when they opened the door." In October 2011, the VA psychiatrist recorded the Veteran's assertions that the spirits had been "attacking him more" and "are trying to have sex with him." In an April 2012 letter, the Veteran wrote that "I cannot sleep at night due to things invading my body and I see spirits." In a July 2013 letter, the Veteran stated that "my mental state has gotten worse to the point where this thing on my body is attacking me to the point where I wanted to commit suicide last week." In August 2013, the Veteran's treating VA psychologist recorded the following notes: [VA] denied his request that the VA pay for his sports utility vehicle which he had to get to transport his scooter....[The Veteran reported that] his house is haunted and related to that he needs the back pay in order to be able to move to South Carolina where he wants to buy another home....Patient thinks a demon was bothering his left foot during the session....The VA police told him to leave and after he would not the Buffalo police were called....The patient does not have thoughts, plans, or intent for suicide and/or physical assault. In December 2013, the Veteran told another VA psychiatrist that the spirits do not speak to him, but that he knows what they look like. He also reported that "the evil spirits are trying to get into his body to kill him but so far he is able to keep them out." In March 2014, the VA psychiatrist observed that the Veteran "was alert and oriented to time/place/situation....He denied current SI/HI [suicidal ideation and homicidal ideation] or intent/plans of either." In June 2014, the VA psychiatrist recorded that the Veteran "had ongoing and unchanged complaints about various objects, beings, and spirits entering various parts of his body....Patient was alert and oriented to time/place/situation....He does not appear to represent a risk to self/others." VA provided the Veteran with another examination of his PTSD in November 2014. The Veteran reported experiencing anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, obsessional rituals which interfere with routine activities, and persistent delusions or hallucinations. The VA examiner found that the Veteran's persistent delusions are attributable to a separate and distinct mental condition (i.e., delusional disorder) than his chronic combat PTSD, because the PTSD existed previously for decades. The VA examiner further found that the Veteran's PTSD results in "Occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood." Based on the evidence of record described above, the Board finds that throughout the appeal, the Veteran's PTSD results in occupational and social impairment, with deficiencies in most areas, such as 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 depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability); and difficulty in adapting to stressful circumstances. The evidence of record reflects that the Veteran has additional symptomatology. This includes anger, crying spells, sleep disturbance, low energy, mild difficulty concentrating, feelings of hopelessness, visual and auditory hallucinations, homicidal thoughts, mild social avoidance, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, and difficulty in establishing and maintaining effective work and social relationships. See Mauerhan, 16 Vet. App. 436 (2002). In this regard, the Board finds that the Veteran's symptoms throughout the appeal do not reflect total occupational and social impairment, even with consideration of some symptomatology thereof, because those symptoms are not shown to be of such severity as would more nearly approximate a 100 percent rating. Id. In light of the foregoing, the Board finds that the Veteran's symptoms do not more nearly approximate a rating in excess of 70 percent under the General Rating Formula. The Board has considered whether staged ratings are appropriate for the Veteran's PTSD; however, the Board finds that his symptomatology has most nearly approximated symptoms such as those exemplified by the 70 percent disability criteria throughout the appeal, as reflected in the narrative summaries. Thus, staged ratings are not warranted. In summary, the Board finds that the Veteran's PTSD symptoms result in no more than occupational and social impairment, with deficiencies in most areas, such as family relations, judgment, thinking, or mood throughout the appeal. Accordingly, the Board concludes that prior to November 17, 2014, a 70 percent rating, but no higher, is warranted. As of November 17, 2014, the Board finds that reasonable doubt does not apply, and the criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1-4.14, 4.130, Diagnostic Code 9411. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected PTSD with the established criteria found in the rating schedule. The Board finds that the Veteran's PTSD symptomatology is fully addressed by the rating criteria under which such disability is rated, such as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability); and difficulty in adapting to stressful circumstances. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and the symptomatology of his service-connected PTSD. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Finally, the Court of Appeals for Veterans Claims has held that a TDIU is a part of a claim for increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). As discussed in the Introduction, the issue of TDIU with respect to the Veteran's total disability picture will be addressed in a separate decision; this decision only covers whether TDIU is warranted solely as a result of the Veteran's PTSD. Such consideration is required by Rice, supra. Moreover, where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) (2001) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Here, the November 2010 VA examiner found that the Veteran's PTSD has had "mild effect" on the Veteran's functioning, and that his PTSD alone would cause only an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Similarly, the November 2014 VA examiner found that the Veteran had some, but not total, occupational impairment. Moreover, the Veteran's VA treatment records reflect that he is in a live-in relationship, plays bingo socially, and is capable of managing his own finances. Finally, the Veteran reported in October 2002 that he has two years of high school eduction, and has work history which includes full-time employment as a laborer from 1990 to 1995; at his November 2010 VA PTSD examination, the "Veteran stated that when he was employed, he did not have any problems in occupational functioning due to PTSD....[he] stopped working due to physical problems related to [his] back injury." Consequently, TDIU due solely to the Veteran's PTSD is not warranted by the record. ORDER Prior to November 17, 2014, an initial rating of 70 percent for PTSD, but no higher, is granted, subject to the applicable criteria governing the payment of monetary benefits. As of November 17, 2014, a rating in excess of 70 percent for PTSD is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs