Citation Nr: 1613798 Decision Date: 04/05/16 Archive Date: 04/13/16 DOCKET NO. 10-09 322 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from June 1969 to June 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Montgomery, Alabama. In May 2013, the Veteran testified before the undersigned at the RO. A transcript of this hearing has been associated with the claims file. This appeal was previously presented to the Board in October 2014, at which time it was remanded for additional development. The required development has been completed and this case is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT Throughout the course of this appeal, the Veteran's PTSD has more nearly approximated occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for an evaluation in excess of 50 percent for PTSD have not been met at any time during the appeals period. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In a claim for an increased rating, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Upon receipt of the Veteran's claims, VA issued VCAA notice in the form of a July 2008 letter that informed the Veteran of the evidence generally needed to support the claim on appeal. This notice included information regarding the assignment of an increased evaluation and effective date; what actions he needed to undertake; and how VA would assist him in developing his claim. The initial VCAA notice letter was also issued to the Veteran prior to the rating decision from which the instant appeal arises; therefore, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Regarding the duty to assist in this case, VA has secured or attempted to secure all relevant documentation required by the VCAA or identified by the Veteran. The Veteran's service treatment records, VA treatment records, and any identified private treatment records have all been obtained. The Veteran was afforded VA medical examinations and opinions on several occasions, most recently in January 2015, for the disability on appeal. The VA and private medical evidence contains sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disability on appeal and is adequate for purposes of this appeal, as it is competent medical evidence pertaining to the existence and etiology of the claimed current disability sufficient to decide the claim. The Veteran was afforded a hearing before the undersigned in May 2013. The Board hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony and his representative's statements, demonstrated that he had actual knowledge of the elements necessary to substantiate the claim for benefits. As such, the Board finds that, consistent with Bryant v. Shinseki, 23 Vet. App. 488 (2010), the undersigned 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 is not aware of, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. All identified and available relevant documentation has been secured and all relevant facts have been developed. There remains no question as to the substantial completeness of the claims. 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.159, 3.326(a). For these reasons, the Board finds that the VCAA duties to notify and to assist have been met. Disability evaluations are based upon the average impairment of earning capacity as contemplated by the schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In adjudicating increased rating claims, the level of disability in all periods since the effective date of the grant of service connection must be taken into account, to include the possibility that a staged rating may be assigned. See Fenderson v. West, 12 Vet. App. 119 (1998); Hart v. Mansfield, 21 Vet. App. 505 (2007). As such, the Board will consider whether staged ratings are appropriate to the pending appeals. In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 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 required for that rating. 38 C.F.R. § 4.7. PTSD is rated under Diagnostic Code 9411, and utilizes the General Rating Formula for Mental Disorders. Under this Code, a 50 percent rating is warranted where 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 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 warranted where 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 work-like setting); and inability to establish and maintain effective relationships. A 100 percent evaluation for a psychiatric disability is warranted 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; 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. In evaluating psychiatric disorders, the Board is mindful that the use of the term "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). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that VA "intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms." The Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." VA examinations and clinical evaluations reflect assignment of various Global Assessment of Functioning (GAF) scores. The Global Assessment of Functioning is a scale reflecting the subject's psychological, social, and occupational functioning. Richard v. Brown, 9 Vet. App. 266, 267 (1997). A GAF of 51-60 indicates moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (few friends, conflicts with peers or co-workers). See American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM- IV) (4th Ed.). After review of all evidence, both lay and medical, the Board concludes that the record 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. Evidence of record considered by the Board includes July 2008, March 2012, and January 2015 VA examination reports, May 2013 Board hearing testimony, and VA treatment records dated between 2002 and the present. 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. To the contrary, the evidence of record shows that the Veteran has, at all times of record, been alert and fully oriented, with good hygiene, normal speech, clear and logical thought processes, and adequate social interaction. While he has on occasion reported suicidal thoughts, he has denied any homicidal or suicidal intent or plan. 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 was employed for many years until his retirement in 2002. 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 July 2008 VA treatment report noted that the Veteran regularly attended a veterans PTSD support group. The July 2008, March 2012, and January 2015 VA psychiatric examination reports all noted that he was married and that he had a good relationship with his wife and extended family. The March 2012 VA psychiatric examiner also noted that the Veteran was without obsessive rituals, impairment in judgment or thinking, delusions or hallucinations, or any sort of cognitive deficits. At the May 2013 hearing before the Board, the Veteran testified that his PTSD was manifested by nightmares, difficulty sleeping, heightened irritability, some social isolation, and avoidance of stimuli. Finally, a January 2015 VA neuropsychological consultation report noted that the Veteran was without cognitive deficits, significant memory loss, impairment in thought processes or content, hallucinations or delusions, paranoia, or violent episodes. Finally, the January 2015 VA psychiatric examination noted that the degree of severity of the Veteran's PTSD symptoms resulted in some occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although he was generally functioning satisfactorily, with normal routine behavior, self-care and conversation. 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. Previously, on VA examination in July 2008, the Veteran was assigned a Global Assessment of Functioning (GAF) score of 60 by the examiner, and the examiner described the Veteran's symptomatology as resulting in moderate social and occupational impairment. On VA examination in March 2012, a GAF score of 60 was again assigned, and his PTSD symptomatology was again described as moderate. There is no evidence of symptoms of the severity required for assignment of a 70 percent evaluation, such as suicidal or homicidal thoughts or plans; 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 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. Finally, according to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b)] for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations." Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when there is "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities. In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities create such an exceptional circumstance to render the schedular rating criteria inadequate. There is neither allegation nor indication that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. For these reasons, the Board finds that the schedular rating criteria are adequate, and no extraschedular referral is warranted in this case. 38 C.F.R. § 3.321(b)(1). 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 Entitlement to an increased rating in excess of 50 percent for PTSD is denied. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs