Citation Nr: 1620471 Decision Date: 05/19/16 Archive Date: 05/27/16 DOCKET NO. 10-06 469 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Entitlement to an initial rating in excess of 10 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran served on active duty from November 2002 to November 2006. This matter comes to the Board of Veterans' Appeals (Board) on appeal from April 2008 and December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota. In May 2014, the Board remanded the issue for further development. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. FINDING OF FACT Since the November 4, 2006, effective date of the grant of service connection, the Veteran's psychiatric disability more nearly approximates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Veteran was in college and has been employed during the appeal period. Occupational and social impairment with reduced reliability and productivity are not demonstrated. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for an initial 30 percent rating, but not higher, for PTSD, effective November 4, 2006, have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.159 (2015); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Veteran was notified in a February 2007 letter. The appeal of the initial rating assigned for PTSD is a downstream issue, and additional notice is not required. 38 C.F.R. § 3.159(b)(3) (2015); Hartman v. Nicholson, 483 F.3d. 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained examinations with respect to the claim on appeal. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2015). When a question arises as to which of two ratings applies under a particular Diagnostic Code (DC), the higher rating is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating applies. 38 C.F.R. § 4.7 (2015). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2015). The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). In rating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant's capacity for adjustment during periods of remission. VA shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder, VA will consider the extent of social impairment, but will not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Veteran's service connected PTSD has been assigned a 10 percent rating pursuant to 38 C.F.R. § 4.130, DC 9400 and the General Rating Formula for Mental Disorders. Pursuant to the General Rating formula, a 10 percent rating requires occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. A 30 percent rating is warranted when there is occupation and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactory, 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 for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once per week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating requires occupational and social impairment with deficiencies in most areas (e.g., work, school, family relations, judgment, thinking, or mood) due to such symptoms as suicidal ideation; obsessional rituals that 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 (e.g., unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work/work like setting); inability to establish/maintain effective relations. A 100 percent rating requires 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 9413, General Rating Formula for Mental Disorders (2015). Reports of psychiatric examination and treatment frequently include a GAF score. According to the Fourth Edition of the American Psychiatric Association 's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), a GAF scale includes scores ranging from 0 to 100 which represent the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health- illness. The GAF score and the interpretations of the score are important considerations in rating a psychiatric disability. Richard v. Brown, 9 Vet. App. 266 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, the GAF score assigned, like an examiner's assessment of the severity of a condition, is not dispositive of the rating issue. Rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. 38 C.F.R. § 4.126(a)(2015). In a February 2007 letter, the Veteran stated that he has depression, anger, and stress secondary to PTSD. A March 2007 VA PTSD examination report reflects that the Veteran is married, was a full time college student, and was employed part-time. The Veteran described an incident at a welcome home party where his father came up to him in the dark. He could not see who it was and he wound up hitting his father. He cried quietly and did not know what happened. He re-experienced his war time experiences and has ongoing problems with intrusive thoughts. He described difficulty with sleep and had "daydreams" about his military service. He has difficulty concentrating in school, problems completing his homework, and is unable to do two things at once. After the incident with his father, he started avoiding family members. He has difficulty being around crowds and avoids parties. He stated, "I don't like people anymore," indicating that he has no difficulty with old friends, but does not like meeting new people. He avoids watching war movies and international news. The examiner noted that the Veteran was showing various elements of avoidance and experienced a general numbing of emotions. The Veteran stated his heart races when he hears trains coupling and has a general problem with noise startle, to include when cars backfire. The examiner noted that the Veteran described terminal insomnia and that he has problems with "claustrophobic feelings." When in a restaurant, he sits off to the side and always looks for "an escape route." In his part-time job, he works by himself which he indicated that he prefers as he is uncomfortable around others, particularly people he does not know. He rated his usual level of depression "4-ish" on a scale of 1 to 10. When he feels sad, he withdraws socially, but does not give up pleasurable activities. He has an increased in irritability "big time" and increased problems with sleep and appetite. He denied thoughts of death or suicidal ideation. The diagnosis was PTSD, chronic-mild, depressive disorder, not otherwise specified (NOS), and alcohol dependence, in partial remission. A GAF score of 55 was assigned. An August 2014 VA PTSD examination provides a diagnosis of adjustment disorder. The examiner noted the Veteran was diagnosed with PTSD in the past. He is no longer hypervigilant, does not have an exaggerated startle response, and has no persistent negative emotional state. The Veteran stated that social events with his family "don't feel good anymore." He works overtime to distract himself. He declines talking to mental health professional. He has a "good buddy" with whom he can discuss his feelings. The Veteran stated that his emotions were stable. On a scale of 1 to 10, 10 being the most distressed, he is at a 5, by his report. The examiner indicated that the Veteran's psychiatric symptoms are not severe enough to either interfere with occupational and social functioning or to require medication. He and his wife have their own home with two young children. He enjoys outdoor activities, primarily fishing. He has friends and he belongs to the American Legion. He has been working at a large sporting goods store for the past 7 years and has a construction business on the side. The examiner noted that the Veteran directly experiences the traumatic events, has recurrent distressing dreams, has avoidance behaviors, and anxiety. The examiner concluded that based on the Veteran's report, he no longer meets DSM-IV or DSM V diagnostic criteria for PTSD. He does still suffer some of the symptoms however, therefore meeting criteria for adjustment disorder, which is related to stressors resulting from his fear of hostile military and or terrorist activities. Considering the above evidence in light of the criteria listed above, the Board finds that the Veteran's symptoms, collectively, more nearly approximate the criteria for an initial 30 percent disability rating due to symptoms causing a general ability to function independently, with some impairment caused by irritability, depressed mood, anxiety, and chronic sleep impairment. Since the November 4, 2006, effective date of the grant of service connection, the evidence shows that the Veteran generally functioned satisfactorily, attending school and then gaining full time employment, and was found to have flashbacks, intrusive memories, depression, distressing dreams, difficulty concentrating, avoidance behaviors, anxiety, irritability, anger, and sleeping difficulties, all of which are consistent with the criteria for a rating of 30 percent. The Board emphasizes that there are no medical findings of flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of long and short-term memory (e.g., retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; together with difficulty in establishing or maintaining effective work and social relationships), or more severe symptomatology such as to warrant at least the next higher 50 percent rating. Many of the Veteran's reported symptoms are included among those specifically listed in the General Rating Formula for Mental Disorders, pursuant to which the current disability rating has been assigned. 38 C.F.R. § 4.130 (2015). Importantly, the Board notes that symptoms noted in the rating schedule are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular disability rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Symptoms comparable to those listed in the General Rating Formula could be considered in evaluating the Veteran's extent of occupational and social impairment. Accordingly, in this case, the Board finds that the existence and severity of the Veteran's psychiatric symptoms are adequately contemplated by the relevant rating criteria. Many of the symptoms are specifically listed in the General Rating Formula for Mental Disorders, and the others are common psychiatric symptoms that, while not specifically listed, are comparable indicators of the type of occupational and social impairment contemplated in the Rating Formula. In this case, the Veteran's symptoms are consistent with a 30 percent rating. The Board also finds that the GAF score of 55 in the March 2007 VA examination report is consistent with a 30 percent rating. According to DSM-IV, GAF scores between 51 and 60 denote 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). In this case, the extent and severity of the Veteran's actual psychiatric symptoms reported as of the November 4, 2006 effective date of the grant of service connection, are suggestive, at most, of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactory, with routine behavior, self-care, and conversation normal), contemplated in the 30 percent rating for psychiatric disabilities, regardless of the GAF scores. In this case, as of November 4, 2006, the collectively reported symptomatology is consistent with no more than moderate symptoms or moderate difficulty in social, occupational, or school functioning, and some disturbances of motivation and mood, as well as difficulty in establishing and maintaining effective work and social relationships, which is also consistent with no greater impairment than that contemplated by a 30 percent rating. In reaching the above conclusions, the Board has considered the Veteran's statements regarding the severity of his psychiatric symptoms. As a lay person, he is competent to report on factual matters of which he has first-hand knowledge, such as experiencing an increased level of psychiatric symptomatology. Washington v. Nicholson, 19 Vet. App. 362 (2005). The Veteran's February 2007 statement regarding his psychiatric symptoms serves, in part, as the basis for the assignment of a higher initial 30 percent rating. Thus, the criteria for a 30 percent rating, but not higher, for a psychiatric disability are met since the November 4, 2006 effective date of the grant of service connection. But, the Board finds that the preponderance of the evidence is against the assignment of a rating higher than 30 percent at any time during this appeal. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The above decision is based on application of pertinent provisions of VA's rating schedule. Also, at no point since the effective date of the grant of service, has the Veteran's service-connected PTSD been shown to be so exceptional or unusual as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (2015). There is no evidence of an exceptional or unusual disability picture with related factors, such as marked interference with employment or frequent periods of hospitalization, so as to warrant referral of the case to appropriate VA officials for consideration of an extra schedular rating for these issues. Shipwash v. Brown, 8 Vet. App. 218 (1995). The record does not reflect that the Veteran was hospitalized for his service-connected psychiatric disability, and there is no objective evidence of marked interference with employment (e.g., employers' statements or sick leave records) beyond that already contemplated by the schedular rating criteria. Thus, the schedular criteria are adequate to rate the Veteran's psychiatric disability and fully contemplate the described symptoms and provides for ratings higher than those assigned during the appeal. The threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Thun v. Peake, 22 Vet. App. 111 (2008). Moreover, although the Veteran has submitted evidence of medical disabilities, and made a claim for the highest ratings possible, he has not submitted evidence of unemployability, or claimed to be unemployable, as a result of his service-connected psychiatric disability. Indeed, the Veteran has been shown to be employed throughout this appeal. The issue of entitlement to a total disability rating based on individual unemployability due to the service-connected psychiatric disability has, therefore, not been raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). ORDER An initial 30 percent rating, but not higher, for PTSD, is granted for the entirety of the appeal period (since November 4, 2006), subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs