Citation Nr: 1628308 Decision Date: 07/15/16 Archive Date: 07/28/16 DOCKET NO. 12-03 027 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Prior to January 30, 2009, entitlement to an initial evaluation in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD); on and after January 30, 2009, entitlement to an initial evaluation in excess of 70 percent. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD N.K., Associate Counsel INTRODUCTION The Veteran served on active duty from June 1968 to January 1976, with service in Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal from June 2008, January 2009 and May 2012 rating decisions of the Manila Regional Office (RO) of the Department of Veterans Affairs (VA). This appeal was processed using the Veterans Benefits Management System (VBMS) and the Virtual VA electronic claims file. Virtual VA contains additional VA treatment records and documents that are either duplicative of the evidence in the VBMS electronic claims file or not relevant to the issue on appeal. In January 2009, the RO increased the Veteran's disability rating for PTSD from 30 percent to 50 percent on and after January 30, 2009. Thereafter, in May 2012 the RO increased the Veteran's disability rating to 70 percent, on and after January 30, 2009. As these increases do not satisfy this appeal in full, the issue remains on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). FINDINGS OF FACT 1. Prior to January 29, 2009, service connected PTSD has been manifested by symptoms that indicate reduced reliability and productivity and difficulty in establishing and maintaining effective work and social relationships. 2. On and after January 30, 2009, service connected PTSD has been manifested by symptoms of near continuous panic or depression affecting his ability to function independently, impaired impulse control, neglect of personal appearance, difficulty adapting to stressful circumstances and the inability to establish and maintain effective relationships, but not total occupational and social impairment. CONCLUSIONS OF LAW 1. Prior to January 30, 2009, the criteria for an initial evaluation of 50 percent, but no more, for PTSD are met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2015). 2. On and after January 30, 2009, the criteria for an initial evaluation in excess of 70 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA's duty to notify was satisfied by letter in July 2011. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The issue adjudicated in this decision stems from an appeal of an initial disability rating assigned following an award of compensation. Once a decision awarding compensation and assigning a disability rating and an effective date has been made, section 5103(a) notice has served its purpose, and its application is no longer required because the claim has been substantiated. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006). The record does not show, and the Veteran does not contend, that there are any notification deficiencies which have resulted in prejudice to him. See Goodwin v. Peake, 22 Vet. App. 128 (holding that the Veteran bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements such as the disability rating and effective date). With respect to VA's duty to assist, the record shows that VA has undertaken all necessary development action. 38 U.S.C.A. § 5103A(West 2014); 38 C.F.R. § 3.159(2015). The Veteran's service treatment records are on file, as are all available post-service clinical records which the Veteran has specifically identified and authorized VA to obtain. 38 U.S.C.A. § 5103A(c) (West 2014); 38 C.F.R. § 3.159(c)(2), (3)(2015). The Veteran has also been afforded a series of VA medical examinations in connection with his claim. 38 C.F.R. § 3.159(c) (4) (2015). The Board finds that the examination reports, together with the other evidence of record, contain the necessary findings upon which to decide these issues. See Massey v. Brown, 7 Vet. App. 204 (1994) (holding that VA medical examination reports must provide sufficient reference to the pertinent schedular criteria). The Board also notes that the record does not show, nor has the Veteran contended, that his service-connected disability has increased in severity or otherwise materially changed since the most recent examinations were conducted. Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007). For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or development action is necessary on the issues now being decided. An Increased Rating for PTSD The Board notes that the Veteran filed a claim for service connection for PTSD in August 2007. In a June 2008 rating decision he was granted service connection and assigned a 30 percent rating from date of his claim. The Veteran filed a timely notice of disagreement to the issue and perfected an appeal. In a January 2009 rating decision the RO increased the Veteran's rating to 50 percent from January 30, 2009 onward and in a May 2012 rating decision increased his rating to 70 percent from January 30, 2009 onward. The Board notes that as these increases do not constitute a full grant of benefits, the claim is still on appeal before the Board. AB v. Brown, 6 Vet. App. 35, 38 (1993). A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 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 the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27(1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). PTSD is evaluated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (2015). A 30 percent rating is assigned when a veteran's psychiatric disorder causes 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, or mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is assigned when a veteran's psychiatric disorder causes 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-term 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; or difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent evaluation is assigned when a veteran's psychiatric disorder causes 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); or an inability to establish and maintain effective relationships. A 100 percent rating is assigned when a veteran's psychiatric disorder causes total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. The criteria set forth in the rating formula for mental disorders do not constitute an exhaustive list of symptoms, but rather are 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). Nevertheless, the Veteran must demonstrate the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013) (also explaining that VA intended the General Rating Formula to provide a regulatory framework for placing veterans on the disability spectrum based upon their objectively observable symptoms). Global Assessment of Functioning (GAF) scores are 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) [citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), p. 32]. Effective August 4, 2014, VA amended the portion of the Rating Schedule dealing with mental disorders and its adjudication regulations that define the term "psychosis" to remove outdated references to the DSM-IV and replace them with references to the recently updated Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094. The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the AOJ on or after August 4, 2014. Id. VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014. See 80 Fed. Reg. 53, 14308 (March 19, 2015). The RO certified the Veteran's appeal to the Board in February 2014, and therefore the claim is governed by DSM-IV. Thus, the GAF scores assigned remain relevant for consideration in this appeal. GAF scores ranging between 61 to 70 reflect 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, and has some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect more 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). Scores ranging from 41 to 50 reflect 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). See 38 C.F.R. § 4.130. In 2007 the Veteran received outpatient psychiatric treatment from the Shreveport VAMC. During such treatment, the Veteran noted getting upset easily and having difficulty controlling his anger. Specifically in July 2007, the Veteran noted that he worked hard to get people to like him, but when he got close to people it scared him and ended up pushing them away. The Veteran additionally noted that he had flashbacks back to Vietnam, was constantly irritated and quick tempered. At that visit the examining medical professional noted that the Veteran's appearance was casual, neat and clean. His demeanor was guarded, but he had fair eye contact. The Veteran fidgeted in his chair and shook his legs throughout most of the session. His mood was anxious, and his affect was agitated. There was some evidence of psychosis noted as the Veteran noted that he had occasional bouts of paranoia, but stated that it was nothing to concern himself about. The Veteran was afforded a VA examination for his PTSD in March 2008. At that examination the Veteran reported that he had previously been married six times. He reported that he didn't have any nightmares, denied intrusive thoughts, noted that he startled easily and that he didn't generally go out. He reported that he had owned a restaurant for many years and then sold it. The Veteran noted that he was currently living alone and that he had been separated from his wife for about a month and a half. He stated that he had a good personality and that he was able to talk to people, but that he sold his business recently and spent most of his time on the internet or watching television. The Veteran denied alcohol or drug use. Upon examination, the examiner found that the Veteran was casually groomed, fully cooperative and gave no reason to doubt the information he provided. He displayed significant anxiety, but speech was within normal limits with regard to rate and rhythm. The Veteran's mood was anxious and affect was appropriate to content. The examiner noted that thought processes and associations were logical and tight, with no loosening of associations or any confusion. Memory was grossly intact and the Veteran was oriented in all spheres. The examiner did not find evidence to support that a psychiatric disorder precluded employment. The Veteran did not report hallucinations or delusions, or any suicidal or homicidal ideations. The examiner assigned a GAF score of 50. In a March 2009 private record, Dr. EM noted the Veteran reports depression and nervousness. The Veteran reported increased flashbacks and nightmares. He stated he was socially withdrawn. In June 2009 the Veteran was afforded another VA examination for his PTSD. The examiner noted that the Veteran cried at the examination, reporting that he was paranoid, unable to sleep without any nightmares, had flashbacks and wasn't able to trust anyone. The Veteran noted that prior to his service he had good peer relationships, was very athletic and the captain of the football team. The Veteran noted that he did clerical work for a grocery store between 1964 and 1967. The Veteran again reported six marriages. He stated that he stayed home most of the time, and that he was unable to be with people and that he had no social relationships at home. He noted that at times he did interact with his sisters but he could not be around them for long, either. The Veteran noted that he often overdosed on his pills, implying that he attempted suicide before. Specifically, he stated "I end up waking up and survive the attempt, I tried but I don't know, I survive." Upon examination, the examiner noted that the Veteran was clean, casually dressed with spontaneous, clear and coherent speech. He was fully oriented, with an unremarkable thought process, a cooperative attitude, and appropriate affect. He had an anxious, depressed and dysphoric mood. The Veteran understood the outcome of his behavior and had insight. There were no delusions, hallucinations, inappropriate behavior, obsessive ritualistic behavior, panic attacks, homicidal thoughts, or suicidal thoughts. The examiner noted that the Veteran had episodes of violence with mood changes leading to violent reactions. The Veteran was able to maintain minimum personal hygiene and there were no problems with activities of daily living. The Veteran reported having difficulty falling and staying asleep, irritability or outbursts of anger, difficulty concentrating, hypervigilance and exaggerated startle response. The examiner assigned the Veteran a GAF score of 50. The Veteran submitted a worksheet entitled "The Mississippi Scale," in which he described how he felt about various statements, including having guilt over his military experiences and whether he became violent if pushed too far on a scale of "never true," "rarely true," "sometimes true," "very likely," and "always true." The Veteran noted on such worksheet that he was likely to become violent if pushed too far, that he became distressed and upset very frequently, that it was sometimes true that people who knew him well were afraid of him, that it was frequently true that he had no feelings at all and very true that lately he had felt like killing himself. He noted it was also very true that he felt like he could not go on. He noted that he rarely enjoyed the company of other people and that unexpected noises frequently made him jump. In a February 2011 VA record, the Veteran reported on and off anxiety attack. He was feeling nervous and not comfortable around people. In March 2011, E.M., a VA medical practitioner, provided a report that the Veteran complained of insomnia, nightmares, depression, suicidal thoughts, social withdrawal, poor interpersonal relationships, irritability and panic attacks. E.M. also noted the Veteran's deficiencies at work, at interpersonal relations, thinking and mood. Moreover, the examiner noted that the Veteran was unemployable. In February 2012 E.M. provided another report noting that the Veteran's condition had deteriorated since he was first treated. Specifically, he noted that his depression had worsened, he had more suicidal ideas, social withdrawal and violent tendencies. The examiner noted that the Veteran occasionally neglected his personal hygiene, and found that he definitely had psychological, occupational and social impairment sufficient to increase his benefits to 70 percent. E.M. noted in August 2012 that the Veteran's condition remained unstable. He noted that he was still depressed and suicidal, socially withdrawn and afraid to meet people. He had episodes of panic attacks in the daytime, with insomnia, nightmares and flashbacks still disturbing him. E.M. recommended that the Veteran continue his outpatient treatment and to increase his PTSD rating. In April 2012 the Veteran was afforded another VA examination for his PTSD. At that examination the Veteran reported that he stayed at home most of the time drinking beer and watching TV. He reported he was married 6 times, was currently divorce, but had a relationship with a woman. He further noted experiencing nightmares, that he was uncomfortable associating with people, that he isolated himself and sometimes cried on his own. He communicated via the Internet with his sisters, but couldn't be around them. He noted that his medication was effective at keeping him asleep, but that he had depressive episodes when triggered and further admitted to having some homicidal and suicidal thoughts that he did not follow through with. The examiner noted that the Veteran was anxious looking, have hypervigilance, was socially isolated and had intrusive thoughts, had panic attacks occurring more than once a week and had chronic sleep impairment. There was initial insomnia, irritability, anger outbursts, difficulty concentrating, good impulse control, a depressed mood, anxiety, and near continuous panic or depression affecting the ability to functional independently, appropriately, and effectively. The examiner assigned the Veteran a GAF score of 50. After a thorough review of the claims file, and resolving all doubt in favor of the Veteran, the Board finds that the Veteran's PTSD more nearly approximates a 50 percent evaluation prior to January 30, 2009. The Veteran has reported six marriages and that he pushed people away. He reported having difficulty controlling his anger. He was socially isolated. Accordingly, this evidence approximates difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. The evidence does not, however, more nearly approximate a 70 percent evaluation. The evidence does not show an inability to establish and maintain effective relationships. The Veteran noted that people liked him initially, but he pushed them away. Additionally, the evidence did not show deficiencies in judgment or thinking. The VA examiner found anxiety, but logical thought processes. The Veteran was oriented in all spheres. The Veteran did not report, and the evidence does not show symptoms that rise to the severity, severity, frequency, and duration as those for a 70 percent evaluation. See Vazquez-Claudio, 713 F.3d at 116-17. The Veteran was fully oriented and was noted to be casually dressed and clean. His memory was intact and there were no suicidal ideations, obsessional rituals, illogical, obscure, or irrelevant speech, near continuous panic or depression that affected the ability to function independently, appropriately and effectively, or impaired impulse control. Accordingly, the Board finds that evaluation of 50 percent, but no more, is assigned prior to January 30, 2009. The Board also finds that on and after January 30, 2009, the Veteran's symptoms do not warrant a rating in excess of 70 percent. The Veteran's symptoms are significant - he has anger and irritability issues, anxiety, and social isolation. First, the evidence does not show total social impairment. Although he did not like to be around his sisters or anyone else, he did communicate with them via the internet. At the 2012 VA examination, the Veteran reported that he was currently in a relationship with a woman. He was uncomfortable being around people. Although this indicates significant social impairment, it does not indicate total impairment. Second, the Veteran's symptoms have not been show to manifest in gross impairment in thought processes or communication. At the 2009 VA examination, there was spontaneous, clear, and coherent speech, with an unremarkable thought process. At the 2012 VA examination, no problems with speech or communication were noted. At the 2009 VA examination, there was no evidence of delusions or hallucinations, no inappropriate behavior, no suicidal or homicidal thoughts, although he noted prior attempts. At the 2012 VA examination, the Veteran reported some homicidal and suicidal thoughts, but no follow through. There was good impulse control. At the 2009 VA examination, there were no problems with activities of daily living. At the 2009 VA examination, the Veteran was fully oriented. Throughout this time period, Dr. EM noted that the Veteran's symptoms were worthy of a 70 percent evaluation, noting panic attacks, nightmares, flashbacks, poor interpersonal relationships, depression, suicidal thoughts, and irritability. The Board finds that these symptoms more nearly approximate a 70 percent evaluation. Accordingly, the claim is denied. Extraschedular Considerations As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the claimant's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the claimant's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. Here, regarding the Veteran's claims for increased rating PTSD the rating criteria for the disability at issue reasonably describe and assess the Veteran's disability levels and symptomatology. The discussion above reflects that the symptoms of the Veteran's PTSD are fully contemplated by the applicable rating criteria, as they address any and all psychiatric symptoms that result in social and occupational functioning. As shown above, the criteria include both the symptoms listed and the overall level of impairment. Hence, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required. Referral for consideration of an extraschedular rating for these disabilities is therefore not warranted. 38 C.F.R. § 3.321(b)(1). In addition, a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. 2014). In this case, however, neither the Veteran nor the record has raised this contention. Yancy v. McDonald, No. 14-3390 (Ct. Vet. App. Jan. 12, 2016). ORDER Prior to January 30, 2009, an initial evaluation of 50 percent for PTSD is granted. On and after January 30, 2009, an initial evaluation in excess of 70 percent for PTSD is denied. ____________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs