Citation Nr: 1628859	
Decision Date: 07/20/16    Archive Date: 08/01/16

DOCKET NO.  12-07 571	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to an initial rating in excess of 70 percent for service-connected posttraumatic stress disorder (PTSD).


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

K. Kardian, Associate Counsel






INTRODUCTION

The Veteran served on active duty in the Army from May 1968 to May 1970, with service in Vietnam and was awarded the Bronze Star Medal. 

This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which granted service connection for PTSD and assigned an initial 30 percent rating.

During the course of the appeal, in a May 2013 rating decision, the RO granted a higher initial rating of 70 percent for the Veteran's PTSD, with an effective date of the date of the grant of service connection (i.e., July 30, 2010). As the Veteran is presumed to be seeking the maximum allowable benefit, and the maximum benefit has not yet been awarded, the claim is still in controversy and on appeal. AB v. Brown, 6 Vet. App. 35 (1993).

When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to TDIU will be considered to have been raised by the record as "part and parcel" of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In this case, TDIU was raised by the record and granted in a May 2013 rating decision, effective the date of service connection (and therefore for the entire applicable period on appeal).  Thus, it is not before the Board, as the full benefit has been granted. 

Similarly, when a Veteran files a claim for an increased rating, he is presumed to be seeking the maximum benefit under any applicable theory. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice, 22 Vet. App. 447. In light of this principle, entitlement to special monthly compensation (SMC) has been found to be an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991).  It appears from the May 2013 rating decision granting TDIU that the sole symptoms contributing to unemployability stem from the Veteran's service-connected PTSD.  Therefore, he effectively has a single disability rated at 100 percent when considering TDIU.  He does not, however, have additional disability rated at 60 percent or more. Service connection is in effect for bilateral hearing loss and tinnitus, both rated non-compensable.  Additionally, there is no lay or medical evidence the Veteran is housebound in fact, requires aid and attendance, or that his disabilities result in loss of use of a limb, blindness or deafness. 38 U.S.C.A. §§ 1114(s), (l), (k); 38 C.F.R. § 3.350(a), (b), (i). As such, the Board will not infer the issue of entitlement to SMC.

In March 2012, the Veteran filed a Substantive Appeal via VA Form 9, requesting a video conference hearing before a Veterans Law Judge. The Veteran was provided notice of the scheduled hearing but submitted correspondence in July 2015 withdrawing his request for a hearing. The hearing request is therefore deemed to have been withdrawn. 38 C.F.R. § 20.704(d) (2015). 

The Board has reviewed the electronic records maintained in Virtual VA and Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence.


FINDING OF FACT

Throughout the appellate period, the Veteran's PTSD has been manifested by occupational and social impairment with deficiencies in most areas including work, family relationships, judgment, thinking and mood, due to symptoms such as severe depression and anxiety, recurrent disturbing recollections and dreams, restricted affect, feelings of detachment, chronic sleep impairment, unprovoked irritability, hypervigilance, and difficulty establishing and maintaining work and social relationships, and difficulty adapting to stressful circumstances, but not by total occupational and social impairment. 



CONCLUSION OF LAW

The criteria for an initial evaluation in excess of 70 percent for PTSD are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.130 Diagnostic Code 9411 (2015).



REASONS AND BASES FOR FINDING AND CONCLUSION

I. Veterans Claims Assistance Act of 2000 (VCAA)

VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claims. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015).

II. Duties to Notify and Assist

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, the evidence VA will obtain on the Veteran's behalf, and the evidence the Veteran is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

This appeal arises in part from the Veteran's disagreement with the initial evaluation following the grant of service connection for PTSD. 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). No additional discussion of the notice is therefore required with regard to PTSD.

The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The RO associated the Veteran's service treatment records (STRs) and VA treatment records with the claims file. No other relevant records have been identified and are outstanding. As such, the Board finds VA has satisfied its duty to assist with the procurement of relevant records. 

The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. See 38 C.F.R. § 3.159(c)(4). In this case, the Veteran was provided with VA examinations as to PTSD in November 2010 and May 2013. The examinations were adequate because the examiners considered and addressed the Veteran's contentions and conducted a thorough medical examination of the Veteran. The Board notes that the examiner in November 2010 did not review the entire claims file in conjunction with the examination. However, a failure to review the claims file does not immediately render an examination inadequate. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Instead, an examination is adequate so long as the examiner was apprised of a sufficient number of the relevant facts so as to be able to render an informed opinion. Id. The examiner in November 2010 noted the Veteran's subjective reports of the symptoms he experiences regarding his PTSD, and conducted a thorough interview of the Veteran. Based on the foregoing, the Board finds the examination reports to be thorough, complete, and a sufficient basis upon which to reach a decision on the Veteran's claim for an increased rating for PTSD. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-05 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

The Board notes that the Veteran has not alleged worsening of his PTSD since the most recent VA examination, nor does the evidence of record indicate such. No updated examination is necessary. See 38 C.F.R. § 3.159; see also Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403   (1997); VAOPGCPREC 11-95 (1995).Since VA has obtained all relevant identified records and provided adequate medical examinations, its duty to assist in this case is satisfied.

III. Increased Schedular Rating

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. § Part 4. The  percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2015).

In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as staged ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990).  Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14;  Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

IV. Increased Rating for PTSD

The Veteran contends he is entitled to an increased rating for his service-connected PTSD. The Veteran's service-connected PTSD is currently rated at 70 percent under Diagnostic Code 9411. PTSD is rated using the general formula for mental disorders (general formula).  Under that formula, a 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 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 rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name.

The symptoms listed in the rating schedule 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. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed.Cir.2013) 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."

Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score. According to the Fourth Edition of the American Psychiatric Association 's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV),GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health illness." There is no question that the GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation 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. See 38 C.F.R. § 4.126(a).

As addressed below, the Board finds that the Veteran's PTSD approximated a 70 percent rating for the entire period. The evidence of record shows that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking and mood. Notably, in his VA Form 9, the Veteran reported his symptoms were severe and he believed his PTSD warranted a rating of 50 percent. A higher rating still was subsequently granted. 

VA treatment records note the Veteran has been undergoing psychiatric treatment from May 2009 forward. Medication management treatment records report a stable level of functioning. The Veteran's treatment records indicate ongoing anxiety and depressed mood relating to his PTSD. Treatment records are negative for reports of suicidal or homicidal ideation. See March 20, 2013 VA treatment record. The Veteran has consistently reported to be alert, oriented, appropriately groomed, with normal speech, and a GAF of 60-65 was reported. Id.  Treatment in October 2012, noted the Veteran was alert and oriented, although an irritable demeanor was noted. 

The Veteran was afforded a VA PTSD examination in November 2010. The examination indicated the Veteran was exhibiting reoccurring thoughts and visions, problems with sleep, anxiety, irritability, avoidance of crowds, poor concentration, hypervigilance, and memory loss. The examiner indicated the Veteran experienced hallucinations in the form of pictures and visions which could be severe and intrusive. It was noted that the Veteran avoided social situations and had limited leisure activities, which did not involve others. The Veteran was able to maintain his basic activities of daily living. The Veteran did not identify any obsessive or ritualistic behaviors, or experience panic attacks. The examiner noted an occasional decrease in work efficiency and intermittent periods of the Veteran's inability to perform occupational tasks. The examiner noted the Veteran's severe PTSD symptoms interfere with his social functioning. 

The Veteran was afforded a second VA examination in May 2013. While the Veteran reported a worsening of his symptoms, the examiner noted the Veteran's overall level of functioning had remained consistent, as evidenced by stable GAF ratings between 60-65. See May 2013 VA examination. The examiner indicated the Veteran exhibited a restricted range of affect, irritability, hypervigilance, chronic sleep impairment and difficultly adapting to stressful circumstances. The Veteran reported a severe level of depression and a severe degree of anxiety. The examiner noted the Veteran exhibited occupational impairment with occasional decreases in work efficiency and intermittent periods of an inability to perform occupational tasks.  The Veteran reported no significant changes in his social and family history, since the prior VA examination. The Veteran reported he and his wife generally were getting along. The Veteran reported after retiring he was unable to maintain part-time employment as such required him to deal with other people, and several attempts at employment were unsuccessful. Id. 

The Veteran's psychiatric symptomatology has been remarkably consistent over the course of the appellate period. No staged ratings are therefore appropriate. Further, the Board finds that at no time during the appellate period is an evaluation in excess of the currently assigned 70 percent evaluation warranted for his service-connected PTSD. The Board recognizes that some of the reported symptomology approximates listed criteria for an evaluation in excess of 70 percent. In particular, the Veteran has reported being unable to maintain and sustain employment in a work environment. However, as legal precedent has stressed, the mere presence of a symptom is not sufficient; the degree of the symptom and its impact upon the Veteran's behavior, is of primary consideration. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Further, the Veteran was awarded TDIU, effective July 2010, which contemplates the Veteran's unemployability. The Veteran's symptoms do not more nearly approximate total occupational and social impairment.  The Veteran symptoms such as severe depression and anxiety, recurrent disturbing recollections and dreams, restricted affect, feelings of detachment, chronic sleep impairment, unprovoked irritability, hypervigilance, and difficulty establishing and maintaining work and social relationships, and difficulty adapting to stressful circumstances are all accounted for in the assignment of a 70 percent rating. The Veteran also often isolates and avoids social situations, which is contemplated by the current rating.  However, the Veteran remains married, and has a good relationships with his children and extended family, and consistently performs activities of daily living. 

Significantly, the evidence of record does not show gross impairment in thought or communication processes, grossly inappropriate behavior, suicidal ideation, an intermittent inability to perform activities of daily living, neglect of personal appearance and hygiene, disorientation to time or place, memory loss for names of close relatives and or own occupation or name.  The evidence of record is against a finding that the Veteran has demonstrated total occupational and social impairment, which would warrant a 100 percent rating. 

In conclusion, all potentially applicable diagnostic codes have been considered, and there is no basis to assign an evaluation in excess of the rating assigned herein for the Veteran's PTSD. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The evidence of record reflects stable symptoms as to the Veteran's PTSD. The evidence of record does not reflect that the Veteran suffers from total occupational and social impairment, and as a result, entitlement to a rating in excess of 70 percent for PTSD is denied. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2015). 


V. Extraschedular Rating

Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, 572 F.3d 1366 (Fed. Cir. 2009). The first element requires a finding that the evidence "presents such an exceptional or unusual disability picture that the available schedular evaluations for that service-connected disability are inadequate." See id. at 115. In order to determine whether a disability is "exceptional or unusual," there "must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability." Id. "[I]f the [rating] criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, [and] the assigned schedular evaluation is, therefore adequate, and no referral is required." Id.

The first Thun element is not satisfied here. The Veteran's service-connected PTSD is manifested by occupational and social impairment with deficiencies in most areas including work, family relationships, judgment, thinking and mood, due to symptoms such as severe depression and anxiety, recurrent disturbing recollections and dreams, restricted affect, feelings of detachment, chronic sleep impairment, unprovoked irritability, hypervigilance, and difficulty establishing and maintaining work and social relationships, and difficulty adapting to stressful circumstances. These signs and symptoms, and their resulting impairment, are contemplated by the rating schedule as part of the evaluation of PTSD. 38 C.F.R. §§ 4.130, Diagnostic Code 9411. The rating schedule contemplates varying levels of PTSD. Id.

Given the variety of ways in which the rating schedule contemplates symptoms of PTSD, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture, as it directly contemplates exhibited symptoms and inherently contemplates all of the repercussions stemming therefrom. There is nothing exceptional or unusual about the Veteran's PTSD because the rating criteria reasonably describe his disability level and symptomatology. Thun, 22 Vet. App. at 115.

Further, the Board notes that under Johnson  v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), 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. The Veteran is service-connected for PTSD, a bilateral hearing loss disability and tinnitus. The Veteran has not alleged that his currently service-connected disabilities combine to result in additional disability or symptomatology that is not already contemplated by the rating criteria for each individual disability.

Finally, there is no medical evidence indicating the Veteran's PTSD combines or interacts with his other service-connected disabilities in such a way as to result in further disabilities, functional impairment, or additional symptomatology not accounted for by the rating criteria applicable to each disability individually. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions.


ORDER

Entitlement to an increased rating in excess of 70 percent for posttraumatic stress disorder (PTSD), is denied. 



____________________________________________
BETHANY L. BUCK
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs