Citation Nr: 1636326 Decision Date: 09/16/16 Archive Date: 09/27/16 DOCKET NO. 12-20 575 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to April 20, 2015. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from June 1969 to March 1971, during which time he served for nearly one year in the Republic of Vietnam. His military occupational specialty (MOS) was as a field medic and his military decorations include the Combat Medical Badge, the Bronze Star Medal with "V" Device (denoting valor in combat), and the Army Commendation Medal. The current matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office in Nashville, Tennessee (RO) which, inter alia, granted the Veteran service connection and a 30 percent evaluation for PTSD, effective from June 30, 2010. The Veteran appealed the initial rating assigned for the compensation award. In December 2014, the Veteran, accompanied by his representative, testified at a videoconference hearing conducted at the RO before the undersigned Veterans Law Judge. A transcript of the testimony has been associated with the claims file. In February 2015, the Board remanded the issue of entitlement to an initial rating higher than 30 percent for PTSD. After the requested development was completed, the Appeal Management Center (AMC) granted a 100 percent rating for PTSD effective April 20, 2015. Thus from April 20, 2015, there is a full grant of the benefit sought and a higher rating on an extraschedular basis is moot, as no higher rating above 100 percent is possible. See 38 C.F.R. § 3.321(b)(1). However, prior to April 20, 2015 the issue of entitlement to an initial rating higher than 30 percent for PTSD remains on appeal and is listed on the title page. In August 2015 a waiver was received from the Veteran for additionally received evidence. FINDING OF FACT Prior to April 20, 2015, the service-connected PTSD more nearly approximates occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking or mood. CONCLUSION OF LAW Prior to April 20, 2015, the criteria for an initial higher rating of 70 percent for PTSD have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). This appeal arises from disagreement with the initial evaluation following the grant of service connection for PTSD. 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). Regardless, the duty to notify has been met. See July 2010 correspondence for the underlying claim of service connection, February 2015 Board Hearing transcript, and Bryant v. Shinseki, 23 Vet. App. 488 (2010). Neither the Veteran, nor his representative, has alleged prejudice with regard to notice. The United States Court of Appeals for the Federal Circuit has held that "absent extraordinary circumstances...it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In light of the foregoing, nothing more is required. VA also has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim. Service treatment records, post-service treatment records, claims submissions, and lay statements have been associated with the record. It appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims folder, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. The Veteran also was afforded VA examinations in August 2010, September 2011, and April 2015. The Board finds the VA examinations and opinions to be thorough and adequate upon which to base a decision with regard to the Veteran's claim. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). The VA examiners personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability under the applicable rating criteria. Rating Criteria Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107 ; 38 C.F.R. §§ 3.102, 4.3. If two evaluations are potentially applicable, the higher evaluation 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 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). Prior to April 20, 2015, the Veteran's PTSD has been rated as 30 percent disabling under the General Rating formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Codes 9411. Under these criteria, a 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to particular symptoms such 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; 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 rating for 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); inability to establish and maintain effective relationships. A 100 percent rating for is warranted where there is 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. In addition, when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency 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. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126(b). The Board notes that with regard to the use of the phrase "such as" in 38 C.F.R. § 4.130 (General Rating Formula for Mental Disorders), ratings are assigned according to the manifestations of particular symptoms. However, the use of the phrase "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). The United States Court of Appeals for the Federal Circuit emphasized that the list of symptoms under a given rating is a nonexhaustive list, as indicated by the words "such as" that precede each list of symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). It held 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. Other language in the decision indicates that the phrase "others of similar severity, frequency, and duration," can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the Diagnostic and Statistical Manual of Mental Disorders (DSM). The Board notes that the newer DSM-V has now been officially released. An interim final rule was issued on August 4, 2014, that replaced the DSM-IV with the DSM-V. However, the provisions of the interim final rule apply to all applications for benefits that are received by VA or that are pending before the agency of original jurisdiction on or after August 4, 2014. See 80 Fed. Reg. 14308 (March 19, 2015). In the present case the Veteran's Form 9 Appeal was received in July 2012. The DSM-IV contained a Global Assessment of Functioning (GAF) scale, with scores ranging between zero and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. Higher scores correspond to better functioning of the individual. This case involves assignment of GAF scores and those assignments are relevant to the Veteran's level of impairment due to his PTSD. GAF scores ranging from 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, has some meaningful interpersonal relationships. GAF scores from 51 to 60 are indicative of 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). GAF scores 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). Scores from 31 to 40 indicate 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). Analysis The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board provide reasons for rejecting evidence favorable to the Veteran. For the reasons set forth below, the Board finds that the lay and medical evidence supports a 70 percent rating for PTSD prior to April 20, 2015. The Board acknowledges that VA treatment records show symptoms that are included in the criteria for ratings lower than 70 percent. VA treatment records, to include records from July 2010 to March 2015 show the Veteran was alert and oriented to time, place, and person. His thought process was organized and goal directed, his speech was normal, memory essentially intact, concentration was good, abstract thinking and judgment were adequate, and GAF scores ranged from 60 to 65. However after resolving any benefit of the doubt in favor of the Veteran under 38 U.S.C.A. § 5107(b), the Board finds that the evidence of record more nearly approximates the criteria for a 70 percent rating. When determining the appropriate disability evaluation to assign, the Board's primary consideration is the Veteran's symptoms, but it must also make findings as to how those symptoms impact the Veteran's occupational and social impairment. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). It is the impact of the symptoms on occupational and social functioning that determines the rating. The Board places high probative value on the evidence showing that the Veteran's PTSD causes occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking or mood, thereby warranting a 70 percent rating. Prior to April 20, 2015 the Veteran was afforded a VA PTSD examination in August 2010 and in September 2011. On the August 2010 VA PTSD examination, the examiner noted that the Veteran reported preferring to be alone and had no hobbies that he enjoyed. The psychiatric exam shows that the Veteran was neatly groomed, oriented, his speech was coherent, and memory was normal. He cried several times when discussing his wartime service. His mood was depressed, he was easily distracted, and had sleep impairment that interfered with his daily activities. The examiner opined that the Veteran's PTSD symptoms cause clinically significant distress or impairment in social occupational or other important areas of functioning. The examiner noted that the Veteran reported experiencing flashbacks when encountering the sound of helicopters taking off and landing at his local airport. He stated that sudden loud noises triggered his nerves and he was hypervigilant. His GAF score was 57, based on his lack of social contacts and acquaintances with non-veterans, his history of occupational impairments, and the overall severity of his symptoms. The August 2010 examiner opined that the Veteran's PTSD signs and symptoms resulted in in deficiencies in the areas of judgment, thinking, family relations, work, mood or school. Although judgment did not appear to be impaired, the examiner found that thinking and school were impaired as the Veteran reported a history of concentration problems since his return from Vietnam, including when he was in school. The Veteran's family relations were impaired as he had a history of marital problems. Work was impaired as the Veteran upon returning from Vietnam became an introvert and despite once being an award-winning public speaker found it very difficult to speak in public including in his capacity as a school principal to a large group of students. The examiner found that the Veteran's mood was impaired as he reported being easily angered and had a depressed mood. On VA PTSD examination in September 2011 the examiner noted that in the past year the Veteran's GAF score ranged from 51 to 60. The examiner opined that the Veteran's PTSD was indicative of 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 medication. The Veteran's symptoms included recurrent flashbacks of the traumatic event experienced in service; intense psychological distress at exposure to internal or external cues that symbolize or resemble the traumatic event experienced in service; avoidance of thoughts, conversations, places or people associated with the trauma; feeling of detachment or estrangement from others; chronic sleep impairment; irritability; difficulty concentrating; hypervigilance; depressed mood; anxiety; panic attacks; mild memory problems; difficulty in establishing and maintaining effective work and social relationships. The examiner noted that the Veteran occasionally had thoughts about whether life is worth living but no overt suicidal ideation and denied homicidal ideation as well as auditory or visual hallucinations. It is notable that on the VA examination in August 2010, the examiner stated that the Veteran also was diagnosed with depressive disorder that accounted for his depressed mood and crying spells, while his PTSD accounted for his nightmares, flashbacks, avoidance, and hypervigilance. However, on the September 2011 VA examination the examiner explained that although the Veteran had a previous diagnosis of depressive disorder in addition to PTSD, no additional diagnosis other than PTSD was necessary as the Veteran's symptoms were subsumed under this diagnosis. The evidence is in equipoise as to whether all the Veteran's psychiatric symptoms are subsumed by his PTSD. Thus, in resolving reasonable doubt in favor of the Veteran, all symptoms discussed above are assumed to be part and parcel of his PTSD. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. Based on the August 2010 VA examiner's opinion that the Veteran's PTSD signs and symptoms resulted in deficiencies in the areas of judgment, thinking, family relations, work, mood or school a finding of a 70 percent rating is warranted under Diagnostic Code 9411. Based on the September 2011 VA examiner's opinion that the Veteran's PTSD was indicative of 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 medication, a 10 percent rating is warranted, which is less than the 30 percent rating currently assigned for PTSD prior to April 20, 2015. However, as previously stated, if two evaluations are potentially applicable, the higher evaluation 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 disability picture of the Veteran's PTSD more nearly approximates the criteria of a 70 percent rating. Prior to April 20, 2015, the evidence includes a GAF score of 50, which is indicative of serious symptoms. VA treatment records in September 2010 show that the Veteran was hypervigilant, patrolled the perimeter, and was unable to speak in public. In October 2014 the Veteran reported having panic attacks, particularly when hearing an airplane, and preferred to be alone. VA treatment records in December 2014 show the Veteran reported having depressed moods, irritability, and panic attacks. VA treatment records in January 2015 show the Veteran reported experiencing memory problems. In December 2014, the Veteran testified that he had panic attacks every day. He stated that his treatment records and examinations do not accurately depict his PTSD symptoms as he did not deny having suicidal ideation. He explained that he did not know what he should have told his VA examiner and also did not know whether he was asked the right questions. He stated he went to Church every Sunday with his wife but indicated that he avoided socializing with other parishioners. He stated his symptoms included memory problems, irritability, avoidance of people in public settings, and suicidal ideation. Thus the Veteran has not been able to adapt to stressful circumstances and maintain effective relationships and has had deficiencies in his thinking and mood. For the reasons explained above the Board finds that the Veteran prior to April 20, 2015 has had symptoms contemplated in the criteria for 70 percent rating that have caused occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking or mood. Thus, resolving all doubt in his favor, the Board finds that the evidence supports the assignment of an initial 70 percent rating for PTSD. However, at no point prior to April 20, 2015 has the Veteran's overall symptomatology more nearly approximated the criteria for a 100 percent rating as that rating requires evidence of total occupational and social impairment. Neither the lay nor medical evidence of record discussed above shows that the Veteran has total occupational and social impairment. He has not demonstrated symptoms such 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. The presence of certain symptoms is not necessarily determinative. These symptoms must also cause the occupational and social impairment in the referenced areas. See Vazquez-Claudio, supra. The treatment records and multiple VA examination reports were not indicative of occupational and social impairment that approximate the criteria for a 100 percent or higher rating. Rather, prior to April 20, 2015, the evidence shows that the Veteran maintained good orientation, speech, and thought processes, which belies the notation of total impairment. Moreover, and more importantly, he has consistently demonstrated the ability to maintain some social relationships. On VA examination in August 2010 the Veteran reported having a good relationship with family members and a good support system of fellow Vietnam veterans despite a lack of other social support and contacts. In December 2014 the Veteran testified that he remained in contact with his service buddies. Consideration has been given to the lay evidence of record. The Board is fully aware that the Veteran is competent to report his symptoms, and that he has submitted credible statements as to his symptoms. Here, the medical findings directly address the criteria under which the Veteran's PTSD is evaluated. The medical evidence is more probative than any implied pleadings or lay evidence to the effect that an evaluation in excess of 70 percent should be assigned prior to April 20, 2015. Other Considerations While the Board does not have authority to grant an extraschedular rating in the first instance, the Board does have the authority to decide whether the claim should be referred to the VA Director of the Compensation Service for consideration of an extraschedular rating. 38 C.F.R. § 3.321(b)(1). The governing norm for an extraschedular rating is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or necessitated frequent periods of hospitalization so as to render the regular schedular standards impractical. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). The discussion above reflects that the symptoms of the Veteran's PTSD are fully contemplated by the applicable rating criteria. As shown above, the criteria include multiple psychiatric symptoms and encompassed the Veteran's psychiatric symptoms as shown in the VA examinations and treatment records. There is neither evidence nor allegation of symptoms causing occupational and social impairment due to the Veteran's PTSD that is not encompassed by the schedular rating assigned. For these reasons, the disability picture is contemplated by the Rating Schedule, and the assigned schedular ratings are, therefore, adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). 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. However, in this case, there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition. 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. Referral for extraschedular consideration is not warranted. 38 C.F.R. § 3.321(b)(1). The Board also observes that a claim for an increased rating for a service-connected disability includes a claim of entitlement to total disability rating based on individual unemployability (TDIU). Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Bradley v. Peake, 22 Vet. App. 280 (2008) (held that legal entitlement to a TDIU rating may be found, in addition to a schedular 100 percent evaluation, where the TDIU could be granted for a disability other than the disability for which a 100 percent rating was in effect). However, the Veteran has not contended that he has been unemployed due to his service-connected PTSD and/or his service connected diabetes mellitus and related peripheral neuropathies. On VA examination in August 2010 the examiner stated that the Veteran worked as an elementary school principal and retired in 2006 based on his age or duration of work. Similarly, when he was examined in September 2011, the examiner noted that the Veteran has not been employed since he retired and has not looked for work. He spent most of his time doing various tasks around his farm. Simply put, a claim for a TDIU has not been expressly raised or raised by the record. Lastly, when a Veteran files a claim for an increased rating, he is presumed to be seeking the maximum benefit under any applicable theory, to include SMC. See Akles v. Derwinski, 1 Vet. App. 118 (1991). In an October 2014 rating decision the Veteran was granted entitlement to SMC based on loss of use of a creative organ under 38 U.S.C. § 1114(k). Although effective April 20, 2015 the Veteran does have a single disability rated at 100 percent, he does not have additional disabilities that combine to a 60 percent rating or more. See most recent rating decision code sheet dated in September 2015. There is no lay or medical evidence the Veteran is housebound in fact, or that his service connected disabilities cause additional loss of function that requires additional compensation under 38 C.F.R. § 3.350, beyond his grant of SMC pursuant to 38 U.S.C. § 1114(k). ORDER Prior to April 20, 2015, an initial rating of 70 percent for the service-connected PTSD is granted, subject to the regulations governing the payment of monetary benefits. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs