Citation Nr: 1704167 Decision Date: 02/10/17 Archive Date: 02/23/17 DOCKET NO. 11-18 150 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial rating higher than 30 percent for posttraumatic stress disorder (PTSD) prior to March 3, 2014. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and V.I. ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran had active service in the U.S. Marine Corps from September 1961 to April 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted service connection for PTSD and assigned a 30 percent rating effective October 30, 2008. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing in August 2013. A copy of the hearing transcript is of record. The Board then remanded the matter in January 2014 for additional development. In an April 2014 rating decision, the Appeals Management Center (AMC) granted a 100 percent rating for PTSD effective from March 3, 2014. Because this is the maximum rating available, the issue of an increased rating from March 3, 2014, is no longer before the Board. FINDING OF FACT Prior to March 3, 2014, the Veteran's PTSD was manifested by depressed mood, anxiety, sleep disturbance, limited suicidal ideation, and a single incident of self-harm. CONCLUSION OF LAW Prior to March 3, 2014, the criteria for an initial 50 percent rating for PTSD have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9411 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION I. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2016). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2016). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Prior to March 3, 2014, the Veteran has been assigned a 30 percent rating for his PTSD under Diagnostic Code 9411, which is part of the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Under the General Rating Formula, a 30 percent evaluation contemplates 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, and recent events). A 50 percent evaluation is warranted where the disorder is manifested by 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- and long-term memory for example, 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 evaluation is warranted where the disorder is manifested by 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 that is intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control, such as unprovoked irritability with periods of violence; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances, including work or a work-like setting; and an inability to establish and maintain effective relationships. A 100 percent disability evaluation is warranted when there is total occupational and social impairment, due to such symptoms as: 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 and place; memory loss for names of close relatives, own occupation, or own name. 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." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114 (Fed. Cir. 2013). Symptoms listed in the General Rating Formula serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. They are not intended to constitute an exhaustive list. Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). Here, the Board finds that a 50 percent rating for PTSD is warranted during the period on appeal. The Veteran's symptoms have varied greatly over the years. For example, he reported passive suicidal ideation in VA records from October 2009, October 2010, March 2011, and August 2012. In December 2012, he reported an incident of self-harm in which he tried to cut his arm with a box cutter. The severity of these symptoms would be consistent with a 70 or even 100 percent rating. However, the frequency of these symptoms during the appeal period (5 instances in almost 6 years) is relatively low. In terms of duration, at no time did the Veteran report suicidal ideation in back-to-back treatment sessions, or otherwise give any indication that such thoughts were anything more than isolated. See, e.g., May 2011 VA Treatment Records (Veteran reported a bout of depression with suicidal ideation but feeling better now); October 2012 VA Treatment Records (noting some suicidal ideation around the time of a family incident in August 2012 but none presently). Additional evidence shows periods of less severe symptomatology. In January 2010, the Veteran reported decreased sleep disturbance, and he was not having nightmares anymore. He reported a more positive outlook and had more motivation to follow-up with social activities. In April 2010, he reported being more active and having decreased depression. He presented with a brighter affect on examination. In July 2012, he reported that his mood was "pretty good." In February 2013, he reported doing better with anxiety and depression, and was able to deal with stressors more effectively. In March 2013, he reported that things were "really good" for him. In May 2013, his treating physician noted that the Veteran was not experiencing much in the way of PTSD symptoms. To determine the Veteran's overall level of symptomatology, the Board notes that, when he was seen in February 2011, his symptoms included difficulty with concentration (he got lost on his way to his appointment), and he presented as "rather depressed" and "very flat" without much expression during the interview. His treating physician at the time stated that this level of symptomatology was "a little bit worse than his baseline," suggesting that the Veteran's typical presentation involved slightly lower levels of depression, limited expression, and difficulty concentrating. Indeed, many of his treatment records indicate ongoing problems with depressed mood, anxiety, sleep disturbances, and limited social interactions consistent with the criteria for a 50 percent rating. However, as discussed above, more severe symptoms, such as suicidal ideation, speech abnormalities, obsessive behavior, or neglect of hygiene, are either not present or do not manifest with sufficient frequency or duration to approximate the higher 70 percent rating. Therefore, a 50 percent rating, but no higher, is warranted. In addition to the above, the Board has also considered whether an extraschedular rating is appropriate. If an exceptional case arises where a rating based on the disability rating schedule is found to be inadequate, consideration of an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). However, an extraschedular analysis is not required in every case. When extraschedular consideration is not "specifically sought by the claimant nor reasonably raised by the facts found by the Board, the Board is not required to discuss whether referral is warranted." Yancy v. McDonald, 27 Vet. App. 484, 494 (2016), citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007). The Veteran has not raised the issue of an extraschedular rating, and for the reasons discussed above, there is no indication that his PTSD results in any symptoms not contemplated by the rating schedule. That is, his depression, anxiety, sleep disturbances, social isolation, and suicidal ideation are all encompassed within the criteria of Diagnostic Code 9411. Indeed, as noted earlier, the General Rating Formula for Mental Disorders is inherently broad in terms of the range of symptoms it encompasses. Therefore, no further discussion of an extraschedular rating is required. II. The Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159(b). Here, the Veteran was provided with the relevant notice and information in a December 2008 letter prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). He has not alleged any notice deficiency during the adjudication of his claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's service records and VA records have been obtained and associated with the claims file. The Veteran was also provided with VA examinations which, collectively, contain a description of the history of the disability at issue; document and consider the relevant medical facts and principles; and record the relevant findings for rating his PTSD. VA's duty to assist with respect to obtaining relevant records and an examination has been met. 38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran also had a hearing before the Board. The hearing was appropriately conducted as the presiding VLJ duly explained the issue and identified possible sources of evidence that may have been overlooked and that might be potentially advantageous to the claimant's position. 38 C.F.R. 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). In light of the above development, the Board's prior remand directives have been complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions). ORDER An initial 50 percent rating for PTSD is granted prior to March 3, 2014. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs