Citation Nr: 1751290 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 11-25 103 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to an initial increased disability rating for an acquired psychiatric disorder, characterized posttraumatic-stress disorder (PTSD), evaluated at 50 percent prior to December 28, 2009. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Meyer, Associate Counsel INTRODUCTION The Veteran had active service from January 2002 to October 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In a February 2010 decision, the RO increased the assigned rating for the Veteran's psychiatric disorder to 70 percent, effective December 28, 2009. In his August 2011 substantive appeal, and subsequent correspondences, the Veteran clarified that he was satisfied with the 70 percent rating as of December 28, 2009, and instead, he was only appealing the assignment of the 50 percent rating prior to December 28, 2009. Accordingly, the Board has characterized the issue as such in the title page. FINDING OF FACT For the period prior to December 28, 2009, the Veteran's psychiatric disorder has been characterized by occasional panic attacks, mild obsessive rituals, nightmares, sleep disturbances, irritability, depression, anxiety, hypervigilance, and social avoidance. Moreover, occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to symptoms such as suicidal ideation, obsessional rituals which interfere with routine activities, near-continuous panic or depression affecting ability to function independently, appropriately and effectively, spatial disorientation, speech that is intermittently illogical, obscure, or irrelevant, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships, have not been shown. CONCLUSION OF LAW The criteria for a disability rating in excess of 50 percent for an acquired psychiatric disorder, characterized as PTSD, prior to December 28, 2009, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.130, Diagnostic Code (DC) 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Increased Ratings The Veteran is seeking an increased rating for his service-connected psychiatric disorder, diagnosed as PTSD. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities. While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7 (2017). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). In cases where the Veteran's claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Prior to December 28, 2009, the Veteran's psychiatric disorder was assigned a disability rating of 50 percent rating under 38 C.F.R. § 4.130, Diagnostic Code 9411. In order to warrant the next-higher 70 percent rating, the evidence must show occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; impaired impulse control (such as unprovoked irritability with periods of violence); near-continuous panic or depression affecting ability to function independently, appropriately and effectively; spatial disorientation; speech intermittently illogical, obscure, or irrelevant; 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. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). After a review of the evidence of record, the Board determines that a rating in excess of 50 percent is not warranted for the period on appeal. Indeed, while the Veteran has occasional symptoms that could support a higher rating, the Veteran's symptoms do not otherwise cause social and occupational impairment with deficiencies in most areas of his daily living. Specifically, as noted in the March 2005 VA treatment records, the Veteran presented casually dressed and was calm and cooperative. While he reported symptoms of social avoidance, anxiety, irritability, and sleep issues, he was found to be coherent with logical and goal oriented thoughts. No suicidal ideations, thought disorders, or psychosis were noted. Similarly, in November 2005, the Veteran presented as mildly dysphoric with reports of increased of irritability. However, there was no evidence of a psychosis, thought disorder, or suicidal/homicidal ideations. In an October 2007 VA examination, the Veteran appeared clean and casually dressed. He was noted to be pleasant, open, and talkative with good insight and judgment. The Veteran reported nightmares, intrusive thoughts, decreased socialization, irritability, sleeping problems, hypervigilance, panic attacks, and mild obsessive behaviors. However, there was no evidence of a psychosis, delusions, hallucinations, suicidal ideations, or grossly inappropriate behavior. As such, the examiner determined that the Veteran's psychiatric symptoms were only "transient and mild," and did not significantly interfere with his work efficiency. Therefore, the Board finds that the Veteran does not exhibit objective symptoms that would be sufficient to warrant a rating in excess of 50 percent prior to December 28, 2009. While it is true that the Veteran had occasional panic attacks, anxiety, depression, sleep impairment, and mild obsessive ritualistic behaviors, these symptoms alone are insufficient to warrant an increased rating given the otherwise relatively mild array of symptoms and impact on the Veteran - especially in light of the fact that the Veteran displayed clear, logical, and goal oriented speech and thought processes without suicidal/homicidal ideations throughout the period on appeal. Indeed, many of the examples listed in the diagnostic code for a higher rating have not been shown at all. Next, although the general rating formula provides specific examples of symptoms that may result from various acquired psychiatric disorders, the Board emphasizes that its analysis should not be limited to only these symptoms, but should also consider any other relevant criteria outside of the rating code in order to determine the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436, 444 (2002). As such, the Board has also considered the extent to which there are other indications of occupational and social impairment, such as difficulty in adapting to stressful circumstances or the inability to establish and maintain effective relationships that may cause deficiencies in most areas, to include social and occupational inadaptability. In this regard, it is clear that the Veteran's disorder reflects some impact on his social and occupational functioning. Nevertheless, the evidence does not indicate that a rating in excess of 50 percent is warranted. Specifically, while the Veteran typically avoids social situations, he has nevertheless reported that he "gets along with people" and has maintained a stable relationship with his wife and family. Further, the Veteran indicated that he regularly gardens and attends church. Additionally, until approximately November 2008, the Veteran was able to maintain full-time employment in a very stressful occupation as a firefighter and EMT. The Board has also considered the Veteran's Global Assessment of Functioning (GAF) score. The GAF is 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). The Veteran's GAF scores reported by his private mental health providers and VA examiners were 55/70 in March 2005, 62 in June 2005, and 60 in October 2007. A GAF of 51-60 reflects "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). On the other hand, a GAF score of 61-70 indicates 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. In this case, the Veteran's GAF score has ranged from 55 to 70. In the Board's view, the Veteran's symptoms are most consistent with the more "moderate" symptoms reflected in a GAF score of 51-60, considering that there was no suicidal ideation, severe obsessional rituals, or evidence of any psychosis. However, such symptoms are not so severe as to warrant a rating in excess of 50 percent. In considering the appropriate disability rating, the Board has also considered the Veteran's statements that his acquired psychiatric disability is worse than the ratings he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his acquired psychiatric disability according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). On the other hand, such competent evidence concerning the nature and extent of the Veteran's acquired psychiatric disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. Based on evidence of record, the Board determines that a rating in excess of 50 percent prior to December 28, 2009 is not warranted. The Board also finds that consideration for an extraschedular evaluation, a component of a claim for an increased rating, is not warranted. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). In considering whether an extraschedular rating may be warranted, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. See Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the evidence does not indicate that Veteran's disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, the Board has reviewed all of his relevant symptoms related to the issues on appeal, including limitations with activities of daily living, and concludes that there are no symptoms that were not able to be addressed by the applicable diagnostic codes. See Mittleider v. West, 11 Vet. App. 181 (1998). Moreover, as was established in Mauerhan, 16 Vet. App. at 444, a schedular rating for psychiatric disorders is not necessarily limited to the enumerated symptoms in the general rating formula, and no relevant symptoms have been excluded in the Board's analysis. As such, the Veteran's symptoms are not which are so unusual that they are outside the schedular criteria. Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran's disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board acknowledges the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), that a total rating based on individual unemployability, due to service-connected disability (TDIU) claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. In this case, the Board notes that while the Veteran stated in November 2008 that he was no longer able to work as a firefighter and EMT due to his PTSD, the record does not suggest, and the Veteran does not specifically allege, that his service-connected psychiatric disorder rendered him unemployable in all occupations. In fact, the Board notes that the Veteran was again fully gainfully employed by approximately late 2009/early 2010. Therefore, Rice is inapplicable in this case. VA Duty to Notify and Assist The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA), which includes an enhanced duty on the part of VA to notify a veteran of the information and evidence necessary to substantiate claims for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016). The VCAA also redefines the obligations of VA with respect to its statutory duty to assist veterans in the development of their claims. 38 U.S.C.A. §§ 5103, 5103A. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2016); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided notice letters informing him of both his and VA's obligations. Moreover, there is no indication of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Therefore, additional notice is not required and any defect in notice is not prejudicial. With respect to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C.A. § 5103A(c)(2). All records pertaining to the conditions at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)). The Board finds that all necessary assistance has been provided to the Veteran. Indeed, all VA treatment records and relevant private treatment records have been obtained. The Veteran has also been provided with VA examinations. Upon review of the examination reports, the Board observes that the examiners reviewed the Veteran's past medical history, recorded his current complaints and history, conducted appropriate evaluations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The VA examination reports are therefore adequate for the purpose of rendering a decision on appeal. 38 C.F.R. § 4.2 (2016); Barr v. Nicholson, 21 Vet. App. 303 (2007). Overall, no further notice or assistance is required to fulfill VA's duty to assist in the development of the above-cited claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER A rating in excess of 50 percent for an acquired psychiatric disorder, characterized as PTSD, prior to December 28, 2009, is denied. ____________________________________________ B.T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs