Citation Nr: 1752718 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 14-27 298 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an increased disability rating for posttraumatic stress disorder (PTSD), in excess of 50 percent from February 22, 2012 to April 15, 2014. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran, who is the appellant, had active service in the U.S. Air Force from September 1996 to October 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In a January 2017 decision, the Board denied an increased disability rating for PTSD in excess of 50 percent from February 22, 2012 to April 15, 2014, and in excess of 70 percent thereafter. The Board also remanded the issues of service connection for hypothyroidism and higher initial disability ratings for deviated septum, myalgia/myositis, gastric stromal tumor, and SMC at the housebound rate. The Veteran appealed the portion of the Board's decision denying an increased rating in excess of 50 percent for PTSD from February 22, 2012 to April 15, 2014 to the United States Court of Appeals for Veterans Claims (Court). The Veteran waived the appeal as to the issue of entitlement to a disability in excess of 70 percent from April 15, 2014, forward. The Board's decision to deny a rating in excess of 50 percent for PTSD was partially vacated pursuant to a September 2017 Joint Motion for Partial Remand (Joint Motion) on the basis that the Board failed to address evidence potentially favorable to the Veteran. The previously remanded issues of service connection for hypothyroidism, a higher initial (compensable) disability rating for deviated septum, an initial disability rating in excess of 10 percent for myalgia/myositis, an increased disability rating in excess of 30 percent for gastric stromal tumor, and SMC at the housebound rate remain in remand status. FINDING OF FACT From February 22, 2012 to April 15, 2014, the PTSD disability picture approximates occupational and social impairment with deficiencies in most areas due to psychiatric symptoms, to include insomnia, restricted range of affect, frequent depression and anxiety, intrusive thoughts and memories, impaired impulse control with irritability or outbursts of anger towards spouse and co-workers triggered by work stress or concerns with physical illness, panic attacks more than once a week that interfere with the ability to perform work, difficulty concentrating, inability to establish and maintain effective work and social relationships, suicidal ideation, and obsessional rituals which interfere with routine activities. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for an increased rating of 70 percent, and no higher, for PTSD are met from February 22, 2012 to April 15, 2014. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b). 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. 38 C.F.R. § 3.159(b)(1). This notice should be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In the March 2012 notice letter sent prior to the initial denial of the increased rating claim for PTSD, the RO advised that the Veteran may submit evidence showing that the disability had increased in severity, and described the types of information and evidence that the Veteran should submit in support of the claim. The RO also explained what evidence VA was responsible for obtaining or would assist in obtaining on the Veteran's behalf in support of the increased rating claim. The RO further explained how VA determines the effective date. In consideration of the foregoing, the Board concludes that the requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. Regarding VA's duty to assist in claims development, the record contains all available evidence pertinent to the appeal. VA has requested records identified throughout the claims process. The Veteran was given appropriate notice of the responsibility to provide VA with any treatment records pertinent to the appeal, and the record contains sufficient evidence to make a decision on the appeal. The complete service treatment records are included in the record, and post-service treatment records identified as relevant to the appeal have been obtained or otherwise submitted. The RO provided the Veteran with multiple VA examinations from March 2012 to April 2014. The VA examination reports include all relevant findings and medical opinions needed to evaluate fairly the appeal. The VA examiners considered an accurate history of the claimed disabilities as provided through interview of the Veteran and review of the record, as well as the Veteran's subjective complaints as it related to the symptomatology and its effects on daily life and occupational and social impairment and performed thorough examinations; therefore, the VA examiners had adequate facts and data regarding the history and condition of the disability when providing the examinations. For these reasons, the Board finds that the VA examination reports are adequate, and there is no need for further examination. The Veteran has not made the RO or the Board aware of any other evidence relevant to the appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed, and no further development is required. Disability Rating Legal Criteria Disability ratings are determined by the application of the VA 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. § 4.1. In determining the disability rating, VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Governing regulations include 38 C.F.R. §§ 4.1 and 4.2, which require the evaluation of the complete medical history of a veteran's condition. Where there is a question as to which of two ratings shall be applied, the higher rating 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. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Increased Rating Analysis for PTSD PTSD has been rated at 50 percent from February 22, 2012 to April 15, 2014 under the criteria at 38 C.F.R. § 4.130, DC 9411. Psychiatric disabilities are rated under the General Rating Formula for Mental Disorders. Under the General Rating Formula for Mental Disorders, a 50 percent rating is prescribed when there is evidence of 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 (e.g., 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. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. A 70 percent rating is provided when there is evidence that the psychiatric disability more closely approximates 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 worklike setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating requires evidence of 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; and memory loss for names of close relatives, own occupation, or own name. Id. The Global Assessment of Functioning (GAF) scale reflects the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness" from 0 to 100, with 100 representing superior functioning in a wide range of activities and no psychiatric symptoms. Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (quoting the Diagnostic and Statistical Manual of Mental Disorders at 32 (4th ed. 1994)). 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 ranging from 51 to 60 reflect 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). 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. 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. 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 solely on the basis of social impairment. 38 C.F.R. § 4.126. 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. 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 and 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). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) determined that VA "intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms." Thus, the demonstrated symptomatology is the primary focus when deciding entitlement to a given disability rating and a veteran may be entitled to a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Id. After review of the lay and medical evidence of record, the Board finds that the PTSD disability picture approximates occupational and social impairment with deficiencies in most areas from February 22, 2012 to April 15, 2014, so that the schedular criteria for a rating of 70 percent under DC 9411 are met for the period. The evidence that suggests not higher than a 50 percent rating is warranted includes a March 2012 VA examination report that notes that PTSD was manifested by insomnia, restricted range of affect, frequent moderate depression and anxiety, marital stress due to mood disturbance, intrusive thoughts and memories, irritability or outbursts of anger towards spouse and co-workers triggered by work stress or concerns with physical illness, panic attacks several times a month that interfere with the ability to perform work, difficulty concentrating, and moderate difficulty in social and occupational functioning. The March 2012 VA examiner assigned a GAF score of 55, which reflects moderate symptoms and/or moderate difficulty in social and occupational functioning due to PTSD. There is other evidence of record suggesting a disability picture for PTSD more nearly approximating the 70 percent criteria for the rating period. In an October 2013 PTSD Disability Benefits Questionnaire (DBQ) completed by a private psychologist, a private clinical psychologist assessed that PTSD was manifested by depressed mood, anxiety, panic attacks more than once a week, impairment of short and long-term memory, inability to establish and maintain effective work and social relationships, suicidal ideation, and obsessional rituals which interfere with routine activities. The psychiatric symptoms of inability to establish and maintain effective work and social relationships, suicidal ideation, and obsessional rituals which interfere with routine activities are all symptoms specifically contemplated in the 70 percent schedular rating criteria. See November 2013 statement (reporting contemplating suicide by jumping off of a bridge); April 2014 PTSD DBQ (noting that the Veteran experienced suicidal ideation as early as 2006). Also, in a March 2014 statement, a private psychiatrist opined that the Veteran manifested occupational and social impairment with deficiencies in most areas including work, family relations, judgment, thinking and mood due to psychiatric symptoms of engaging in obsessional rituals which interfere with routine activities including excessive showering and handwashing, near-continuous anxiety or depression affecting the ability to function appropriately and effectively, impaired impulse control such as alcohol abuse, engaging in sexually risky behavior, and spending sprees resulting in an inability to maintain effective relationships and preventing an ability to cope or adapt to stressful circumstances. The March 2014 private psychiatrist described a PTSD disability picture consistent with the 70 percent schedular rating criteria. In consideration of the foregoing, and resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for a 70 percent rating for PTSD are met for the rating period from February 22, 2012 to April 15, 2014. 38 C.F.R. §§ 4.3, 4.7. A rating in excess of 70 percent for PTSD is not warranted for any period. The lay and medical evidence does not show total occupational and social impairment. The evidence shows no gross impairment in thought processes or communication; no persistent delusions or hallucinations; no grossly inappropriate behavior; and no persistent danger of hurting self or others due to PTSD. There was also no intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. PTSD was not manifested by other symptoms of similar severity, frequency, and duration so as to approximate the 100 percent schedular rating criteria. The Veteran was employed throughout the period; therefore, there is no total occupational impairment due to PTSD. Although the Veteran was in the process of divorcing and has had strained relationships with co-workers during the period, the Veteran maintained relationships with and has custody of the two children. This evidence weighs against a finding of total social impairment due to PTSD. Because the 100 percent rating specifically contemplates total occupational and social impairment due to PTSD symptomatology, the evidence showing that PTSD symptoms have not caused total occupational or social impairment throughout the rating period weighs against finding that the schedular criteria for a 100 percent rating are met for any period. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Extraschedular Referral Analysis The Board has further considered whether the increased rating appeal warrants referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321. Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, it must be determined whether the disability picture is such that the schedular criteria are inadequate, i.e., whether there are manifestations or impairment that are not encompassed by the schedular criteria. If those criteria are not inadequate, the analysis does not need to proceed any further. In this case, the Board does not find any symptoms or functional impairment that are not already encompassed by the 70 percent schedular rating under DC 9411 from February 22, 2012 to April 15, 2014. The schedular rating criteria, DC 9411, specifically provide for disability ratings based on a combination of symptoms and clinical findings and as they show the degree of social and occupational impairment. For the rating period from February 22, 2012 to April 15, 2014, the evidence shows that the PTSD was manifested by occupational and social impairment with deficiencies in most areas due to psychiatric symptoms of insomnia, restricted range of affect, frequent depression and anxiety, intrusive thoughts and memories, impaired impulse control with irritability or outbursts of anger towards spouse and co-workers triggered by work stress or concerns with physical illness, panic attacks more than once a week that interfere with the ability to perform work, difficulty concentrating, inability to establish and maintain effective work and social relationships, suicidal ideation, and obsessional rituals which interfere with routine activities. The PTSD symptoms demonstrated by the Veteran are either explicitly part of the schedular rating criteria or are "like or similar to" those symptoms and impairment explicitly listed in the schedular rating criteria. Mauerhan, 16 Vet. App. at 443. All of the above-listed psychiatric symptoms manifested throughout the period are explicitly included in the schedular rating criteria except for the symptoms of intrusive thoughts and memories and difficulty concentrating, which are part of, like, and analogous to the symptoms of impairment of short- and long-term memory and impaired abstract thinking. The levels of occupational and social impairment are also explicitly part of the schedular rating criteria. Because the schedular rating criteria is adequate to rate the Veteran's PTSD disability, the Board finds that the criteria for referral for extraschedular consideration have not been met. 38 C.F.R. § 3.321(b)(1). Furthermore, according to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b)] for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations." Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when there is "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities. In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities create such an exceptional circumstance to render the schedular rating criteria inadequate. There is neither allegation nor indication that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. For these reasons, the Board finds that the schedular rating criteria are adequate, and no extraschedular referral is warranted in this case. 38 C.F.R. § 3.321(b)(1). ORDER A disability rating for PTSD of 70 percent, and no higher, from February 22, 2012 to April 15, 2014, is granted. ______________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs