Citation Nr: 1754942 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 11-17 002 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Entitlement to an initial disability rating in excess of 30 percent for an acquired psychiatric disorder, characterized as posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Meyer, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1969 to August 1971. This appeal to the Board of Veterans' Appeals (Board) arose from a June 2010 rating decision in which the RO granted service connection for an acquired psychiatric disorder, characterized as PTSD, and assigned a 10 percent disability rating, effective April 30, 2010. The claim was remanded by the Board in April 2014 for further development. In a February 2015 rating decision, the agency of original jurisdiction (AOJ) assigned an initial, 30 percent rating for PTSD, effective April 30, 2010. Notably, as this increase was less than the maximum benefit sought on appeal, this issue remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). This appeal was again remanded by the Board in March 2017 for further development. After further development, this issue is now ready for adjudication. FINDING OF FACT During the period on appeal, the Veteran's psychiatric symptoms have been characterized by such symptoms as irritability, anxiety, depression, sleep impairments, nightmares, exaggerated startle response, and hypervigilance. During this period, the disability picture has been manifested by no more than occupational and social impairment with occasional decrease in work efficiency. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 30 percent for an acquired psychiatric disorder, characterized as PTSD, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 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, characterized 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 the case of an initial rating, the entire evidentiary record from the time of a veteran's claim for service connection to the present is of importance in determining the proper evaluation of disability. Fenderson v. West, 12 Vet. App. 119 (1999). Further, the Board must consider whether the disability has undergone varying and distinct levels of severity while the claim has been pending and provide staged ratings during those periods. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Throughout the period on appeal, the Veteran has been assigned a 30 percent rating for an acquired psychiatric disorder under 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017) (addressing PTSD). For the next-higher 50 percent rating, the evidence must show occupational and social impairment with reduced reliability and productivity due to 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 (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment or impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing effective work and social relationships. Based on the evidence of record, a rating in excess of 30 percent is not warranted. First, the Veteran does not exhibit objectively observable symptoms such as impaired judgment or impaired abstract thinking, stereotyped speech, difficulty in understanding complex tasks, or impairment of memory to a level that a 50 percent rating would be warranted. Specifically, at a VA examination in January 2010, he appeared "clean, neatly groomed, and appropriately dressed." He was cooperative and pleasant with normal speech and logical goal-directed thoughts. While he did display symptoms of depressed mood, anxiety, sleep impairment, irritability, exaggerated startle response, and hypervigilance, he did not display any episodes of violence, delusions, hallucinations, homicidal or suicidal ideation. As such, the examiner determined that his psychiatric symptoms are transient and mild and would only decrease work efficiency and the ability to perform tasks during periods of significant stress. In a September 2014 VA examination, the Veteran appeared casually but neatly dressed and adequately groomed. His thoughts were noted to be logical and goal-directed, without any evidence of hallucinations, delusions, or suicidal/homicidal ideations. The Veteran had symptoms of depressed mood, anxiety, chronic sleep impairment, and flattened affect, nightmares, flashbacks, hypervigilance, and exaggerated startle response. There was no evidence of any obsessive thoughts, compulsive behaviors, or psychosis. As a result, the examiner opined that the Veteran's psychiatric symptoms cause 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. Similarly, the Veteran's treatment records indicate that he experienced symptoms such as irritability, depression, trouble sleeping, nightmares, flashbacks, anxiety, and hypervigilance. In May 2015, the Veteran was noted to be pleasant, cooperative, and maintained good eye contact. While he had symptoms of irritability and depression, he had logical goal directed thoughts with clear speech. Moreover, there were no indications of a thought disorder, hallucinations, or evidence of a psychosis. In a February 2017 treatment evaluation, the Veteran's psychiatric disorder was reported as "mild." In view of these clinical evaluations, the Board finds that the Veteran does not exhibit objective symptomatology that would be sufficient to warrant a rating in excess of 30 percent. Specifically, the Board finds that while the Veteran stated on isolated occasions that he has passive thoughts about suicide, these thoughts were only sporadic and fleeting with no actual plan. In fact, the Veteran reported that "he does not think he could ever do it." At his February 2017 VA treatment evaluation, the Veteran did not have any thoughts of suicidal ideations. As such, there is not sufficient evidence that the Veteran's suicidal ideations are of the severity and frequency to cause the level of occupational and social impairment associated with a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). Moreover, the Board also notes that while the Veteran exhibited symptoms of a higher rating, including suicidal ideations, VA must nevertheless engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the veteran's service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment. See Vazquez-Claudio, 713 F.3d at 115-17. In this case, the Board determines that 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 any signs of a psychosis, thought disorder, or impaired judgment. Indeed, many of the examples listed in the diagnostic code for a higher rating have not been shown at all. 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 social impairment with reduced reliability and productivity. 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 30 percent is warranted. Specifically, the Veteran has maintained a stable relationship with his wife, children, and grandchildren. Moreover, at his VA examination in September 2014, the Veteran stated that his relationship with his wife has "improved." The records also report that the Veteran enjoys hunting. Additionally, the June 2010 and September 2014 VA examiners report that prior to retiring, the Veteran enjoyed his job and was successful as a railroad engineer for over 32 years. Moreover, there was no evidence in the record that he retired due to his psychiatric disorder. 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); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV)). The Board notes that the only reported GAF score in the medical records was a score of 65 that was assigned by the June 2010 VA examiner. 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. Here, the Board finds that a GAF score between 61 and 70 is representative of the symptoms that were observed by the VA examiners in June 2010 and September 2014 - especially in light of the fact that the Veteran did not have evidence of "serious" symptoms related to thought disorders, active suicidal ideation, psychosis, or serious social/occupation impairments. Moreover, the Board finds that the symptoms associated with such a GAF score are too mild to warrant a rating in excess of 30 percent. In considering the appropriate disability rating, the Board has also considered the statements from the Veteran 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. Thus, based on evidence of record, the Board determines that a 30 percent rating is warranted for the Veteran's acquired psychiatric disorder. 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 the 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, 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 record does not suggest, and the Veteran does not specifically allege, that his service-connected psychiatric disorder renders him unemployable - especially in light of the fact that the evidence of record indicates that the Veteran was gainfully employed as a railroad engineer for part of the appeal period. 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. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). 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. § 5103(a) (2012); 38 C.F.R. § 3.159(b) (2017); 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. § 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. As discussed below, the Veteran has also been provided with a VA examination pursuant to the Board's August 2014 remand. Finally, it is noted that this appeal was remanded by the Board in August 2014 and March 2017 in order to obtain outstanding medical treatment records and a new VA examination. To the extent that the appeal is being adjudicated, the Board is now satisfied there was substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, the Veteran was provided with a VA examination in September 2014 Upon review of the examination report, 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. Therefore, the VA examination report is 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). Next, all outstanding medical records were obtained and the Veteran was given the opportunity to submit/identify additional medical evidence. Additionally, while it appears the RO may not have obtained the requested medical evidence from the Fargo Vet Center, the Board however finds that these records were clearly obtained and considered by the RO. 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 An initial rating in excess of 30 percent for an acquired psychiatric disorder, characterized as PTSD, is denied. ____________________________________________ B.T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs