Citation Nr: 1806773 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 12-21 117 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a rating in excess of 30 percent for a psychiatric disorder, to include post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Robin Hood, Attorney ATTORNEY FOR THE BOARD Z. Maskatia, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1966 to May 1967. This matter is on appeal from a rating decision in April 2011 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. FINDING OF FACT Throughout the period on appeal, the Veteran's PTSD has been characterized by depressed mood and anxiety, sleep impairment, and flashbacks. Symptoms such as flattened affect, circumstantial, circumlocutory, or stereotyped speech, difficulty in understanding complex commands, panic attacks, and impaired abstract thinking have not been shown. CONCLUSION OF LAW The criteria for an initial rating in excess of 30 percent for PTSD have not been met. 38 U.S.C. §§ 1110, 1155 (2014); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C. §§ 5103, 5103A (2014) and 38 C.F.R. § 3.159 (2017). Here, the duty to notify was satisfied by way of letters sent to the Veteran. VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (2017). The Board finds that all necessary development has been accomplished and all available evidence pertaining to the matter decided herein has been obtained. The RO has obtained, or made all required attempts to obtain, the Veteran's VA treatment records, service treatment records, VA examination reports, military personnel records, and statements from the Veteran and his representative. Neither the Veteran nor any of his past representatives notified VA of any outstanding evidence, and the Board is aware of none. Hence, the Board is satisfied that the duty-to-assist was met. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c) (2017). This appeal was remanded by the Board in April 2016 for further development. Specifically, the Veteran was afforded a VA examination, the report of which was added to the record. Further, the RO attempted to determine whether the Veteran's SSA income includes both retirement and disability benefits. A March 2017 letter from SSA indicated that no such records exist. Thus, the Board finds that the agency of original jurisdiction (AOJ) substantially complied with the Remand orders, and no further action is necessary in this regard. Hence, 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). Increased Rating The Veteran is presently service connected for PTSD, rated as 30 percent disabling. He contends that he is entitled to a higher rating for that disability. Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2017). The Veteran's entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1 (2017). Where, as in the case of the Veteran's PTSD, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of staged ratings are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Further, "[w]here there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned." 38 C.F.R. § 4.7 (2017). The Veteran's PTSD is rated under 38 C.F.R. 4.130 (2017), Diagnostic Code 9411, which provides the general rating formula for mental disorders. Under the applicable diagnostic criteria, a 30 percent rating is granted for 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, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. 4.130, Diagnostic Code 9411 (2017). A 50 percent rating is assigned for 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. Id. Consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, 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 examination. See 38 C.F.R. § 4.126 (a) (2017). Further, when evaluating the level of disability arising 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 (b) (2017). It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2 (2017). Based on the evidence of record, a rating in excess of 30 percent is not warranted. Specifically, the record indicates that the Veteran's symptoms do not rise to the level of occupational and social impairment with reduced reliability and productivity. For example, throughout the period on appeal, the Veteran showed an affect and sense of clarity that is normal for this level of compensation. An August 2010 examination noted that his affect was "appropriate to context." While another August 2010 note stated that the Veteran's affect was restricted, it also said that the Veteran was oriented to person, place, time, and situation, and that his thought process was appropriate and goal directed. The Veteran attended an October 2010 PTSD examination in which it was noted that he was able to maintain minimal personal hygiene and other activities of daily living. The Veteran's next examination was in May 2017. The veteran was alert and fully oriented. He expressed normal clarity of thought. He was well groomed with appropriate hygiene, and was casually dressed. There were no signs of mania, psychosis, or other absence of clarity of thought. In addition, he has never used drugs illegally and has been sober since 1995. While the Veteran undoubtedly suffers from significant disturbances of mood, these disturbances do not warrant an increased rating. The Veteran is noted to appear depressed, irritable, and dysthymic at several points in the record, including notes dated August 2010, and his October 2010 examination. For example, in an August 2010 note, the Veteran and his wife mention his problems with irritability, frustration intolerance and feelings of hopelessness and a sense of a foreshortened future. Similarly, at his October 2010 examination, the Veteran endorsed irritability and depression, resulting in diminished motivation. However, at his May 2017 examination, the Veteran described his mood as "pretty good" and denied being depressed. Especially given the lack of panic attacks, the criteria for a 50 percent rating contemplate a more severe level of mood disturbance than the Veteran presents. Similarly, despite his pervasive feelings of sadness, the Veteran is able to function independently and was found capable of managing his own financial affairs by both VA examiners. Any occasional decrease in work efficiency is considered in his 30 percent rating. While it is true that the Veteran exhibited sleep impairment throughout this period, such symptoms are also contemplated by his current rating under DC 9411. Specifically, a note from August 2010 showed sleep difficulties and nightmares about his military experiences. His October 2010 examiner noted that every night, the Veteran had a moderate level of difficulty falling and staying asleep, and that he had distressing nightmares. Finally, the Veteran's May 2017 examiner noted that the Veteran slept six to seven hours a night. Such sleep disturbances, while undoubtedly unsettling, are not uncommon with PTSD and any resulting occupational or social impairment is contemplated in the Veteran's current 30 percent rating. The Veteran's August 2010 medical record reflects that his long and short term memory was grossly intact. However, his October 2010 examiner noted mild problems with forgetfulness noted several days a week. Thus, the Veteran's long term and short term memory has always been adequate, despite some impairment. The record does not show impaired judgment or trouble with the law during the appeal period. In fact, the Veteran's October 2010 examiner explicitly stated that the Veteran did not have impaired impulse control. Finally, throughout the period on appeal, the Veteran has not generally had delusions or hallucinations, despite a few possible hallucinations. Specifically, while an August 2010 note says that the Veteran can sometimes hear the noise and screams incident to active combat. However, that same note, and his other examinations, reflects that the Veteran has had no frank delusions or hallucinations, nor any suicidal or homicidal ideations. Thus, the Veteran's general cognitive state most resembles his current 30 percent rating. Based on the symptoms clinically observed, the Veteran has experienced some of the relevant symptoms that might support a rating in excess of 30 percent. For example, he has exhibited disturbances of mood and motivation, flashbacks, and intrusive thoughts. Notably, the Veteran's May 2017 VA examiner opined that while the Veteran's symptoms, as then endorsed, did not meet the criteria for PTSD, a test indicated that the Veteran underreported symptoms. In the Board's view, this still does not warrant an increased rating. The criteria for the next-higher 50 percent rating depict a level of impairment, when viewed as a whole, that is more severe than the symptoms displayed by the Veteran. Unless these objective symptoms, to include panic attacks, impaired judgment, and circumstantial, circumlocutory, or stereotyped speech, are actively demonstrated, the Board cannot award an increased rating. 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 total occupational and social impairment, to include social and occupational inadaptability. In this regard, it is clear that the Veteran's service connected PTSD impacts his social and occupational functioning. Nevertheless, the evidence does not indicate that a rating in excess of 30 percent is warranted. His October 2010 examiner showed the Veteran as struggling with irritability, which affected his relationships over the years and led to conflicts. In his May 2017 examination, the examiner noted that the Veteran had been married for twenty-four years and describes the marriage as "great." According to his October 2010 examination, the Veteran keeps up the home. While the Veteran endorsed avoidance of distressing memories, thoughts, or feelings associated with his in-service trauma, he denied avoidance of external reminders that arouse those memories. The Veteran enjoys hunting and fishing, and mentioned to this examiner having a dozen close friends in whom he confides. While the Veteran's mood setbacks are unquestionably related to his psychiatric disorder, the Board determines that the anxiety and social discord attendant to the Veteran's social impairment is contemplated by his current rating of 30 percent for this period. 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 score was 60 in August 2010. A GAF score of 41-50 indicates 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); GAF score of 51-60 indicates 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 peer or coworkers); and 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 in the range of 51 to 60 is consistent with the symptoms the Veteran displayed. Nevertheless, this level of impairment does not constitute occupational and social impairment with reduced reliability and productivity. In considering the appropriate disability rating, the Board has also considered the Veteran's statements that his PTSD is worse than the rating 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 PTSD 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. Therefore, based on the evidence of record, the Board determines that a 30 percent rating is warranted for the Veteran's PTSD for this period. 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, while the Veteran's symptoms are found to interfere with his thought process, his VA examiners have found him capable of the thought and concentration necessary to maintain employment. The Board concludes that while his loss in income due to this service connected disability is not compensated in full, it is adequately addressed by the applicable diagnostic codes. See Mittleider v. West, 11 Vet. App. 181 (1998). Moreover, while a schedular rating for psychiatric disorders is not necessarily limited to the enumerated symptoms in the general rating formula, no relevant symptoms have been excluded in the Board's analysis. See Mauerhan, 16 Vet. App. at 444. As such, the Veteran's symptoms are not 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). Lastly, the Board notes that the Veteran was granted a total disability rating based on individual unemployability (TDIU), and the Veteran has not disagreed with any aspect of the decision on that issue. TDIU entitlement is therefore not inferred as part and parcel of the current claim for increased rating for PTSD. See Tyrues v. Shinseki,732 F.3d 1351 (2013); Rice v. Shinseki, 22 Vet. App. 447 (2009). For the foregoing reasons, a rating in excess of 30 percent is not warranted for the period on appeal. ORDER An initial disability rating in excess of 30 percent for PTSD is denied. ____________________________________________ B.T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs