Citation Nr: 0613065 Decision Date: 05/04/06 Archive Date: 05/15/06 DOCKET NO. 04-30 236 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for post-traumatic stress disorder (PTSD), prior to October 7, 2005. 2. Entitlement to an initial disability rating in excess of 50 percent for PTSD since October 7, 2005. 3. Entitlement to an initial disability rating in excess of 10 percent for irritable bowel syndrome (IBS), prior to October 7, 2005. 4. Entitlement to an initial disability rating in excess of 30 percent for IBS since October 7, 2005. REPRESENTATION Appellant represented by: Marine Corps League WITNESSES AT HEARING ON APPEAL Appellant and spouse INTRODUCTION The veteran served on verified active duty from April 8, 1944 to December 14, 1945, with prior unverified active duty service from February 24, 1943 to April 7, 1944. He was held as a prisoner of war (POW) of the German government from September 12, 1944 to June 8, 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. During his 2005 videoconference hearing, the appellant raised the issues of entitlement to service connection for residuals of a stroke and entitlement to service connection for a swallowing disorder secondary to a stroke. However, in correspondence from the appellant received at the Board in April 2006, the veteran indicated that he did not wish to prepare his appeal for further evaluation for stroke. Accordingly, these issues are REFERRED to the RO for appropriate action. FINDINGS OF FACT 1. Prior to October 7, 2005, the veteran's PTSD was not manifested by flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impaired judgment; or impaired abstract thinking. 2. Since October 7, 2005, the veteran's PTSD was not manifested by 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); or inability to establish and maintain effective relationships. 3. Since the veteran initiated his claim for benefits for IBS, this disorder has been manifested by alternating diarrhea and constipation with more or less constant abdominal distress without evidence of frequent periods of hospitalization or marked interference with employment. CONCLUSIONS OF LAW 1. The criteria for a 30 percent disability evaluation for PTSD, but no higher, have been met for the period prior to October 7, 2005. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.22, 4.114, Diagnostic Code 9411 (2005). 2. The criteria for a disability evaluation in excess of 50 percent for PTSD have not been met for the period since October 7, 2005. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.22, 4.114, Diagnostic Code 9411 (2005). 3. The criteria for a 30 percent disability evaluation for IBS have been met since service connection was awarded. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.22, 4.114, Diagnostic Code 7319 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran argues that higher disability ratings are warranted for his PTSD and IBS disorders. The law provides that disability ratings are intended to compensate reductions in earning capacity as a result of the specific disorder. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify various disabilities. See 38 C.F.R. Part 4. In considering the severity of a disability it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where there is a question as to which of two evaluations should 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 (2005). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As this case also involves the initial evaluations assigned for PTSD and IBS, the severity of those disabilities is to be considered during the entire period from the initial assignment of the disability ratings to the present. See Fenderson v. West, 12 Vet. App. 119 (1999). The September 2003 rating decision on appeal granted service connection for PTSD and IBS and assigned 10 percent disability evaluation for each. Following the Board's May 2005 remand for further development, the RO increased the PTSD rating to 50 percent and the IBS rating to 30 percent. Both increases were made effective October 7, 2005. The Board has considered the requirements of Fenderson and has determined that the evidence of record shows that while staged ratings are warranted for his PTSD, the manifestations of his IBS have been generally consistent since service connection was initially awarded. PTSD Evaluation prior to October 7, 2005 The veteran is presently assigned a 10 percent rating for his PTSD pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411, prior to October 7, 2005. The next higher, 30 percent rating, is assigned 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, mild memory loss (such as forgetting names, directions, recent events). A 30 percent rating is warranted for the period prior to October 7, 2005. The evidence, including VA treatment records and an August 2003 VA examination report, shows that, while the veteran generally functioned satisfactorily during this period, he had anxiety, nightmares, and flashbacks. At the beginning of the appeal period he took Benadryl or Unisom, described as mild sleep aids for what was described as a mild sleep disturbance; however, by November 2003 he was taking 50 milligrams (mg.) of Zoloft daily. He also began taking Trazodone for sleep and Lorazepam for anxiety in February 2004. In June 2004, his Zoloft was increased to 100 mg. In July 2004, he reported that he experienced anxiety attacks once a week. During his March 2005 hearing, he testified that he was having memory problems. The Board finds that the preponderance of the evidence shows that a higher evaluation of 50 percent is not warranted for the period prior to October 7, 2005, as the veteran's PTSD disability did not more closely approximate the criteria for that rating during that time. The criteria for a 50 percent rating for PTSD are: 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. Prior to October 7, 2005, the record contains no evidence of flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impaired judgment; or impaired abstract thinking. While there is some evidence in disturbance of mood, the medical evidence, including a February 2004 VA treatment record, noted that his anxiety attacks had improved and he denied feeling depressed or other symptoms of depression. It was thought that the medication, particularly the Zoloft, was improving his symptoms. The veteran did report some social avoidance, although he has been married to his wife for over 50 years. Further, his history shows that he had a successful career and worked for the same company for many years prior to his retirement. While the veteran testified that he is forgetful, including forgetting the names of people he knows well, and needs notes to remind him to take his medication when viewed as a whole, the veteran's difficulties, when considered with the other evidence of record, do not warrant a 50 percent rating. The veteran's PTSD symptomatology does not more nearly approximate the criteria necessary for a 50 percent rating prior to October 7, 2005. The 2003 VA examiner assessed the veteran's Global Assessment of Functioning (GAF) at 60. DSM-IV states that a GAF score between 51 and 60, within which the examiner placed the veteran, represents "[m]oderate 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). See Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV) at 46-47. However, the evidence, taken as a whole, does not reveal symptomatology or impairment in functioning which would warrant a higher, 50 percent, rating prior to October 7, 2005. Evaluation since October 7, 2005 The veteran is presently assigned a 50 percent rating for his PTSD since October 7, 2005. The next higher, 70 percent rating, is assigned for 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); inability to establish and maintain effective relationships. A preponderance of the evidence is against the claim for a higher rating for PTSD since October 7, 2005. Since that date, the evidence simply does not show 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); or inability to establish and maintain effective relationships. The 2005 VA examiner described the veteran as "well-kept" and without any thought impairment or difficulty communicating. The veteran did not endorse difficulty with impaired impulse control, obsessive thinking, or ritualistic behavior. The evidence also did not show that the veteran was unable to establish and maintain effective relationships: he reported during the 2005 VA examination that he got along "wonderfully" with his wife, and that his relationship with his three grown children is "better than ever". The examiner assessed the veteran's Global Assessment of Functioning (GAF) between 55 and 60. DSM-IV states that a GAF score between 51 and 60, within which the examiner placed the veteran, represents "[m]oderate 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). In short, the preponderance of the evidence reveals that the veteran's PTSD symptomatology does not more nearly approximate the criteria for a 70 percent rating since October 7, 2005. IBS When service connection for IBS was granted in 2003, the RO evaluated the veteran's IBS as 10 percent disabling under Diagnostic Code 7319. During this appeal, the RO increased the disability rating to 30 percent, effective October 7, 2005. Under Diagnostic Code 7319, a 30 percent rating is assigned where severe irritable colon syndrome with diarrhea, or alternating diarrhea and constipation and more or less constant abdominal distress is shown. 38 C.F.R. § 4.114 (2005). Review of the record reveals that throughout the appeal period the veteran's symptoms typified severe irritable bowel syndrome, including chronic diarrhea and constipation and more or less constant abdominal distress. When the veteran filed his initial claim in February 2003, he reported constant diarrhea and constipation most of the time. An October 2003 VA medical evaluation reported a "continual problem of loose stools daily [with] intermittent constipation, this seems to bother him a lot; has to be sure where bathrooms are at all times." A February 2004 VA treatment record prescribed Psyllium "for alternating bouts of constipation and diarrhea". He and his wife testified in a 2005 hearing before the undersigned that he had frequent accidents and nearly constant alternating episodes of diarrhea and constipation. In essence, the record does not reveal that prior to the October 2005 VA examination the veteran's IBS symptoms were any less severe than the alternating constipation, diarrhea and abdominal discomfort noted during that examination. Based on all the evidence, the Board finds that the veteran's IBS has been severe in degree, as described in Diagnostic Code 7319, since service connection was initially awarded. For these reasons, the Board grants a higher initial rating, to 30 percent, for the period prior to October 7, 2005. The Board notes that 30 percent is the maximum schedular evaluation under Diagnostic Code 7319. The Board has considered the application of other Diagnostic Codes but finds that evaluation of the veteran's condition under any other Diagnostic Code would not be more beneficial to the veteran in the absence of such symptomatology demonstrating pertinent pathology or a more debilitating condition. There is no competent evidence of record which indicates that the veteran's IBS has caused marked interference with employment beyond that which is contemplated under the schedular criteria, or that there has been any necessary inpatient care recently. Thus, there is no basis for consideration of an extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b)(1). Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). There is nothing in the evidence of record to indicate that the application of the regular schedular standards is impractical in this case. Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996). Duty to assist and duty to notify The Board finds that VA has met its duties to notify and assist. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2005). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the Court held that a VCAA notice must inform a claimant of any information and evidence not of record (1) needed to substantiate the claim; (2) VA will seek to provide; and (3) the claimant is expected to provide. Interpreting 38 C.F.R. § 3.159(b)(1), the Court also held that VA must ask him to submit any pertinent evidence in his possession ("fourth element"). In an April 2003 letter, issued prior to the initial adjudication of the original service connection claims, VA notified the veteran of the basic elements of service connection and informed him that, if he provided information about the sources of evidence or information pertinent to the elements of the claim (including medical records, employment records, records from other federal agencies), VA would make reasonable efforts to obtain the records from the sources identified. The letter also informed him that he ultimately is responsible for substantiating his claim even though the law requires VA assistance in claim substantiation and that he can submit relevant evidence on his own. With respect to the fourth element of a valid notice, the 2003 letter did not specifically notify the veteran that he could submit any pertinent evidence in his possession; however, the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claims. A March 2005 letter informed the veteran that he could submit additional evidence to the Board concerning his appeal. The veteran was not provided with notice of the type of evidence necessary to establish an initial disability rating or effective date prior to the initial grant of service connection for PTSD and IBS and the assignment of the initial ratings. Dingess/Hartman v. Nicholson, Nos. 01-1917, 02- 1506, 2006 WL 519755 (U. S. Vet. App. Mar. 3, 2006). However, as to notice regarding initial disability ratings, during the course of the appeal, the veteran was provided with notice of what type of information and evidence was needed to substantiate his claims for increase. Therefore, there is no prejudice to the veteran. With regard to the effective dates of the staged ratings for PTSD, there is no prejudice to the veteran in proceeding with the claims. This is so with regard to the effective date of the 50 percent rating because in the November 2005 rating decision he was advised that the effective date of increase was the date of evidence that showed an increase in his PTSD disability. As to the effective date assigned for the 30 percent rating granted in this case, any question as to the appropriate effective date is rendered moot because the veteran has already been assigned the earliest effective date permitted by law in this case, the date of claim. With regard to the IBS claim, as the maximum schedular rating has been granted as of the date of claim, the earliest effective date permitted by law in this case, any defect in notice with respect to an increased initial rating or the effective date is moot. Because of the denial of an extraschedular rating for IBS, any question as to the appropriate effective date to be assigned is rendered moot. Thus, there is no prejudice to the veteran in proceeding with the IBS claims in this regard. Given the foregoing, the Board is satisfied that the veteran has been adequately informed of all elements of a valid notice. He was notified of what the evidence must show to result in higher ratings, and was on notice throughout the appeal through the pertinent rating decision, statement of the case, supplemental statements of the case, and letters. He was told about his and VA's respective claim development responsibilities. VA's duty to assist a claimant in substantiating his claim (see 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2005)) also has been satisfied. The duty to assist contemplates that VA will help a claimant obtain relevant records, whether or not the records are in federal custody, and that VA will provide a medical examination and/or opinion when necessary to make a decision on the claim. Here, the RO obtained the veteran's service medical records and all available VA treatment records. The veteran provided private medical evidence. The veteran has not identified any additional available evidence which is pertinent to the claims adjudicated in this decision and has not been associated with the claims folder. VA examinations with medical opinions were developed. Accordingly, the Board finds that the duty to assist was met. ORDER Entitlement to an initial disability rating of 30 percent, but no higher, for service-connected PTSD, prior to October 7, 2005, is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an initial disability rating in excess of 50 percent for service-connected PTSD, since October 7, 2005, is denied. A 30 percent rating for IBS is granted, for the period prior to October 7, 2005, subject to regulations which govern the award of monetary benefits. A rating in excess of 30 percent for IBS is denied. ____________________________________________ M. C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs