Citation Nr: 0904608 Decision Date: 02/09/09 Archive Date: 02/13/09 DOCKET NO. 06-14 188A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to a total and permanent rating for post traumatic stress disorder (PTSD), to include that no periodic examination be scheduled. REPRESENTATION Appellant represented by: West Virginia Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The veteran served on active duty from May 1963 to April 1965. He was born in March 1946. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2004 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. This matter was previously before the Board in July 2008 at which time it was remanded pursuant to the veteran's request for a Board hearing. In August 2008, the veteran testified before the undersigned Veterans Law Judge, sitting at the RO. A transcript of that hearing is of record. FINDINGS OF FACT 1. The veteran is over the age of 55. 2. The veteran's PTSD has persisted without material improvement for nearly 5 years and is static. 3. The veteran's total disability due to PTSD is permanent with no likelihood of improvement. CONCLUSION OF LAW The 100 percent rating for PTSD is total, permanent, and static in nature. 38 U.S.C.A. §§ 5107, 7104 (West 2002); 38 C.F.R. §§ 3.327, 3.340 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 The Board acknowledges the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), now codified at 38 U.S.C.A. §§ 5102, 5103, 5103(A), 5107 (West 2002) and implementing regulations at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008). The Board also acknowledges that various judicial decisions have addressed the notice and assistance requirement of VCAA. See generally Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). However, the Board need not consider the question of VCAA compliance since there is no detriment to the veteran as a result of any VCAA deficiencies in view of the fact that the full benefit sought by the veteran as to this issue is being granted by this decision of the Board. Thus, any defect is harmless error. II. Analysis The veteran's PTSD is currently evaluated as 100 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9411, of VA's Schedule for Rating Disabilities. The 100 percent rating was made effective in September 2004, thus rendering the rating in effect for approximately 4 years and 4 months. In the veteran's May 2005 Notice of Disagreement to the October 2004 rating decision assigning him a 100 percent rating for PTSD, the veteran expressed his disagreement with that part of the decision that found that the evidence was insufficient to support a total evaluation. In support of his request that he be granted a "total and permanent evaluation", the veteran stated that his VA doctor had informed him that he would not get better in the future. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Total disability may or may not be permanent. Id. Permanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. Diseases and injuries of long standing which are actually totally incapacitating will be regarded as permanently and totally disabling when the probability of permanent improvement under treatment is remote. The age of the veteran may be considered in determining permanence. 38 C.F.R. § 3.340(b). With respect to whether a veteran need undergo further VA examinations in order to retain a 100-percent disability rating, in service-connected cases, no periodic reexamination will be scheduled: (i) when the disability is established as static; (ii) when the findings and symptoms are shown by examinations scheduled in paragraph (b)(2)(i) of this section or other examinations and hospital reports to have persisted without material improvement for a period of 5 years or more; (iii) where the disability from disease is permanent in character and of such nature that there is no likelihood of improvement; (iv) in cases of veterans over 55 years of age, except under unusual circumstances; (v) when the rating is a prescribed scheduled minimum rating; or (vi) where a combined disability evaluation would not be affected if the future examination should result in reduced evaluation for one or more conditions. 38 C.F.R. § 3.327(b)(2). However, the Board emphasizes that pursuant to paragraph (a) § 3.327, the above list only provides "guidelines" for requesting reexaminations, but shall not be construed as limiting VA's authority to request reexaminations at any time in order to ensure that a disability is accurate rated. See, e.g., 38 C.F.R. § 3.344(a)-(c). In finding that the veteran's 100 percent rating for PTSD was not considered permanent, the RO relied on findings from a March 2007 VA examination. In this regard, the RO relayed the examiner's remarks that symptoms of the veteran's PTSD had improved, but that sustained improvement had not been shown. The RO thus concluded that since there was a likelihood of improvement, the assigned evaluation was not considered permanent and was subject to a future review examination. While the March 2007 VA examiner did note that the veteran's overall functioning has had some periods of improvement, he explained that this was solely due to compliance with medication and treatment. He went on to opine that it was unlikely, that even with continued treatment, the veteran's symptoms would improve sufficiently to render him "unemployable" for any period of time. He reiterated that it was unlikely that the veteran would become employable at any future time. Also, records from the Social Security Administration show that the veteran was awarded disability benefits in February 2004, made effective in October 2002, due to a primary diagnosis of "anxiety disorders" and a secondary diagnosis of "angina pectoris without IHD". In terms of the veteran's psychiatric impairment alone, the March 2007 VA examiner noted that the veteran had been unable to work in any job since 2003 due to both physical limitations as well as PTSD, but he attributed the veteran's unemployability solely to his PTSD. In this regard, the examiner stated that "the severity of the veteran's psychiatric symptoms continue to render him unemployable from a psychiatric perspective at this time, as the veteran cannot interact with others and maintain symptoms control, as indicated by a frequent history of irritability, anger outbursts, as well as difficulty maintaining his intrusive thoughts of Vietnam". It thus cannot be concluded from the evidence above that there has been any material improvement in the veteran's PTSD in the nearly 5 years (4 years and 4 months to be exact) that the veteran has been rated as 100 percent disabled, nor can it be concluded that there is a likelihood of improvement in the future. This is especially so when considering the veteran's August 2008 hearing testimony that while he may feel better some days than others, he does not have a sense of any overall improvement in his PTSD symptoms. He explained that his VA doctor had prescribed quite a few medications just to maintain an "even keel". This appears consistent with a January 2004 VA psychiatry progress note stating that while the veteran was less irritable, he continued to endorse some PTSD symptoms in spite of a very aggressive combination of medication therapy. The veteran's representative pointed out at the hearing that in a controlled environment things were fine for the veteran, but that he was prone at any time to experience severe anger problems and panic attacks. Furthermore, the veteran's mature age of 62 is worthy of consideration in determining the likelihood of improvement. Based on the foregoing, the Board finds that the veteran's impairment due to PTSD is reasonably certain to continue throughout his lifetime and that permanence of the veteran's total disability rating in regard to this disability is shown to exist. 38 C.F.R. § 3.340(b). In terms of reexaminations, the Board finds that the veteran has met several of the criteria under 38 C.F.R. § 3.327(b)(2) such that no periodic reexamination need be requested in the future. Specifically, the evidence of record demonstrates that he meets the following criteria: his PTSD has been static since at least September 2004 (section i); his PTSD has been without material improvement for nearly 5 years (section ii); the disability from his PTSD is permanent and of such nature that there is no likelihood of improvement (section iii), and the veteran is over the age of 55 (he is now 62) (section iv). In sum, the Board concludes that the preponderance of the evidence supports the veteran's claim that his 100 percent rating for PTSD is permanent in nature. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.340(b). The evidence further supports the criteria under 38 C.F.R. § 3.327 that no periodic future examination need be scheduled for the veteran's service- connected PTSD. ORDER The veteran's 100-percent rating for PTSD is permanent and static in nature; no future periodic examination need be scheduled for this disability. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs