Citation Nr: 0909381 Decision Date: 03/13/09 Archive Date: 03/26/09 DOCKET NO. 06-12 731 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an initial rating greater than 50 percent for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD John B. Carlson, Associate Counsel INTRODUCTION The Veteran had active service from March 1967 to October 1968. These matters come before the Board of Veterans' Appeals (Board) from February 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The February 2005 rating decision on appeal granted service connection for PTSD and assigned a 30 percent evaluation, effective February 11, 2004. A statement of the case (SOC), issued in July 2008, increased the initial evaluation for the Veteran's service-connected PTSD to 50 percent, also effective February 11, 2004. As the Veteran contends that a higher initial rating is warranted, the appeal continues. See AB v. Brown, 6 Vet. App. 35 (1993) (noting that in an increased rating claim, a claimant is presumed to be seeking the maximum amount permitted). The Veteran's representative appears to raise the issue of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities in the memorandum dated November 4, 2008. The representative notes that the VA examination report from April 2008 states that "more likely than not, he would be unable to maintain employment at this time." The Board refers this matter to the RO for appropriate action. FINDING OF FACT The Veteran's service-connected PTSD is not manifested by occupational and social impairment with deficiencies in most areas such as work, school family relations, judgment, thinking or mood. CONCLUSION OF LAW The criteria for entitlement to an initial rating greater than 50 percent, for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130, Diagnostic Code (DC) 9411 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. The claim on appeal is a "downstream" element of the RO's grant of service connection for PTSD in the currently appealed rating decision issued in February 2005. For such downstream issues, notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159 is not required in cases where such notice was afforded for the originating issue of service connection. See VAOPGCPREC 8-2003 (Dec. 22, 2003). In an October 2004 letter, VA notified the Veteran of the information and evidence needed to substantiate and complete his claim for service connection, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letter informed the Veteran to submit medical evidence, statements from persons who knew the Veteran and had knowledge of his disabilities during service, and noted other types of evidence the Veteran could submit in support of his claim. In addition, the Veteran was informed of when and where to send the evidence. After consideration of the contents of this letter, and because the rating decision issued in February 2005 was fully favorable to the Veteran on the issue of service connection for PTSD, the Board finds that VA has substantially satisfied the requirement that the Veteran be advised to submit any additional information in support of his claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). In March 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Because the Court's decision is premised on the five elements of a service connection claim, it is the consensus opinion within VA that the analysis employed can be analogously applied to any matter that involves any one of the five elements of a "service connection" claim, to include an increased rating claim. Regarding the increased initial rating claim, this appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection for PTSD. The United States Court of Appeals for the Federal Circuit and the United States Court of Appeals for Veterans Claims (Court) have held that once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Moreover, because VA's notice criteria was satisfied when the RO granted service connection, the Board also finds that VA does not run afoul of the Court's recent holding in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Thus, the Board finds that VA met its duty to notify the Veteran of his rights and responsibilities under the VCAA. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the RO. A VA examination was conducted. It appears that all known and available records relevant to the issue here on appeal have been obtained and are associated with the Veteran's claims file; the Veteran does not contend otherwise. Thus, the Board finds that VA has done everything reasonably possible to notify and to assist the Veteran and that no further action is necessary to meet the requirements of the VCAA. In general, disability evaluations are assigned by applying a schedule of ratings that represent, as far as can be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2008). Separate diagnostic codes identify the various disabilities and the criteria that must be met for specific ratings. The regulations require that, in evaluating a given disability, the disability be viewed in relation to its whole recorded history. 38 C.F.R. § 4.2 (2008); see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's service-connected PTSD is currently evaluated as 50 percent disabling under 38 C.F.R. § 4.130, DC 9411. Under DC 9411, a 50 percent rating is warranted 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; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted 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 ideations; 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 work-like settings); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted for 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; memory loss for names of close relatives, own occupation or own name. See 38 C.F.R. § 4.130, DC 9411 (2008). A Global Assessment of Functioning (GAF) rating is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994). GAF scores are but one piece of information to be examined, and the Board is obligated to review all pertinent evidence and set forth a decision based on the totality of the evidence in accordance with all applicable legal criteria. As relevant to the Veteran's claim, a GAF score of 31-40 indicates some impairment in reality testing or communication or major impairment in several areas, such as work or school, family relations, judgment, thinking or mood. A GAF score of 41-50 indicates serious symptoms or any serious impairment in social, occupational, or school functioning. A GAF score of 51-60 indicates moderate symptoms or moderate difficulty in social, occupational, or school functioning. The Veteran contends that he is entitled to an initial rating higher than 50 percent for his service-connected PTSD. The Veteran's service personnel records show that he was awarded the Vietnam Service Medal and Vietnam Campaign Medal. These records also show the Veteran served for 13 months in Vietnam between September 1967 and October 1968 as a helicopter gunner and took part in the Tet Counter Offensive. The Veteran reported numerous in-service stressors including seeing "piles" of dead bodies and being subjected to mortar attacks. The Veteran's PTSD was service connected in February 2005 with a disability rating of 30 percent effective February 11, 2004, the date the claim was received. In July 2008 the Veteran's rating was increased to 50 percent effective February 11, 2004. The claims file includes treatment records dated from October 2003 to November 2004 from a staff psychologist at the Redwoods Vet Center. The records describe violent fantasies but no plan or intent to carry them out and problems with irritability and anger. The Veteran displayed some depression and anxiety as well as confusion and disorganization in communication. The file also includes a statement dated in December 2004 from the same Vet Center psychologist. He reported the Veteran scored 114 on the Mississippi Scale for Combat- related PTSD in October 2003 and that a score above 107 is generally considered to indicate PTSD in Vietnam veterans. He noted the Veteran reported marriage turmoil and anger management issues at work and home. In December 2004 the Veteran was diagnosed as having PTSD by a VA psychologist. The psychologist reported the Veteran made several errors on serial 7s and showed a diminished ability to concentrate. Anger management and sleep difficulties were reported, though the examiner noted that the Veteran did not seem to be hypervigilant or have an overactive startle response. The examiner determined that the Veteran suffered from mild PTSD and assigned a GAF score of 61. In February 2005 the Veteran was placed in a psychiatric ward for three days after a verbal altercation with his boss at Humboldt State University (HSU). Humboldt County's Mental Health Branch detail his intake at psychiatric emergency services on February 4, 2005, following the incident at HSU. He was placed on Olanzapine and Citalopram and reported being diagnosed as having bipolar disorder. The Veteran also reported that his Zoloft prescription had been increased in December and that he had engaged in alcohol and methamphetamine use at that time. The records indicate the Veteran displayed aggressive behavior including driving his vehicle on the sidewalk while pedestrians were present and attempting to acquire a weapon. On intake, the records indicate that Veteran was in a manic episode and stated that he may have played his stereo too loudly. His speech was reported as disorganized, tangential and grandiose. The Veteran was verbally aggressive at times but not physically threatening. The records indicate that the Veteran was in a manic phase for three or four weeks and had purchased a car while in this phase. The Veteran was diagnosed as having recurrent severe bipolar disorder in a manic phase; PTSD was noted by history. He was assigned a GAF of 30 on intake and 45 at discharge on February 8, 2005. The Veteran denied hallucinations and was able to identify stressors. VA treatment records show the Veteran reporting a marked decline in his condition. In May 2005 the Veteran reported the decline began in November 2004. The Veteran was put on administrative leave at work in January 2005 due to his increasingly argumentative behavior. The Veteran's spouse contacted the clinic in January 2005 and reported the Veteran was "going totally off the wall, being suspicious and paranoid." The Veteran reported being separated from his wife at the time of this treatment record. It was noted that the Veteran was "guarded but not overtly paranoid." His treating VA psychiatrist diagnosed a "mood disorder not otherwise specified, likely in the bipolar range," PTSD, and a history of polysubstance abuse, and noted a GAF score of 50. In a treatment record dated in September 2005 his treating VA psychiatrist supported the Veteran's attempt to increase the VA disability rating greater than 30 percent. A statement from the Veteran's spouse dated April 2006 confirmed the Veteran's history as reported to his treating VA psychiatrist and added that the Veteran was jailed several weeks after he was released from the psychiatric ward in 2005. She also stated that the Veteran was forced to retire from his job at HSU. Prior to this time, she reported, the Veteran had maintained his job at HSU for approximately 10 years. Treatment records from Redding VA Outpatient Clinic show continued treatment for PTSD and bipolar disorder including the medications Trazodone, Ziprasidone, Citalopram, and Lamotrigine. The records also indicate a GAF of 50 in May 2005, 45 in April 2006, 60 in October 2006, 55 in December 2006, 80 in March 2007, 65 in June 2007, 60 in September 2007, and 65 in January 2008. The Veteran was afforded a VA examination in April 2008 in connection with his ongoing appeal. The Veteran reported that he often felt keyed up but had not experienced any further manic episodes since his hospitalization in 2005. He reported positive relationships with his daughter and his wife. The Veteran stated that he had continued difficulty sleeping, including nightmares or intrusive memories approximately five times per month. The examiner opined that "more likely than not he would be unable to maintain employment at this time." The examiner also noted that there had been moderate improvement due to medication compliance, and abstinence from alcohol. The Veteran's GAF was reported as 55. Analysis The Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to an initial disability rating greater than 50 percent for PTSD. The Veteran has demonstrated few of the symptoms described in the criteria for a 70 percent such as homicidal ideation, auditory or visual hallucinations, signs of disorganized thinking, intermittently illogical speech, or an inability to establish and maintain effective relationships. The Board notes that the Veteran appears to have entered a manic phase of his bipolar disorder in late 2004/early 2005. The record does not indicate that the Veteran's PTSD significantly contributed to his symptoms at that time. Treatment records from Humboldt County Mental Health show diagnosis and treatment for a manic phase of the Veteran's bipolar disorder and only note PTSD by history. Furthermore, the Veteran denied hallucinations and did not exhibit memory loss for names of relatives or his occupation. Although his speech was disorganized and tangential it was not reported as a gross impairment in his thought processes or communication. The record shows the Veteran had a GAF of 45 in April 2006 indicating severe symptoms and a worsening of his condition. The same examiner, however, noted the Veteran was pleasant and cooperative with the interview, displayed orientation and memory of life events though he lacked insight into his problems. He exhibited flat affect and a depressed mood. The Veteran reported having reconciled with his spouse. Because few of the criteria for the next higher rating (i.e., a 70 or 100 percent rating) are present at any point since service connection was granted, the Board finds that a rating greater than 50 percent, for PTSD is not warranted. Extraschedular The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2008). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). 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, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service- connected PTSD is inadequate. A comparison between the level of severity and symptomatology of the Veteran's PTSD with the established criteria found in the rating schedule for PTSD shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an initial rating greater than 50 percent for PTSD is denied. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs