Citation Nr: 0809736 Decision Date: 03/24/08 Archive Date: 04/09/08 DOCKET NO. 04-22 341 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an initial rating in excess of 30 percent for service-connected post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Richmond, Associate Counsel INTRODUCTION The veteran had active military service from June 1960 to May 1963 and September 1965 to October 1990. This matter comes to the Board of Veterans' Appeals (Board) from an August 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which granted service connection for PTSD, assigning a 30 percent evaluation effective February 12, 2003. In September 2005, the veteran testified before the undersigned Veterans Law Judge at a Board hearing at the RO. A transcript of the hearing is of record. The Board remanded this case for additional development in April 2006. As the requested development has been accomplished, this case is properly before the Board. FINDING OF FACT The veteran's PTSD symptoms are found to be mild to moderate and manifested by anxiety, irritability and angry outbursts, chronic sleep impairment, mild memory loss, some suicidal ideation with no plan or intent, suspiciousness, depressed mood, isolative behavior, and GAF scores of 40, 61, and 65. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 30 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.125, 4.126, 4.130, Diagnostic Code 9411 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159. The notice requirements apply to all five elements of a service connection claim: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by letter dated in March 2003, regarding the initial service connection claim for PTSD. The notification substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate the claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004), requesting the claimant to provide evidence in his possession that pertains to the claim. After the RO granted service connection for PTSD in an August 2003 rating decision, the veteran filed a notice of disagreement with the assigned rating in October 2003. The RO continued the 30 percent rating in an April 2004 statement of the case. The veteran later was provided notice letters in November 2004 and May 2006 regarding his claim for an initial rating in excess of 30 percent for PTSD. While the veteran was not provided the notice criteria pursuant to Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008), the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, section 5103(a) notice has served its purpose. Dingess v. Nicholson, 19 Vet. App. at 490 (2006). As the veteran was granted service connection and assigned an evaluation and effective date, the Secretary had no obligation to provide further notice under the statute. Id. As such, any defect with respect to the content of the notice requirement was non-prejudicial. VA has obtained service medical records, assisted the veteran in obtaining evidence, afforded the veteran physical examinations, obtained medical opinions as to the severity of PTSD, and provided the veteran the opportunity to give testimony before the Board. All known and available records relevant to the issue on appeal have been obtained and associated with the veteran's claims file. VA has substantially complied with the notice and assistance requirements and the veteran is not prejudiced by a decision on the claim at this time. Analysis The RO granted service connection for PTSD in August 2003, assigning a 30 percent evaluation effective February 12, 2003. The veteran appeals this action. He states that he has occasional decrease in work efficiency and has not held a regular job since 1990 because he was not able to go through with the effort to obtain a job. He also noted he had some issues with trust, which prevented him from being able to go to work or have a social life outside of his family. He said that he had denied being combative or having suicidal thoughts on examination because he was afraid he would be hospitalized. He further testified that he had problems with memory, temper, anxiety, and sleep. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt shall be resolved in favor of the claimant, and where 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. 38 C.F.R. §§ 3.102, 4.3, 4.7. In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the veteran, as well as the entire history of the veteran's disorder in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the veteran's claim is to be considered. 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); 38 C.F.R. § 4.2. Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Id. When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission must be considered. Evaluation also must be 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 the examination. The extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The veteran's PTSD is rated as 30 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. A 30 percent evaluation is to be 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 50 percent evaluation 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. A 70 percent evaluation 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 100 percent evaluation is assigned 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. An April 2003 VA mental health progress note shows complaints of increased anxiety, irritability, and low frustration tolerance. The veteran had difficulty in crowds and angry outbursts. On mental status examination, he was anxious and depressed both in terms of his mood and affect. He also had irritability and a low frustration tolerance. He had no symptoms of psychosis, or harmful ideation, plan, or intent. A July 2003 VA examination report shows the veteran's thought-processes and thought-content were within normal limits. Delusions and hallucinations were not present at that time. Eye contact was good and behavior was appropriate. He denied suicidal or homicidal thought, ideation, plan, or intent. He was able to maintain minimal personal hygiene and other basic activities of daily living. He was fully-oriented and long-term memory was intact. Short-term memory and concentration were impaired. Judgment was intact and speech was slow. His mood was mildly depressed; his impulse control was within normal limits. His sleep impairment was chronic in nature. In reviewing PTSD symptomatology, the veteran indicated that he typically isolated himself from those outside his immediate family and was unable to get emotionally close to others. He noted sleep disturbance, indicating that he gets about five hours of sleep per night. He mentioned that he had concentration problems, commenting that he lost his train of thought easily. He also had depression and loss of interest in pleasurable activities. He noted feelings of rage and tried to avoid situations where he would lose his temper. The examiner found that the veteran's PTSD symptoms were frequent, persistent, and mild in nature. A May 2006 VA examination report notes that the veteran had been married for 42 years and described his relationship as loving. He had two sons, to whom he spoke once a week and was close. He had no friends who lived locally and spoke with friends two to three times a year. He never had many friends and had "trust issues"; he felt like he could only relate to other military people. For activities and leisure pursuits, he rode a motorcycle several days a week, browsed the internet, talked with other veterans on message boards, and attended his grandson's ball games. He had no history of suicide attempts, assaultiveness, or problematic substance abuse. He was functioning relatively well with respect to his social status; he had close relationships with his wife and children and engaged in activities. But he had difficulty being in crowds, which limited his social functioning. He felt detached and estranged from others and had difficulty concentrating. He also had difficulty falling or staying asleep, and irritability or outbursts of anger. He experienced anxiety whenever he saw, heard, or smelled something that reminded him of Vietnam. He recently went out in the garage when his son was returning an item and pulled a gun on his son thinking his son was an intruder; he thought Charlie was coming through the fence. He did not have close friends and many people thought he was a "jerk." He was unable to enjoy activities with others; when he attended his grandson's ball games he had to sit in the outfield away from other people. He had outbursts of anger toward others, including trouble with road rage, and becoming irritated with people when out shopping. He became "jumpy" whenever others snuck up on him, and he checked the locks. The examiner noted that his reported symptoms since his last examination had gotten worse; he was more avoidant of being with others and his patience had decreased. His symptoms were considered mild to moderate. On psychiatric evaluation, he was clean, neatly groomed, and appropriately dressed. His psychomotor activity and speech was unremarkable. His attitude toward the examiner was cooperative and friendly. His affect was normal and mood was good. His attention was intact; he was oriented to person, time, and place; his thought process and content were unremarkable. He had no delusions and understood the outcome of behavior. He had average intelligence and understood that he had a problem. He had mild sleep impairment, which did not interfere with daily activity, and no hallucinations, inappropriate behavior, obsessive/ritualistic behavior, or panic attacks. The extent of his impulse control was good; he had no episodes of violence. He became curt and nasty with others; but generally maintained good control over his anger. He had occasional presence of suicidal thoughts, about three to four times a year, with no plan or prior attempts; fear stopped him from hurting himself. He had no homicidal thoughts or problems with activities of daily living; he had the ability to maintain minimum personal hygiene. His remote and immediate memory was normal; his recent memory was mildly impaired. He sometimes forgot people's names or doctor's appointments, and lost things around the house. He had no major problems resulting from memory loss. In summary, the examiner found that the veteran's quality of life had been negatively impacted by his PTSD; he did not feel comfortable around others with the exception of other veterans. However, he had been able to maintain a close relationship with his wife and children. He had mild or transient decreased efficiency, productivity, and reliability in social and occupational functioning during periods of stress. He also had mild inability to perform work tasks or impaired work, family and other relationships during periods of stress. Overall, the veteran's PTSD symptoms include anxiety, irritability and angry outbursts, chronic sleep impairment, mild memory loss (forgetting people's names and doctor's appointments), some suicidal ideation with no plan or intent, suspiciousness, depressed mood, and isolative behavior. He was able to maintain minimal personal hygiene and other basic activities of daily living. He was fully-oriented, long-term memory was intact, and his speech and thought content and processes were unremarkable. His affect was noted to be depressed but was otherwise normal. Although he mentioned that he would check the locks at home, he was not found to have obsessive/ritualistic behavior, inappropriate behavior, or hallucinations. He also was not found to have panic attacks, even though he did have anxiety. Additionally, he was functioning relatively well with respect to his social status; he had close relationships with his wife and children and engaged in activities. His symptoms were found to be, at most, mild to moderate. These symptoms more closely approximate the criteria for a 30 percent rating for PTSD. The only symptom the veteran meets for a 50 percent rating is disturbance in motivation and mood. As none of the remaining criteria for a 50 percent rating are met, a higher rating is not warranted. The veteran's GAF scores are 40 in April 2003, 61 in July 2003, and 65 in May 2006. While the 40 score is significant, this in and of itself does not show that an increased rating is warranted for PTSD. According to the Diagnostic and Statistical Manual of Mental Disorders, Fourth edition (DSM IV), a GAF score reflects the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." DSM IV, American Psychiatric Association (1994), pp.46-47; 38 C.F.R. §§ 4.125(a), 4.130. A GAF score of 31-40 is defined as some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood, (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). 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, has some meaningful interpersonal relationships. The veteran's GAF score of 40 supports some of the manifestations required to meet the criteria for a higher rating; but the overall disability picture more nearly approximates the criteria for the 30 percent rating assigned. None of the examinations show any findings in reality testing or any other major impairment - both of which are listed as examples of the type of traits associated with serious symptoms and GAF scores of 31-40. The GAF scores of 61 and 65 appear to be more representative of the veteran's overall disability picture. The GAF score is only one of the many criteria used to determine the present level of mental health impairment and does not support a higher rating in this case. The Board has considered whether "staged ratings" (i.e., difference percentage ratings for different periods of time, based on the facts found) are warranted. Fenderson v. West, 12 Vet. App. 119 (1999). However, the evidence shows no distinct periods of time, since the PTSD rating became effective on February 12, 2003, during which the PTSD disability warranted a higher rating. The GAF score of 40 assigned in April 2003 contrasts with the veteran's GAF score of 65 assigned three months later in July 2003. On the April 2003 examination, however, the examiner found anxiety, depression, and irritability with no symptoms of psychosis, which is relatively consistent with the findings on the other medical records. As the veteran's disability picture remained relatively consistent throughout the appeals period, staged ratings are inappropriate in this case. An extraschedular rating under 38 C.F.R. § 3.321(b)(1) also is not appropriate in this case. Referral under 38 C.F.R. § 3.321(b)(1) is warranted where circumstances are presented that are unusual or exceptional. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The veteran reportedly stopped working in 1990 because he was up for retirement. The record does not show any evidence of marked interference with employment solely due to his PTSD. Additionally, the evidence does not show any frequent periods of hospitalization due to PTSD. 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. 38 C.F.R. § 4.1. The 30 percent rating assigned for PTSD under 38 C.F.R. § 4.130, DC 9411 specifically accounts for any difficulty in establishing and maintaining effective work relationships. The veteran's disability picture is not so unusual or exceptional in nature so as to warrant referral of his case to the Director or Under Secretary for review for consideration of extraschedular evaluation. Having reviewed the record with these mandates in mind, there is no basis for further action on this question. The preponderance of the evidence is against an initial evaluation in excess of 30 percent for PTSD; there is no doubt to be resolved; and in increased rating is not warranted. ORDER Entitlement to an initial rating in excess of 30 percent for PTSD is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs