Citation Nr: 0809803 Decision Date: 03/25/08 Archive Date: 04/09/08 DOCKET NO. 05-25 002 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an evaluation in excess of 50 percent for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD David Traskey, Associate Counsel INTRODUCTION The veteran had active service from April 1970 to June 1971. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of April 2004 by the Department of Veterans Affairs (VA) New Orleans, Louisiana, Regional Office (RO). FINDINGS OF FACT 1. The veteran's PTSD is productive of intrusive thoughts, social isolation, occasional suicidal ideation, increased arousal and hypervigilance, difficulty sleeping, obsessive behavior, "near continuous" panic attacks, impaired impulse control, neglect of personal appearance and hygiene, inability to establish and maintain effective relationships, memory loss, occasional auditory and visual hallucinations, poor concentration, depressed mood, and anhedonia. 2. The veteran's PTSD has not resulted in total impairment due to symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. CONCLUSION OF LAW The criteria for an evaluation of 70 percent, but not higher, for post-traumatic stress disorder are met for the entire period of time covered by this appeal. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.130, Diagnostic Code 9411 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this case, the veteran contends that his service-connected PTSD has worsened, and this decline warrants a higher disability evaluation. The veteran was originally granted service connection for PTSD in a rating decision dated July 2001. The RO evaluated the veteran's PTSD as 50 percent disabling, effective September 27, 1999. The rating decision currently on appeal was issued in April 2004 and continued the veteran's 50 percent evaluation for PTSD. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred in or aggravated by military service and the residual conditions in civilian occupations. 38 U.S.C.A.§ 1155; 38 C.F.R. §§ 3.321(a), 4.1. The present level of disability is of primary concern where, as here, an increase in an existing disability rating based on established entitlement to compensation is at issue. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A recent decision of the United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Based upon the guidance of the Court in Hart, the Board has considered whether a staged rating is appropriate in this instance. However, in the present case, the veteran's symptoms remained constant throughout the course of the period on appeal and as such, staged ratings are not warranted. When evaluating a mental disorder, consideration shall be given to the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The evaluation will 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. It is the responsibility of the rating specialist to interpret examination reports in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. §§ 4.2, 4.126. Global assessment of functioning (GAF) scores, which reflect the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health, are also useful indicators of the severity of a mental disorder. See Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV). GAF scores ranging between 61 to 70 reflect 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 indicate that the individual is functioning pretty well, and has some meaningful interpersonal relationships. Scores between 51 to 60 are indicative of 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 peers or co-workers). GAF scores between 41 to 50 reflect 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). Scores between 31 to 40 indicate 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). Under the provisions of 38 C.F.R. § 4.130, a 50 percent rating is warranted when there is 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent evaluation 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 ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting 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 work-like setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating is not warranted unless there is 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. Use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the veteran's social and work situation. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The Board has reviewed all of the evidence of record in this case. As a preliminary matter, the Board notes that numerous VA group and individual counseling treatment notes are associated with the veteran's claims file. These treatment notes, while indicative of the veteran's ongoing treatment for PTSD, have limited probative value because the treatment notes do not discuss the specific manifestations of the veteran's PTSD. The first pertinent post-service treatment note is dated December 2000. The veteran was afforded a VA Compensation and Pension (C&P) Examination at that time. The veteran reported subjective symptoms of disturbing day dreams, nightmares, and difficulty sleeping. The veteran described himself as "antisocial" and indicated that he disliked crowds and preferred social isolation. Upon mental status examination, the examiner described the veteran as awake, alert, and fully oriented. The veteran's speech was spontaneous and unremarkable with no evidence of gross cognitive dysfunction. The veteran denied psychotic symptoms as well as suicidal and homicidal ideation, but acknowledged having suicidal ideation, as well as visual and auditory hallucinations when drinking heavily. The examiner noted that the veteran had symptoms of increased arousal, including difficulty falling and staying asleep, outbursts of anger, difficulty concentrating, hypervigilance, and an increased startle response. The veteran's GAF score was 55 which indicated moderate to severe impairments in social, psychological, and occupational functioning, according to the examiner. The examiner also noted that the veteran's alcohol abuse represented an effort to self-medicate and avoid uncomfortable thoughts and feelings associated with his military service. In May 2003, the veteran sought VA outpatient psychiatric treatment after experiencing severe family problems. Upon mental status examination, the staff psychiatrist described the veteran as oriented, alert, coherent, and logical as well as depressed and nervous. The same staff psychiatrist indicated in a September 2003 letter that the veteran experienced chronic, severe PTSD which was manifested by an inability to work due to total disability, poor family situations, chronic depression, obsessive rituals, irritability, impaired impulse control, hostility, no effective relationships, and problems with attention and concentration. (Emphasis in original). The staff psychiatrist indicated that the veteran's GAF score at that time was 39. The veteran was afforded a second VA C&P examination in connection with the current claim in November 2003. The veteran reported continued flashbacks and nightmares, as well as alcohol consumption at the time of the examination. The veteran indicated that he was unable to work because people were unwilling to hire him due to the extent and severity of his combat-related injuries. He became tearful when he discussed this situation. The veteran also stated that his relationship with his wife had worsened since the previous examination. In particular, the veteran found it difficult to go out in public, and this difficulty purportedly led to limited opportunities for him and his wife to socialize with other people. The examiner also noted the veteran's continued problems with alcohol abuse. Upon mental status examination, the examiner described the veteran's speech as normal in rate, tone, and volume. The veteran's thought process and content was logical and goal- directed, and no evidence of suicidal or homicidal ideation or auditory or visual hallucinations was noted. The examiner described the veteran's mood as depressed. The veteran's GAF score was 49. The examiner diagnosed the veteran as having PTSD and noted that there had been an increase in the veteran's depression which was exacerbated by his alcohol abuse. In a February 2004 Residential Rehabilitation Program telephone interview, the veteran reported having intrusive thoughts, nightmares, flashbacks, numbing/avoidance, and hyperarousal. The veteran also reported feelings of depression, but denied suicidal ideation. Similarly, the veteran reported experiencing serious depression, serious anxiety or tension, trouble understanding, concentrating, or remembering, and trouble controlling violent behavior in a March 2004 VA mental health treatment note. However, he denied suicidal ideation at that time. The veteran underwent a VA psychosocial assessment in April 2004. The veteran was alert and oriented upon psychiatric examination with coherent speech, logical thought process, and normal motor activity. The veteran reported poor concentration, but no evidence of suicidal or homicidal ideation or hallucinations were noted at that time. The examiner described the veteran's mood as nervous. The Board notes that a letter dated May 2004 from the same VA staff psychiatrist referenced above is associated with the veteran's claims file. The examiner stated that the veteran had chronic, severe PTSD, and that he had not been able to work since 1970. The examiner noted that the veteran had a dysfunctional family situation and that the veteran was frequently angry and isolated. The examiner further noted that the veteran had suicidal ideation "from time to time," and that he had "near continuous" panic and depression, impaired impulse control, no friends, an inability to maintain effective relationships, and a neglected personal appearance and hygiene. VA mental health treatment notes dated August 2004, December 2004, January 2005, and February 2005 revealed improvement in the veteran's overall psychiatric condition. Notably, the veteran denied suicidal and homicidal thoughts as well as hallucinations at those times. It was noted that the veteran's psychiatric condition was "stable" while on medication. However, documentation associated with the veteran's claims file shows that he was admitted for inpatient psychiatric treatment in June 2005 after reporting feelings of depression and suicidal ideation. The veteran attributed his depression and suicidal feelings to his personal health problems, family problems with his wife and son, and possible legal problems stemming from his involvement in an alcohol-related motor vehicle accident. The admitting nurse indicated that the veteran was still drinking alcohol at the time of admission. The veteran indicated during a mental health history and physical examination that he was "feeling bad . . . feeling suicidal" and that his PTSD appeared to be getting worse. The veteran stated that he had anhedonia, was "very depressed," sleeping for approximately 15 hours per night, and unable to perform activities of daily living. The veteran further indicated that although he was not currently suicidal, he felt that he might be better off dead. He described feelings of hopelessness, irritability, helplessness, and worthlessness. The examiner noted that the veteran's thought process was linear and his affect was depressed. No evidence of psychosis or delusional content was noted. The veteran's GAF score was 30. The examiner diagnosed the veteran as having PTSD. A mental health nurses note, also dated June 2005, found the veteran to have auditory and visual hallucinations as well as suicidal ideation. No evidence of homicidal ideation was noted. Given the evidence of record, the Board finds that the preponderance of the evidence supports a finding for an evaluation of 70 percent, but not higher, in this instance. For example, the veteran's GAF scores during this period of time ranged from 30 to 55. As noted above, GAF scores between this range reflect a variation in psychosocial functioning which includes serious impairment in communication or judgment or an inability to function in most areas (e.g., GAF scores of 21 to 30) to moderate symptoms or moderate difficulty in social, occupational, or school functioning (e.g., GAF scores of 51 to 60). Although the evidence of record shows periods of improved psychiatric functioning, the totality of the evidence shows that the veteran's overall disability picture more nearly approximates the criteria for an evaluation of 70 percent in this case. VA treatment records show that the veteran has significant impairment in many aspects of psychosocial functioning, such as mood and judgment, as well as relations with his wife and family, due to intrusive thoughts, social isolation, occasional suicidal ideation, increased arousal and hypervigilance, difficulty sleeping, obsessive behavior, "near continuous" panic attacks, impaired impulse control (such as unprovoked irritability with periods of violence), neglect of personal appearance and hygiene, inability to establish and maintain effective relationships, memory loss, occasional auditory and visual hallucinations, poor concentration, depressed mood, and anhedonia. Although occupational and social functioning is significantly affected, the record does not demonstrate that the veteran's symptomatology more nearly approximates the criteria required for a rating of 100 percent. Specifically, no evidence of gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, disorientation to time or place, or memory loss for names of closes relatives, own occupation, or own name were noted. Thus, the veteran is not entitled to a 100 percent evaluation. The Board observes that the veteran shows some signs of intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene) and occasional hallucinations, but these alone are insufficient to more nearly approximate the criteria required for a rating in excess of 70 percent. The Board further finds that there is no evidence of any unusual or exceptional circumstances, such as marked interference with employment or frequent periods of hospitalization related to the veteran's service-connected PTSD that would take the veteran's case outside the norm so as to warrant an extraschedular rating. Therefore, referral by the RO to the Chief Benefits Director of VA's Compensation and Pension Service, under 38 C.F.R. § 3.321, is not warranted. See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the veteran and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the veteran is expected to provide; and (4) must ask the veteran to provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). For an increased-compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the veteran that, to substantiate a claim, the veteran must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the veteran's employment and daily life. Vazquez-Flores v. Peake, No. 05- 0355, (U.S. Vet. App. January 30, 2008). Further, if the Diagnostic Code under which the veteran is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the veteran demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the veteran's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the veteran. Additionally, the veteran must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the veteran may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, slip op. at 5-6. The veteran was notified in a October 2003 VCAA letter that he could submit evidence showing his service-connected PTSD had increased in severity. The veteran was informed that evidence of an increase in severity could be submitted in the form of statements from his doctor containing physical and clinical findings, the results of laboratory tests or x-rays, and lay statements from individuals who could describe the manner in which the disability had become worse. The veteran was told to inform the RO of dates of treatment at VA facilities so those records could be obtained, and that if he had not been recently examined or treated, he could submit his own statement indicating the frequency and severity of symptoms and additional disability caused by the conditions. Additionally, the Board points out that the veteran received this notice prior to the initial AOJ decision in this matter. However, the Board notes that the October 2003 VCAA letter fails to provide information about the effect that worsening has on the veteran's employment and daily life. In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial, and that once an error is identified as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the veteran. The Federal Circuit stated that requiring a veteran to demonstrate prejudice as a result of any notice error is inconsistent with the purposes of both the VCAA and VA's uniquely pro-veteran benefits system. Instead, the Federal Circuit held in Sanders that all VCAA notice errors are presumed prejudicial unless VA can show that the error did not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (1) that any defect was cured by actual knowledge on the part of the veteran, see Vazquez-Flores v. Peake, No. 05-0355, slip op. at 12 (U.S. Vet. App. January 30, 2008) ("[a]ctual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim.")(citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007)); (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Sanders, 487 F.3d at 889. Additionally, consideration also should be given to "whether the post-adjudicatory notice and opportunity to develop the case that is provided during the extensive administrative appellate proceedings leading to the final Board decision and final Agency adjudication of the claim ... served to render any pre-adjudicatory section 5103(a) notice error non-prejudicial." Vazquez-Flores, slip op. at 9. In this case, the Board finds that any notice errors with respect to the information and evidence needed to substantiate an increased rating claim for PTSD are harmless error and did not affect the essential fairness of the adjudication. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006). The veteran was provided with the rating criteria for PTSD in the May 2005 Statement of the Case. The Board notes that the veteran's claim was readjudicated following notice of this information by way of an August 2005 Supplemental Statement of the Case. The veteran and his representative have also provided specific arguments concerning the propriety of an increased rating thereby demonstrating actual knowledge of the relevant criteria. Given his contentions and the evidence of record, the veteran has demonstrated his affirmative understanding, i.e., he had actual knowledge of what was necessary to substantiate his increased rating claim. Thus, the purpose of the notice, to ensure that he had the opportunity to participate meaningfully in the adjudication process, was not frustrated because he had actual knowledge of what was necessary to substantiate his claim prior to the Board's consideration of this matter, ensuring the essential fairness of the adjudication. Based on the notices provided to the veteran, the Board finds that a reasonable person could be expected to understand what information and evidence is required to substantiate an increased rating claim based on PTSD. The Board further observes that during the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which 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. 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. In the present appeal, the veteran had actual knowledge of the information and evidence needed to substantiate his increased rating claim. However, the veteran was not provided with notice of the information and evidence necessary to establish a disability rating and an effective date for the disability on appeal. Nevertheless, the Board concludes that this error is harmless. The RO can cure this error by implementing the Board's decision which grants the veteran a 70 percent disability evaluation for his PTSD. The RO will assign an effective date at that time, and the veteran is able to challenge that issue in the future if he so chooses. In sum, the Board finds that any deficiency in the notice to the veteran or the timing of the notice is harmless error. The presumption of prejudice on the VA's part has been rebutted in this case by the following: (1) the veteran clearly has actual knowledge of the evidence he is required to submit in this case based on his contentions and the communications sent to the veteran over the course of this appeal; and (2) based on the veteran's contentions and the communications over the course of this appeal, he is found to be reasonably expected to understand from the notices provided what was needed. The Board also finds that all of the relevant facts have been properly developed, and that all available evidence necessary for an equitable resolution of the issues has been obtained. The veteran's available service medical records have been obtained. The veteran's post-service treatment records have been obtained. The veteran was afforded a VA examination in connection with the current claim. The representative has argued that another examination is warranted, however, the mere passage of time is insufficient to warrant another examination. In this case, there are numerous medical records which sufficiently document the severity of the veteran's psychiatric condition, therefore, the Board does not find that another VA examination is warranted. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the veteran's claims. Therefore, no further assistance to the veteran with the development of the evidence is required. ORDER A 70 percent evaluation for PTSD is granted for the entire period of time covered by this appeal, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs