Citation Nr: 0809891 Decision Date: 03/25/08 Archive Date: 04/09/08 DOCKET NO. 03-26 251 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an initial evaluation in excess of 70 percent for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E.B. Joyner, Associate Counsel INTRODUCTION The veteran served on active duty from September 1969 to August 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which granted service connection for PTSD and assigned a 10 percent rating, effective May 31, 2002. Then, in an August 2003 rating decision, the RO increased the rating for PTSD to 50 percent, effective May 31, 2002. Thereafter, in August 2005, the Board remanded the claim and in a November 2005 rating decision, the RO granted an increased rating of 70 percent, effective May 31, 2002. When the case was last before the Board in July 2006, it was again remanded for additional development. FINDING OF FACT The veteran's PTSD is not productive of total social and occupational impairment. CONCLUSION OF LAW The criteria for an initial rating in excess of 70 percent for PTSD have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.126, 4.130, Diagnostic Code 9411 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). The notice requirements of the VCAA require VA to notify the veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; what subset of the necessary information or evidence, if any, the VA will attempt to obtain; and a general notification that the claimant may submit any other evidence he has in his possession that may be relevant to the claim. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule); see also Sanders, 487 F.3d 881. In this case, in a June 2002 letter, which was issued prior to the decision on appeal, the RO provided notice to the veteran regarding what information and evidence is needed to substantiate a claim for an service connection, as well as what information and evidence must be submitted by the veteran, what information and evidence will be obtained by VA, and the need for the veteran to advise VA of or submit any further evidence he has in his possession that pertains to the claim. An August 2005 letter provided examples of the types of evidence to submit to support the claim, and VA examinations addressed how the veteran's symptoms impact his social and occupational activities. Finally, the July 2006 letter advised the veteran of the types of evidence to submit, such as statements from his doctor, statements from other individuals describing their observations, or his own statement describing the symptoms, frequency, severity and additional disablement caused by his disability. See Vazquez-Flores v. Peake, No. 05-0355, (U.S. Vet. App. January 30, 2008). In addition, the letter advised the veteran of the type of evidence needed to establish a disability rating, including evidence addressing the impact of his condition on employment and the severity and duration of his symptoms, and of the evidence the needed to establish an effective date. Id. The veteran was provided with the rating criteria to establish disability ratings for PTSD in the August 2003 statement of the case. The claim was last readjudicated in October 2007. Id. In any event, the veteran is challenging the initial evaluation assigned following the grant of service connection. In Dingess, the Court held that in cases in which service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. See generally Turk v. Peake, No. 06-69 (U.S. Vet. App. Jan. 31, 2008) (where a party appeals from an original assignment of a disability rating, the claim is classified as an original claim, rather than as one for an increased rating); see also Shipwash v. Brown, 8 Vet. App. 218, 225 (1995); see also Fenderson v. West, 12 Vet. App. 119 (1999) (establishing that initial appeals of a disability rating for a service- connected disability fall under the category of "original claims"). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the veteran. Specifically, the information and evidence that have been associated with the claims file includes the veteran's service treatment records and post-service medical records and examination reports. As discussed above, the VCAA provisions have been considered and complied with. The veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The veteran's representative at the RO argued in September 2003 that his treatment reports warrant a 70 to 100 percent rating, and in the June 2006 letter he stated the criteria for the 100 percent rating, thus showing actual knowledge of the rating criteria. Moreover, the evidence obtained during the course of the appeal permitted the veteran's evaluation to be increased from the originally assigned 10 percent rating to 70 percent effective back to the date of claim. There is no additional notice that should be provided and there is no indication that there is other evidence to obtain. Moreover, as the Board concludes below that the preponderance of the evidence is against the claim, any question as to an effective date to be assigned is rendered moot. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the veteran. See Sanders, 487 F.3d 881. Thus, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in 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, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991 Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999) PTSD is evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9411, which provides that 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 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 warranted where there is evidence of 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; disorientation to time or place; memory loss for names of close relatives, own occupation or own name. One factor to be considered is the Global Assessment of Functioning (GAF) score which is a scale reflecting the "psychological, social and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) [citing the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM IV), page 32]. A GAF Score of 11 to 20 indicates that there is some danger of hurting oneself or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement), or an occasional failure to maintain minimal personal hygiene, or gross impairment in communication. A GAF score of 21 to 30 indicates that behavior is considerably influenced by delusions or hallucinations, or serious impairment in communication or judgment (e.g., sometimes incoherent, acting grossly inappropriately, suicidal preoccupation), or an inability to function in almost all areas (e.g., stays in bed all day; no job, home, or friends). A GAF Score of 31 to 40 indicates some impairment in reality testing or communication (e.g., speech at times illogical, obscure, or irrelevant), or where there is 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). A GAF of 41 to 50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., few friends, unable to keep a job). A GAF of 51 to 60 indicates moderate symptoms (e.g., flattened 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). A GAF of 61 to 70 indicates some mild symptomatology (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or social functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, with some meaningful interpersonal relationships. While the Rating Schedule does indicate that the rating agency must be familiar with the DSM IV, it does not assign disability percentages based solely on GAF scores. See 38 C.F.R. § 4.130 (2004). Accordingly, GAF scores do not automatically equate to any particular percentage in the Rating Schedule. Rather, they are but one factor to be considered in conjunction with all the other evidence of record. The veteran claims that he is entitled to a higher rating for his service-connected PTSD. According to VA mental health progress notes dated from May 2002 through June 2003, the veteran has chronic, severe PTSD. On mental status examination, the veteran was consistently alert and oriented. He was pleasant and cooperative and had good eye contact. His affect was appropriate and full range. There was no disordered speech, thought process, or thought content. There were no hallucinations. Cognition was noted to be intact. The veteran did not endorse homicidal or suicidal ideation, and insight and judgment were fair. A July 2003 VA mental health PTSD clinic note states that the veteran was functioning fairly well and was stable on his current medications. However, he continued to endorse some sleep problems. The veteran also continued to be employed. On examination, he was alert, oriented, and appropriately groomed and dressed. He was pleasant, cooperative, and had good eye contact. His affect was appropriate and full range. There was no disordered speech, thought process, or thought content. There were no hallucinations and cognition was intact. The veteran did not endorse homicidal or suicidal ideation. His insight and judgment were noted to be fair. The July 2003 VA examination report notes that the veteran complained of visual and auditory hallucinations. Specifically, he reported that in February 2003 he was picked up by the police while in a delusional state at a hotel parking lot. He said that he was taken to the hospital and treated on an acute emergency basis. At the VA examination the veteran appeared appropriately dressed and groomed. He maintained eye contact and was generally able to express himself in a relevant manner. At times he had difficulty recalling information and seemed somewhat confused when he tried to relate information in an orderly sequence. He was basically oriented as to date and time, but he was one day off with the current date. He could recall the current U.S. President, but could not remember any predecessors. He could repeat three words, but could recall only one after interference. He could not spell the word "world" correctly. He was unable to perform serial addition and subtraction problems and he was unable to interpret proverbs or similarities. The examiner opined that the veteran's basic cognitive functioning appeared to be impaired. The examiner stated that the veteran displayed impairment in reasoning, recall, attention, concentration, and judgment. On this point, the examiner opined that years of heavy drug abuse and alcohol abuse may have taken a toll on the veteran's neurological functioning. The examiner suggested that a more comprehensive neuropsychiatric evaluation may be required to determine more completely the extent and nature of the veteran's impairment. His GAF score was 35. Outpatient treatment records dated five days previously noted he was alert and oriented with appropriate hygiene. He was pleasant and cooperative, with good eye contact. His affect was appropriate and full. There was no disordered speech, thought process or thought content, and no suicidal or homicidal ideation. His cognition was intact and his insight and judgment were fair. Subsequent treatment notes indicate there was no change in his mental status since the last visit, and that he was doing well in his scheduled work therapy. In July 2003 he was noted to be working a full 8 hour shift in his July 22 to 28 work therapy, and continued to do well in work therapy thereafter. May 2004 treatment records noted good hygiene, normal speech and full affect. Subsequent records show similar findings. According to the September 2005 VA examination report, the veteran displayed good grooming and hygiene. His thoughts were well-organized and his thought process was goal directed. He had no hallucinations or delusions, and no suicidal or homicidal ideation. He was noted to have been coping with his active PTSD; however, it is significant to note that his PTSD was not disrupting job training. The examiner pointed out that the veteran was consistently (for over a year) involved in vocational rehabilitation work adjustment, attended AA, participated in church activities many times a week, and had been married for five months. He reported significant sleep problems, intrusive memories of Vietnam once or twice a day, hyperarousal, anger problems, and irritability without actual physical aggression. During the examination the veteran had a flat, non-spontaneous, and dull affect. He spoke slowly and softly and his energy level was listless. His GAF score was 45, representing serious symptoms. VA progress notes from August 2005 and May 2006 note that the veteran is employed at a VA Medical Center. The most recent progress notes from September 2006 indicate that the veteran had been experiencing an increase in PTSD symptoms after being off of his medication. Mental status examination revealed that the veteran was casually dressed, neat, and well groomed. His behavior was reserved, formal, and polite. He had a mild decrease in eye contact. Motor skills were normal. His speech was slow, soft, and restricted in range of tone. His mood was mildly depressed and his affect was constricted. His thought process was logical, well-organized, and goal-directed. His thought content was devoid of hallucinations, delusions, homicidal ideations, and suicidal ideations. His concentration was good and his memory was intact. His motivation was fair. The examiner noted that the veteran's insight and judgment were good in that he was aware of his own need to stay on medication and follow-up with his doctors. GAF score was 50. On review of the medical evidence, the Board is of the opinion that the veteran's PTSD is appropriately rated as no more than 70 percent disabling. Overall, the veteran's PTSD is serious, and as mentioned above, he suffers significantly. However, he has never been found to have intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), persistent delusions or hallucinations, grossly inappropriate behavior, memory loss for names of close relatives or own name, or been determined to be a danger to himself or others; symptoms associated with a 100 percent rating. Although the July 2003 examination reports shows impairment in thought process or communication and a GAF score of 35, this appears to be an isolated incident, as no other medical evidence contains findings to such an extent, including treatment records dated within five days of that examination, and records a few weeks later fail to reflect any such difficulty. In fact, the veteran was able to work full 8 hour shifts later that month. Furthermore, the VA examiner who conducted the July 2003 examination stated that such impairment was likely related to years of drug abuse. As stated above, the veteran's PTSD disability picture is serious, and his current GAF scores of 45-50 reflect such impairment. However, he is currently married and getting along well with his wife, he is currently employed, he attends church and other social functions (albeit with caution and reservation), and his overall social and occupational impairment throughout the period of this claim does not more nearly approximate the total impairment required for a 100 percent rating than the deficiencies in most areas contemplated by the assigned 70 percent rating. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. ORDER Entitlement to an initial evaluation in excess of 70 percent for PTSD is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs