Citation Nr: 0809896 Decision Date: 03/25/08 Archive Date: 04/09/08 DOCKET NO. 02-01 783 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a rating in excess of 70 percent for post- traumatic stress disorder (PTSD). 2. Entitlement to an effective date earlier than May 26, 2000, for the award of a total rating based upon individual unemployability (TDIU) 3. Entitlement to an effective date earlier than May 26, 2000, for the award of Dependent's Educational Assistance benefits. ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a veteran who served on active duty from September 1949 to September 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2001 rating decision on behalf of the Roanoke, Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA). That decision, among other things, granted an increased 50 percent rating for PTSD effective from May 26, 2000, and denied entitlement to a total rating based upon individual unemployability. These issues were remanded by the Board for additional development in December 2002 and March 2006. In an October 2007 rating decision the RO granted entitlement to an increased 70 percent rating effective from May 26, 2000, and granted a TDIU and Dependent's Educational assistance (DEA) effective from May 26, 2000. The Board notes that during the course of this appeal the United States Court of Appeals for Veterans Claims (hereinafter "the Court") remanded the issue of entitlement to a compensable rating for malaria for further development. A March 2006 Board decision has to this issue has become final. The appellate issue of entitlement to a total rating based upon individual unemployability is also consider to have been resolved in the veteran's favor by an October 2007 rating decision. In correspondence dated in November 2007 the veteran submitted a timely notice of disagreement from the October 2007 rating decision establishing entitlement to a total rating based upon individual unemployability and Dependent's Educational Assistance benefits. The Court has held that where the Board finds a notice of disagreement has been submitted regarding a matter which has not been addressed in a statement of the case, the issue should be remanded for appropriate action. Manlincon v. West, 12 Vet. App. 238 (1999). Therefore, the issue of entitlement to an effective date earlier than May 26, 2000, for the award of a total rating based upon individual unemployability and Dependent's Educational Assistance benefits must be remanded. This matter is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. All relevant evidence necessary for the equitable disposition of the issue on appeal was obtained. 2. The veteran's service-connected PTSD is manifested by no more than an occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as obsessional rituals which interfere with routine activities, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, impaired impulse control, spatial disorientation, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships. CONCLUSION OF LAW The criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2006); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the Court have been fulfilled by information provided to the veteran by correspondence dated in April 2006 and August 2006. Those letters notified the veteran of VA's responsibilities in obtaining information to assist in completing his claim, identified the veteran's duties in obtaining information and evidence to substantiate his claim, and requested that he send in any evidence in his possession that would support his claim. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006), Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006). During the pendency of this appeal, the Court in Dingess/Hartman found that the VCAA notice requirements applied to all elements of a claim. The April 2006 and August 2006 notices provided in this case also addressed these matters. The Board further finds that the veteran, through written statements made to VA has demonstrated actual knowledge of all relevant VA laws and regulations. See Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008). The notice requirements pertinent to the issue on appeal have been met and all identified and authorized records relevant to the matter have been requested or obtained. Although copies of VA treatment reports dated November 16, 2006, and December 19, 2006, are not included in the available record, the substance of those reports were summarized with agreement by a January 2007 VA examiner. There is no indication that efforts to obtain copies of these reports would materially contribute to the veteran's present claim. The Board finds that further attempts to obtain additional evidence would be futile. The available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to move forward with the claim would not cause any prejudice to the appellant. Laws and Regulations Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155(West 2002); 38 C.F.R. § 4.1 (2007). The Court has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). It is the responsibility of the rating specialist to interpret reports of examination 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 (2007). Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Evaluation of disabilities based upon manifestations not resulting from service- connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses is prohibited. 38 C.F.R. § 4.14 (2007). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3 (2007). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation 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. 38 C.F.R. § 4.126(a) (2007). When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). General Rating Formula for Mental Disorders: 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 100 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 70 38 C.F.R. § 4.130, Diagnostic Code 9411 (2007). The Court has held that GAF scale scores reflect the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); Richard v. Brown, 9 Vet. App. 266 (1996) (citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (4th ed.) (DSM-IV), p. 32). Global Assessment of Functioning Scale 70 - 61 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, and has some meaningful interpersonal relationships. 60 - 51 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). 50 - 41 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). 40 - 31 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). See 38 C.F.R. § 4.130 (2007) (the nomenclature employed in the schedule is based upon the DSM-IV, which includes the GAF scale). VA law provides that the effective date of an evaluation and award of compensation for an increased rating claim is the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400 (2007). An earlier effective date may be assigned when it is factually ascertainable that an increase in disability occurred and the claim for increase was received within one year from that date, but otherwise the date of receipt of the claim. 38 C.F.R. § 3.400(o)(2). In determining whether or not an increase was factually ascertainable during the year prior to receipt of an increased rating claim, the Board will review the entirety of the evidence of record. See Hazan v. Gober, 10 Vet. App. 511, 520 (1997) (also holding that for effective date purposes, the claim must be the application on the basis of which the rating was awarded). Factual Background The pertinent evidence of record includes a July 1998 VA treatment report by a physician who noted a five year treatment relationship with the veteran and provided a diagnosis of prolonged, severe PTSD. It was noted that his symptoms of nightmares, flashbacks, depression, irritability, and isolation/withdrawal had been of sufficient severity to severely hamper his social life, and were he not retired, he would be unable to work. A January 1999 treatment report noted complaints of mood swings and decreased impulse control with increased obsessive-compulsive traits. It was noted that he stated his PTSD symptoms had increased since the recent death of his sister with occasional suicidal ideation, but that he had contracts for safety. Mental status examination revealed he was alert, fully oriented, and very well groomed. His affect was initially bright, but rapidly changed to sad and depressed when he began talking about his concerns. Overall, his mood was depressed and his affect was restricted, moderately anxious, and dysthymic. His thought process was linear, logical, and goal directed. He denied audio or visual hallucinations and denied present homicidal or suicidal ideation. The examiner noted his insight was moderately decreased, but that his judgment was good. The diagnoses included PTSD, adjustment disorder with obsessive compulsive traits, and rule out dysthymia. A GAF score of 65 was provided. Subsequent VA treatment records show the veteran attended regular group therapy sessions. A July 1999 treatment report noted similar findings and provided a GAF score of 60; however, treatment reports in September 1999, February 2000, April 2000, and May 2000 provided GAF scores of 65. A March 2000 treatment report noted a GAF score of 70. In statements in support of his claim the veteran and various acquaintances described problems he had with depression and social interaction. In his application for a total rating based upon individual unemployability the veteran stated that he had retired from the telephone company in July 1990 because of his PTSD. He reported that he had not tried to obtain employment since his retirement. On VA examination in June 2000 the veteran reported subjective complaints including insomnia, nightmares, obsessive compulsive behavior, dizzy spells, anxiousness, obsessional rituals, constant depression, and obtrusive distressing thoughts and recollections of his war experiences up to three or four times per day. It was noted he denied any panic attacks or any attempts to harm himself. The veteran stated that he had taken an early retirement after 34 years of employment because of a disagreement with his supervisor. The examiner noted the veteran was alert and oriented. His dress, grooming, and hygiene were good. His behavior was appropriate and he was cooperative and talkative. His mood was anxious and depressed. He appeared to be tense and restless and was tearful on one occasion. He only rarely smiled and he showed some memory difficulties. His speech was circumstantial, but clear, relevant, and logical. His affect was appropriate, but restricted in range. Psychomotor activity was within normal limits. No psychotic abnormalities were noted. His insight was fair and his fund of general information, abstract thinking, and judgment were intact. Concentration was adequate. His immediate and recent memories were impaired, but his remote memory was intact. The diagnosis was PTSD. VA Psychology group notes dated in March and September 2005, January 2006 reflect that the attending psychologist assigned the veteran a GAF score of 46 on those occasions. Other treatment records reflect that the veteran regularly attended various types of mental health therapy; however, GAF scores were not noted in those records. A January 2007 VA examination report noted the veteran's claims file was reviewed and that psychiatric notes dated in November and December 2006 indicated his PTSD rendered him unemployable due to difficulty with social situations and difficulty maintaining concentration and attention. The notes also indicated that examiner had been treating the veteran for six years. On mental status examination the veteran presented a restricted affect and appeared extremely anxious and dysphoric. There appeared to be a mild impairment of thought processing and communication. His thinking was often tangential and circumstantial. He had difficulty staying in the present, but there were no delusions or hallucinations. He denied homicidal or suicidal thinking. It was noted that his personal hygiene and activities of daily living were adequate. He was oriented, but described significant short-term memory difficulties. He reported significant obsessive-compulsive behavior and the examiner commented that some of this appeared to be related to his PTSD. He denied experiencing panic attacks, but reported he woke up terrified from nightmares, had chronic feelings of depressed mood daily, had chronic anxiety due to hypervigilance, and had excessive worry, tension, and an inability to relax. He also complained of poor impulse control with periodic verbal outburst including to his one and only friend. He stated his sleep was poor. The examiner provided a diagnosis of PTSD and provided a GAF score of 45 due to a serious impairment in numerous areas of life including social and occupational functioning. It was noted the veteran appeared to be severely incapacitated by his PTSD symptomatology and the examiner noted agreement with the opinion of the veteran's VA psychiatrist that he would not likely be able to maintain effective employment due to his PTSD symptoms of extreme anxiety, chronic depression, poor concentration, minimal tolerance for even mild stress, and difficulty with social interactions. Analysis As an initial matter, the Board finds that the veteran's appeal from an April 1991 rating decision establishing service connection for PTSD and assigning a 10 percent disability rating was resolved by the award of a 30 percent rating in July 1993. In correspondence dated in August 1993 the veteran was notified that all benefits claimed had been allowed and that his appeal was considered as having been withdrawn. The July 1993 rating decision is final and a review of the record shows the veteran's correspondence requesting an increased rating was received by the RO on May 26, 2000. In light of the Court's decision in Hart and applicable VA regulations, the issue of entitlement to higher or "staged" ratings must be considered, if warranted, from one year prior to the date of the claim for increase or May 26, 1999. Based upon the evidence of record, the Board finds the veteran's service-connected PTSD is manifested by no more than an occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as obsessional rituals which interfere with routine activities, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, impaired impulse control, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships. The January 2007 VA examiner's opinion is persuasive as to these matters and is consistent with PTSD symptoms identified in the June 2000 VA examination report. In light of the medical findings on VA treatment records dated in the years 1999 and 2000 including GAF scores in the 60 to 70 range, it is not factually ascertainable that the criteria for a 70 percent rating were met prior to May 26, 2000. There is also no probative evidence of a total occupational and social impairment due to PTSD symptoms such 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, or a memory loss for names of close relatives, own occupation, or own name. While the veteran's PTSD has been described as serious and severe, there is no medical evidence demonstrating a total occupational and social impairment nor are any of the symptoms identified as associated with a 100 percent schedular rating manifest in this case. Therefore, the Board finds that entitlement to an increased or "staged" rating in excess of 70 percent for PTSD is not warranted. The Board also finds there is no evidence of any unusual or exceptional circumstances, such as marked interference with employment or frequent periods of hospitalization related to this service-connected disorder, that would take the veteran's case outside the norm so as to warrant an extraschedular rating. The veteran's present rating clearly reflects a severe, but less than total, occupational impairment. The schedular ratings are adequate in this case and the veteran is presently in receipt of a total rating based upon individual unemployability effective from the date of his claim. There is no probative evidence demonstrating the veteran's interference with employment because of PTSD represents an unusual or exceptional circumstance. 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 (1996). When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against the claim. ORDER Entitlement to a rating in excess of 70 percent for PTSD is denied. REMAND The provisions of the VCAA, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the Court are applicable to this case. As a statement of the case has not been issued from the veteran's disagreement with the October 2007 rating decision as to the issue of entitlement to an effective date earlier than May 26, 2000, for the award of a total rating based upon individual unemployability and Dependent's Educational Assistance benefits, the Board finds additional development is required. Manlincon, 12 Vet. App. 238. Accordingly, the case is REMANDED for the following action: The veteran should be provided a statement of the case on the issue of entitlement to an effective date earlier than May 26, 2000, for the award of a total rating based upon individual unemployability and Dependent's Educational Assistance benefits. He should be apprised that to perfect the appeal on this issue for Board review he must submit a substantive appeal. The requisite period of time for a response should be allowed. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006). ____________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs