Citation Nr: 0810147 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 06-39 313 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an increased rating for post-traumatic stress disorder (PTSD), currently evaluated as 70 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and her spouse ATTORNEY FOR THE BOARD F. Fuller, Associate Counsel INTRODUCTION The veteran served on active duty from June 1975 to April 1980. This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The veteran testified at a Video Conference Hearing chaired by the undersigned Veterans Law Judge in October 2007. A transcript of the hearing is associated with the veteran's claims folder. During the hearing, the veteran submitted additional medical evidence, which has not been reviewed by the RO, with a waiver of initial RO consideration of these records. FINDING OF FACT The veteran's PTSD is productive of occupational and social impairment which more nearly approximate deficiencies in most areas than total occupational and social impairment. CONCLUSION OF LAW The schedular criteria for a disability evaluation in excess of 70 percent for PTSD have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2007). 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 or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2007). Each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2 (2007). 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The veteran's entire history is to be considered when making a disability determination. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). This includes consideration of the evidence pertaining to the level of disability from the time period one year before the claim was filed. 38 U.S.C. § 5110. In addition, the Court has determined that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, Vet. App. No. 05-2424 (November 19, 2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Codes 9411. Analysis The veteran contends that the symptomatology associated with her PTSD warrants a rating higher than 70 percent. In assessing the evidence of record, it is important to note that the GAF score is based on a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). Scores ranging from 31 to 40 reflect "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 other children, is defiant at home, and is failing at school)." Id. A score of 41 to 50 is indicated where there are "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)." Id. A score of 51-60 is appropriate where there are, "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)." Id. In a June 1998 rating decision, the RO granted the veteran service connection for PTSD. A 30 percent evaluation was assigned, effective February 28, 1997. In a September 2003 rating decision, the RO increased the veteran's rating for PTSD to 70 percent, effective May 15, 2003. This increased rating was based on evidence from a July 2003 VA examination which showed that the veteran experienced the following symptoms of PTSD: nightmares two to three times per week; hypervigilance; occasional suicidal thinking; increased stress; and flashbacks. The veteran was assigned a GAF score of 45 at that time, indicative of severe symptoms. The examiner noted that the veteran's PTSD was severe and continued to be increasing in severity and intensity since her previous evaluation. The examiner's diagnosis was PTSD, severe and chronic and dysthymic disorder, moderate. In February 2004, the veteran filed a claim for an increased disability rating for her service-connected PTSD based on unemployability. In response to her claim, she was afforded a VA examination in April 2004. The results of the examination showed that the veteran was experiencing the following PTSD symptoms at that time: nightmares once per week, sometimes with sleepwalking; flashbacks twice per month; daily intrusive thoughts and memories; avoidance behavior; social isolation; occasional trouble with concentration and memory; exaggerated startle response; easy irritability and frustration; depression; crying spells; suicidal thoughts; lethargy and fatigue. She also reported that the only close social relationship she had was with her husband. On mental status examination, the veteran was casually and neatly dressed; speech was normal; she was cooperative and oriented; her mood was sad; affect was somewhat sad and blunted; there was no evidence of any thought disorder; cognition and memory were normal. The examiner described the veteran as moderately impaired socially, recreationally and vocationally as a result of her difficulty dealing with men due to her assaults in service that led to the onset of her PTSD. The diagnosis was chronic PTSD, assigned a GAF score of 50. In October 2004, the veteran filed another claim for an increased rating for PTSD, contending that other medical problems she was diagnosed with had caused an increase in her PTSD symptoms. In support of her claim, she submitted a December 2004 statement from M.Q.E., Ph.D., one of her treatment providers since February 1997, who stated that due to the stress of a recent illness and pain, the veteran was experiencing increased depression, increased intrusive thoughts and memories of her military sexual trauma, increased anhedonia, increased feelings of numbness, decreased sleep and difficulty with hypervigilance. VA outpatient treatment records showed that since her examination in April 2004, the veteran had been alert and oriented in all spheres with a consistently dysphoric mood and an anxious affect. She frequently reported feelings of depression, nightmares, difficulty sleeping and irritability, but consistently denied suicidal or homicidal ideations or auditory or visual hallucination. An increased hyperstartle response as well as flashbacks and intrusive thoughts were also noted. Reported GAF scores were between 50 and 55, indicative of moderate symptoms and moderate difficulty in social and occupational functioning. In August of 2004, the veteran reported that she was still working part-time, but in December 2004, she reported that she was not working due to physical problems. In her June 2005 notice of disagreement, the veteran requested that she be given another VA examination to determine the then current level of severity of her PTSD. She was afforded such an examination in July 2006. The July 2006 examiner noted that the veteran had earned a degree in digital media since her last examination, and that she was still married and still working three days a week at the Mountain Home VA. The examiner also indicated that the veteran's nightmares had increased; that she was waking 3-5 times per night with anxiety; that she was still having flashbacks twice per month; and that she was still having daily thoughts and memories about her traumatic experiences. He also noted that the veteran had a great deal of anger, rage and irritability, and that she had a tendency to become violent and kick furniture, but he also specifically noted that she had never been violent with any person even though she had thoughts of hurting people who had ignored her. The veteran was still avoiding being alone with men and having contact with men that she considered possibly threatening in public or at work, and she avoided watching media about sexual violence and rape as well as romantic stories. She was also avoiding sex with her husband. She was still socially isolated from the public and avoided crowds and groups, and was also emotionally isolated from her husband and daughter. She continued to be very vigilant and watchful, especially around men, and continued to have an exaggerated startle response. Her depressive symptoms had also increased, with her experiencing sad mood and crying spells on a regular basis. She also continued to experience some loss of concentration and memory, anhedonia, lethargy and fatigue. She denied suicidality or psychotic symptoms, but reported that she continued to worry about everything. On mental status examination, she was casually and neatly dressed, attentive and cooperative, with normal rate and rhythm to her speech. She was oriented times four. Her mood was sad and affect was blunted to sad with a lot of tearfulness throughout the interview. Fund of knowledge was above average and there was no evidence of any thought disorder. Cognition and memory were both intact. The examiner noted that the veteran's social and recreational skills continued to be impaired at a moderate to severe level, and that her vocational impairment continued to be mild to moderate, but indicated that she was able to work. He also noted that the veteran's PTSD symptoms seemed to have been exacerbated by the process she had gone through with her medical care for an unrelated illness. The veteran was again diagnosed with PTSD, chronic, and major depressive disorder, recurrent, moderate. She was assigned a GAF score of 45. The veteran's most recent VA outpatient treatment records show that the veteran was seen for an increase in such symptoms as anxiety and depression surrounding other non service-connected health issues, marital problems and occupational related problems. Her mood and affect during these sessions ranged from depressed and anxious, euthymic, dysphoric and normal, and dysphoric and congruent. She did not express suicidal or homicidal ideation, and there were no symptoms of psychosis. In June 2007, the notes indicate that the veteran had been out of work for almost two weeks due to an increase in her PTSD and depression symptoms. As a result, her anti-depressant medications were increased. In August 2007, the veteran reported that the increase in her medication appeared to be helping her regain her psychological equilibrium and that she had returned to work. During her October 2007 hearing, the veteran testified that she was working full time, although she took off often due to her PTSD. She also reported that she was somewhat socially isolated at work in that she did not like to interact with her co-workers, and that she was prone to unprovoked crying spells. However, she also reported that she was applying for and would like to obtain another position at the VA which would require her to work with others and motivate people. See October 2007 Hearing Transcript. Although the veteran reports that she is socially isolated and takes leave from work often due to her PTSD symptoms, she does not display the type or severity of symptoms that would support a 100 percent schedular rating on the basis of total occupational and social impairment. The veteran reports that she has taken a large amount of time off from work due to her PTSD symptoms, and has submitted leave records showing that she used approximately 377 hours of leave - including 121.25 hours of leave without pay - between November 2006 and September 2007. Her treatment records also refer to her significant leave use at times due to her PTSD symptoms. Nonetheless, she reports that she is still employed on a full-time basis and that she does go to work. Moreover, she has not exhibited gross impairment in thought processes or communication. Rather, her speech and cognition have both been normal on mental status examination. She does not have persistent delusions or hallucinations. She does not exhibit grossly inappropriate behavior. Although she reports that she cries sporadically at work, and she has been noted to be tearful on examination, she has also always been noted to be attentive and cooperative on examination, as she seemed to be during the hearing. The record does not show that she is considered a persistent danger to herself or others. She has been neatly groomed and dressed, and maintains more than minimal personal hygiene. She has also been oriented to time and place. Thus, the Board concludes that a schedular 100 percent rating is not supported by the evidence. Duties to Notify and to Assist Claimants VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 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 claimant and his or her 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) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice must inform the claimant 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 claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim, defined to 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. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). In November 2004, prior to the initial adjudication of the claim, and in August 2005, the veteran was provided with the notice required by section 5103(a), to include notice that she submit any pertinent evidence in her possession. The Board notes that, even though the letters requested a response within 60 days, they also expressly notified the veteran that she had one year to submit the requested information and/or evidence, in compliance with 38 U.S.C.A. § 5103(b) (evidence must be received by the Secretary within one year from the date notice is sent). The Board also notes that although the veteran has not been provided notice of the type of evidence necessary to establish a disability rating or an effective date for her increased rating claim, the Board finds that there is no prejudice to the veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Board has determined that an increased rating for PTSD is not warranted. Consequently, no disability rating or effective date will be assigned, so the failure to provide notice with respect to those elements of the claim was no more than harmless error. For an increased-compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant 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 claimant'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 claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant'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 claimant. Additionally, the claimant 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 claimant 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 Board acknowledges that the notice provided in November 2004 and August 2005 did not cover all of the elements of the notice required by the recent Vazquez-Flores decision. Nonetheless, the Board concludes that the veteran was not prejudiced in this instance, as the 2004 and 2005 notice suggested types of evidence, including both medical and lay evidence, that could support the veteran's claim for increase, and the veteran was given the specific rating criteria in the statement of the case. Therefore, she had actual notice of the rating criteria to be applied to the disability at issue. The veteran also provided specific information concerning her disabling manifestations during the course of his claim and appeal. Finally, the Board notes that veteran's service medical records and all other pertinent available records have been obtained in this case. In addition, the veteran has been afforded appropriate VA examinations. Neither the veteran nor her representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the denied claim. The Board is also unaware of any such outstanding evidence. After giving the required notice and completing all indicated development of the record, the originating agency readjudicated the veteran's claim. In sum, the Board is satisfied that any procedural errors in the development and consideration of the claim by the originating agency were not prejudicial to the veteran. ORDER An increased rating for PTSD is denied. ____________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs