Citation Nr: 0810416 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 06-34 312A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES Entitlement to an initial evaluation in excess of 50 percent for post-traumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Finn, Associate Counsel INTRODUCTION The veteran served on active duty from September 1943 to February 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from ratings decision issued by the Newark, New Jersey Department of Veterans Affairs (VA) Regional Office (RO) in February 2004, May 2004, and November 2006. The veteran timely perfected an appeal as to the disability rating assigned. The veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in January 2008. A transcript of that hearing is associated with the claims file. In January 2008, the veteran submitted additional evidence with a waiver of initial RO consideration. The record contains a claim of entitlement to a total rating by reason of individual unemployability (TDIU), filed by the veteran in January 2007. However, this claim has not yet been adjudicated by the RO. Therefore, it is referred to the RO for appropriate development and consideration. FINDINGS OF FACT 1. Prior to December 17, 2007, the veteran's disability picture more nearly approximates the criteria for a 50 percent evaluation. 2. After resolving all reasonable doubt in his favor, the veteran's disability picture more nearly approximates the criteria for a 70 percent evaluation beginning on December 17, 2007. CONCLUSIONS OF LAW 1. For the time period prior to December 17, 2007, the schedular criteria for an initial rating in excess of 50 percent for PTSD have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2007). 2. For the time period beginning on December 17, 2007, the schedular criteria for an initial rating in excess of 50 percent for PTSD have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a). Under 38 U.S.C.A. § 5103(a) (West 2002), VA must notify the claimant of any information and evidence not of record that is necessary to substantiate the claim, which information and evidence VA will seek to provide and which information and evidence the claimant is expected to provide. Furthermore, in compliance with 38 C.F.R. § 3.159(b) (2007), VA must ask the claimant to provide any evidence in her or his possession that pertains to the claim. The VCAA notice should be provided to a claimant before the Agency of Original Jurisdiction (AOJ) renders the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). If such notice is sent after the initial decision, then it should be sent before a readjudication of the claim. A Supplemental Statement of the Case, when issued following a VCAA notification letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. See also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson, 20 Vet. App. 537 (2006). In the present case, the veteran was issued a September 2003 letter that essentially met the requirements set forth in 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The Board is also aware of the considerations of the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), regarding the need for notification that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, such notification was provided in a November 2006 letter. As to VA's duty to assist the veteran with the obtaining of evidence necessary to substantiate a claim under 38 U.S.C.A. § 5103A, the VA has obtained records of treatment reported by the veteran, and there is no indication from the claims file of additional medical treatment for which VA has not obtained, or made sufficient efforts to obtain, corresponding records. The Board also notes that the veteran has been afforded comprehensive VA examinations in conjunction with this appeal, addressing the disorder at issue. In summary, all relevant facts have been properly developed with regard to the veteran's claim, and no further assistance is required in order to comply with VA's statutory duty to assist with the development of facts pertinent to the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Accordingly, the Board finds that no prejudice to the veteran will result from an adjudication of this appeal in this Board decision. Rather, remanding this case for further VCAA development would be an essentially redundant exercise and would result only in additional delay with no benefit to the veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). II. Increased Rating and PTSD Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1. Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4. Specific diagnostic codes will be discussed where appropriate below. The Court has held that an appeal from an initial rating is a separate and distinct claim from a claim for an increased rating. See Fenderson v. West, 12 Vet App 119 (1999). When assigning an initial rating, the rule from Francisco v. Brown, 7 Vet. App. 55, 58 (1994), that the present level of disability is of primary importance, is not applicable. Therefore, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson, 12 Vet. App. at 126. 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 the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2006). All reasonable doubt is resolved in the veteran's favor. 38 C.F.R. § 4.3. Diagnostic Code 9411, which is governed by the general rating formula for mental disorders set forth in 38 C.F.R. § 4.130, provides the following levels of disability: 100 percent: 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. 70 percent: 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 work-like setting); inability to establish and maintain effective relationships. 50 percent: occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. GAF scores are a scale rating 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 Associations DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), p. 32]. GAF scores ranging from 51 to 60 reflect 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). Scores ranging from 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). See 38 C.F.R. § 4.130 [incorporating by reference the VA's adoption of the DSM-IV, for rating purposes] (2006). 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, avoids friends, neglects family, and is unable to work). The veteran is seeking an initial rating in excess of 50 percent for his PTSD. It is noted that service connection was granted for this disorder in February 2004 when a 10 percent evaluation was assigned with an effective date of August 19, 2003. By rating decision dated in May 2004, the veteran's evaluation was increased to 30 percent, effective August 19, 2003. His rating was increased to 50 percent in a November 2006 rating decision, effective August 19, 2003. In August 2003, the veteran underwent a VA examination. The claims file was not reviewed. At that time, the veteran reported that he suffered from nightmares, intrusive thoughts, and hypervigilance. On mental status evaluation, the veteran was alert, cooperative, and casually dressed. The veteran's mood was neutral. He suffered from nightmares and intrusive thoughts. His affect was appropriate and there were no perceptual problems. His speech and thought process were normal. There was no suicidal or homicidal ideation. He was oriented to person, place, and time. The veteran's insight, impulse control, and judgment were fair. The examiner assigned a GAF score of 70. The veteran was examined by a private physician at A&W Psychology Services in October 2003. The veteran reported insomnia, intrusive thoughts, startle response, hypervigilance, social avoidance, memory loss, irritability, depressed mood, crying spells, flashbacks, poor concentration, anger, panic attacks, guilt, and difficulty in maintaining control over feelings of anger, rage, and intense sadness. The physician assigned a GAF score of 50. The examiner diagnosed moderate symptoms with no psychotic features. The February 2005 interim treatment summaries from A&W Psychology Services reflect similar symptomatology as the October 2003 private examination. The GAF scores during this period were 50. The private physician diagnosed moderate to severe symptoms with no psychotic features. There was noted suicidal ideation; however, with no intent or plan. Another examination was conducted by the VA in April 2006. The examiner was the same examiner that conducted the August 2003 VA examination; however, this time the claims file was reviewed. The veteran reported that he suffered from nightmares, flashbacks, hypervigilance, easy startle reflex, insomnia, depression, crying spells, poor energy, social avoidance, and poor concentration. He had these symptoms almost daily and did not report any remissions. On mental status evaluation, the veteran was cooperative, and casually dressed. His mood was depressed and his affect was blunted. His speech and thought processes were normal. There were no perceptual problems or suicidal ideation. His impulse control, insight, and judgment were fair. He was oriented to person, place, and time. He was assigned a GAF score of 50. The examiner noted that his PTSD does not prevent him from getting employment. The examiner diagnosed moderate symptoms. VA outpatient treatment records dated from September 2005 through June 2006 showed that the veteran received intermittent therapy for his PTSD. He suffered from insomnia, nightmares, flashbacks, poor concentration, startle response, hypervigilance, and depression. He did not express suicidal/homicidal ideation. His GAF scores where within the range of 24 to 48, with the most recent score being 45. Specifically, two treatment reports rendered a GAF score of 45, one treatment report rendered a GAF score of 48, and one report rendered a GAF score of 24. The nurse who rendered the GAF score of 24 did not provide an explanation or note any of the symptomatology. In a January 9, 2008 interim treatment summary from A&W Psychology Services, and based on a December 17, 2007 evaluation, the physician reported that the veteran suffered from suicidal ideation and occupational impairment. He diagnosed moderate to severe symptoms with no psychotic features. He stated that the "veteran's symptomatology would preclude him from being gainfully employed." He was assigned a GAF score of 45. After a review of the medical evidence, the Board finds that the veteran's PTSD does not warrant an initial evaluation in excess of 50 percent for the time period prior to December 17, 2007 as his disability picture more nearly approximates the criteria for a 50 percent evaluation. The probative medical evidence, includes the April 2006 VA examination, VA treatment reports, and private treatment evaluations. The veteran's PTSD was manifested by social isolation, intrusive memories, nightmares, sleep loss, irritability, hypervigilance, an occasional startle response, anxiety, depressed mood, anger outbursts, difficulty concentrating, and social avoidance. After a review of the medical evidence, the Board finds that the veteran's PTSD warrants a higher initial evaluation of 70 percent for the time period beginning on December 17, 2007. The Board finds that, after resolving all reasonable doubt in the veteran's favor, his disability picture more nearly approximates the criteria for a 70 percent evaluation. The probative medical evidence, including the January 9, 2008 interim treatment summary from A&W Psychology Services, demonstrate that the veteran's PTSD is manifested by flashbacks, nightmares, insomnia, intrusive thoughts, social impairment, memory loss, irritability, depressed mood, crying spells, panic attacks, anxiety, irritability, suicidal ideation and occupational impairment. Although the January 2008 Interim Treatment Summary from A&W Psychology Services noted that the veteran is unable to maintain employment due to his PTSD symptoms; this inability to work has not been due to gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; an intermittent inability to perform activities of daily living such as maintenance of minimal personal hygiene; disorientation to time or place; or memory loss for names of close relatives, his own occupation or his own name. Although his PTSD symptoms prevent him from working, they do not reach the level of those manifestations for the 100 percent schedular evaluation. Taking all of this evidence into consideration, the Board finds that the veteran's disability picture more nearly approximates the criteria for a 70 percent rating beginning on December 17, 2007. In summary, for the reasons and bases expressed above, the Board concludes that a 70 percent rating is warranted for PTSD for the time period beginning on December 17, 2007. The benefit sought on appeal is granted to that extent. ORDER Entitlement to an initial compensable disability rating in excess of 50 percent for PTSD for the time period prior to December 17, 2007, is denied. Entitlement to an initial disability rating of 70 percent for PTSD for the time period beginning on December 17, 2007, is granted, subject to the applicable laws and regulations concerning the payment of monetary benefits. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs