Citation Nr: 0810462 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 02-17 879 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an increased rating for service-connected post-traumatic stress disorder (PTSD), evaluated as 30 percent disabling prior to December 8, 2004, and as 50 percent disabling thereafter. 2. Entitlement to a total disability rating for compensation purposes on the basis of individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The veteran served on active duty from May to November 1991 and from March to May 1992. The Board of Veterans Appeals (Board) notes that the issue on appeal arose from an April 2001 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In November 2004, the Board remanded the claims for additional development. FINDINGS OF FACT 1. Prior to December 8, 2004, the veteran's PTSD was manifested by complaints of some depression, anxiousness, anger, and some impaired concentration and energy, with Global Assessment of Functioning (GAF) Scores ranging between 53 and 70; her psychiatric disorder has not resulted in occupational and social impairment with reduced reliability and productivity. 2. As of December 8, 2004, the veteran's PTSD has been manifested by complaints of some depression, anxiousness, anger, and some impaired concentration and energy, and GAF scores of between 45 and 60; her psychiatric disorder has not resulted in occupational and social impairment with deficiencies in most areas. 3. The veteran's only service-connected disability is PTSD, rated as 50 percent disabling. 4. The veteran has been working full-time since 2005; she has a GED, and several years of work experience in retail stores. 5. The veteran's service-connected disability does not preclude her from engaging in substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to December 8, 2004, the criteria for an evaluation in excess of 30 percent for the PTSD have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.130, Diagnostic Code 9411 (2007). 2. As of December 8, 2004, the criteria for an evaluation in excess of 50 percent for the PTSD have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.130, Diagnostic Code 9411 (2007). 3. The criteria for a total disability evaluation based on unemployability have not been met. 38 C.F.R. § 4.16 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As for the history of the disability in issue, see 38 C.F.R. § 4.1 (2007), Army National Guard records include a Form 2173, dated in September 1992, which indicates that in August 1992, the veteran was involved in an incident in which she and a fellow male soldier were physically assaulted on base by three soldiers after the veteran refused one of the attacker's sexual advances. The veteran's injuries consisted of lacerations and abrasions on her back. She began receiving psychiatric treatment beginning in 1997, with diagnoses of PTSD, alcohol abuse, and substance abuse. In February 1998, the RO granted service connection for PTSD, evaluated as 30 percent disabling, based on the aforementioned incident. There was no appeal, and the RO's decision became final. See 38 U.S.C.A. § 7105(c) (West 2002). In October 2000, the veteran filed a claim for an increased rating. In April 2001, the RO denied the claim for an increased rating for PTSD. The veteran appealed, and in September 2007, the RO granted the claim to the extent that it increased her rating to 50 percent, with an assigned effective date of December 8, 2004 for the 50 percent rating. However, as this increase did not constitute a full grant of the benefit sought, the increased rating issue remained in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). Under the applicable criteria, disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2005); 38 C.F.R. Part 4 (2007). When a question arises as to which of two evaluations shall be assigned, the higher evaluation will be assigned of 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 (2007). The rating criteria for evaluating psychoneurotic disorders are as follows: 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 worklike 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; 30 percent: occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events) 38 C.F.R. Part 4, Code 9411 (2007). The Global Assessment of Functioning (GAF) scale is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." See Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994) (DSM-IV). A GAF Score of 41 to 50 denotes serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF Score of 51 to 60 denotes 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). A GAF Score of 61 to 70 denotes some 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, has some meaningful interpersonal relationships. Id., at. 47. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). Although some of the veteran's recorded symptoms are not specifically provided for in the ratings schedule (e.g., such symptoms as nightmares), the symptoms listed at 38 C.F.R. § 4.130 are not an exclusive or exhaustive list of symptomatology which may be considered for a higher rating claim. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Prior to December 8, 2004, the medical evidence includes several private treatment reports, dated in 2000, which show that the veteran received treatment for psychiatric symptoms that included complaints of depression, anxiety, negative and obsessive thinking, and irritability. Medications included Depakote, Wellbutrin, and Celexa. Reports from D.L., M.D., note clear/normal affect, good insight, and normal thought processes. A report from J.K.M., Ph. D., notes poor attention and concentration, that she was alert and oriented, and that she denied homicidal or suicidal thinking. The Axis I diagnoses were rule out depression, generalized anxiety, recurrence of PTSD, and alcohol abuse. The Axis V diagnosis was a GAF score of 51. Both reports are found to provide evidence against this claim. A psychiatric examination report by W.T., M.D., dated in December 2000, shows that the veteran reported a history of participation in two rehabilitation programs between 1996 and 1998. She stated that she was taking Celexa and Trazodone, and that she was going to be put on Serzone. She denied a history of hospitalizations. She provided a work history that included employment at the front desk of a retirement home between October 1998 to June 1999, and work in a food store between July 1999 and July 2000. She stated that she had not worked since July 2000. She stated that she had three children, and had been married since January. She reported a history of drug use dating back to high school, with a 31/2 -year period of sobriety between 1996 and 2000, but that she had started drinking again in March 2000. She complained of symptoms that included anger, paranoia, negative thoughts, and that she kept thinking about her inservice assault. She denied feeling suicidal, but reported some homicidal thoughts. She report mild panic or anxiety attacks, and some depression with anger and tearfulness. She indicated that she has intrusive thoughts of her inservice assault. On examination, she had normal thought processes. She denied delusions or hallucinations, and inappropriate behavior. She denied suicidal or homicidal ideation, and stated that her hygiene was "okay," but that she did not like taking care of herself. She was oriented times three. Long-term, short- term, and immediate memory was intact. She denied obsessive or ritualistic behavior. She denied dreams or nightmares related to her inservice assault. She was noted to be anxious, irritable, and shaky, and hypervigilant. The Axis I diagnoses were PTSD, and alcohol abuse. The Axis V diagnosis was a GAF score of 70, providing more evidence against a higher evaluation. Reports from a private social worker, dated between 2003 and 2004, indicate that she received counseling, but contain few findings. These reports note complaints of difficulty dealing with her three children, feeling overwhelmed, and indicates that the veteran carried a knife "related to beating." VA progress notes, dated between 2001 and December 7, 2004, show ongoing treatment for psychiatric symptoms, to include a great deal of group therapy. Her medications included Respereidone, Buspar, Trazodone, and Lexapro. Her diagnoses included PTSD, and polysubstance abuse. Progress notes dated between April and June of 2004 indicate that the veteran was using drugs and alcohol, with a June 2004 note showing that the veteran indicated that she was using alcohol, crystal methamphetamine, and marijuana. An April 2004 VA progress note contains a GAF score of 53. She apparently went through a one-week detoxification program in July 2004. A report from the Vet Center, dated in December 2005, notes complaints that physical labor aggravated her back pain, intrusive memories of her inservice trauma, anxiety, and avoidance of places similar to that in which her inservice assault took place. She further complained of sleep difficulties, and a lack of concentration, hypervigilance, and irritability. The Axis I diagnoses were PTSD and polysubstance dependence in full remission. The Axis V diagnosis was a GAF score of 45. After a careful review of the evidence of record, it is found that an evaluation in excess of 30 percent prior to December 8, 2004 is not warranted. The veteran's symptoms are not sufficiently severe to have resulted in occupational and social impairment with reduced reliability and productivity, and the Board has determined that the preponderance of the evidence shows that the veteran's PTSD more closely resembles the criteria for not more than a 30 percent rating. In this regard, there is insufficient evidence of such symptoms as (only as an example) flattened affect; irregular speech; difficulty in understanding complex commands; impairment of short- and long-term memory; and impaired abstract thinking, nor are the other PTSD symptoms shown to have resulted in such impairment. The evidence shows that she consistently complained of approximately the same symptomatology throughout this time period, to include complaints of some depression, anxiousness, and some impaired concentration and energy. Most importantly, the VA progress notes at this time show that she was repeatedly found to be alert and oriented times four, with no suicidal or homicidal ideation. This evidence contains findings that indicate that her speech was within normal limits (although her speech was pressured at times), with intact memory, and clear goal-oriented thought processes. She reported that she slept "really well, almost too well," and that she was always hungry. She was assigned GAF scores that ranged between 53 and 70. These scores are consistent with mild to moderate symptoms, providing more evidence against this claim. With regard to her employment during this time, an August 2001 VA progress note indicated that she worked delivering papers, and a June 2004 VA progress note indicates that the veteran was working at two markets. In summary, the Board finds that when this evidence is weighed together with the other evidence of record, particularly the findings as to his psychiatric condition and functioning, that the evidence does not show that the veteran's symptoms, which include nightmares and sleep disturbances, are of such severity to approximate, or more nearly approximate, the criteria for an evaluation in excess of the currently assigned 30 percent under DC 9411. See 38 C.F.R. § 4.7. Therefore, it is found that the 30 percent disability evaluation assigned to the veteran's disorder adequately compensates her for the degree of disability demonstrated during this time frame. With regard to the evidence as of December 8, 2004, the evidence includes a VA progress note, dated December 8, 2004, which was apparently the basis for the RO's assignment of the 50 percent evaluation in its September 2007 rating decision. This report shows that the veteran attended group therapy. She stated that she was slightly late because she had just come from an alcohol/drug class. This note includes a GAF score of 50. Subsequently dated VA progress notes show the following: in January 2005, she reported that she was sleeping on the floors of friends, and that she was not welcome at her mother's house; that same month, she began working at a home supply store; she reported being "homicidal" around the previous Christmas; in April 2005 she indicated that she had relapsed; in January 2006, she stated that she was adjusting to her new job and that she was happy with the position; in June 2006, she stated that she went through a job change; in July 2006, she stated that she was getting accustomed to her new job, that it was more money and less work, and that she liked it better in a lot of ways; she stated that she was living at her mother's home. A VA psychiatric examination report, dated in June 2007, shows that the veteran reported that since her last examination, she had primarily been living with her two children and her mother, that she had an excellent relationship with both of her children, and that she was getting along well with her mother. She stated that since her last examination (in December 2000) she had been employed for about three years, with occasional periods of unemployment. She stated that she began working at a home supply store in 2005, and that she still worked there. She complained of problems maintaining her focus and composure at work, panic attacks that woke her up, sadness, irritability, and feeling as if she was a "dry drunk." She complained that she had had an incident at work in which a group of men who were of the same race as those involved in her inservice assault walked toward her, and she had a flashback, and felt threatened. She stated that she had divorced in 2004, and that she had a good relationship with her children and her mother, although she was less positive about her connection with her oldest son. On examination, she was well-groomed, and was noted to be "bouncy," and to repeatedly scratch her skin. Speech was slightly pressured with elevated tone, but normal prosody and volume. Thought processes were logical, linear, and goal- directed. She reported no overt evidence of hallucinations or delusions, and she denied suicidal or homicidal ideation. She was oriented to person, place, time, and purpose. She demonstrated no remarkable recent or remote memory impairment. Insight and judgment were "well within normal limits." The Axis I diagnoses were PTSD, mood disorder NOS (not otherwise specified), amphetamine dependence in sustained full remission, and panic disorder. The Axis V diagnosis was a GAF score of 50, with a high for the past year of 63. The examiner noted that the impact of her current symptoms on her social and occupational functioning appeared to be significant and somewhat more pronounced compared with her last examination (providing the basis for the higher evaluation). It was further noted that she had prominent PTSD signs and symptoms that decreased her work efficiency and ability to perform occupational tasks. The Board finds that an evaluation in excess of 50 percent as of December 8, 2004 is not warranted. In this regard, the veteran's symptoms are not sufficiently severe to have resulted in occupational and social impairment with reduced reliability and productivity, and the Board has determined that the preponderance of the evidence shows that the veteran's PTSD more closely resembles the criteria for not more than a 50 percent rating. The evidence indicates that the veteran continues to complain of primarily the same symptoms as she did prior to December 8, 2004, i.e., some depression, anxiousness, and some impaired concentration and energy. The VA progress notes show that she occasionally was noted to be tearful, anxious, and to have some irregularities of speech. The Board does not discredit the veteran's statements or the impact of the assault has had on her life. This is the basis of the 50 percent evaluation which, by definition, indicates the seriousness of the problem. However, she was primarily found to be alert and oriented, with no suicidal or homicidal ideation, and thought processing that was within normal limits, with intact memory (with some confusion on dates), fair judgment, and clear goal-oriented thought processes. She was assigned GAF scores that ranged between 45 and 60. These scores are consistent with serious to moderate symptoms. In this regard, there was one score of 45, and one score of 60, with all of the other scores ranging between 50 and 55, which is consistent with moderate symptoms. In addition, there is no indication that she had (for example) obsessional rituals which interfere with routine activities; speech that was intermittently illogical, obscure, or irrelevant (there were some notations of speech had irregularities such as being forced); near-continuous panic or depression affecting the ability to function independently, appropriately and; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; or an inability to establish and maintain effective relationships, nor are the other PTSD symptoms shown to have resulted in impairment to the required degree. The most recent examination report shows that the veteran's GAF score was 50 (serious symptomatology), with a high for the past year of 63 (mild symptomatology). The report shows that there was no overt evidence of hallucinations or delusions, that she denied suicidal or homicidal ideation, that she was oriented times four, with no recent or remote memory impairment and insight and judgment "well within normal limits." Finally, it appears that she has been working full time since late 2005, to include a change of jobs in June 2006 that involved less work and better pay, and she has stated that she likes her new job better "in a lot of ways." Based on the foregoing, the Board finds that the evidence does not show that the veteran's symptoms are of such severity as to warrant a 70 percent rating. The Board concludes that the veteran's PTSD is not manifested by symptomatology that approximates, or more nearly approximates, the criteria for an evaluation in excess of 50 percent under DC 9411. See 38 C.F.R. § 4.7. In deciding the veteran's increased evaluation claim, the Board has considered the determination in Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007), and whether the veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. As noted above, the Board does not find evidence that the veteran's PTSD evaluation should be increased for any other separate period based on the facts found during the whole appeal period. The evidence of record supports the conclusion that the veteran is not entitled to additional increased compensation during any time within the appeal period. The Board therefore finds that the evidence is insufficient to show that the veteran had a worsening of her PTSD such that an increased evaluation is warranted. In October 2000, the veteran filed her claim for an increased rating for PTSD. In November 2004, the Board determined that the issue of TDIU had been raised, and remanded the claim. In September 2007, the RO denied the claim. The veteran has appealed. As discussed previously, the veteran's PTSD is currently evaluated as 50 percent disabling. Her combined evaluation is 50 percent. Therefore, at no time has the veteran met the minimum schedular requirements for TDIU. See 38 C.F.R. § 4.16(a). Ordinarily, the VA Schedule for Rating Disabilities will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). An extraschedular total rating based on individual unemployability may be assigned in the case of a veteran who fails to meet the percentage requirements but who is unemployable by reason of service-connected disability. 38 C.F.R. §§ 3.321, 4.16(b). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service- connected disabilities shall be rated totally disabled. For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2317 (1992). Factors such as employment history, as well as educational and vocational attainments, are for consideration. Assignment of a TDIU evaluation requires that the record reflect some factor that "takes the claimant's case outside the norm" of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Id. The Board finds that the claim must be denied. The veteran has not required any recent hospitalization for her PTSD, and the Board finds no evidence of an exceptional disability picture in this case. There is also no evidence which suggests that, even when considering her limitations and exacerbations, that some factor exists which takes her case outside the realm of the usual so as to render impracticable her schedular rating. As for the veteran's work history, this evidence has previously been discussed. Briefly stated, the VA progress notes and June 2007 VA examination report indicate that the veteran worked at two convenience stores as of June 2004. Between 2004 and 2005, she relapsed on at least two occasions, and was in at least one detoxification program. A 1997 examination report shows that she reported that she had received a general equivalency degree (GED). In her TDIU claim, received in May 2005, the veteran reported that she had three years of high school, and that she had worked as a receptionist for about one year, followed by about nine months delivering newspapers, followed by about five months working for a convenience store (between January and June of 2004). She indicated that she left her last job due to disability. The June 2007 VA examination report shows that the examiner noted that the impact of her current symptoms on her social and occupational functioning appeared to be significant and somewhat more pronounced compared with her last examination. It was further noted that she had prominent PTSD signs and symptoms that decreased her work efficiency and ability to perform occupational tasks. Importantly, in her letter of February 2007, the veteran cites problems raising three children, one with a disability. The problems a person would have in raising three children are clear. However, they do not provide a basis to find that the veteran's PTSD caused by service has lead her to be unemployable. The letters from the veteran and the progress notes provide evidence against this claim, clearly indicating the veteran's ability to function in difficult situations. A 50 percent disability with PTSD will cause the veteran some problems at work (if it did not, there would be no basis for the 50 percent evaluation). However, she has been employed in association with a home supply store chain since December 2005, to include a change of jobs in June 2006 that she reported involved less work and better pay, and she has stated that she likes her new job better "in a lot of ways." In summary, the Board finds that the evidence does not show that the veteran is incapable of performing the physical and mental acts required by employment due to her service- connected disability. The Board therefore concludes that the preponderance of the evidence is against the claim that the veteran is currently precluded from engaging in substantial gainful employment by reason of her service-connected disability. Entitlement to TDIU is thus not established under 38 C.F.R. § 4.16(b). In reaching these decisions, the Board considered the benefit-of-the-doubt rule; however, as the preponderance of the evidence is against the appellant's claims, such rule is not for application. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist The Board finds that VA has satisfied its duties to the veteran under the Veterans Claims Assistance Act of 2000 (VCAA). A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." This "fourth element" of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1). Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112 (2004). In January, May, September, and December of 2005, the RO sent the veteran notice letters (hereinafter "VCAA notification letters") that informed her of her and VA's respective responsibilities for obtaining information and evidence under the VCAA. She was asked to identify all relevant evidence that she desired VA to attempt to obtain. The VCAA notification letters were not sent before the initial AOJ decision in April 2001. However, any defect with respect to the timing of the VCAA notices in this case was nonprejudicial. There is no indication that the outcomes of the claims have been affected, as all evidence received has been considered by the RO. The veteran has been provided a meaningful opportunity to participate effectively in the processing of his claims, as she has been afforded the opportunity to submit additional argument and evidence, which she has done. Further, the record also shows that the veteran has actual knowledge of the evidence necessary to substantiate her claims, based upon his arguments those presented by her representative. For these reasons, the timing of the VCAA notices was not prejudicial. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. Apr. 5, 2006). 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. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. No further notice is needed as to any disability rating or effective date matters. The veteran was afforded sufficient notice in September 2006, and September 2007, and in any event, as the claims have been denied, any questions as to the disability rating or the appropriate effective date to be assigned are moot. Therefore, VA's duty to notify the appellant has been satisfied, and no prejudice to the veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). The VCAA notices did not discuss the criteria for an increased rating, thus, the VCAA duty to notify has not been satisfied with respect to VA's duty to notify her of the information and evidence necessary to substantiate the increased rating claim. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). 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 appellant. The Federal Circuit stated that requiring an appellant to demonstrate prejudice as a result of any notice error is inconsistent with the purposes of both the VCAA and VA's uniquely pro-claimant benefits system. Instead, the Federal Circuit held in Sanders that all VCAA notice errors are presumed prejudicial and require reversal 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 claimant; (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. Although not specifically discussed by the court, some other possible circumstances that could demonstrate that VA error did not prejudice the claimant include where the claimant has stated that he or she has no further evidence to submit, or where the record reflects that VA has obtained all relevant evidence. In this case, the Board finds that any VCAA notice errors did not affect the essential fairness of the adjudication as VA has obtained all relevant evidence, and as the appellant has demonstrated actual knowledge of what was necessary to substantiate the claim. Id. Specifically, a review of the appellant's submissions, and her representative's submissions, received between 2004 and 2008, shows that these submissions were filed subsequent to the August 2002 statement of the case, which listed all of the relevant criteria for an increased rating. These submissions discussed the veteran's psychiatric symptomatology, as well as some of the medical findings, and indicate that the veteran and her representative indicate actual knowledge of the right to submit additional evidence and of the availability of additional process. As both actual knowledge of the veteran's procedural rights, and the evidence necessary to substantiate the claim, have been demonstrated and she, or those acting on her behalf, have had a meaningful opportunity to participate in the development of her claim, the Board finds that no prejudice to the veteran will result from proceeding with adjudication without additional notice or process. Furthermore, as discussed below, it appears that VA has obtained all relevant evidence. Id. The Board further finds that VA has complied with the VCAA's duty to assist by aiding the veteran in obtaining evidence. It appears that all known and available records relevant to the issues on appeal have been obtained and are associated with the veteran's claims files. The RO has obtained the veteran's available service medical records, as well as VA and non-VA medical records. Finally, the veteran has been afforded VA examinations. In this regard, in November 2004, the Board remanded the claims for additional development, to include an opinion on employability, and the Board finds that the June 2007 VA examination report contains sufficient details and findings, such that there has been substantial compliance with the Board's remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with); 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). The Board therefore concludes that decisions on the merits at this time do not violate the VCAA, nor prejudice the appellant under Bernard v. Brown, 4 Vet. App. 384 (1993). Based on the foregoing, the Board finds that the veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER Prior to December 8, 2004, a rating in excess of 30 percent for post-traumatic stress disorder is denied. As of December 8, 2004, a rating in excess of 50 percent for post-traumatic stress disorder is denied. TDIU is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs