Citation Nr: 0810762 Decision Date: 04/01/08 Archive Date: 04/14/08 DOCKET NO. 05-00 008A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for post-traumatic stress disorder (PTSD) prior to January 11, 2007. 2. Entitlement to an initial rating in excess of 30 percent for PTSD as of January 11, 2007. REPRESENTATION Appellant represented by: Connecticut Department of Veterans Affairs WITNESS AT HEARINGS ON APPEAL The veteran ATTORNEY FOR THE BOARD N. Kroes, Associate Counsel INTRODUCTION The veteran served on active duty from June 1967 to June 1969. His decorations include the Purple Heart Medal, Vietnam Service Medal, and the Combat Infantryman Badge. This case originally came before the Board of Veterans' Appeals (Board) on appeal from the Hartford, Connecticut, Department of Veterans Affairs (VA) Regional Office (RO). This issue was remanded by the Board in October 2006 for additional development. Substantial compliance having been completed the case has been returned to the Board. In July 2005, the veteran testified at a personal hearing before a Decision Review Officer at the RO. In March 2006, the veteran, sitting at the Hartford RO, testified during a hearing, via video conference, conducted with the undersigned sitting at the Board's main office in Washington, D.C. Copies of these hearing transcripts are in the claims file. FINDINGS OF FACT 1. All pertinent notification and indicated evidentiary development have been accomplished. 2. Throughout the appeal period, PTSD has been primarily manifested by depressive symptoms, intrusive thoughts, avoidance behaviors, anger, night sweats, flashbacks, and some memory problems. Occupational and social impairment with reduced reliability and productivity is not shown. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the veteran, the criteria for an initial evaluation of 30 percent, but no more, for PTSD prior to January 11, 2007, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.130, Diagnostic Code (DC) 9411 (2007). 2. The criteria for an initial evaluation in excess of 30 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.130, DC 9411 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act (VCAA) (codified at 38 U.S.C.A. §§ 5100, 5102- 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007)) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and 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). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the United States Court of Appeals for Veterans Claims (Court) held that VA 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) request that the claimant provide any evidence in his possession that pertains to the claim. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Id. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), 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, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the veteran is challenging the initial evaluation assigned following the grant of service connection. In Dingess, the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service- connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has of record VA treatment records, Vet Center records, private treatment records, hearing transcripts, service personnel records and service treatment records. There is no indication that any other treatment records exist that should be requested, or that any pertinent evidence has not been received. VA examinations were provided in connection with these claims. For the foregoing reasons, the Board therefore finds that VA has satisfied its duty to notify (each of the four content requirements) and the duty to assist pursuant to the VCAA. See 38 U.S.C.A. §§ 5102 and 5103 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159(b), 20.1102 (2007); Pelegrini, supra; Quartuccio, supra; Dingess, supra. Any error in the sequence of events or content of the notice is not shown to have any effect on the case or to cause injury to the claimant. Thus, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Increased Rating The veteran asserts that he warrants disability ratings in excess of those assigned for PTSD throughout the appeal period. At his personal hearings he testified that his PTSD symptoms included depression, flashbacks, nightmares, night sweats, memory problems, sleep disturbances, exaggerated startle response, and avoidance behavior. He also testified that he does not have any neurological effects (such as memory impairment) from a past stroke. Under the applicable criteria, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. 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. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Compensation for service-connected injury is limited to those claims which show present disability. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, in cases such as this, involving the assignment of initial ratings following the initial award of service connection for PTSD, VA must address all evidence that was of record from the date of the filing of the claim on which service connection was granted (or from other applicable effective date). Fenderson v. West, 12 Vet. App. 119, 126-127 (1999). Accordingly, separate ratings may be assigned (at the time of the initial rating) for separate periods of time based on the facts found. Id. This practice is known as "staged" ratings. The Board acknowledges that in cases where entitlement to compensation has already been established 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). The analysis in the following decision is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The veteran's service-connected PTSD is evaluated under DC 9411. The regulations establish a general rating formula for mental disorders. 38 C.F.R. § 4.130. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)). Id. Under 38 C.F.R. § 4.130, Diagnostic Code 9411, the criteria and evaluations are as follows, in relevant parts: 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 - 50 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) - 30 percent. Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication - 10 percent. 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. 38 C.F.R. § 4.126(a) (2007). 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. Id. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Initially, the Board notes that the task before VA is to assign disability ratings based on the current symptomatology. The Board wishes to take this opportunity to point out that a review of the veteran's personnel record shows that he has certainly sacrificed much for this country. This is reflected through his numerous military awards, including the Purple Heart Medal, Combat Infantryman Badge, Vietnam Service Medal, and Army Commendation Medal. The Board wishes to emphasize that any disability ratings assigned to the veteran should not in any way be construed to diminish his faithful and meritorious combat service. After a careful review of the evidence, the Board finds that with reasonable doubt resolved in the veteran's favor, a 30 percent disability evaluation, but no more, is warranted for PTSD prior to January 11, 2007. The preponderance of the evidence is against a finding that the veteran warrants an initial evaluation in excess of 30 percent for PTSD at any time throughout the appeal period. The veteran was afforded a VA psychiatric examination in October 2004. At that examination it was noted that the veteran had been evaluated by the examiner for intake into the mental health clinic at that VA facility in June 2004 and at that time he had reported having flashbacks, depressive symptoms, chronic tension and low stress tolerance. More recent medical records documented symptoms of depression and anxiety, with no significant psychotic symptoms. The veteran's other symptoms included anger and memory problems. On examination in October 2004 the veteran had great difficulty in providing specific information about the frequency and intensity of reexperiencing symptoms. He denied combat-related nightmares. He described some arousal symptoms, including mild to moderate hypervigilance, irritability, night sweats, and a history of exaggerated startle. He reported avoiding reminders of Vietnam. He reported having a history of depressive symptoms including decreased enjoyment, decreased future orientation, fatigue, decreased motivation, as well as passive suicidal thoughts. On the veteran's mental status examination it was reported that his affect was euthymic, with humor and little apparent distress. He was pleasant and cooperative; although his mood was somewhat depressed. His thought process was logical and organized with no evidence of thought disorder. There was a history of some paranoid ideation and auditory hallucinations, but those did not appear significant at the time of the examination. His insight and judgment were good. He reported passive suicidal ideation but without active ideation, plan, or intent. The examiner noted that the veteran presented with what appeared to be relatively mild and delimited symptoms of PTSD. His presentation was complicated by what appeared to be residuals of a stroke that has caused or exacerbated depressive symptomatology. There appeared to be mild impairment in social and vocational function. The diagnoses given were PTSD, mild; and depressive disorder not otherwise specified. The examiner assigned a Global Assessment of Functioning (GAF) score of 65; with the highest score in the past year being 65 as well (a score of 60 was assigned in June 2004). The GAF score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Diagnostic and Statistical Manual of Mental Disorders 46-47 (4th ed. 1994). The various GAF scores assigned to the veteran will be further discussed below. Vet Center records from July 2004 through September 2007 show that the veteran, at times, suffered from symptoms such as intrusive thoughts, depression, anxiety, reexperiencing, avoidance, hyperarousal, stress and anger management issues, isolation, and poor self esteem. Most of the reports of symptoms are simply check marks on forms with pre-printed symptoms that appear to be used during group therapy. The severity of these symptoms is not clear nor is the impact upon the veteran's daily life. These records do not show an increase in the severity of his symptoms; in fact, most of the entries indicate that, in relation to any change in psychological symptoms, they were "less severe." A VA mental health note from May 2004 states that at that time the veteran was alert and oriented times three, cooperative, with adequate eye contact. He had some psychomotor retardation. His speech was slow and soft. His mood was depressed with constricted affect. His thought process was goal directed; and he denied suicidal and homicidal ideation, delusions, obsessions, compulsions, and psychotic thoughts. He had adequate impulse control, frustration, tolerance, and judgment. A VA mental health note from September 2004 states that the veteran reported signs and symptoms of depression along with some anxiety and worries. No psychotic symptoms were reported, except occasionally seeing things moving. No paranoia or auditory hallucinations. He reportedly feels angry inside. He also noticed memory problems since his stroke and found that annoying. He denied past and present suicidal and homicidal ideas, intents, and plans. The veteran was afforded another VA examination in January 2007. At that examination the veteran stated that nothing had changed since his last examination and that "[i]t's always been bad." He did describe some aggravation of his symptoms since his last examination in the form of increased flashbacks (although he couldn't specify the frequency) and increased anger. Other reported symptoms were sleep disturbance, vigilance, social isolation, and being emotionally numb and estranged from others. The veteran continued to describe depressive symptoms such as no motivation or energy and trouble concentrating. On the veteran's mental status examination it was reported that his affect was full range, although he was irritated and frustrated. His thought process was logical with no evidence of thought disorder. Thought process problems noted at the last examination were no longer present. The veteran did report homicidal thoughts towards an individual who confronted him some time ago on a veteran center fishing trip. The veteran did not know the person and had no actual plan or intent to harm the person. He described passive suicidal thoughts without any active ideation, intent, or plan. His insight and judgment were reportedly fair. In summary, the examiner noted that the veteran's symptoms have caused substantial impairment in social function, and would restrict vocational opportunities at this time. The diagnoses given were PTSD and depressive disorder not otherwise specified. The veteran's current GAF score and his highest GAF score in the last year were reported as 55. At the veteran's October 2004 VA examination, March 2006 hearing before the undersigned, January 2007 VA psychiatric examination, and during treatment, the veteran has continued to report depressive symptoms and the Board considers these symptoms to be associated with his PTSD. The examples given in the rating schedule as indicative of 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) are depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). See 38 C.F.R. § 4.130, DCs 9411, 9440. As reflected in the competent medical evidence of record, the veteran has reported continuing depressed mood, sleep impairment, mild memory loss, and some anxiety and paranoia. With reasonable doubt resolved in favor of the veteran, the Board finds that the competent medical evidence of record shows that the veteran's symptoms prior to January 11, 2007 show occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Accordingly, the veteran is entitled to an initial evaluation of 30 percent, but no more, for PTSD prior to January 11, 2007. The competent medical evidence of record supports a finding that the veteran does not warrant an initial evaluation in excess of 30 percent at any time throughout the appeal period. The question before the Board is whether the veteran's overall disability picture more nearly approximates the criteria for a 50 percent disability rating or a 30 percent disability rating. Essentially, the Board must decide if the evidence of record shows that PTSD is productive of occupational and social impairment with reduced reliability and productivity (50 percent criteria), or of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (30 percent criteria). The October 2004 VA examiner described mild impairment in social and vocational function, and the January 2007 VA examiner described substantial impairment in social function, and restriction of vocational opportunities. GAF scores of 65 and 55 were assigned, respectively. Although the GAF score does not fit neatly into the rating criteria, it is evidence, which the Court has noted the importance of in evaluating mental disorders. See Carpenter v. Brown, 8 Vet. App. 240 (1995). GAF scores ranging between 61 and 70 reflect 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, and has some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect more 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). See 38 C.F.R. § 4.130 (incorporating by reference the VA's adoption of the DSM-IV, for rating purposes). The GAF scores assigned to the veteran show mild to moderate symptoms or mild to moderate difficulty in social, occupational, or school functioning. These GAF scores are not in significant contradiction with a finding that the veteran's overall disability picture more closely resembles occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks than it does occupational and social impairment with reduced reliability and productivity. Turning to the specific symptoms described in the competent medical evidence of record, the examples given in the rating schedule as indicative of occupational and social impairment with reduced reliability and productivity are 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. See 38 C.F.R. § 4.130, DCs 9411, 9440. The competent medical evidence of record shows that throughout the appeal period PTSD has been primarily manifested by depressive symptoms, intrusive thoughts, avoidance behaviors, anger, night sweats, flashbacks, and some memory problems. A May 2004 VA mental health note shows that the veteran's affect was constricted at that time. At his VA examination 4 months later his affect was reported as euthymic, and a month before that as calm. The Board finds that the veteran's disability is not manifested by a flattened affect. While in May 2004 the veteran's speech was reported as slow and soft, there is no indication that he has circumstantial, circumlocutory, or stereotyped speech. The veteran has appeared for two separate hearings, one of which was before the undersigned, and he presented himself and his case adequately. At the veteran's hearing in March 2006 he did report fainting while in a crowd on one occasion; however, panic attacks more often than once a week are certainly not shown. There is also no indication that the veteran has any difficulty in understanding complex commands or impaired abstract thinking. In fact, a rehabilitation report from September 2001 reports that he tested in the 100th percentile regarding complex ideational material and the 90th percentile regarding commands. Subsequent significant decrease in this type of functioning is not shown. While the veteran reports some problems with short-term memory, the degree of short-and long-term memory impairment contemplated in the 50 percent evaluation is not shown. The example of this type of impairment given in DC 9411, 9440 is "retention of only highly learned material, forgetting to complete tasks." The veteran reports that he takes notes so that he remembers things; this does not show impairment to such a degree. The veteran's judgment has been reported as fair. As noted above, the veteran has reported problems with depression and other disturbances of motivation and mood. These problems undoubtedly cause some disability and have an affect on his ability to establish and maintain effective work and social relationships. The Board notes that the veteran was working part-time for awhile during the course of the appeal. At his October 2004 VA examination his affect was described as euthymic and he was noted to be with little apparent distress. Vet Center records indicate that the veteran appears to get along with others in that group. The Board is well aware that not all of the example symptoms must be shown for a higher rating; however, in this case, the Board believes the symptoms the veteran does exhibit (including those not listed as examples in 38 C.F.R. § 4.130) do not rise to the level of disability contemplated in the next higher level. These symptoms certainly may cause an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, but they do not appear to rise to such a level as to cause occupational impairment with reduced reliability and productivity. The various GAF scores assigned to the veteran do not significantly conflict with such a finding. Accordingly, for all the reasons above, the Board finds that the veteran's disability picture more nearly approximates the criteria required for the 30 percent rating for PTSD (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)) than the criteria required for the 50 percent rating for PTSD (occupational and social impairment with reduced reliability and productivity). See 38 C.F.R. § 4.130, DCs 9411, 9440. As such, the Board finds that the veteran is not entitled to an evaluation in excess of 30 percent for PTSD. See 38 C.F.R. § 4.7. The veteran is competent to report his symptoms. To the extent that the veteran has asserted that he warrants more than a 30 percent evaluation, the Board finds that the preponderance of the evidence does not support his contentions, for all the reasons stated above. The Board is responsible for weighing all of the evidence and finds that the preponderance of it is against an initial evaluation in excess of 30 percent for PTSD, and there is no doubt to be resolved. Gilbert, 1 Vet. App. at 55. The Board finds no basis upon which to predicate assignment of "staged" ratings. The Board notes it does not find that consideration of extraschedular ratings under the provisions of 38 C.F.R. § 3.321(b)(1) (2007) is in order. The Schedule for Rating Disabilities will be used for evaluating the degree of disabilities in claims for disability compensation. The provisions contained in the rating schedule will represent as far as can practicably be determined, the average impairment in earning capacity in civil occupations resulting from disability. Id. In the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability. The governing norm in these exceptional cases is: a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. Id. The Board emphasizes that the percentage ratings under the Schedule are representative of the average impairment in earning capacity resulting from diseases and injuries. 38 C.F.R. § 4.1, states that "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." Thus, with this in mind, the Board finds that the veteran's symptoms that warrant the 30 percent evaluation for PTSD are clearly contemplated in the Schedule and that the veteran's service-connected disability is not so exceptional nor unusual such as to preclude the use of the regular rating criteria. ORDER An initial evaluation of 30 percent, but no more, for PTSD prior to January 11, 2007 is allowed; to this extent the appeal is granted subject to the law and regulations governing the award of monetary benefits. Entitlement to an initial evaluation in excess of 30 percent for PTSD is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs