Citation Nr: 0811175	
Decision Date: 04/04/08    Archive Date: 04/14/08

DOCKET NO.  05-06 558	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Buffalo, New York



THE ISSUE

Entitlement to an initial rating in excess of 30 percent for 
service-connected post-traumatic stress disorder (PTSD).  



REPRESENTATION

Appellant represented by:	The American Legion



ATTORNEY FOR THE BOARD

A.M. Ivory, Associate Counsel




INTRODUCTION

The veteran had active service from February 1969 to October 
1971 that included duty in the Republic of Vietnam.  

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a November 2003 RO rating decision.  

As the claim on appeal involves a request for higher initial 
rating following the grant of service connection, the Board 
has characterized that issue in light of the distinction 
noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) 
(distinguishing an initial rating claim from a claim for an 
increased rating for disability already service-connected).  

In June 2007 the veteran's representative submitted treatment 
reports with a waiver of initial RO jurisdiction.  The Board 
has accepted this additional evidence for inclusion into the 
record on appeal.  See 38 C.F.R. § 20.800.  



FINDINGS OF FACT

1.  All notification and development action needed to fairly 
adjudicate the issue on appeal has been accomplished.  

2.  The service-connected PTSD is shown to be productive of a 
disability picture that more nearly approximates that of 
occupational and social impairment with reduced reliability 
and productivity and difficulty in establishing and 
maintaining effective work and social relationships.  




CONCLUSION OF LAW

The criteria for the assignment of an increased initial 
rating of 50 percent, but not more, for the service-connected 
PTSD are met.  38 U.S.C.A. §§ 1155, 5107, 7104 (West 2002 & 
Supp. 2007); 38 C.F.R. §§ 4.7, 4.130 including Diagnostic 
Code 9411 (2007).  



REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

Initially, the Board notes that, in November 2000, the 
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 
106-475, 114 Stat. 2096 (2000), was signed into law.  See 38 
U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To 
implement the provisions of the law, VA promulgated 
regulations at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) 
(2003).  

VCAA and its implementing regulations include, upon the 
submission of a substantially complete application for 
benefits, an enhanced duty on the part of VA to notify a 
claimant of the information and evidence needed to 
substantiate a claim, as well as the duty to notify the 
claimant what evidence will be obtained by whom.  38 U.S.C.A. 
§ 5103(a); 38 C.F.R. § 3.159(b).  

In addition, they define the obligation of VA with respect to 
its duty to assist a claimant in obtaining evidence.  38 
U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  

Considering the duties imposed by VCAA and its implementing 
regulations, the Board finds that all notification and 
development action needed to fairly adjudicate the claims on 
appeal has been accomplished.  

The Board notes that this appeal addresses the "downstream" 
issue of entitlement to an increased initial rating.  Prior 
to the November 2003 rating decision on appeal, the RO sent 
the veteran notice letters in February 2002 that addressed 
the elements and evidence required to establish service 
connection, but not the elements and evidence required to 
establish entitlement to an increased rating.  

However, in the February 2005 Statement of the Case (SOC) the 
RO addressed the elements necessary in order to support a 
claim for higher evaluation for a service-connected 
disability and the veteran had an opportunity to submit any 
additional evidence before the Board adjudicated the issue on 
appeal.

The Board accordingly finds that the veteran has received 
sufficient notice of the information and evidence needed to 
support his claim for higher initial rating and has been 
afforded ample opportunity to submit such information and 
evidence.  

The Board also finds that the February 2002 letter together 
satisfy the statutory and regulatory requirement that VA 
notify a claimant what evidence, if any, will be obtained 
that the claimant, and what evidence, if any, will be 
obtained by VA.  See Quartuccio v. Principi, 16 Vet. App. 
183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. 
§ 5103(a) and 38 C.F.R. § 3.159(b)).  

The February 2002 letter advised the veteran that VA would 
make reasonable efforts to get medical records, employment 
records, or records from other Federal agencies.  

In the decision of Pelegrini v. Principi, 18 Vet. App. 112 
(2004), the United States Court of Appeals for Veterans 
Claims (Court) held that proper VCAA notice should notify the 
veteran of: (1) the evidence that is needed to substantiate 
the claim(s); (2) the evidence, if any, to be obtained by VA; 
(3) the evidence, if any, to be provided by the claimant; and 
(4) a request by VA that the claimant provide any evidence in 
the claimant 's possession that pertains to the claim(s).  As 
explained hereinabove, the first three content-of-notice 
requirements have been met in this appeal.  

The Board notes that the record does not show that the 
veteran was advised of the fourth content-of-notice 
requirement under Pelegrini (request that the claimant 
provide any evidence in his possession that pertains to the 
claim).  

However, even though the veteran was not expressly advised to 
"give us all you've got" the Board finds that this 
requirement has been constructively satisfied.  

As noted, the veteran has been advised of the evidence 
required to support a claim for higher initial rating, and of 
the evidence of record.  The Board finds that he has 
accordingly been constructively invited to give VA all the 
relevant evidence in his possession not already of record at 
VA.  

Pelegrini also held that the plain language of 38 U.S.C.A. 
§ 5103(a) (West 2002), requires that notice to a claimant 
pursuant to VCAA be provided "at the time" that, or 
"immediately after," the Secretary receives a complete or 
substantially complete application for VA-administered 
benefits.  

In that case, the Court determined that VA had failed to 
demonstrate that a lack of such pre-adjudication notice was 
not prejudicial to the claimant.  

As indicated, in the matters now before the Board, documents 
fully meeting the VCAA's notice requirements were provided to 
the veteran after the rating action on appeal.  However, the 
Board finds that the lack of full pre-adjudication notice in 
this appeal has not, in any way, prejudiced the veteran.  

The Board notes that the Court has held that an error in the 
adjudicative process is not prejudicial unless it "affects a 
substantial right so as to injure an interest that the 
statutory or regulatory provision involved was designed to 
protect such that the error affects 'the essential fairness 
of the [adjudication].'"  Mayfield v. Nicholson, 19 Vet. 
App. 103 (2005), rev'd on other grounds, Mayfield v. 
Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  
 
The Board finds that, in this appeal, the delay in issuing 
section 5103(a) notice was not prejudicial to the veteran 
because it did not affect the essential fairness of the 
adjudication, in that his claim was fully developed and 
readjudicated after notice was provided.  

As indicated, the RO gave the veteran notice of what was 
required to substantiate the claim on appeal, and the veteran 
was afforded ample opportunity to submit such information 
and/or evidence.  

Neither in response to the documents cited above, nor at any 
other point during the pendency of this appeal, has the 
veteran or his representative informed the RO of the 
existence of any evidence-in addition to that noted below-
that needs to be obtained prior to appellate review.  

Hence, the Board finds that any failure on VA's part in not 
completely fulfilling the VCAA notice requirements prior to 
the RO's initial adjudication of the claim is harmless.  See 
ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 
1998); Cf. 38 C.F.R. § 20.1102 (2007).  

More recently, the Board notes that, on March 3, 2006, during 
the pendency of this appeal, the Court issued a decision in 
the consolidated appeal of Dingess/Hartman v. Nicholson, 19 
Vet. App. 473 (2006), which held that the in rating cases, a 
claimant must be informed of the rating formulae for all 
possible schedular ratings for an applicable rating criteria.  

As regards the claim for increase on appeal, the Board finds 
that this was accomplished in the February 2005 SOC, which 
suffices for Dingess.  

 The veteran was not advised of the information regarding the 
effective date that may be assigned; however, the Board's 
decision herein grants the claim back to the original 
effective date and therefore, there is accordingly no 
possibility of prejudice under the notice requirements of 
Dingess as regards a claim for increased rating.  

With regard to the increased evaluation claim included in 
this decision, the Board is aware of the Court's recent 
decision in Vazquez-Flores v. Peake, 22 Vet.App. 37 (2008).

In this case, the Board finds that the February 2002 VCAA 
letter was in substantial compliance with the first and 
fourth requirements of Vazquez-Flores to the extent that the 
veteran was notified that he needed to submit evidence of 
worsening that could include specific medical evidence, as 
well as lay evidence from other individuals.

The Board is aware that the February 2002 VCAA letter did not 
provide the type of notification set forth in the second and 
third requirements of Vazquez-Flores.  However, the veteran's 
June 2002 and December 2004 VA examinations involved studies 
that paralleled the relevant diagnostic criteria.  

These studies, as well as the veteran's access to his VA 
examination reports (indicated in his representative's March 
2008 statement, as the claims file had been reviewed by the 
representative), reflect that a reasonable person could have 
been expected to understand in this case what was needed to 
substantiate the claim.  

Moreover, as the veteran discussed his service-connected 
disability in terms of relevant symptomatology in his 
statements, and as he described the functional effects of his 
disabilities on his everyday life in support of his claims 
during his examinations, the Board is satisfied that he had 
actual knowledge of what was necessary to substantiate the 
claim.  See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 
(2007) (actual knowledge is established by statements or 
actions by the claimant or the claimant's representative that 
demonstrate an awareness of what is necessary to substantiate 
a claim).  

For all of these reasons, the Board finds that any notice 
errors with regard to the second and third requirements of 
Vazquez-Flores are not prejudicial, inasmuch as they did not 
affect the "essential fairness of the adjudication."  
Sanders v. Nicholson, 487 F.3d at 889.

The Board also notes that there is no indication whatsoever 
that any additional action is needed to comply with the duty 
to assist the veteran in connection with the claim on appeal.  

The veteran's service medical records and post-service VA 
medical records have been associated with the claims file.  
Neither the veteran nor his representative has identified, 
and the file does not otherwise indicate, that there are any 
other VA or non-VA medical providers having existing records 
that should be obtained before the claims are adjudicated.  
The veteran had VA examinations in June 2002 and December 
2004.  

Finally, the veteran was advised of his right to a hearing 
before the RO and/or before the Board, but he waived that 
right.  

Under these circumstances, the Board finds that the veteran 
is not prejudiced by the Board proceeding, at this juncture, 
with an appellate decision on the claim for increased rating 
for the service-connected disability of PTSD.  


II. Analysis

Disability evaluations are determined by the application of 
VA's Schedule for Rating Disabilities, which assigns ratings 
based on average impairment of earning capacity resulting 
from a service-connected disability.  38 U.S.C.A. § 1155; 
38 C.F.R. Part 4.  

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.  Any reasonable doubt regarding 
the degree of disability is resolved in favor of the veteran.  
See 38 C.F.R. §§  3.102, 4.3 (2007).  

The veteran's entire history is to be considered when making 
disability evaluations.  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).  

A November 2003 RO rating decision granted service connection 
and assigned an initial 30 percent disability rating, 
effective on February 18, 2003.  

At the veteran's June 2002 VA examination, he reported being 
unable to sleep in any kind of normal manner and having a 
night of decent sleep once or twice a week.  He had regular 
nightmares and relived the fear he had in service when he 
felt he would be hurt or killed.  He was often preoccupied 
with things that happened in service and related them to his 
day-to-day life.  

The veteran tried to avoid things that reminded him of 
service and was afraid of losing his friends.  He had an 
exaggerated startle response and was unable to focus on 
anything in particular.  He had suicidal thoughts that were 
related to work.  He had depressed mood, nightmares and 
flashbacks.  He had difficulty interacting with people.  The 
examiner assigned the veteran a Global Assessment of 
Functioning (GAF) score of 62.  

In January 2004, a VA PTSD evaluator stated that the veteran 
had chronic PTSD and had extreme issues with trusting others, 
had difficulties with interactions with people, and was a 
loner.  He reported extreme anger problems, admitted violence 
at times, and had panic problems around others.  He denied 
any suicidal or homicidal ideations.  He had insomnia, 
nightmares and flashbacks.  He had a lack of trust, anger and 
concentration problems and had intrusive thoughts about 
service, psychic numbing, a startle response and mild 
depression.  

A November 2004 VA PTSD examination assessed the veteran with 
chronic PTSD and assigned a GAF of 55.   

At a December 2004 VA examination, the veteran reported being 
written up at work for unspecified transgressions but never 
being suspended.  Reportedly, he was fired from unspecified 
previous jobs because he was not liked.  

The veteran reported having sleeplessness, irritability, lack 
of concentration and development of physical symptoms in 
response to stress and trying to stay away from people.  His 
irritability and anger were better controlled with 
medication; however, he routinely experienced road rage and 
punched walls on occasion.  He had no trust for others and 
only slept one to three hours at a time.  

The VA examiner noted that the impact of his symptoms 
appeared to be moderate as related to relationships, family 
and social functioning and slight to mild as to occupational 
impairment.  The VA examiner reported on Axis V that he had 
"42 (questionable, may be as high as 55)."  

The Board notes that the veteran's VA individual and group 
treatment reports are part of the record and describe the 
same symptoms as discussed hereinabove.  In April 2006, the 
veteran received a GAF of 49.  In June 2006, the veteran 
reported that, after being authorized to take two weeks off 
because of very high stress level, he had retired from his 
job and felt better without the daily stress.  

In October 2006, in connection with VA outpatient treatment, 
the veteran reported doing 'pretty well' in the PTSD residual 
program, but did not sleep well because he was used to living 
alone.  In a November 2006 treatment report, the examiner 
reported that the veteran looked and sounded better than he 
had in recent months.  

On VA mental status examination in February 2006, the veteran 
reported having a difficult time at work and feeling trapped 
because the other people were against him and spreading 
rumors about him.  The Axis I diagnosis was that of "PTSD 
due to Vietnam combat related, depression NOS."  

In October 2006, in connection with a VA mental status 
examination for admission to a VA PTSD program, the veteran 
reported having had fleeting ideations in the immediate past, 
sleeplessness, irritability, lack of concentration and 
moderately depressed mood.  He had a couple of friends, but 
preferred solo activities.  

The Board notes that, in February 2005, two statements were 
submitted by the veteran's former co-workers in regards to 
his personal hygiene.  

The ratings for the service-connected PTSD have been assigned 
under the provisions of Diagnostic Code (DC) 9411.  Under the 
General Rating Formula that became effective on November 7, 
1996, psychiatric disorders other than eating disorders, to 
include PTSD, are rated as follows:  

A rating of 30 percent is assignable for occupational and 
social impairment with an 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, and recent events).  

A rating of 50 percent is assignable for 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 per 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.  

A rating of 70 percent is assignable 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; obsess ional 
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 work like 
setting); inability to establish and maintain effective 
relationships.  

A rating of 100 percent is assignable 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.  

After carefully reviewing the evidentiary record in its 
entirety, the Board finds that the service-connected PTSD is 
shown to have been productive of a disability picture that 
more closely approximate the criteria for an initial rating 
of 50 percent.  

The manifestations during this period are shown to resemble a 
level of occupational and social impairment manifested by 
reduced reliability and productivity and some difficulty in 
establishing and maintaining effective work and social 
relationships.  

The veteran's PTSD symptoms included those of flattened 
affect, panic attacks more than once per week, disturbances 
of motivation and mood and some difficulty in work and social 
relationships.  

However, the competent evidence does not describe symptoms 
that meet the criteria for the assignment of a 70 percent 
rating; i.e., occupational and social impairment with 
deficiencies in most areas, such as work, school, family 
relations, judgment, thinking or mood.  

The veteran does reveal some degree of occupational 
impairment as reflected by his recent retirement to avoid 
stress, but the medical record does not show manifestations 
that would equate with a level of impairment manifested by an 
inability to establish and maintain effective relationships.  

Significantly, symptoms such as suicidal ideation; obsess 
ional rituals which interfere with routine activities; 
intermittently illogical, obscure or irrelevant speech; 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; and 
neglect of personal appearance and hygiene are not shown.  

According to the Fourth Edition of the American Psychiatric 
Association's Diagnostic and Statistical Manual of Mental 
Disorders (DSM-IV), the GAF is a scale reflecting the 
"psychological, social, and occupational functioning on a 
hypothetical continuum of mental health-illness."  

There is no question that the GAF score and interpretations 
of the score are important considerations in rating a 
psychiatric disability.  See e.g., Richard v. Brown, 9 Vet. 
App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 
(1995).  

GAF scores between 41 and 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).  

GAF scores between 51 and 60 reflect moderate symptoms (e.g., 
flat affect, circumstantial speech, occasional panic 
attacks), or moderate difficulty in social, occupational, or 
school functioning (e.g., few friends, conflicts with peers 
or co-workers).  

GAF scores 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, has some meaningful interpersonal 
relationships. 

The GAF score assigned in a case are not dispositive of the 
evaluation issue; rather, the assigned score must be 
considered in light of the actual symptoms of the veteran's 
disorder, which provide the primary basis for the rating 
assigned.  See 38 C.F.R. § 4.126(a).  

Given these facts, the Board finds that the service-connected 
PTSD warrants the assignment of a 50 percent rating, but not 
higher, for the period of the appeal.  



ORDER

An increased, initial rating of 50 percent, but not more for 
the service-connected PTSD is granted, subject to the 
regulations controlling the award of VA monetary benefits.  



____________________________________________
STEPHEN L. WILKINS
Veterans Law Judge, 
Board of Veterans' Appeals




 Department of Veterans Affairs