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