Citation Nr: 0811446 Decision Date: 04/07/08 Archive Date: 04/23/08 DOCKET NO. 05-32 899A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to an increased rating for service-connected post-traumatic stress disorder (PTSD), evaluated as 10 percent disabling prior to November 19, 2003, and as 50 percent disabling thereafter. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The veteran served on active duty from September 1943 to October 1945. This matter arises before the Board of Veterans' Appeals (Board) on appeal from an April 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, in which the RO granted the veteran's claim for an increased the rating for PTSD, to the extent that it increased his rating from 10 to 30 percent. The RO assigned an effective date of November 19, 2003 for the 30 percent rating. The veteran has appealed the issue of entitlement to an increased rating. In February 2005, the Board remanded the claim for additional development. In February 2008, the RO increased his evaluation to 50 percent, and assigned an effective date of November 19, 2003 for the 50 percent rating. FINDING OF FACT The veteran's PTSD has been manifested by complaints of nightmares, flashbacks, hypervigilance, easy startle complex, depression with diminished interest, poor energy and concentration, and sleep, and GAF scores of 45 and 60; his psychiatric disorder has not resulted in occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. Prior to November 19, 2003, the criteria for an evaluation of 50 percent for PTSD have 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 and prior to November 19, 2003, 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). REASONS AND BASES FOR FINDING AND CONCLUSIONS The veteran asserts that an increased rating is warranted for his service-connected PTSD. The veteran asserts that he has survivor's guilt, hyper-alertness, anxiety, depression, and sleep disturbances. See veteran's statement, received in September 2005. The veteran's service records indicate that his military occupation specialty was rifleman, that he served in New Guinea, and that his awards include the Purple Heart, and the Combat Infantryman Badge. The Board further notes that service connection is in effect for residuals of a gunshot wound to the left upper extremity, currently evaluated as 30 percent disabling. In September 2002, the RO granted service connection for PTSD, evaluated as 10 percent disabling. There was no appeal, and the RO's decision became final. See 38 U.S.C.A. § 7105(c) (West 2002). In December 2003, the veteran filed a claim for an increased rating. In April 2004, the RO granted the veteran's claim to the extent that it increased his rating from 10 to 30 percent. The RO assigned an effective date of November 19, 2003 for the 30 percent rating. The veteran appealed the issue of entitlement to an increased rating. In February 2008, the RO increased his evaluation to 50 percent, and assigned an effective date of November 19, 2003 for the 50 percent rating. However, since this increase did not constitute a full grant of the benefit sought, the increased rating issue remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). Disability evaluations are determined by comparing the veteran's present symptomatology with the criteria set forth in the VA' s Schedule for Ratings Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4. The RO has evaluated the veteran's PTSD under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. Under DC 9411, a 10 percent rating is warranted for occupation 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. A 30 percent rating was warranted for: 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). A 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: Flattened affect; circumstantial, circumlocutory, or stereotype 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 or motivation in mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted where there is 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 ideations; obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. 38 C.F.R. Part 4, Diagnostic Code 9411. 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." Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994). A GAF score between 41 and 50 suggests serious symptoms or any serious impairment in social, occupational or school functioning. A GAF score between 51 and 60 suggests moderate symptoms OR moderate difficulty in social, occupational, or school functioning. GAF scores ranging between 61 to 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. See Quick Reference to the Diagnostic Criteria from DSM-IV at 47 (American Psychiatric Association 1994) ("QRDC DSM-IV"). The Board further notes that 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). The veteran filed his claim on December 15, 2003, and he may, in theory, receive an increased rating up to one year prior to the filing of his claim, provided that it is factually established that there has been an increase in severity to a degree warranting an increase in compensation. See 38 C.F.R. § 3.400(o)(2) (2007); Hazan v. Gober, 10 Vet. App. 511, 519 (1992). For the period prior to November 19, 2003, the relevant medical evidence consists of a VA examination report, and two reports from the Vet Center. In this regard, although the claims file contains VA progress notes dated between 2002 and November 13, 2003, these reports do not show treatment for psychiatric symptoms, or contain any relevant findings. A report from the Vet Center, dated in February 2002, shows that the veteran reported that he did not have a past history of arrest, assault, domestic abuse, pending charges or DWI (driving while intoxicated). On examination, he was oriented x 3, with appropriate judgment, and no suicidal or homicidal thought. He reported disturbing memories of service, avoiding situations that reminded him of his service, anger and irritability when driving, difficulty concentrating, being "super-alert," and avoiding funerals. He indicated that he had been put on Zoloft in the past for treatment of depression, and that he was preoccupied with security at night. He indicated that he lived in his home with his wife, and that he had worked as a carpenter for 31 years until he retired in 1987. A report, dated in October 2003, notes that he was appropriate in mood and affect. The Board notes that a Vet Center report, dated November 4, 2003, does not contain any relevant findings. The September 2002 VA examination report shows that the veteran reported a past history of use of Zoloft for depression, and participation in group therapy. He denied a history of psychiatric hospitalizations, and the report notes that there was no history of suicidal behavior or hallucinations. The veteran complained of nightmares and flashbacks, that he was hypervigilant, and that he startled easily. He stated the following: he had worked as a carpenter, and then as a superintendent; he had functioned well at work; he was in his second marriage, of 40 years duration; he has a daughter whom he sees infrequently; he had few friends and mainly spent time with his wife's family; he was retired. On examination, mood was neutral, affect was appropriate, and speech was normal. Thought processes and thought content was normal. There was no suicidal or homicidal ideation. He was oriented to person, place, and time. Memory was one out of three, and he could not do serial 7's. Insight, judgment, and impulse control were fair. The Axis I diagnosis was PTSD. The Axis V diagnosis was a GAF score of 70, with a notation of mild symptoms. The examiner noted, "By and large, the patient is leading a stable retired life." After a careful review of the evidence of record, it is found that an evaluation in excess of 10 percent prior to November 13, 2003 is warranted. Simply stated, the Board can find no difference in the veteran's condition before and after this date. There is simply no basis to make November 13, 2003, the basis for a finding that the veteran was entitled to a 50 percent evaluation after this date, but not before. With regard to the period beginning in November 2003, the medical evidence consists of VA progress notes, Vet Center reports, and two VA examination reports. Overall, this evidence shows ongoing treatment for psychiatric symptoms, with use of medications that included Celexa and Zoloft. It fails to show that on November 13th, 2003, the disability had increased in severity, undermining the RO's finding of an increase in the disability at that time, and at that time only. The VA progress notes primarily show treatment for disorders not in issue, but contain several reports for psychiatric symptoms, and contain assessments of PTSD, depression, dysthymia, and benzodiazepine dependence. A progress note, dated November 2003, was apparently the basis for the RO's grant of the claim, though this is not clear. This report shows that the veteran was noted to be mildly anxious and dysphoric. Speech was goal-directed, He denied hallucinations, and no specific delusions were elicited. He denied suicidal or homicidal thoughts, intent, or plan. The Axis I diagnosis was PTSD. The Axis V diagnosis was a GAF score of 60. Progress notes, dated between January and March of 2004, show complaints of depression, nightmares, and flashbacks, and indicate that he was well-groomed, with intact thought processes, with no psychosis or dementia, no suicidality, and that he was mildly dysphoric and mildly anxious. The February 2004 note contains a GAF score of 60. Reports from the Vet Center, dated between 2003 and 2007, show complaints of survivor's guilt, depression, emotional numbing, and alientation and isolation, as well as complaints pertaining to domestic issues. These reports contain little in the way of relevant findings. A September 2005 statement from a social worker at the Vet Center states that the veteran has "a full range" of PTSD symptoms that are "chronic and severe, to include anxiety, anger, irritability, hypervigilance, avoidance of activities, depression, and intrusive thoughts of combat. A VA examination report, dated in February 2004, shows that on examination, the veteran's mood was calm, euthymic, and affect was appropriate to discussion content. Speech was spontaneous, relevant, and rational. Thought content showed no evidence of suspiciousness, or disorganized thought. He denied hallucinatory experience. He was oriented to person, place, and time. There was no gross impairment in recent or remote memory. Insight showed no evidence of impairment, and judgment was intact. The Axis I diagnosis was PTSD, chronic. The Axis V diagnosis was a current GAF score of 60, with a high for the past year of 60. The examiner noted that the veteran was in a steady married life, involved in treatment, supported himself on benefits and a pension, and had no history of substance abuse. The examiner further noted that there were no impairments in cognitive functions or immediate judgment. A note from A.O.H., M.D., dated in September 2005, states that the veteran has chronic back pain and depression, and that he is taking antidepressants. A VA examination report, dated in August 2006, shows that the veteran denied a history of psychiatric hospitalizations, suicidal behavior, or hallucinations. He complained of constant symptoms that included nightmares, flashbacks, hypervigilance, easy startle complex, depression with diminished interest, poor energy and concentration, and sleep. He stated that he had been married for 43 years, but that he had marital problems, as his spouse was very critical. He indicated that he had a daughter, but that he rarely saw her. He stated that he had worked as a carpenter and a superintendent, and that he had been generally able to function well at his work and did not miss any time from work. On examination, mood was depressed, and affect was blunted. Speech was normal. There were no perceptual problems. Thought processes and content was normal. He was oriented to person, place, and time. Insight, judgment, and impulse control were fair. The Axis I diagnosis was PTSD. The Axis V diagnosis was a GAF score of 45. The examiner noted moderately severe symptoms, and that he had problems in his relationships, but that his psychiatric problems do not prevent him from getting employment. The Board finds that as of November 19, 2003, and before, the criteria for a rating in excess of 50 percent for PTSD under DC 9411 have not been met. Most of the symptoms described fit the criteria for no more than a 50 percent rating. For example, the veteran reported some marital difficulties, depression, and diminished interest, poor energy and concentration, and sleep. However, he has always been found to be oriented times three, with normal speech, thought processes and content. His insight, judgment, and impulse control have been shown to no worse than fair. His GAF scores have ranged between 45 and 60. To the extent that it may be argued that the most recent GAF score of 45 supports an increased rating, the Board finds that it is insufficiently supported by underlying findings to warrant an increased rating. See Brambley v. Principi, 17 Vet. App. 20, 26 (2003) (although a GAF score may be indicative of a certain level of occupational impairment, it is only one factor in determining an appellant's degree of disability). It is important for the veteran to understand that not all evidence supports the veteran's current 50 percent evaluation, let alone an increased evaluation. In summary, the evidence is insufficient to show that the veteran had total occupational and social impairment or occupational and social impairment with deficiencies in most areas. The Board therefore finds that the evidence does not show that the veteran's symptoms are of such severity to approximate, or more nearly approximate, the criteria for an evaluation in excess of the currently assigned 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, 21 Vet. App. 505 (2007), and whether the veteran is entitled to an increased evaluation beyond 50 percent for separate periods based on the facts found during the appeal period. The evidence of record supports the conclusion that the veteran is not entitled to additional increased compensation beyond 50 percent 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 reaching this decision, the Board considered the benefit- of-the-doubt rule; however, as the preponderance of the evidence is against the appellant's claim, 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 February 2005 and June 2006, the RO sent the veteran notice letters (hereinafter "VCAA notification letters") that informed him of his and VA's respective responsibilities for obtaining information and evidence under the VCAA. He was asked to identify all relevant evidence that he desired VA to attempt to obtain. The VCAA notification letters were not sent before the initial AOJ decision in April 2004. However, any defect with respect to the timing of the VCAA notices in this case was nonprejudicial. There is no indication that the outcome of the claim has 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 claim, as he has been afforded the opportunity to submit additional argument and evidence, which he has done. 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 March 2006. 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 him 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 submission, received between September 2005, shows that it was filed subsequent to the July 2005 statement of the case, which listed the relevant criteria for an increased rating. In this submission, the veteran discussed his psychiatric symptomatology. Furthermore, in a form received in March 2006, the veteran indicated that he had no other information or evidence to substantiate his claim, and that he desired to have his claim adjudicated "as soon as possible." These submissions indicate that the veteran had 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 he has had a meaningful opportunity to participate in the development of his 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 issue on appeal have been obtained and are associated with the veteran's claims file. 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. The Board therefore concludes that a decision on the merits at this time does 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 November 19, 2003, a rating of 50 percent for post- traumatic stress disorder is granted. As of November 19, 2003, and before, a rating in excess of 50 percent for post-traumatic stress disorder is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs