Citation Nr: 0811682 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 06-11 284 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to an initial disability rating in excess of 50 percent for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Connecticut Department of Veterans Affairs ATTORNEY FOR THE BOARD Andrew Mack, Associate Counsel INTRODUCTION The veteran served on active duty from May 2002 to August 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut that granted the veteran's claim of entitlement to service connection for PTSD with an evaluation of 50 percent. The veteran perfected a timely appeal of this determination to the Board. The Board notes that the veteran was scheduled to present testimony before a traveling Veterans Law Judge (VLJ) on December 20, 2007. However, the veteran failed to report to the hearing. As the record does not contain further explanation as to why the veteran failed to report to the hearing, or any additional requests for an appeals hearing, the Board deems the veteran's request for an appeals hearing withdrawn. See 38 C.F.R. § 20.704 (2006). FINDING OF FACT The veteran's PTSD symptoms do not approximate occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and an inability to establish and maintain effective relationships. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 50 percent for PTSD have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and implemented at 38 C.F.R. § 3.159 (2007), amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. First, VA has a duty under the VCAA to notify a claimant and any designated representative of the information and evidence needed to substantiate a claim. The VCAA notice requirements apply to all five elements of a service connection claim, including the disability rating and effective date of the award. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this regard, September 2004 and March 2006 letters to the veteran from the Agency of Original Jurisdiction (AOJ) specifically notified him of the substance of the VCAA, including the type of evidence necessary to establish entitlement to service connection, a disability rating, and an effective date, and the division of responsibility between the veteran and VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2007), these letters essentially satisfied the notification requirements of the VCAA by: (1) informing the veteran about the information and evidence not of record that was necessary to substantiate his claim; (2) informing the veteran about the information and evidence VA would seek to provide; (3) informing the veteran about the information and evidence he was expected to provide; and (4) requesting that the veteran provide any information or evidence in his possession that pertained to the claim. The Board acknowledges that complete VCAA notice was only provided to the veteran after the initial unfavorable decision in this case, rather than prior to the initial decision as typically required. However, in a case involving the timing of the VCAA notice, the United States Court of Appeals for Veterans Claims (Court) held that in such situations, the appellant has a right to a VCAA content- complying notice and proper subsequent VA process. Pelegrini v. Principi, 18 Vet. App. 112 (2004). VCAA-compliant notice was issued to the veteran by March 2006. Thereafter, he was afforded an opportunity to respond, and the AOJ then subsequently reviewed the claim and issued a supplemental statement of the case to the veteran in July 2007. To whatever extent the decision of the Court in Dingess requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as increased initial evaluation claims, the Board finds no prejudice to the appellant in proceeding with the present decision. He appealed the disability evaluations assigned. As the appeal is being denied herein, any such issues are moot. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. Pelegrini v. Principi, supra; Quartuccio v. Principi, 16 Vet. App. 183 (2002). Second, VA has a duty under the VCAA to assist a claimant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002). In this regard, the following are associated with the claims file: the veteran's service medical records, VA medical treatment records, VA compensation and pension examinations, the veteran's testimony at his June 2006 RO hearing, and written statements from the veteran and his representative. There is no indication that there is any additional relevant evidence to be obtained by either VA or the veteran. The Board therefore determines that VA has made reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate his claim. II. Increased Initial Rating The veteran argues that he is entitled to an initial disability rating in excess of 50 percent for PTSD. Disability evaluations are determined by comparing present symptomatology with the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. See 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran seeks initial evaluation in excess of the Board's grant of 50 percent for his service connected PTSD. This appeal arises from an initial grant of service connection, which assigned the initial disability evaluation of 50 percent effective August 7, 2004. Therefore, it is not the present level of disability that is of primary importance. Instead, the entire period in question must be considered to ensure that consideration is given to the possibility of staged ratings, that is, separate ratings must be assigned for separate periods of time based on the facts found. The Board has considered whether "staged" ratings are appropriate. See Fenderson v. West, 12 Vet. App. at 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The record, however, does not support assigning different percentage disability ratings during the period in question. The veteran's psychiatric disability is evaluated under Diagnostic Code (DC) 9411, 38 C.F.R. § 4.130. Under DC 9411, the following applies: A 30 percent evaluation is warranted when there is 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 evaluation is warranted when there is occupational and social impairment, with reduced reliability and productivity, due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more frequently 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 evaluation is warranted when 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 ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and an inability to establish and maintain effective relationships. A 100 percent evaluation is warranted 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; and memory loss for names of close relatives, own occupation, or own name. The veteran was afforded a VA examination in October 2004. At that time, the veteran reported the following: he had unwanted memories of events in service several times week, with moderate intensity; he had recurrent nightmares several times a week; he had an incident like a flashback once or twice a week; he avoided conversations once or twice a week; he avoided places and people almost daily and had diminished interest or participation in significant activities; he had feelings of detachment, with more isolation; once or twice a week he felt irritable and angry; he had difficulty concentrating much of the time; he had moderate hypervigilance; and he had exacerbated startle response once or twice a week. The VA examiner noted that the veteran was unemployed and did not have any clear direction for his life at the time, and that there was some social isolation. The examiner also noted that it was not clear how his functional abilities in a work situation would be at the time. On mental status examination, the following was noted: the veteran had good eye contact; motor behavior was appropriate; he reported that his mood in the last month had been sad and depressed; affect was full range; his thought process was logical and coherent; he had difficulties with abstract thoughts; he understood the meaning of a common saying; thought content was without delusions, persecutory feelings, or paranoia; he reported that his appetite was down, energy was low, and libido was nonexistent; perceptions were negative for auditory or visual hallucinations; he was oriented times three; attention and concentration were intact; memory seemed to be affected, with immediate and recent memory not good; judgment was fair; and he denied suicidal or homicidal ideation. The veteran was diagnosed as having PTSD, mild, with a global assessment of functioning (GAF) score of 55. The examiner noted that the veteran met the criteria for PTSD at the time, and that he seemed to have a mild level. On February 2005 VA outpatient consultation, the veteran reported that he continued to experience PTSD along with a moderate level of depression. He also reported that he was living with his father and younger brother, that his child lived with his mother and he did not get to see the child very often, that he was not currently employed and had been spending most of his time sleeping excessively, and that he got up in the afternoon to eat and see friends but then went back to bed in the early evening. He was noted to be polite and appropriate, with camouflage clothes, and he denied current psychotic symptoms or suicidal or homicidal ideation, but complained of excessive sleep and poor appetite with weight loss. He was noted to be alert and oriented, quite verbal and forthcoming, with no obvious anxiety, and affect appropriate to situation. The veteran was diagnosed as having PTSD and depression. A July 2005 VA progress note indicates that the veteran complained of sleeping problems, having nightmares, being hypervigilant, poor appetite, and having a lot of angry outbursts. The veteran was diagnosed as having PTSD and depression, with significant symptoms of both. He was noted not to have been currently suicidal or homicidal, but prone to anger outburst, getting frustrated, not eating too much, and sleeping excessively. At his June 2006 RO hearing, the veteran testified as follows: that he threw things when he lost his temper; that he had memory and sleeping problems; that he talked to people from time to time, but did not get into in-depth conversations, and did not really socialize with this friends any more; and that he had homicidal feelings and lost his temper easily, and therefore tried to stay away from people. On August 2006 VA mental health screening note, the following was noted on mental status examination: the veteran was alert, attentive, cooperative, and reasonable; speech was normal in rate and rhythm; language was intact; mood was depressed and affect flat; there was no perceptional disturbance; thought process and association was normal and coherent; and there was no unusual thought content, no suicidal or violent ideation, limited insight, impulsive judgment, impaired remote memory, and average fund of knowledge. It was noted that the veteran was casually dressed, soft spoken. His mood was reported as depressed, his affect was flat and constricted, and he denied homicidal or suicidal ideation. The examiner noted that the veteran was no significant risk to harm himself. He was given a GAF score of 58. The veteran as afforded another VA examination in August 2006. The veteran then reported the following: that he continued to attempt to avoid thinking about the war; diminished interest in leisure activities, although he reported some interest in continuing his interest in music; feelings of detachment from others, stating that he did not feel close with any friends other than one friend from the military, with whom he had minimal contact; ongoing sleep disturbance; feelings of irritability, although he stated that he kept it all inside and typically did not have anger outbursts towards others; chronic concentration difficulties since his return home from the war, which interfered with his ability to do paperwork and attend to other reading activities; some mild hypervigilance; anxiety and depression; anhedonia, feelings of fatigue, though he denied suicidal ideation; some homicidal ideation with no intent or plan, but this was usually a result of his level of irritability but passed very quickly. The examiner noted that there did not appear to have been any remission of the veteran's symptoms, and all of his symptoms appeared to be right in line with the frequency and intensity of symptoms as reported in his previous October 2004 examination. The veteran denied the presence of any inappropriate behaviors. He also stated that he had difficulties getting along with his father, that he had a 5-year-old son who lived with his mother, that he spent a good deal of time with his son during the summer and saw his son on weekends during the school year, and that he got along well with his son. The veteran reported that he had few friends, rarely socialized with others, and had little interest in leisure activities, spending most of his time doing nothing. On mental status examination, the following was noted: the veteran was causally dressed; he was quite soft spoken and offered little initially in terms of spontaneous speech, though this improved significantly as the interview progressed; his mood was reported as anxious and depressed; affect was constricted; he denied suicidal ideation, though reported some passive homicidal ideation without intent or plan; his thought process was logical and goal-directed; no perceptual disturbance was noted; cognition was not formally tested, though appeared to be within normal limits; and insight and judgment were fair. The veteran was again given a GAF score of 55. The VA examiner commented that the veteran presented with chronic symptoms of PTSD, which appeared to be in the mild to moderate range of severity. A letter dated in December 2006 from the veteran's VA counselor indicated that the veteran had suffered from the PTSD symptoms of flashbacks, nightmares, sleep problems, hypervigilance, irritability, anger, emotional numbness, paranoia, isolative behaviors, difficulty with social situations, detachment from others, avoidance symptoms, reactions to triggers, concentration problems, startled response, and difficulty getting out of bed with decreased motivation. On November 2006 VA mental health note, the veteran was noted to have had a current GAF score of 58. The veteran was diagnosed as having chronic PTSD with a flat affect. A December 2006 VA note indicates that, on mental status examination, the following was noted: the veteran was alert, cooperative, had fair hygiene, was casually groomed, and was thin to well-nourished in appearance; he had normal rate and rhythm of speech, psychomotor activity within normal limits, no tremors, diaphoresis or evidence of intoxication; his affect was mildly constricted, not labile or irritable; his mood was up and down, and was anxious, according to the veteran; thought process was linear, there was no flight of ideas, delusions, or response to internal stimuli; and he denied current suicidal or homicidal ideation. There were noted to be no acute psychiatric or safety issues apparent. On VA mental status examination in January 2007, the following was noted: the veteran was alert, cooperative, had fair hygiene, was causally groomed, and was thin to well- nourished in appearance; speech was normal rate and rhythm; psychomotor activity was within normal limits, with no tremors, diaphoresis or evidence of intoxication; affect was full, not labile or irritable; mood appeared euthymic; there was bright and full range of affect; thought process was linear, there was no flight of ideas, delusions, or response to internal stimuli, had no suicidal or homicidal ideation; and there was fair insight and judgment. After reviewing the record, the Board finds that the veteran's PTSD does not more closely approximate the criteria for a 70 percent disability rating under DC 9411 than those for a 50 percent disability rating. The record does not reflect occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and an inability to establish and maintain effective relationships. The veteran has consistently been noted not to have suicidal ideation, to have normal speech and thought processes, to be alert and oriented, and to have normal appearance and hygiene. No obsessional rituals interfering with routine activities have ever been noted on examination, and behavior on examination has consistently been noted to be appropriate. The Board notes that depression, anxiety, and depressed and anxious mood have repeatedly been reported by the veteran and noted on VA examination. However, nothing that approximates near-continuous panic or depression, affecting the ability to function independently, has been reported by the veteran or noted on examination. In this regard, the Board notes that depressed mood and anxiety are symptoms listed in the criteria for ratings of less than 70 percent under DC 9411. The Board also notes the following: the veteran reported in October 2004 that, once or twice a week, he felt irritable and angry; a July 2005 VA progress note indicated that the veteran complained of having a lot of angry outbursts, and the veteran was noted to be prone to anger outburst sand getting frustrated; at his June 2006 RO hearing, the veteran testified that he had had homicidal feelings and lost his temper easily, so that he tried to stay away from people; in August 2006, the veteran was noted to have had impulsive judgment and feelings of irritability, although he stated that he kept it all inside and typically did not have anger outbursts towards others; and, in August 2006, he reported some homicidal ideation, with no intent or plan, but it was noted that this was usually a result of his level of irritability and passed very quickly. While recognizing these symptoms of anger, irritability, and impulsive judgment noted in the record, the Board does not find that such symptoms approximate impaired impulse control such as unprovoked irritability with periods of violence. To the extent that the post-service medical record reflects anger and irritability, it reflects anger and irritability that is essentially under the veteran's control, which has not resulted in any periods of violence, or any other such manifestations of irritability approximating the symptomatology of periods of violence. The Board thus does not find that symptoms of anger, irritability or impulsivity have manifested to the level of severity of symptomatology indicated in the criteria for a 70 percent rating under DC 9411. The Board furthermore notes the following: on October 2004 VA examination, the veteran reported that he avoided conversations once or twice a week, that he avoided places and people almost daily and had diminished interest or participation in significant activities, and that he had feelings of detachment with isolation; at his June 2006 RO hearing, the veteran testified that he talked to people from time to time, but did not get into in-depth conversations, and did not really socialize with his friends any more; in August 2006, he was noted to have had feelings of detachment from others, stating that he did not feel close with any friends, other than one friend from the military, with whom he had minimal contact; in August 2006, it was noted that he had difficulties getting along with his father, had few friends, rarely socialized with others, reported little interest in leisure activities, and stated that he spent most of his time doing nothing; and a letter from the veteran's VA counselor, dated in December 2006, indicated that the veteran had suffered from the PTSD symptoms, including emotional numbness, isolative behaviors, difficulty with social situations, detachment from others, and avoidance symptoms. However, the Board also notes that, in February 2005, veteran reported that he would see friends, and, in August 2006, the veteran reported that he spent a good deal of time with his son during the summer, saw his son on weekends during the school year, and got along well with his son. Thus, while the record reflects difficulty in establishing and maintaining effective social relationships, as indicated by the veteran's reports of social isolation and avoidance of social situations, it does not reflect an inability to establish and maintain effective relationships, as indicated by the veteran's interaction with at least a few friends, and his good relationship with his son. Therefore, the veteran's symptoms regarding difficulty in establishing and maintaining relationships more closely approximate those symptoms listed in the criteria for a 50 percent rating under DC 9411 than those listed in the criteria for a 70 percent rating. The Board notes the veteran's GAF scores of record, ranging from 55 to 58. 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). American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV); 38 C.F.R. § 4.130. The Board finds that the symptoms indicated by the veteran's GAF scores are consistent with those symptoms listed in the criteria for a disability rating of 50 percent under DC 9411, which include flattened affect, circumstantial, circumlocutory, or stereotyped speech, panic attacks more frequently than once a week, occupational and social impairment with reduced reliability and productivity, and difficulty in establishing and maintaining effective work and social relationships. Finally, the veteran was noted to have mild PTSD on October 2004 VA examination, significant PTSD symptoms in July 2005, and PTSD symptoms in the mild to moderate range of severity on August 2006 VA examination. These characterizations of the veteran's PTSD symptoms of "mild", "moderate", and "significant" do not indicate that VA medical examiners considered the veteran's PTSD to be productive of the high level of symptom severity contemplated by the criteria for a 70 percent disability rating under DC 9411. Thus, the Board does not find that the veteran's PTSD more closely approximates the criteria for a 70 percent rating under DC 9411 than those for a 50 percent rating. Accordingly, an initial disability rating in excess of 50 percent for PTSD is not warranted. In reaching these determinations, the Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the veteran's claim, the doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an initial disability rating in excess of 50 percent for PTSD is denied. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs