Citation Nr: 0811745 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 04-03 050 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to an initial rating greater than 50 percent for service-connected post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. J. Vecchiollo, Counsel INTRODUCTION The veteran served on active duty from February 1966 to February 1968. This matter is before the Board of Veterans' Appeals (the Board) on appeal of a May 2003 rating decision of the Reno, Nevada, Department of Veterans Affairs (VA) Regional Office (the RO) which granted service connection for PTSD and assigned a 50 percent rating. The veteran continues to appeal for a higher rating for this disability. See AB v. Brown, 6 Vet. App. 35 (1993). In May 2005, the veteran presented personal testimony during a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board remanded the claim to the RO in December 2006 for further development and consideration. FINDING OF FACT The veteran's PTSD is more nearly manifested by anxiety or depression, inability to make friends, irritability, hypervigilance, avoidance of stimuli related to combat, with poor psychosocial functioning and major social and occupational impairment. CONCLUSION OF LAW The criteria for an initial rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007), 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.125, 4.130, Diagnostic Code 9411 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159. The notice requirements apply to all five elements of a service connection claim: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by letter dated in July 2002, and post-adjudication notice in April 2005 and December 2006. None of the VCAA notices discussed 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 claim. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. January 30, 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., Vazquez-Flores, slip op. at 12. Specifically, the appellant's representative's submission, received in September 2007, was filed subsequent to the January 2004 statement of the case, which listed all of the relevant criteria for an increased rating. This submission discussed the medical findings; to include the veteran's psychiatric symptomatology, and level of occupational and social impairment. This action by the veteran's representative indicates 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, or those acting on his behalf, have 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. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R. § 3.159. The notice 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)." Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA made all efforts to notify and to assist the appellant with regard to the evidence obtained, the evidence needed, the responsibilities of the parties in obtaining the evidence, and the general notice of the need for any evidence in the appellant's possession. The claim was remanded, in part, to obtain private medical records identified by the veteran. However, he did not provide the information necessary to acquire these records. His failure to cooperate with VA has made it impossible to obtain the evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claims with an adjudication of the claims by the RO subsequent to receipt of the required notice. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). In addition, all relevant, identified, and available evidence has been obtained, and VA has notified the veteran of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant evidence. VA has obtained several examinations. In the December 2006 remand the Board directed the RO to obtain treatment records from a Dr. Peprah and from a social worker, P. Rigabono. Pursuant to this direction, in a December 2006 letter, the Appeals Management Center (AMC) requested information concerning these treatment sources and completion of forms by the veteran in order to obtain the records. The veteran did not respond to this request, and the AMC was unable to act on the remand direction. No further action was warranted, and the remand instructions were complied with to the extent possible. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. II. Analysis The veteran contends that his symptoms of PTSD have become more severe, and he seeks a higher rating. Ratings for service-connected disabilities are determined by comparing the symptoms the veteran is presently experiencing with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based as far as practical on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 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 will be 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 VA must take into account the veteran's entire medical history and circumstances. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Separate, or staged, ratings can be assigned for separate periods of time based on the facts found. Under the General Rating Formula for Mental Disorders (including PTSD), 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 stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned 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 work-like setting); inability to establish and maintain effective relationships. A 100 percent rating is assigned when there is total occupational or 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. The psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). An initial rating of 70 percent for PTSD is warranted. Initially, the Board notes that VA examiners in April 2003 and April 2007 found that the veteran did not currently experience panic attacks (happened once in the past when he was on an airplane), delusions, or hallucinations. He was oriented to time, place and person. His insight and judgment were reported from fair to good. His speech and memory were good. He had no impaired impulse control. He had no obsessive rituals that interfered with accomplishing the activities of daily living including financial management. He did not neglect personal appearance or hygiene. He did not exhibit many of the symptoms reflected in the rating schedule's 70 percent criteria. However, particularly prior to the end of 2005, the veteran consistently displayed symptoms alternately described as anxiety or depression by medical personnel. He also manifested inability to make friends, night sweats, irritability, nightmares, hypervigilance, and avoidance of stimuli related to combat. He had fleeting thoughts of suicide even though there was no suicidal plan. Outpatient treatment records during this time consistently showed GAF scores ranging from 32 to 41. The Global Assessment of Functioning Scale (GAF) is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness. See Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV); Carpenter v. Brown, 8 Vet. App. 240 (1995). An examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. See 38 C.F.R. § 4.126; VAOPGCPREC 10-95 (Mar. 1995); 60 Fed. Reg. 43186 (1995). The 32 to 41 GAF range indicates major impairment in several areas such as work or school, family relations, judgment, thinking or mood. Here, the veteran has no friends and, except for family, lives an essentially isolated life with mood impairment including anxiety and depression. Treatment records beginning in late December 2005indicate some improvement in the veteran's disability. GAF scores at that time and in 2006 rose to 55 which would indicate moderate social and industrial difficulties. Medications were decreased and the April 2007 examination reflected some improvement. Intrusive memories were still reported but they were not distressing as they had been on examination in 2003. Night sweats and sleep disturbances described in 2003 were no longer reported in 2007. In 2007 the veteran reported that he rarely got irritated as he had reported in 2003. Nevertheless, despite indications of improvement, the examiner estimated a GAF of 40, the same as at the time of the 2003 examination. The veteran also described his functioning as much the same over the past four years. In 2007 the examiner stated that the veteran's occupational impairment due to his PTSD was minimal; and that his social impairment was modest at worse. However, she also described his psychosocial functioning as poor, as it had been described on examination in 2003. The Board concludes that the evidence, viewed in the light most favorable to the appellant, more nearly reflects the criteria for a 70 percent rating. 38 C.F.R. §§ 3.102, 4.7(2007). The evidence also indicates no significant change in the severity of the veteran's PTSD over the appeal period, and staged ratings are not appropriate. Fenderson v. West, 12 Vet. App. 119 (1999). Finally, the Board gives some credence to the 2007 examiner's estimation that occupational impairment was minimal and social impairment was modest. In the 2003 examination it was reported that the veteran retired from his private medical practice because of a physical disability rather than his PTSD, and it appears throughout the appeal period that he had positive family relationships. At no time has he exhibited symptoms consistent with the 100 percent schedular rating such as gross impairment of thought processes or communication, delusions, hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, disorientation or inability to perform activities of daily living. Total occupational or social impairment is not shown. The preponderance of the evidence is against a rating higher than 70 percent. ORDER An initial rating of 70 percent for PTSD is granted, subject to the regulations governing the payment of monetary awards. ____________________________________________ HOLLY E. MOEHLMANN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs