Citation Nr: 0811870 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 06-13 506 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent for service-connected PTSD, effective on October 27, 2003. 2. Entitlement to an evaluation in excess of 50 percent for service-connected PTSD, effective on December 15, 2007. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD M. Peters, Legal Intern INTRODUCTION The veteran had active military service from October 1967 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York which continued the veteran's 30 percent disability evalution for his PTSD. FINDINGS OF FACT 1. The manifestation of symptoms for service-connected PTSD beginning October 27, 2003 include trouble with short term memory, focus and concentration; impaired sleep; nightmares and frequent intrusive thoughts about Vietnam, including "flashbacks"; and socially avoidant behavior, particularly of crowds. 2. The manifestations of symptoms for service-connected PTSD beginning December 15, 2007 include suicidal ideation; a GAF score of 41; and other severe symptoms that significantly impair the veteran's employment and personal relationships. CONCLUSIONS OF LAW 1. The criteria for the assignment of an evaluation of 50 percent, but no more, for the service-connected PTSD have been met, effective on October 27, 2003. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 4.7, 4.130 including Diagnostic Code 9411 (2007). 2. The criteria for the assignment of an evaluation of 70 percent, but no more, for the service-connected PTSD have been met, effective on December 15, 2007. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.7, 4.130 including Diagnostic Code 9411 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initial Considerations The Board has given consideration to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2005). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied with respect to the issues decided herein. In April 2005, the RO sent the veteran a letter in which he was informed of the requirements needed to establish entitlement to service connection. In accordance with the requirements of VCAA, the letter informed the veteran what evidence and information he was responsible for and the evidence that was considered VA's responsibility. Additional private evidence was subsequently added to the claims file. In these letters, the veteran was also advised to submit additional evidence to the RO, and the Board finds that this instruction is consistent with the requirement of 38 C.F.R. § 3.159(b)(1) that VA request that a claimant provide any evidence in his possession that pertains to a claim. The Board also notes that the veteran was informed in a VA letter dated in March 2006 about relevant information on disability ratings and effective dates in the event that his claims were granted. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). To the extent that the veteran should have been provided the notice required by Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), concerning the claim for an increased disability evaluation not generated from an initial grant of service connection, the veteran was also told in the March 2006 letter that VA used a published schedule for rating disabilities that determined the rating assigned and that evidence considered in determining the disability rating included the nature and symptoms of the condition, the severity and duration of the symptoms, and the impact of the condition and symptoms on employment. 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" in view of the demonstrated actual knowledge of the factors that would lead to a higher disability evaluation. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007); 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 demonstrates an awareness of what is necessary to substantiate a claim. VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. The Board notes that a relevant medical examination is of record as recently as December 15, 2007. The veteran has been given ample opportunity to present evidence and argument in support of his claims. The Board additionally finds that general due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2007). Finally, to the extent that VA has failed to fulfill any duty to notify and assist the veteran, the Board finds that error to be harmless. Of course, an error is not harmless when it "reasonably affect(s) the outcome of the case." ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed.Cir. 1998). In this case, however, as there is no evidence that any failure on the part of VA to further comply with VCAA reasonably affects the outcome of this case, the Board finds that any such omission is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005) rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Law and Regulations Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Schedule). 38 C.F.R. Part 4 (2007). The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2007). Separate diagnostic codes identify the various disabilities. In considering the severity of a disability it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2007). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). However, where entitlement to compensation has already been established and an increase in the disability rating is at issue the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 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 (2007). Schedular Criteria A 30 percent evaluation for psychiatric disability is 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, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent evaluation for psychiatric disability is warranted 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 a week; difficulty in understanding complex commands; impairment of short- and long-term memory (for example, 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. Id. A 70 percent evaluation requires 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); inability to establish and maintain effective relationships. Id. A 100 percent evaluation for post-traumatic stress disorder requires 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. Id. The global assessment of functioning (GAF) score reflects the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996). A GAF score of 41 to 50 is defined as serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF of 51 to 60 is defined as 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. A GAF score of 61 to 70 reflects some mild symptoms, or some difficulty in social, occupational, or school functioning, but generally functioning pretty well, with some meaningful interpersonal relationships. ). See QUICK REFERENCE TO THE DIAGNOSTIC CRITERIA FROM DSM-IV, 46-7 (1994). Analysis The veteran was originally service-connected for PTSD in a March 1998 rating decision. The veteran received a 30 percent rating effective as of November 18, 1997. Subsequently, the veteran applied for an increased evaluation by letter dated October 27, 2003. The RO issued a rating decision in March 2006 granting an increased evaluation of 50 percent effective the date of the veteran's claim was received, October 27, 2003. On appeal, the veteran contends that the March 2006 rating decision was incorrect, and that his symptoms demonstrate that an evaluation in excess of 50 percent is warranted. The rating decision in March 2006 relied primarily on a letter submitted by a VA doctor from a 60-minute individual therapy session for PTSD dated November 2003. In the letter, the VA doctor noted that the veteran had trouble forgetting things, focusing and displayed a lack of short-term memory, focus and concentration; had trouble sleeping; was irritable and angry; had nightmares and intrusive thoughts of Vietnam, including "flashbacks"; was socially avoidant, particularly of crowds; and that the veteran's affect and mood were thoughtful, euthymic, and appropriate. Additionally, the VA doctor stated that the veteran denied any suicidal ideation and was capable of handling his own finances, but that the veteran had worsened since September 11, 2001, particularly as it related to his trouble sleeping, work productivity, and anger. No GAF was assessed during this visit. Based on this evidence, the Board concludes that the veteran's symptomatology meets the criteria for a rating in excess of 30 percent based on the factors such as that the veteran had trouble sleeping, including nightmares of Vietnam; had other intrusive thoughts about Vietnam, including "flashbacks"; and had trouble with his memory, focus and concentration. The Board finds that these symptoms more closely approximate the criteria for a 50 percent rating than a rating of 30 percent. See 38 C.F.R. § 4.7 (2007). Notably, the doctor specifically stated there were no suicidal ideations nor was there a mention of homicidal ideations. Additionally, the veteran was capable of handling his own finances which suggests that he had the ability to function independently. Also absent was any mention of hallucinations, compulsions, delusions, spatial distortions, or neglect of personal hygiene and appearance. An absence of such symptomatology makes a rating in excess of 50 percent inappropriate given the schedular criteria mentioned above, as based on the evidence of record. Therefore, an evaluation of 50 percent, but no more, is granted beginning October 27, 2003. After this examination in November 2003, the veteran started seeing a VA psychiatrist and a VA social worker. Treatment records and evaluations are of record from February 2005 until July 2006. A PTSD treatment record dated February 2005 listed symptoms of the veteran's condition which are similar to the symptoms listed in the VA doctor's letter in November 2003. Specifically, the similar symptoms in the February 2005 report to those listed in the November 2003 letter are poor sleep; nightmares and frequent, intrusive thoughts about Vietnam; a tendency to isolate, particularly to avoid crowds; and irritability resulting in fits of anger. A GAF score of 52 was assessed. Generally, throughout the period of February 2005 to July 2006, the veteran did not display any suicidal or homicidal ideations; did not have any hallucinations, delusions, obsessions or compulsions; and did not neglect his personal appearance or hygiene. In one treatment report in June 2006, the VA social worker did mention that the veteran's friend's son had recently committed suicide and stated that the veteran had had suicidal ideations but would never act on them, and she reported "No," on the heading listed Suicidal Ideations. Previous and subsequent treatment reports also listed "No," under the Suicidal Ideations heading. The veteran was also assessed a GAF score of 65 at least once in October 2005. Finally, the veteran received a VA PTSD evaluation on December 15, 2007. The VA examiner in this examination did not have the claims file, nor did he administer any psychiatric evaluation tests. During the examination, the VA doctor found that the veteran was well-groomed and causally dressed, with no visual signs of hallucinations, delusions, obsessions or compulsions; nor had the veteran reported any hospitalizations for mental health. The particular symptoms listed by the VA examiner in the December 2007 examination were a somewhat irritated affect and mood; impaired memory, focus, and concentration, which effects his ability to do daily activities; anxiety and depression, including crying spells and feelings of hopelessness; frequent intrusive thoughts of Vietnam, including "flashbacks"; impaired sleep; disruptive dreams, or "nightmares"; hypervigilance with an exaggerated startle response; and suicidal, but not homicidal, ideations. The VA doctor concluded that the veteran was not "experiencing total occupational and social impairment," but that he was at least experiencing "sufficient and significant deficiencies in his ability to maintain gainful employment as well as to have successful relationships." The veteran was assessed a GAF of 41. Based on this evidence, the Board finds that for the veteran warrants a rating in excess of 50 percent beginning December 15, 2007. Prior to that date, the veteran's symptomatology remained fairly constant with fluctuating periods of marked improvement, as noted by the assessment of a GAF score of 65 in October 2005, and other periods of heightened symptoms, like in June 2006. However, it is not until the December 15, 2007 PTSD examination that the veteran's symptoms more approximated those listed for a rating in excess of 50 percent. See 38 C.F.R. § 4.7 (2007). Specifically, the veteran manifested noted suicidal ideations; impaired memory, focus and concentration affecting his ability to do daily activities; anxiety and depression, resulting in crying spells and feelings of hopelessness; and other severe symptoms which resulted in the VA doctor concluding that the veteran was severely impaired in his ability to maintain employment and personal relationships. This conclusion was manifested in the VA doctor's assessment of a GAF score of 41 for the veteran. Therefore, the Board grants the veteran a rating of 70 percent beginning on December 15, 2007. Because the veteran did not manifest any hallucinations, delusions, obsessions, compulsions, or homicidal ideations, a rating in excess of 70 percent is not warranted based on the evidence of record. Furthermore, the Board has considered whether the claim for increase should be referred to the Director of the Compensation and Pension Services for extraschedular consideration. An extraschedular rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1) (2007). While the above analysis certainly reveals some impairment in earning capacity due to the service-connected PTSD, as evidenced by the rating assigned to the disability, marked interference with employment has not been shown. In particular the veteran does not have any hallucinations, delusions, compulsions or homicidal ideations, nor has the veteran been hospitalized for PTSD. The Board finds nothing in the record that may be termed so exceptional or unusual as to warrant an extraschedular consideration. Therefore, consideration of a higher rating of an extraschedular basis is not warranted. ORDER 1. An increased rating of 50 percent for service-connected PTSD, effective on October 27, 2003, is granted, subject to the controlling regulations applicable to the payment of monetary benefits. 2. An increased rating of 70 percent for service-connected PTSD beginning on December 15, 2007 is granted, subject to the controlling regulations applicable to the payment of monetary benefits. ______________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs