Citation Nr: 0811905 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 06-08 719 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial rating in excess of 50 percent for post-traumatic stress disorder (PTSD) from October 29, 2004, to May 2, 2006, and in excess of 70 percent thereafter. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Helena M. Walker, Associate Counsel INTRODUCTION The veteran served on active duty from August 1969 to August 1971, including honorable service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The veteran was granted service connection for PTSD and issued a 50 percent rating, effective October 2004. Upon appeal of his initial rating, the veteran was awarded a 70 percent rating, effective May 2006. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. Since October 29, 2004, the veteran experiences occupational and social impairment, with deficiencies in most areas, due to PTSD. 3. The veteran does not experience total social and occupational impairment. CONCLUSIONS OF LAW 1. Criteria for a 70 percent rating for PTSD have been met as of October 29, 2004. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.16, 4.130, Diagnostic Code 9411 (2007). 2. Criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.16, 4.130, Diagnostic Code 9411 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a veteran of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a veteran in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In a letter dated in January 2005, VA notified the veteran of the information and evidence needed to substantiate and complete his claim of service connection for PTSD, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letter also generally advised the veteran to submit any additional information in support of his claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Additional notice of the five elements of a service- connection claim, as is now required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), was provided in March 2006. As such, the Board finds that VA met its duty to notify the veteran of his rights and responsibilities under the VCAA. With respect to the timing of the notice, the Board points out that the United States Court of Appeals for Veterans Claims (Court) held in Pelegrini that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, the January 2005 VCAA notice was given prior to the appealed AOJ decision, dated in July 2005. The notice in compliance with Dingess, however, was untimely. The Board specifically finds, however, that the veteran is not prejudiced as his claim on appeal is for entitlement to an increased initial rating and he has been given specific notice with respect to those elements of a service-connection claim pertinent to his current claim. Thus, the lack of timely notice of additional benefits that stem from the grant of service connection cannot prejudice him as is further referenced below. The Board notes that in January 2005, the veteran was provided adequate VCAA notice regarding his service connection claim for PTSD and he was subsequently granted service connection for PTSD in July 2005. The veteran was not, however, provided adequate notice of the evidence needed to substantiate his appeal of an initial rating. In Dingess, the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 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, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the veteran is challenging the initial evaluation assigned following the grant of service connection. In Dingess, the Court of Appeals for Veterans Claims held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided before service connection was granted was found to be legally sufficient, VA's duty to notify in this case has been satisfied. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the veteran in obtaining evidence, affording him physical examinations, obtaining medical opinions as to the severity of his disability, and by affording him the opportunity to give testimony before an RO hearing officer and/or the Board; even though he declined to do so. It appears that all known and available records relevant to the issue here on appeal have been obtained and are associated with the veteran's claims file. Thus, the Board finds that VA has done everything reasonably possible to notify and assist the veteran and that no further action is necessary to meet the requirements of the VCAA. The veteran seeks an initial rating in excess of 50 percent from October 29, 2004, to May 2, 2006, and in excess of 70 percent thereafter, for his service-connected PTSD. Disability evaluations are determined by the application of the schedule of ratings which is based on average impairment of earning capacity. See 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). Where entitlement to compensation has been established and a higher initial disability rating is at issue, as in this case, the level of disability at the time entitlement arose is of primary concern. See Fenderson v. West, 12 Vet. App. 119 (1999). Recently, in Hart v. Mansfield, 21 Vet. App. 505 (2007), however, the Court held that "staged" ratings are appropriate for an increased rating claim in such a case, when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The Board notes at this juncture that VA will handle cases affected by change in medical findings or diagnosis so as to produce the greatest degree of stability of disability evaluations consistent with the laws and regulations governing disability compensation and pension. See 38 C.F.R. § 3.344(a). It is also important to note that it is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 4.3. The veteran's PTSD has been evaluated using Diagnostic Code 9411 of 38 C.F.R. § 4.130, which sets forth criteria for evaluating post-traumatic stress disorder using a general rating formula for mental disorders outlined in Diagnostic Code 9440. Pertinent portions of the general rating formula for mental disorders are as follows: 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...........100 percent 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..............................70 percent 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; difficulty in establishing and maintaining effective work and social relationships......................50 percent The veteran's DD Form 214 listed his MOS as light weapons infantryman, but his records reflect that he was a medic. The veteran's service medical records are devoid of any treatment for a psychiatric condition. The veteran stated that he received VA psychiatric treatment in the 1970s and again in the 1990s. The records regarding any treatment in the 1970s were unable to be obtained and in a March 2005 formal finding were noted to be unavailable. Treatment records from the 1990s, however, are associated with the claims file. The veteran sought treatment for his psychiatric condition in early 1990. He completed a questionnaire regarding symptoms related to PTSD. The veteran noted feeling despair, anguish and feelings of incompetence or helplessness upon return from Vietnam. He further advised to feelings of guilt, depression, flashbacks, difficulty in developing intimate relationships, sleep disturbances, psychic numbing, low self- esteem/negative self-image and self-punishing/self- destructive behaviors. In March 1990, the veteran was noted to have PTSD symptomatology. The veteran subsequently underwent therapy and counseling related to his PTSD symptomatology. In June 2005, the veteran underwent a VA psychiatric examination. The veteran received the Combat Infantry Badge and the Combat Medic Badge, and thus, his stressors were presumed. Upon return from Vietnam, the veteran reported avoiding home for 6 months. He felt different than he had before serving in Vietnam. The veteran experienced intrusive memories as he recalled putting dead service members in body bags and tagging them. The veteran advised that he has had recurrent nightmares for over 25 years, which generally occur twice per week. The veteran advised that he avoided speaking of Vietnam and avoided malls and sporting events. He further related that he had difficulty maintaining intimate relationships. He advised that he did not currently experience homicidal or suicidal ideations, but did admit to past suicidal ideation. The examiner noted that the veteran expressed genuine tearfulness went relating his current difficulty in functioning. Due to his symptoms, the veteran stopped working in mid-2004. He reported that he was unable to work is due to the side effects of his medication. He advised that the medication made him clumsy and unsteady, and employers fear him working up at higher levels or even working on the ground level. The veteran was noted to avoid thoughts, feelings or conversations associated with the trauma experienced in Vietnam, as well as, avoiding activities, places or people that remind him of Vietnam. He exhibited feelings of detachment and estrangement from others and had a restricted range of affect. His sleep was noted to be mildly impaired. Additionally, he incurred recurrent and intrusive recollections of his experiences in service. The veteran experienced outbursts of anger towards authority figures, had significant difficulty concentrating, mild to moderate hypervigilance and an exaggerated startle response. The psychiatrist noted that the veteran's symptoms "are associated with clinically significant distress an[d] some impairment in social and occupational areas of functioning." The examiner opined that the veteran was trying to portray himself in an overly positive light. He was diagnosed as having chronic PTSD with a Global Assessment of Functioning (GAF) score estimated at 55. The examiner noted that it was difficult to assess the severity of the veteran's disability and noted that, "it appears that a conservative conclusion at this time, given the data present, is that it is likely of moderate severity." In the veteran's September 2005 notice of disagreement, he stated that he is unable to work with others due to the symptoms related to his PTSD. He advised that he sought work with others, but could not continue as his depression and isolation prevent him from securing and maintaining employment. He stated that his PTSD was worse that indicated by the VA examiner. In a September 2005 VA treatment record, the veteran was noted to have a history of PTSD and major depression. He was further noted to have significant, chronic symptoms associated with his PTSD, including, reexperiencing, avoidance and hyperarousal. In his March 2006 substantive appeal, the veteran advised that he had not worked since October 2004 due to his PTSD- related symptoms. He stated that his girlfriend from a 17- year relationship left him due to his PTSD. The veteran reported that he continues to experience panic attacks and depression. He stated that he thought the June 2005 VA examination was inadequate as the examiner improperly assessed him. In a March 2006 VA treatment note, the veteran sought treatment for his depression and panic attacks. It was noted that the veteran was unable to work or go out due to his fear of strange environments or people. In May 2006, the veteran underwent another VA examination regarding his PTSD. The veteran reported anxiety attacks approximately 12 times per month with each episode lasting from 1 to 2 days. Upon an attack, the veteran isolates himself at home, and since 2004, he has withdrawn from his friends. The veteran related that he experiences vivid dreams, which startle him awake. The veteran reported performing volunteer work 2 days per week. The veteran was noted to cry frequently during his examination and was characterized as overly talkative, likely due to his anxiety. The veteran advised that he experienced passive thoughts of "being ready to die." The veteran reported intrusive thoughts, occurring on a daily basis, dreams where he is chased by people with weapons, avoiding movies, feelings of detachment from others, difficulty staying asleep, hypervigilance and avoidance of places where there could be crowds. The veteran's PTSD diagnosis was confirmed and he was given a GAF score of 55. The veteran discontinued his private business in 2004 and tried to seek employment with others, but was not hired. The veteran's anxiety attacks were noted to be disabling as he isolated himself at home. Further noted, the veteran would not be able to maintain employment working for others due to his attacks. The veteran was able to work for himself in the past and work around his anxiety attacks. The examiner noted that "[t]he veteran's anxiety[,] secondary to his poasttraumatic stress disorder is contributing to his unemployability at his time." The veteran's progress was noted to be poor considering his chronic symptoms. Reflected in a June 2006 VA treatment note, the veteran reported doing a lot better. The psychiatrist indicated that the veteran appeared significantly anxious and depressed. The veteran accepted his losses-including the loss of his capacity to work, and advised that he was doing better. The veteran advised that he was offered a job at the same place where he was volunteering. The veteran advised that he was reluctant to accept the grant of 100 percent unemployability benefit because he wanted to work. Given the evidence as outlined above, the Board finds that the veteran has experienced occupational and social impairment with deficiencies in most areas. He has had difficulty securing employment since 2004 due to the symptoms related to his PTSD. The veteran has consistently reported symptoms of avoidance, hyperarousal, intrusive thoughts, nightmares, anxiety, including significant anxiety attacks, and depression. Moreover, since 2004, the veteran advised that he had difficulty working with others and had difficulty in maintaining relationships. As reported at his first VA examination in June 2005, the veteran further related difficulty in securing and maintaining employment since 2004. The records document that the veteran has difficulty working with others, he experiences significant panic/anxiety attacks and his medication causes him to be lethargic and clumsy. Therefore, in an effort to ensure that this combat veteran is properly evaluated, the Board resolves all reasonable doubt in his favor and assigns a 70 percent rating as of October 29, 2004. The veteran is not assigned the higher, 100 percent rating as the evidence does not show that the veteran has total occupational and social impairment. In fact, the veteran advised that he had a job offer and also that he wished to work instead of collecting his 100 percent unemployability benefit. The Board has reviewed the possibility of issuing staged ratings under Hart, but finds the evidence does not warrant staged ratings under these circumstances. Accordingly, reasonable doubt is resolved in the veteran's favor and the veteran is assigned a 70 percent rating, but no higher, effective October 29, 2004, for service-connected PTSD. The VA schedule of ratings will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). 38 C.F.R. § 3.321(b)(1) provides that, in exceptional circumstances, where the schedular evaluations are found to be inadequate, the veteran may be awarded a rating higher than that encompassed by the schedular criteria. According to the regulation, an extraschedular disability rating is warranted upon a finding that "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 would render impractical the application of the regular schedular standards." The evidence does not reflect an exceptional or unusual disability picture so as to allow the Board to assign a rating higher than 70 percent for PTSD on an extraschedular basis. ORDER A rating of 70 percent for service-connected PTSD is granted, from October 29, 2004, subject to the laws and regulations governing the award of monetary benefits. A rating in excess of 70 percent for service-connected PTSD is denied. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs