Citation Nr: 0811933 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 07-02 603 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial disability rating in excess of 30 percent for service-connected post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. J. Turnipseed, Associate Counsel INTRODUCTION The veteran had active service from June 1969 to January 1972, June 1975 to November 1981, and July 2000 to September 2001. This matter comes before the Board of Veterans' Appeals (Board) from a July 2006 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for PTSD and assigned a 30 percent disability rating, effective from January 17, 2006. FINDING OF FACT The competent and probative medical evidence of record demonstrates that the veteran's service-connected PTSD is characterized by a social and occupational impairment that causes occasional decrease in overall functioning due to intrusive thoughts, self-isolation, difficulty concentrating, a history of difficulty maintaining employment, hypervigilance, and increased startle response. The veteran is able to maintain good personal hygiene, his communication is good, and he does not have panic attacks. He has maintained the same job for three years, and he reports improvement in his ability to concentrate and in his relationship with his wife. CONCLUSION OF LAW The schedular criteria for an initial disability rating in excess of 30 percent for service-connected post-traumatic stress disorder have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. § 3.159, 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide; and to request that the claimant provide any evidence in the claimant's possession that pertains to the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The U.S. Court of Appeals for Veterans Claims has held that VCAA notice should be provided to a claimant before the unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006). The U.S. Court of Appeals for the Federal Circuit has held that, if a claimant can demonstrate error in VCAA notice, such error should be presumed to be prejudicial. VA then bears the burden of rebutting the presumption, by showing that the essential fairness of the adjudication has not been affected because, for example, actual knowledge by the claimant cured the notice defect, a reasonable person would have understood what was needed, or the benefits sought cannot be granted as a matter of law. Sanders v. Nicholson, 487 F.3d 861 (Fed. Cir. 2007); petition for cert. filed (U.S. March 21, 2008) (No. 07-1209). In this case, the VCAA duty to notify was satisfied by way of a letter sent to the veteran in May 2006 which fully addressed all four notice elements and was sent prior to the initial RO decision in this matter. The letter informed the veteran of what evidence was required to substantiate the claim, and of the veteran's and VA's respective duties for obtaining evidence. The veteran was also specifically asked to provide to provide any evidence in his possession that pertains to his claim. The May 2006 letter also informed the veteran of how disability ratings and effective dates are assigned. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). For an increased-compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Further, if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. In addition, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes, which typically provide for a range in severity of a particular disability from zero percent (noncompensable) to as much as 100 percent (depending on the disability involved), based upon the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation - e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, 22 Vet. App. at 43-44. The Board notes that the VCAA duty to notify has not been satisfied with respect to the additional requirements for an increased-compensation claim recently delineated by the Court in Vazquez-Flores, supra. The Board finds, however, that the notice error did not affect the essential fairness of the adjudication because the May 2006 letter, together with the substantial development of the veteran's claim before and after providing notice, rendered the notice error non- prejudicial. While the May 2006 letter did not specifically conform to the requirements provided in Vazquez-Flores, supra, the veteran was advised of his opportunities to submit additional evidence and was informed that, at a minimum, he needed to submit evidence showing that his service-connected disability had increased in severity. Subsequently, a November 2006 SOC and January 2007 SSOC notified the veteran of the evidence that had been received in support of his claim and provided him with yet an additional 60 days to submit more evidence in support of his increased rating claim. The SOCs also discussed the evidence included in the record, provided him with the criteria necessary for entitlement to a higher disability rating for his service-connected PTSD, and provided the reasons why his claim was being denied. Moreover, this is a case in which the veteran is challenging the initial evaluation assigned following the grant of service connection. In Dingess, the Court held that, in cases where service connection has been granted and an initial disability rating has 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, the Board finds that the purpose behind the notice requirement has been satisfied because the veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. In addition, the Board finds that the post-adjudicatory notice and opportunity to develop the case during the extensive administrative appellate proceedings which led to the RO's decision and the present Board decision did not affect the essential fairness of the adjudication, and rendered any notice error non-prejudicial. Moreover, the claimant has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case. See Sanders, supra. The Board also finds VA has satisfied its duty to assist the veteran in the development of the claim. The RO has obtained VA outpatient treatment records dated from January to June 2006, which represents all of the mental health treatment the veteran has received since separation from service. The veteran was also afforded a VA examination in May 2006 in conjunction with his claim. In addition, it appears that all obtainable evidence identified by the veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. It is therefore the Board's conclusion that no further notice or assistance to the veteran is required to fulfill VA's duty to assist the veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that a veteran need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. II. Facts and Analysis Disability ratings are based upon schedular requirements that reflect the average impairment of earning capacity occasioned by the state of a disorder. 38 U.S.C.A. § 1155 (West 2002). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4 (2007). In determining the level of impairment, the disability must be considered in the context of the entire recorded history, including service medical records. 38 C.F.R. § 4.2. An evaluation of the level of disability present must also include consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. Also, 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. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the current appeal arose from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Under the rating criteria, PTSD is evaluated under a general rating formula for mental disorders. See 38 C.F.R. § 4.130, DC 9411 (2007). The veteran is currently rated as 30 percent disabled under the general rating formula. A 30 percent rating is warranted where there is an 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, or mild memory loss (such as forgetting names, directions, recent events). Under DC 9411, a 50 percent rating is warranted where there is an occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect, circumstantial, circumlocutory, or stereo- typed 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 warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, 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); and the inability to establish and maintain effective relationships. A 100 percent rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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. The Global Assessment of Functioning is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health - illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). A GAF score of 41 to 50 is defined as denoting 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 score of 51 to 60 is defined as indicating 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). See Carpenter v. Brown, 8 Vet. App. 240, 242- 244 (1995). Service connection for PTSD was established in July 2006, and the RO assigned a 30 percent disability rating pursuant to 38 C.F.R. § 4.130, DC 9411, effective January 17, 2006. In making its decision, the RO considered VA outpatient treatment records and findings from a May 2006 VA examination, which it determined warranted no more than a 30 percent rating. The veteran has asserted that his service-connected PTSD warrants at least a 50 percent rating, due to a serious impairment in his social and occupational functioning. After carefully considering the evidence of record, the Board finds the preponderance of the evidence is against the grant of a disability rating higher than 30 percent for service- connected PTSD. The competent evidence of record shows the veteran's service- connected PTSD is primarily manifested by intrusive thoughts about his service in Vietnam, self-isolation, difficulty concentrating, and a history of difficulty with maintaining employment. The evidence also shows the veteran has hypervigilance and increased startle response. See VA outpatient treatment records from January to June 2006; May 2006 VA examination report. The evidence of record consistently shows the veteran's self- care and personal hygiene are good and that he is alert and oriented to time, person, place, and date. His speech is consistently described as spontaneous, with regular to moderate rate, volume, and speed, and his thought process is described as goal-directed. He has consistently denied experiencing audio or visual hallucinations, suicidal or homicidal ideation, delusions, manic episodes, or panic attacks. He also denied currently having flashbacks, although he reported having some in the past. The veteran's depression has been described as mild. In this regard, the Board notes that, at the May 2006 VA examination, he reported feeling down occasionally for brief periods but denied having sustained depression. His anxiety has also been described as mild to moderate, as he has reported that he is always on alert and has excessive worry. The veteran's mood and affect have generally been described as good, but his mood has also been occasionally described as euthymic and slightly depressed, especially when discussing his experiences in Vietnam. Similarly, his judgment and insight are generally described as good, but have also been described as fair. See VA outpatient treatment records dated January to June 2006. The veteran has also reported that he has memory problems, which the veteran's wife has confirmed as she reports the veteran has forgotten her birthday and other things. See December 2006 lay statement from L.W. As to the veteran's social functioning, the Board notes he has reported that he avoids crowds and does not have any friends. At the May 2006 VA examination, he reported having difficulty being emotionally close to others, including his family. In this regard, the Board notes the veteran has been married for 32 years and has fairly consistently reported having a good relationship with his wife and family. See VA outpatient treatment records dated January to June 2006. However, the veteran's wife's December 2006 lay statement describes how the veteran's self-isolation has created problems with his interaction with her and other family members. The veteran's wife also confirmed that the veteran did not have any friends outside of his family, except for one long standing friendship with a former co-worker. With respect to occupational functioning, as noted, the veteran has described a long-standing history of problems maintaining employment. At the May 2006 VA examination, he reported that he had been terminated from his last nine jobs due to poor performance and lack of attention at work. He also reported that his intrusive memories occur twice a week and interfere with work. In this regard, the veteran has reported that, although he enjoys his job, he does not feel it is of much importance compared to his life experiences in combat. See February 2006 VA outpatient treatment record; May 2006 VA examination report. However, the evidence also shows the veteran has maintained employment at the same place since 2003, and, although he has reported being concerned that his difficulty focusing may cause problems, there is no evidence showing this has occurred. In addition, the VA outpatient treatment records show he has reported that his work performance has improved because he is able to concentrate better with his medication. See April and June 2006 VA outpatient treatment records. Based on the foregoing, the Board concludes that the veteran's service-connected PTSD more nearly approximates the level of disability contemplated by the 30 percent rating under DC 9411. The evidence shows that the veteran's PTSD is clearly manifested by an occupational and social impairment, but the Board finds his impairment results in no more than an occasional decrease in work efficiency and intermittent periods of inability to perform occupational and social tasks. In making this determination, the Board notes the evidence shows the veteran is able to function satisfactorily, as he maintains good hygiene, has good communication, and does not have a significant cognitive impairment. The evidence does show the veteran's social isolation, intrusive thoughts, and difficulty concentrating affect his social and occupational functioning. In evaluating the evidence, however, the Board notes the veteran has remained married for 32 years, and has maintained the same job for the past three years. While the evidence shows the veteran's PTSD symptoms have negatively impacted his social relationships, including with his family, and have affected his ability to sustain employment at the same place, the Board finds probative that, despite his PTSD symptoms, the veteran has fairly consistently reported having a good relationship with his wife and family and has maintained the same job throughout the pendency of this claim and appeal, and for the past three years. With respect to the specifically enumerated symptomatology contemplated for the 50 percent evaluation under DC 9411, review of the evidence shows the veteran has not reported having panic attacks more than once a week and his speech has been consistently normal. He has reported having impaired abstract thinking, but there is no objective evidence of this in the record, and the Board does not consider abstract thinking to be the type of symptom that a layperson is competent to diagnose. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In addition, although there is evidence showing the veteran has impaired memory and judgment and has fluctuations in motivation and mood, the Board finds the evidence does not reflect that the occurrence and severity of these symptoms are sufficient to warrant a rating higher than 30 percent. Moreover, while the evidence may show the veteran has a history of significant problems establishing and maintaining effective work and social relationships, the evidence shows that, during the appeal period, the veteran has maintained employment and described improvement in his work performance and relationship with his wife. As a result, the Board finds that the veteran's service- connected PTSD is manifested by an occupational and social impairment with an occasional decrease in overall functioning, and, thus, warrants no more than a 30 percent disability evaluation under DC 9411. The Board does note the evidentiary record contains GAF scores ranging from 40 to 60, with a score of 50 assigned at the May 2006 VA examination, which denotes serious symptoms or any serious impairment in social or occupational functioning. The Board again notes that the evidence shows the veteran has social and occupational impairment. However, in making the above determination, the Board finds it probative that he has not demonstrated many of the symptoms listed in the rating criteria for a 50 percent rating under DC 9411, or the majority of the symptoms listed in the GAF scale for serious symptoms (suicidal ideation, severe obsessional rituals, frequent shoplifting, and unable to keep a job). The Board is aware that the symptoms listed under the 50 percent rating and in the GAF scale are essentially examples of the type and degree of symptoms for that evaluation, and that the veteran need not demonstrate those exact symptoms to warrant a 50 percent evaluation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, the Board finds the record does not show that the veteran has manifested symptoms which equal or more nearly approximate the criteria for a 50 percent rating. Likewise, it is clear that neither a 70 percent nor a 100 percent rating is warranted in this case, because there is no evidence that the veteran has significant deficiencies in most areas manifested by any of the symptoms listed for the 70 percent rating, or that he has total social and occupational impairment as contemplated by the criteria for a 100 percent rating. The Board has considered the veteran's service-connected PTSD under all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, after careful review of the available diagnostic codes and the medical evidence of record, the Board finds there are no other diagnostic codes which provide a basis to assign an evaluation higher than the 30 percent rating currently assigned. Finally, in view of the Court's holding in Fenderson, the Board has considered whether the veteran is entitled to a "staged" rating for his service-connected PTSD, as the Court indicated can be done in this type of case. However, upon reviewing the longitudinal record in this case, we find that, at no time since the filing of the veteran's claim for service connection, in January 2006, has his service- connected PTSD been more or less disabling than as currently rated under the present decision. In summary, and for the reasons and bases set forth above, the Board finds the veteran is not entitled to an evaluation in excess of 30 percent for service-connected PTSD, and the benefit-of-the-doubt is not for application. See Gilbert, supra. ORDER Entitlement to an initial disability rating in excess of 30 percent for service-connected PTSD is denied. ________________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs