Citation Nr: 0812050 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 05-13 886 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to an increased initial rating for post-traumatic stress disorder, evaluated as 30 percent disabling from June 12, 2003 to January 1, 2007 and as 70 percent disabling since January 2, 2007. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Theresa M. Catino, Counsel INTRODUCTION The veteran served on active military duty from May 1965 to April 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating action of the Department of Veterans Affairs Regional Office in Seattle, Washington. In that decision, the RO granted service connection for post-traumatic stress disorder (PTSD) and awarded a compensable evaluation of 10 percent, effective from June 12, 2003, for this disability. During the current appeal, and specifically by a January 2005 rating action, the RO granted an increased evaluation of 30 percent, effective from June 12, 2003, for the service-connected PTSD. Also, by a January 2007 rating action, the RO awarded an increased evaluation of 70 percent, effective from January 2, 2007, for this disability. FINDINGS OF FACT 1. Between June 12, 2003 and January 1, 2007, the veteran's service-connected PTSD was manifested by nightmares, waking recollections, thoughts of violence, anger and irritability, feelings of sadness, avoidance of activities (including persons and places) that aroused recollections of trauma, frequent suicidal thoughts (without attempts), and some social isolation (including four divorces and a lack of a desire to attend any type of group activities and functions). However, a flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impaired judgment; impaired abstract thinking; and disturbances of motivation and mood were not shown. 2. Since January 2, 2007, the veteran's service-connected PTSD has been manifested by extreme difficulty with anger control and hypervigilant behaviors, an abnormal affect and mood with near-continuous depressed mood, suspiciousness, impaired judgment, moderate impairment of memory, and passive thoughts of death. However, total social and industrial impairment is not shown. The veteran does not exhibit gross impairment in thought processes, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating greater than 30 percent for the service-connected PTSD between June 12, 2003 and January 1, 2007 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2007). 2. The criteria for an initial disability rating greater than 70 percent for the service-connected PTSD since January 2, 2007 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties To Notify And To Assist On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, & 5126 (West 2002 & Supp. 2006)). The VCAA imposes obligations on VA in terms of its duty to notify and to assist claimants. Upon receipt of a complete or substantially complete application for benefits, VA is ordinarily required to notify the claimant and his/her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2006); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record that is necessary to substantiate the claim, that VA will seek to provide, and that the claimant is expected to provide and must ask the claimant to provide any evidence in his/her possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). VCAA notice is not required in every case, however. The United States Court of Appeals for Veterans Claims (Court) recently held, for example, that such notice is not required under circumstances where a claim for service connection is granted, a rating and effective date are assigned, and the claimant files an appeal as to the initially assigned rating. See Dingess v. Nicholson, 19 Vet. App. 473, 491 (2006) (in which the Court held that, "[i]n 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"). Rather, under those circumstances, the provisions of 38 U.S.C.A. §§ 5104 & 7105 and 38 C.F.R. § 3.103 are for application. Id. Here, the veteran's increased rating claim essentially falls within this fact pattern. Following receipt of notification of the March 2004 grant of service connection for PTSD, the veteran perfected a timely appeal of the initially assigned 10% rating for this service-connected disability. [During the current appeal, and specifically by a January 2005 rating action, the RO granted an increased evaluation of 30 percent, effective from June 12, 2003, for the service-connected PTSD. Also, by a January 2007 rating action, the RO awarded an increased evaluation of 70 percent, effective from January 2, 2007, for this disability.] Consequently, no section 5103(a) notice is required for the veteran's increased rating claim. As section 5103(a) no longer applies to the veteran's appeal-e.g., his increased rating claim-the additional notification provisions for increased rating claims recently set forth by the Court are not applicable in the present case. See Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. Jan. 30, 2008). As for the provisions of 38 U.S.C.A. §§ 5104 & 7105 and 38 C.F.R. § 3.103, the record shows that the veteran has been provided with various communications [including the May 2004 notification of the March 2004 rating decision, a January 2005 statement of the case (SOC), and supplemental statements of the case (SSOCs) issued in January 2007 and May 2007] that contain notice of VA's rating communication, his appellate rights, a summary of relevant evidence, citations to applicable law (diagnostic code), and a discussion of the reasons for the decision made by the agency of original jurisdiction. In short, the procedural requirements of the law have been satisfied. No further due process development is required. Additionally, the VCAA requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his/her claim. 38 U.S.C.A. §§ 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2007). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his/her claim, whether or not the records are in Federal custody, and that VA will provide a medical examination and/or opinion when necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2007). In the present case, the Board finds that the duty to assist provisions of the VCAA have been fulfilled with respect to the increased rating issue on appeal. All relevant treatment records adequately identified by the veteran have been obtained and associated with his claims folder. He has been accorded pertinent psychiatric examinations. There is no suggestion on the current record that additional evidence, relevant to this matter, exists and can be procured. Consequently, the Board concludes that no further evidentiary development of the veteran's increased rating claim is required. Analysis In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. §§ 4.1 and 4.2 (2007). Initially, by the March 2004 rating action, the RO granted service connection for PTSD (10%, effective from June 12, 2003). During the current appeal, and specifically by a January 2005 rating action, the RO granted an increased evaluation of 30 percent, effective from June 12, 2003, for the service-connected PTSD. Also, by a January 2007 rating action, the RO awarded an increased evaluation of 70 percent, effective from January 2, 2007, for this disability. As the present appeal arises from an initial rating decision which, in essence, established service connection and assigned an initial disability rating, the entire period is considered for the possibility of staged ratings. In other words, consideration will be given to the possibility of separate ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practicably be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2007). Each service-connected disability is rated on the basis of specific criteria identified by diagnostic codes. 38 C.F.R. § 4.27 (2007). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10 (2007). It is also necessary to evaluate the disability from the point of view of the veteran working or seeking work and to resolve any reasonable doubt regarding the extent of the disability in the veteran's favor. 38 C.F.R. §§ 4.2, 4.3 (2007). If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2007). It is VA's defined and consistently applied policy 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 it is meant that an approximate balance of positive and negative evidence exists 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 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2007). According to the applicable rating criteria, a 30 percent rating will be granted with evidence of 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 normal conversation), 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, and recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411 (2007). A 50 percent evaluation will be assigned with evidence of 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. Id. A 70 percent evaluation will be awarded with evidence of 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); and inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned when there is 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. Id. Furthermore, a Global Assessment of Functioning (GAF) rating is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). A GAF score of 61 to 70 is reflective of some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household) but generally functioning pretty well with some meaningful interpersonal relationships. A GAF score of 31 to 40 is illustrative of some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; a child frequently beats up younger children, is defiant at home, and is failing at school). In the present case, the veteran contends that the symptomatology associated with his service-connected PTSD is more severe than that which is reflected by the currently assigned 30 percent rating between June 12, 2003 and January 1, 2007 and 70 percent evaluation since January 2, 2007. The veteran's assertions regarding his service-connected psychiatric pathology involve matters capable of lay observation, and are deemed to be competent evidence. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Such descriptions must, however, be considered in conjunction with the clinical evidence of record and the pertinent rating criteria. A. Schedular Rating For Service-Connected PTSD Between June 12, 2003 And January 1, 2007 According to reports of psychiatric evaluation and treatment sessions completed between June 12, 2003 and January 1, 2007, the veteran's service-connected PTSD was manifested by nightmares, waking recollections, thoughts of violence, anger and irritability, feelings of sadness, avoidance of activities (including persons and places) that aroused recollections of trauma, and frequent suicidal thoughts (without attempts). He denied attending any type of group (e.g., church) activities and functions and noted that he had been married and divorced four times. Importantly, however, these mental status evaluations also demonstrated casual dress, neat grooming, orientation times three, appropriate psychomotor behavior, appropriate mood and affect, as well as no cognitive limitations, thought disorder, delusions, hallucinations, or paranoia. The veteran reported that he had two close friends and that his daily activities included working on a home remodeling project since February 2003, mowing his grass, cleaning the house, cooking, doing laundry, shopping, fishing, and hunting. A July 2003 psychiatric examiner diagnosed, on Axis I, alcohol abuse, marijuana abuse, and PTSD complicated by embellishment of symptomatology. The examiner explained that the veteran had "mild limitations with work and social relationships" and assigned, with respect to the veteran's PTSD, a GAF score of 65, which was reflective of some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household) but generally functioning pretty well with some meaningful interpersonal relationships. Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). In support of these conclusions, the examiner explained that the veteran did not describe difficulties performing activities of daily living or following commands. Between June 12, 2003 and January 1, 2007, the veteran sought very little outpatient psychiatric treatment. In fact, in August 2004, he failed to report for an outpatient PTSD consultation, and, in the following month, he declined any further outpatient psychiatric care. He specifically stated at that time that he would contact the medical facility "if he finds himself struggling in the future." Later, in March 2005 when he received assistance in the claims adjudication process, he again stated that he was "not interested in counseling services." While the veteran was divorced four times and did not attend any type of group activities or functions, he admitted to having two close friends and daily activities (including in particular shopping, fishing, and hunting) which required him to leave his home. He associated any memory problems with his age. An examiner concluded that the veteran's psychiatric symptomatology caused only mild social and occupational impairment. Significantly, between June 12, 2003 and January 1, 2007, a flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impaired judgment; impaired abstract thinking; and disturbances of motivation and mood were not shown. Clearly, therefore, the next higher rating of 50 percent for the veteran's service-connected PTSD, between June 12, 2003 and January 1, 2007, is not warranted. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2007). B. Schedular Rating For Service-Connected PTSD Since January 2, 2007 The claims folder contains no records of outpatient psychiatric treatment since January 2, 2007. On January 2, 2007, however, the veteran did undergo a psychiatric examination. At that time, the veteran described daily trouble sleeping, intrusive memories, flashbacks, extreme difficulty with anger control and hypervigilant behaviors, a frequent depressed mood, feelings of low self-worth, a lack of motivation, and passive suicidal ideation. He reported having no friends, being very isolated and detached from others, and having consistent difficulty maintaining employment (due to his anger). He believed that his psychiatric symptoms render his daily functioning almost completely debilitating. A mental status evaluation demonstrated an abnormal affect and mood with near-continuous depressed mood, signs of suspiciousness, impaired judgment (as illustrated by his persistent substance abuse), moderate impairment of memory, and passive thoughts of death. The examiner diagnosed, on Axis I, PTSD, a major depressive disorder, alcohol dependence, and cannabis dependence. In addition, the examiner assigned a GAF score of 40, which is reflective of some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; a child frequently beats up younger children, is defiant at home, and is failing at school). Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). In assigning the GAF of 40, the examiner acknowledged that veteran's difficulty in establishing and maintaining effective work and social relationships. However, the January 2007 examination also demonstrated normal orientation, appropriate appearance and hygiene, appropriate behavior, normal communication and speech, normal concentration, appropriate thought processes, and no panic attacks, delusions, hallucinations, obsessional rituals, homicidal ideation, or difficulty understanding commands. The veteran denied receiving any recent psychiatric treatment. The examiner concluded that "continuous treatment is not needed to control this condition" but did recommend enrollment in a treatment program. In addition, the examiner believed that the veteran posed no threat of persistent danger or injury to himself or others. Significantly, since January 2, 2007, 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 have not been shown. Without such evidence, a total schedular rating for the veteran's service-connected PTSD, since January 2, 2007, is not warranted. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2007). C. Extraschedular Consideration Moreover, the Board does not find that consideration of an extraschedular rating under the provisions of 38 C.F.R. § 3.321(b)(1) is warranted for any time during the current appeal. That provision 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, as shown by evidence showing that the disability at issue causes marked interference with employment, or has in the past or continues to require frequent periods of hospitalization rendering impractical the use of the regular schedular standards. Id. Importantly, at no time during the current appeal has the veteran's service-connected PTSD required hospitalization or resulted in marked interference with employment. In fact, on several occasions throughout the current appeal, the veteran specifically declined outpatient psychiatric care. The Social Security Administration determined that he was unemployable due to his nonservice-connected low back disability. It is not shown that his service-connected PTSD results in total social and industrial impairment. 38 C.F.R. § 4.1 specifically sets out that "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." Factors such as requiring periodic medical attention are clearly contemplated in the Schedule and provided for in the evaluations assigned therein. What the veteran has not shown in this case is that his service-connected PTSD has resulted in unusual disability or impairment that rendered the criteria and/or degrees of disability contemplated in the Schedule impractical or inadequate at any time during the current appeal. Accordingly, the Board concludes that consideration of the provisions set forth at 38 C.F.R. § 3.321(b)(1) is not warranted for the veteran's service-connected PTSD for any time during the current appeal. ORDER An initial disability rating greater than 30 percent from June 12, 2003 to January 1, 2007 for PTSD is denied. An initial disability rating greater than 70 percent since January 2, 2007 for PTSD is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs