Citation Nr: 0812220 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 06-08 853 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to a rating in excess of 50 percent for post- traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his grandson ATTORNEY FOR THE BOARD L. Jeng, Associate Counsel INTRODUCTION The veteran had active duty from June 1943 to January 1946. This matter comes before the Board of Veterans' Appeals (Board) from a June 2005 rating decision. In June 2007, the veteran appeared in a videoconference hearing before the undersigned and in July 2007, the Board remanded for further development. For good cause shown, namely the veteran's advanced age, a motion to advance this appeal on the Board's docket has been granted under the authority of 38 U.S.C.A. § 7107(a) (West 2002) and 38 C.F.R. § 20.900(c) (2007). FINDING OF FACT The veteran's PTSD is productive of occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to symptoms such as suicidal ideation; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; and an inability to establish and maintain effective relationships. CONCLUSION OF LAW The criteria for an increased rating of 70 percent, but no more, for PTSD have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.7, 4.130, Diagnostic Code (DC) 9411 (2007). REASONS AND BASES FOR FINDING AND CONCLUSIONS Duties to Notify and Assist In correspondence dated in April 2005 and September 2007, the RO satisfied its duty to notify the veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2007). Specifically, the RO notified the veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the veteran was expected to provide. The veteran was instructed to submit any evidence in his possession that pertained to his claim. In September 2007, the RO also notified the veteran of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). According to Vazquez-Flores v. Peake, -- Vet. App. --, No. 05-0355, 2008 WL 239951 (Jan. 30, 2008), for an increased- compensation claim, 38 U.S.C.A. § 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. 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 of 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. Additionally, 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 non-compensable to as much as 100 percent (depending on the disability involved), based on 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. In April 2005, the agency of original jurisdiction (AOJ) sent a letter to the veteran providing notice of what the evidence needed to demonstrate, of his and VA's respective duties in obtaining evidence, and of the types of relevant evidence that he should provide, or ask the VA to obtain for his claim. In September 2007, the veteran was notified that disabilities are rated on the basis of diagnostic codes and was told of the need to present evidence to meet the rating criteria and to establish an effective date of an award. Although this notice post-dated the initial adjudication, the claim was readjudicated. Thus, the Board finds that no prejudice resulted because the veteran had ample time to submit evidence and respond to the notice, and the evidence indicates that the veteran was able to effectively participate in the appeals process. The Board notes that the veteran was not specifically informed to submit medical or lay evidence demonstrating the effect a worsening of his disability has on his employment and daily life. The Board finds that no prejudice resulted, however, because the veteran was told to submit any evidence, to include lay statements, demonstrating that his disability had worsened, which would include any impact on the veteran's employment and daily life, and the veteran was provided notice of the appropriate rating criteria, which explicitly include effect on employment and daily life. The specific rating criteria for evaluating PTSD and how (based on what symptomatology) each rating percentage is assigned were provided to the veteran in the December 2005 Statement of the Case and December 2007 Supplemental Statement of the Case. Although the veteran was not sent an independent letter providing notice of this information, the records indicates that no prejudice resulted. The claim was readjudicated after the notice was provided, the veteran was able to effectively participate extensively in the appeals process, and the veteran had ample time to submit evidence. The evidence indicates that the veteran was fully aware of what was necessary to substantiate this claim. Further, even assuming the notice was deficient, the Board finds that given the veteran's statements and testimony, he had actual knowledge of the criteria necessary to substantiate his claim for a higher rating. The veteran's pertinent medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. There is no objective evidence indicating that there has been a material change in the service-connected disorder since the veteran was last examined. 38 C.F.R. § 3.327(a) (2007). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. The May 2005 and September 2007 VA examination reports are thorough and supported by the other clinical records. The examination in this case is adequate upon which to base a decision. The records satisfy 38 C.F.R. § 3.326 (2007). Analysis Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. Each disability must be viewed in relation to its history, with an emphasis on the limitation of activity imposed by the disabling condition. Medical reports must be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7. While the veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). A recent decision of the United States Court of Appeals for Veterans Claims (Court) held that in determining the present level of a disability for any increased evaluation claim, VA must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Thus, where the evidence contains factual findings that demonstrate distinct time periods in which the service- connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. See 38 C.F.R. § 4.126. Age may not be considered as a factor in evaluating a service-connected disability. 38 C.F.R. § 4.19. A 50 percent rating is assigned 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; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted for PTSD which is productive of occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 an inability to establish and maintain effective relationships. Id. A 100 percent evaluation 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; 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 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). VA treatment records, dated from October 2005 to August 2007, reflect treatment for PTSD. The veteran has consistently been noted to be adequately groomed, cooperative with good eye contact, and in an average mood. He displayed appropriate affect, was rational, and goal directed without looseness of association. He denied current suicidal or homicidal ideation, auditory or visual hallucination, and paranoia. The veteran has consistently been assigned a GAF score of 51. On VA examination in May 2005, the veteran reported having nightmares once every two months and taking medication to sleep. He had numerous intrusive thoughts about the war, was easily startled, avoided crowds, did not watch war movies, nor did not go to restaurants often or shop in large stores. While he attended church regularly, he no longer goes due to his wife's injury. He reported having people come and visit him. On examination, the examiner observed the veteran was casually groomed, full cooperative, tearful at times, and dysphoric. Speech (rate and rhythm) was within normal limits. His mood was depressed and his affect was appropriate to content. Thought process and associations were logical and tight without loosening of associations or confusion. There was no impairment in communication. Memory was grossly intact and oriented to all spheres. The veteran did not complain of hallucinations and no delusional material was noted. Insight and judgment were both adequate. While he did report some suicidal ideation, he denied any intent. He also denied homicidal ideation. The examiner noted that the veterans' PTSD symptoms would not preclude employment. A diagnosis of chronic PTSD and a GAF score of 53 was assigned. At his June 2007 hearing, the veteran testified to having panic attacks, nightmares, and being up for over 48 hours. He stated that he was not able to watch television programs related to the war, had no social life, seldom left the house, and did not drive because of crowds. He also indicated having homicidal and suicidal ideation and having memory difficulty. The veteran's grandson indicated that it was getting more difficult to get the veteran to maintain his personal hygiene and eat properly. Pursuant to the Board's July 2007 remand instructions, in September 2007, the veteran was afforded another VA psychiatric examination due to his complaints of a worsening of his PTSD. At the examination, the veteran complained of sleep problems as he only got four hours of sleep a night, of having nightmares about service once a week, waking up from these dreams nervous and shaking, and having difficulty returning to sleep. He also reported intrusive dreams about service, being easily startled, not going out without this wife, going to the grocery store and leaving after getting what he needs, and not watching war movies. He stated that he spent most of his time taking care of his wife, cooking, and doing all of the chores. The veteran also stated that he visited with his son and grandchildren. Upon examination, the examiner noted that the veteran was casually groomed, fully cooperative, and tearful at times with normal speech (rate and rhythm). His mood was depressed, affect was appropriate to content, thought process and associations were logical and tight, and he did not display loosening of associations or confusion. Memory was grossly intact, was oriented in all spheres, did not report hallucinations, and no delusional material was noted. Insight and judgment were both adequate. He reported occasional suicidal ideation but denied intent; he also reported occasional homicidal ideation but denied intent. The examiner concluded that the veteran's PTSD symptoms were moderate and have persisted for years and would not preclude employment. He also added that there was no impairment of social functioning, thought processing, or communication. There was also no evidence of any psychiatric disorder precluding activities of daily living. While the veteran had some depression associated with his wife's health problems, the GAF score was based solely on his PTSD symptoms. A diagnosis of PTSD was noted and a GAF score of 48 was assigned. The 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). Under DSM-IV, GAF scores ranging between 51 and 60 are assigned when there are moderate symptoms (like flat affect and circumstantial speech, and occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). See Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV). GAF scores ranging between 41 and 50 are assigned when there are serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting), or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). Based upon the above findings, the Board finds that the veteran's disability more nearly approximates a 70 percent disability rating for PTSD. The evidence as a whole demonstrates occupational and social impairment with deficiencies in most areas, as required for a 70 percent rating under DC 9411. With respect to whether his disability warrants more than a 70 percent disability rating, however, the Board finds that the preponderance of the evidence is against entering such a finding. The veteran has not been shown to have total occupational and social impairment, as his symptoms do not preclude unemployment or activities of daily living. He has consistently demonstrated normal thought process, associations, and orientation to all spheres with adequate insight and judgment. As such, the Board finds that an evaluation in excess of 70 percent is not warranted. In light of Hart, the Board has considered whether a staged rating is appropriate. However, because the veteran's PTSD symptoms remained constant throughout the course of the period on appeal and as such staged ratings are not warranted. This determination is based on application of pertinent provisions of the VA's Schedule for Rating Disabilities. There is no showing that the veteran's PTSD reflects so exceptional or unusual a disability picture as to warrant the assignment of an evaluation higher than 70 percent on an extraschedular basis. See 38 C.F.R. § 3.321(b)(1). The disability does not result in marked interference with employment (i.e., beyond that contemplated in the assigned evaluation) or frequent periods of hospitalization, or otherwise render impractical the application of the regular schedular standards. In the absence of these factors, the Board is not required to remand the claim to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Subject to the law and regulations governing payment of monetary benefits, a 70 percent rating for PTSD is granted. ____________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs