Citation Nr: 0813690 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 05-22 091 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to a higher initial evaluation for post-traumatic stress disorder (PTSD), currently rated as 70 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. A. Jonas, Associate Counsel INTRODUCTION The veteran served on active duty from October 1970 to December 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which assigned an initial evaluation of 50 percent for PTSD effective March 9, 2004. The RO subsequently assigned an evaluation of 70 percent, effective December 9, 2005. FINDINGS OF FACT 1. For the period of March 9, 2004 to December 8, 2005, the veteran's PTSD did not result in more than 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. 2. For the period of December 9, 2005 to the present, the veteran's PTSD did not result in more than 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. CONCLUSIONS OF LAW 1. For the period of March 9, 2004 to December 8, 2005, the criteria for an initial disability rating in excess of 50 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.321, Part 4, 4.130, Diagnostic Code 9411 (2007). 2. For the period of December 9, 2005 to the present, the criteria for an initial disability rating in excess of 70 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.321, Part 4, 4.130, Diagnostic Code 9411 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (38 C.F.R., Part 4), which represents the average impairment in earning capacity resulting from injuries incurred in military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1, 4.10. Where, as here, entitlement to compensation has been established, but a higher initial disability rating is at issue, the extent of impairment throughout the entire period, beginning with the filing of the claim, must be considered and a determination must be made regarding whether "staged" ratings are warranted. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999) (when a disability rating is initially assigned, separate ratings should be considered for separate periods of time, known as staged ratings). Since the veteran did not manifest symptoms to warrant a rating in excess of 50 percent before December 9, 2005 or in excess of 70 percent after December 9, 2005, the staged ratings assigned by the RO are appropriate here. Separate diagnostic codes identify the various disabilities. 38 C.F.R., Part 4. As relevant here, Diagnostic Code (DC) 9411 is assigned for the disability of PTSD and is part of the schedule of ratings for mental disorders. 38 C.F.R. § 4.130. Since the RO assigned a disability rating of 50 percent, effective March 9, 2004, and 70 percent, effective December 9, 2005, the only issues on appeal are whether higher ratings are warranted. The general rating formula for mental disorders assigns a 70 percent rating on the basis 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is assigned on the basis of 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. 38 C.F.R. § 4.130. I. From March 9, 2004 to December 8, 2005 Dr. Rudy Santoso, a private psychiatrist, evaluated the veteran in November 2003. Dr. Santoso's report indicates the veteran was quite anxious, significantly dysphoric, tearful, sobbing, angry, and had a depressed affect. He reported a few panic attacks but no delusions or hallucinations. There was no suicidal or homicidal ideation. Orientation was good. Intelligence was average, normal. Judgment and insight were fairly good. Dr. Santoso assigned a global assessment of functioning (GAF) score of 40 during the evaluation and noted the highest GAF score of the past year to be 50. A GAF score between 41 and 50 denotes: serious symptoms or any serious impairment in social, occupational, or school functioning. Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994). A GAF score between 31 and 40 denotes: some impairment in reality testing or communication or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. Id. In a February 2004 letter, Dr. Santoso he noted the veteran's flashbacks, nightmares, fragmented sleep, irritability, hyper-vigilance, and syncopal episodes, and concluded that the veteran was "basically totally disabled." All other evidence of record, however, shows the veteran was employed full time during this period. Dr. Santoso noted in April 2004 that the veteran no longer complained of syncopal episodes. Klonopin helped prevent full-blown panic attacks but the veteran was still anxious and had intrusive thoughts and nightmares. The veteran underwent a VA examination in November 2004. The VA examiner noted nightmares, intrusive thoughts, hyper- vigilance, short temper, and sleep disturbance. The veteran's mood was tense but he was cooperative and friendly. He was alert with an appropriate affect and oriented times three. There was no suicidal or homicidal ideation. The veteran had a good memory and adequate insight, judgment, and intellectual capacity. The VA examiner noted that the veteran does household chores and gardening but has limited social relationships and not a lot of recreational and leisurely pursuits. The VA examiner assigned a GAF score of 52 and diagnosed generalized anxiety disorder secondary to PTSD. The veteran underwent a second VA examination in October 2005. The nature and severity of the symptoms noted were largely consistent with the November 2004 VA examination. Beyond that, the October 2005 VA examiner also noted that it was increasingly difficult for the veteran to maintain his job. This examination report also contains history regarding a 1979 hospitalization after the veteran cut his wrists. However, the VA examiner indicates no current suicidal or homicidal ideation. The October 2005 GAF score was 48. II. From December 9, 2005 to the present The RO increased the evaluation to 70 percent because of a December 2005 note submitted by Dr. Santoso. The note states that the veteran was unable to work or drive since December 9, 2005. The veteran testified at the March 2008 Board hearing that he still has a driver's license and drives his children to the bus stop. It is dangerous for him to drive because of syncopal episodes. The veteran underwent a third VA examination in March 2006. The symptoms found were consistent with those noted during the prior two VA examinations. The VA examiner assigned a GAF score of 46. The examination report noted that the veteran was unable to work from December 2005 to February 2006. The RO subsequently granted the status of individual unemployability for that period by a June 2007 rating decision. As of the March 2006 VA examination, the veteran was working three days per week. The veterans symptoms do not approximate total occupational and social impairment. The veteran lives with his wife and two minor children. His wife submitted a letter in June 2007 detailing his irritability. She also wrote that the veteran does not care about his personal hygiene. However, no medical examination of record notes anything other than appropriate dress and hygiene. The 70 percent rating from December 9, 2005 to the present accounts for the veteran's impairment due to PTSD including anxiety and frustration in completing household and occupational tasks. III. Extraschedular consideration Under 38 C.F.R. § 3.321(b)(1) (2007), to accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Under Secretary for Benefits or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. The governing criteria for such an award is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked inference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. Although the veteran has reported to periodic treatment appointments, there have been no hospitalizations since service connection was granted. Marked interference with employment due to PTSD has not been shown either. The veteran's employer, Hanes Industries, submitted a letter in June 2004 that states the veteran used 9 days of Family Medical Leave and 15 days of paid vacation time during that year. The author of the letter suspected the absences were due to health reasons. The November 2004 VA examiner noted that the veteran does not miss any work because of his psychiatric symptoms. During the October 2005 VA examination, the veteran reported that he does not miss work because if he did they would fire him. As of the March 2006 VA examination, the veteran worked only three days per week. After considering all the above factors, the Board finds the schedular standards to adequately reflect impairment to earning capacity given the veteran's overall employment picture. In light of the above, a higher rating is not warranted. The preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). IV. Duties to notify and assist VA has certain duties to notify and to assist claimants concerning the information and evidence needed to substantiate a claim for VA benefits. 38 U.S.C.A. §§ 5103 and 5103A (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.326(a). VA must notify the claimant (and his or her representative, if any) of any information and evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide, and (4)VA must ask the claimant to provide VA with any evidence in his or her possession that pertains to the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board notes that initial rating claims are considered to be "downstream" issues from the original grant of service connection. VA's General Counsel issued an opinion holding that a separate notice of the VA's duty to assist the veteran and of his concomitant responsibilities in the development of his claim involving such downstream issues is not required when the veteran was provided adequate VCAA notice following receipt of the original claim. VAOPGCPREC 8-2003. In connection with the claim for service connection, the RO's March 2004 letter describing the evidence needed to support the veteran's claim was timely mailed well before the September 2004 rating decision that granted service connection. The veteran was also provided with information concerning effective dates of awards, as required by Dingess v. Nicholson, 19 Vet. App. 473 (2006) (since the degree of disability and effective date of the disability are part of a claim for service connection, VA has a duty to notify claimants of the evidence needed to prove those parts of the claim), in April 2006. Although this notice was not given before the September 2004 rating decision, once the veteran filed a notice of disagreement with the initial rating, he was properly provided with information concerning the disability evaluation criteria in the statement of the case. VA also has a duty to assist a claimant in obtaining evidence to substantiate his or her claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA met its duty to assist the veteran by affording the veteran VA examinations. In sum, there is no evidence of any VA error in notifying or assisting the appellant that reasonably affects the fairness of this adjudication. ORDER Entitlement to a higher initial evaluation for PTSD is denied. ____________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs