Citation Nr: 0814012 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 06-02 414 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an initial rating greater than 30 percent for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The veteran had active service from April 1955 to April 1962 and from July 1962 to July 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which granted the veteran's claim of service connection for PTSD, assigning a 30 percent rating effective August 14, 2003. This decision was issued to the veteran and his service representative in February 2004. The veteran disagreed with this decision in January 2005, seeking an initial rating greater than 30 percent for his service- connected PTSD. He perfected a timely appeal in January 2006 and requested a Central Office Board hearing. In a written statement filed at the Board in February 2008, however, the veteran withdrew his Board hearing request. See 38 C.F.R. § 20.704 (2007). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran's PTSD is manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as difficulty establishing and maintaining effective work and social relationships, poor sleep, poor appetite, frequent nightmares, and some suicidal ideation. CONCLUSION OF LAW The criteria for an initial rating of 50 percent for PTSD have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130, Diagnostic Code (DC) 9411 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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 claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. The issue on appeal is a "downstream" element of the RO's grant of service connection for PTSD in the currently appealed rating decision issued in January 2004. For such downstream issues, notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159 is not required in cases where such notice was afforded for the originating issue of service connection. See VAOPGCPREC 8-2003 (Dec. 22, 2003). 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). In letters issued in August, October, and in November 2003, VA notified the veteran of the information and evidence needed to substantiate and complete his claim, 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 letters informed the veteran to submit medical evidence, statements from persons who knew the veteran and had knowledge of his PTSD during service, and noted other types of evidence the veteran could submit in support of his claim. The veteran also was informed of when and where to send the evidence. In response, the veteran notified VA in April 2006 that he had no more information or evidence to submit in support of his claim Although the VCAA notice provided to the veteran did not contain notice of the Dingess requirements, the claimant has had the opportunity to submit additional argument and evidence and to participate meaningfully in the adjudication process. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The veteran has not alleged any prejudice as a result of the untimely notification, nor has any been shown. To the extent that Dingess requires more extensive notice as to potential downstream issues such as disability rating and effective date, because the January 2004 rating decision was fully favorable to the veteran on the issue of service connection for PTSD, and because the veteran's higher initial rating claim for PTSD is being granted herein, to 50 percent disabling, the Board finds no prejudice to the veteran in proceeding with the present decision and any defect with respect to that aspect of the notice requirement is rendered moot. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In Dingess, the United States Court of Appeals for Veterans Claims (Veterans Court) 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. See Dingess, 19 Vet. App. at 490-91. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the veteran in obtaining evidence and affording him the opportunity to give testimony before the RO and the Board, although he declined to do so. It appears that all known and available records relevant to the issues here on appeal have been obtained and are associated with the veteran's claims file. The National Personnel Records Center in St. Louis, Missouri (NPRC), notified the RO in September 2003 that no further records were available for review, in response to a request for additional service medical records. The veteran asserted in September 2003 that he had been treated at Christian Hospital in St. Louis, Missouri. This facility notified the RO in November 2003 that it had no records for the veteran. The veteran also asserted that he was treated between 2000 and 2003 at the U.S. Army Hospital at Fort Leonard Wood, Missouri; in response to a request for the veteran's records, however, this facility notified the RO in November 2003 that no records were available. VA also has provided the veteran with examinations to address the current nature and severity of his service-connected PTSD. Thus, the Board finds that VA has done everything reasonably possible to notify and to assist the veteran and that no further action is necessary to meet the requirements of the VCAA. The veteran contends that his service-connected PTSD is more disabling than currently evaluated. In general, disability evaluations are assigned by applying a schedule of ratings that represent, as far as can be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2007). Separate diagnostic codes identify the various disabilities and the criteria that must be met for specific ratings. The regulations require that, in evaluating a given disability, the disability be viewed in relation to its whole recorded history. 38 C.F.R. § 4.2 (2007); see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). The veteran's service-connected PTSD is evaluated currently as 30 percent disabling under 38 C.F.R. § 4.130, DC 9411. See 38 C.F.R. § 4.130, DC 9411 (2007). Under DC 9411, a 30 percent rating is warranted for occupational and social impairment with an 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; and mild memory loss (such as forgetting names, directions, and recent events). Id. A 50 percent rating is warranted for 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 rating is warranted for 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 ideations; 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 worklike settings); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted for 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. See 38 C.F.R. § 4.130, DC 9411 (2007). 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). GAF scores are but one piece of information to be examined, and the Board is obligated to review all pertinent evidence and set forth a decision based on the totality of the evidence in accordance with all applicable legal criteria. As relevant to the veteran's claim, a GAF score of 41-50 indicates serious symptoms or any serious impairment in social, occupational, or school functioning. A GAF score of 61-70 indicates some mild symptoms or some difficulty in social, occupational, or school functioning but generally functioning pretty well with some meaningful interpersonal relationships. A review of the veteran's service medical records indicates that, at his enlistment physical examination in April 1955, the veteran denied any medical history of nervous trouble and his psychiatric system was normal. The veteran's history and clinical evaluation were unchanged on subsequent physical examinations in March 1958, April 1962, May 1964, January 1966, June 1966, and in January 1968. On outpatient treatment in April 1968, the veteran complained of poor appetite and recent weight loss. The disposition included neuropsychosis versus mental depression. When he filed his service connection claim for PTSD in August 2003, the veteran attached copies of award letters for a Silver Star while in combat in Vietnam and for a Bronze Star for distinguished service in Vietnam from August 1966 to July 1967 and from July 1969 to July 1970. The post-service medical evidence shows that, on VA outpatient treatment in October 2003, the veteran complained of intrusive flashbacks to Vietnam, nightmares, and panic attacks. He denied active suicidal or homicidal ideation. The impressions included PTSD. On private outpatient treatment in October 2003, the veteran complained of severe depression and daily PTSD symptoms. The veteran's GAF score was 45-50, indicating serious symptoms. The assessment included PTSD. Following a VA social work assessment in November 2003, during which the veteran described his claimed in-service stressors, the VA social worker concluded that the veteran "likely suffers from moderate to severe" PTSD. On VA examination in December 2003, the veteran complained of poor sleep, poor appetite, suicidal ideation "every month or so," and a history of suicide attempts. He reported that he had served on active duty with Special Forces in Vietnam from 1961 to 1962, 1966 to 1967, and from 1969 to 1970. His awards and decorations included the Combat Action Ribbon and Combat Infantry Badge. The VA examiner reviewed the veteran's claims file, including his service medical records. The veteran was twice divorced and, although he had relationships with his 2 adult children, he described those relationships as "distant." He also had few friends. The veteran had retired in 1999 after working since 1976 in a city parks department. Mental status examination of the veteran showed that, near the end of the psychiatric interview, the veteran "became extremely anxious and said he couldn't stay very much longer and started to cry," no suicidal or homicidal ideation, speech within normal limits, logical and relevant thought processes, no cognitive impairment or perceptual disturbances such as hallucinations or delusions, full orientation, no obsessive or ritualistic behavior, and normal judgment and insight. The veteran's GAF score was 61, indicating some mild symptoms. The diagnoses included chronic PTSD. The veteran received regular VA outpatient treatment for PTSD in 2004. In a February 2005 "Physician's Statement," J.C., M.D. (Dr. J.C.), checked a box indicating that the veteran's PTSD met the rating criteria for a 70 percent rating. On VA examination in November 2005, the veteran complained that his mood was usually depressed, he occasionally cried, and he experienced some increased suicidal ideation since his last VA examination in December 2003. The VA examiner reviewed the veteran's claims file, including his service medical records and post-service VA treatment records. The veteran denied any homicidal ideation. The VA examiner stated that there was no overall change in the veteran's mood from his last VA examination. The veteran did not believe that life was worth living. The veteran denied having "much anger" or panic attacks. He also reported having between 3 and 6 nightmares a month or 2 to 3 nightmares a week. This was unchanged from his last VA examination. Mental status examination of the veteran showed full orientation, logical and coherent thoughts, normal speech, no dysphasia, hallucinations, delusions, psychosis, or organic brain syndrome, no homicidal ideation, some suicidal ideation but no intent, moderate depression, no excessive anxiety, and impulsiveness in judgment. The VA examiner stated that the veteran overall showed no change since his last VA examination. "Alcohol appears to be more of a problem than the PTSD." The veteran's GAF score for PTSD was 61, which the VA examiner noted was unchanged from the last examination. The diagnoses included chronic PTSD. On VA examination in June 2007, the veteran complained of nightmares and "flashbacks about killing people." The VA examiner reviewed the veteran's claims file, including his service medical records. The veteran was socially isolated in terms of friends. He denied any suicide or homicide attempts. Mental status examination of the veteran showed appropriate impulse control, normal speech, full orientation, no suicidal or homicidal ideation, no perceptual distortions, rational and logical thought content, goal-directed thought process, and no psychotic symptomatology. The veteran's GAF score for PTSD was 50, indicating serious symptoms. The diagnoses included chronic PTSD. The Board finds that the preponderance of the evidence supports a higher initial rating of 50 percent for PTSD. Although the veteran complained of poor appetite and recent weight loss on one occasion during active service, he was not diagnosed with PTSD at any time during his 20 years of active service. The Board acknowledges the veteran's honorable combat service in Vietnam for which he was awarded the Silver Star and the Bronze Star. The post-service medical evidence shows that the veteran has been treated consistently for PTSD since 2003. On VA outpatient treatment in October 2003, the veteran complained of flashbacks to his Vietnam service, nightmares, and panic attacks. His GAF score of 45-50 indicated serious symptoms. He also complained of severe depression on private outpatient treatment that same month. On VA examination in December 2003, the veteran reported that he had a distant relationship with his 2 adult children and few friends. The VA examiner noted that the veteran became extremely anxious during the psychiatric interview and started crying. The veteran's GAF score was 61, indicating some mild symptoms. In November 2005, the veteran reported increased suicidal ideation since his December 2003 VA examination. He stated that life was not worth living. He experienced 3-6 nightmares per month and 2-3 nightmares per week. There was some suicidal ideation and moderate depression on mental status examination. Although the veteran's GAF score was 61 in November 2005, it had worsened to 50 following VA examination in June 2007 and he was socially isolated. Because the veteran's PTSD symptomatology is more consistent with an initial rating of 50 percent, and because most of the criteria for a higher initial rating than 50 percent are not present, the Board finds that an initial rating of 50 percent for PTSD is warranted. The veteran and his service representative rely heavily on the February 2005 "Physician's Statement," by Dr. J.C., in which this examiner checked a box indicating that the veteran's PTSD met the rating criteria for a 70 percent rating, as support for a higher initial rating of 70 percent for service-connected PTSD. It is not clear what Dr. J.C. based this opinion on, however, since it is not totally supported by contemporaneous medical evidence of record showing that few of the criteria for a 70 percent rating for PTSD were present. There is no indication that Dr. J.C. had access to or reviewed the veteran's claims file, including his service medical records or post-service VA treatment records, prior to checking the box for a 70 percent rating for PTSD and signing this statement. Because it is clear that the February 2005 statement by Dr. J.C. is merely a recitation of the veteran's own contention, the Board finds this statement of less probative value than other contemporaneous medical evidence which does not support a higher initial rating of 70 percent for service-connected PTSD. In adjudicating the veteran's higher initial rating claim for service-connected PTSD, the Board has considered Fenderson and whether the veteran is entitled to increased evaluations for separate periods based on the facts found during the appeal period. In Fenderson, the Veterans Court held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. In that decision, the Veterans Court also discussed the concept of the "staging" of ratings and found that, in cases where an appellant disagrees with an initial disability evaluation, it was possible for VA to assign separate percentage evaluations for separate periods based on the facts found during the appeal period (as in this case). See Fenderson, 12 Vet. App. at 126. As noted above, the evidence of record, however, from the day the veteran filed this claim to the present supports the conclusion that he is not entitled to additional increased compensation during any other time within the appeal period. ORDER Entitlement to a disability rating of 50 percent for PTSD is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs