Citation Nr: 0814038 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 06-03 393 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUE Entitlement to an increased rating for post-traumatic stress disorder (PTSD), currently rated as 30 percent disabling. ATTORNEY FOR THE BOARD Sylvia N. Albert, Associate Counsel INTRODUCTION The veteran had active service from November 1968 until September 1971. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a June 2003 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Salt Lake City, Utah. The Board notes that the veteran's claims folder was subsequently transferred to the Anchorage, Alaska RO. FINDING OF FACT Competent clinical evidence of record establishes that, throughout the rating period on appeal, the veteran's PTSD has been manifested by complaints of intrusive thoughts, depression, hypervigilance, anxiety, panic attacks not more than weekly, and sleep impairment, productive of no more than occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSION OF LAW The criteria for a disability evaluation in excess of 30 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 4.129, 4.130, Diagnostic Code 9411 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). The VCAA applies in this case. Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or 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); 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 (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Further regarding notice, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman holds that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of an application for "service connection," therefore, VA is required to review the information and evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, VCAA notice letters were issued in May 2002 and March 2006 to the appellant. The veteran was informed of what evidence was necessary to establish entitlement to the benefit he claimed and advised him of his and VA's respective duties for obtaining evidence. He was told what VA had done to help his claim and what he could do to assist. In addition, he was asked to provide any evidence in his possession that pertained to his claim and informed that an effective date would be assigned in the event that he was awarded the benefit sought. According to Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), 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. 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. 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 noncompensable 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 the case currently before the Board, the VCAA notice did not make specific reference to the relevant diagnostic codes and other applicable information. In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the Federal Circuit stated that all VCAA notice errors are presumed prejudicial and require reversal unless the VA can show that the error did not affect the essential fairness of the adjudication. To do this, the VA must show that the purpose of the notice was not frustrated, such as by demonstrating that any defect was cured by actual knowledge on the part of the claimant, that a reasonable person could be expected to understand from the notice what was needed, that a benefit could not have been awarded as a matter of law, or perhaps where the claimant has stated that he or she has no further evidence to submit, or where the record reflects that VA has obtained all relevant evidence. There must be a demonstration that there was no prejudice. See Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir.1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair."). See also Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). As the requirements of Vazquez-Flores were not met in this case, there was VCAA notice error. However, such notice error has not affected the essential fairness of the adjudication. Here the veteran was not informed prior to adjudication of the Diagnostic Codes under which he was being evaluated or the specific test results needed for the veteran to qualify for a higher disability rating. However, the record reflects that the veteran had actual notice of the evidence needed to meet the criteria for a higher rating. Specifically, in his August 2005 notice of disagreement, the veteran took issue with the perceived severity of his symptoms, as such related to the criteria for a higher rating. Moreover, the statement of the case issued to the veteran set forth the relevant diagnostic code criteria. Accordingly, the Board concludes that the failure to provide VCAA compliant notice was harmless. The Board may proceed with consideration of the claim on the merits. See Sanders, supra Regarding the timing of notice, in Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held, in part, that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits. In the present case, the unfavorable AOJ decision that is the basis of this appeal was decided prior to the issuance of all VCAA notice letters. Here, the Board finds that any defect with respect to the timing of the VCAA notice was harmless error. Although some of the notice requirements were provided to the appellant after the initial adjudication, the case was readjudicated thereafter, and the appellant has not been prejudiced thereby. Not only has the appellant been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices, but the actions taken by VA have essentially cured the error in the timing of notice. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claim. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal. Duty to Assist VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim. 38 U.S.C.A. § 5103A(a)(1) (West 2002). In this case, the claims file contains the veteran's service medical records and reports of VA and private post-service examinations. The Board notes that, while the veteran asserts that there are outstanding VA records from 1972, these records are outside the rating period on appeal. While medical history is for consideration in evaluating the current disability status, the record contains subsequently dated medical evidence for consideration. Additionally, the veteran's statements in support of his appeal are affiliated with the claims folder and the veteran was afforded a VA examination. The Board, after careful review of the veteran's statements, service records, and medical records, has found nothing to suggest that there is any outstanding evidence with respect to the veteran's claim. Legal Criteria and Analysis Disability ratings are based, as far as practicable, on the average impairment of earning capacity attributable to specific disabilities. The ratings are established through application of the criteria presented in the VA's Schedule for Rating Disabilities, wherein separate Diagnostic Codes identify the various disabilities. 38 C.F.R. § 4.1 (2007). If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating is assigned. 38 C.F.R. § 4.7 (2007). After careful consideration of the evidence, any reasonable doubt remaining should be resolved in favor of the veteran. 38 C.F.R. § 3.102 (2007). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. Nevertheless, where, as here, the veteran is appealing the rating for an already established service-connected condition, her present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Court recently held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service- connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, No. 05-2424 (U.S. Court of Appeals for Veterans Claims, Nov. 19, 2007). The Board notes that the veteran was originally granted service connection in March 1972 for anxiety neurosis under Diagnostic Code 9400. He was assigned a noncompensable rating from September 3, 1971, and increased to a 100 percent rating from January 5, 1972. A rating decision dated in April 1973 reduced the rating to 10 percent, effective from January 5, 1973. Pursuant to a claim received on April 16, 2002, the June 2003 rating decision continued the veteran's evaluation at 10 percent, while an August 2004 rating decision increased the veteran's rating to 30 percent, effective April 16, 2002, the date of receipt of claim. Additionally, the August 2004 rating decision changed the characterization of the veteran's disability from anxiety neurosis to post-traumatic stress disorder (PTSD) with anxiety neurosis, rated under Diagnostic Code 9411. The veteran contends that the severity of his condition warrants a higher evaluation. At this time, the Board notes that the 10 percent disability evaluation assigned for the veteran's PTSD (previously characterized as anxiety neurosis), prior to April 16, 2002, is a protected rating as it has been in effect for more than 20 years. In this regard, any disability which has been continuously rated at or above any evaluation of disability for 20 or more years for VA compensation purposes may not be reduced except upon a showing that such rating was based on fraud. 38 C.F.R. § 3.951(b) (2007). The veteran's disability is currently rated as 30 percent disabling under Diagnostic Code 9411, for PTSD. Under this Code, an evaluation at 30 percent is warranted where the veteran suffers from 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, and mild memory loss (such as forgetting names, directions, recent events). An evaluation at the next highest rating level, 50 percent, is appropriate where the veteran suffers from 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. As the veteran's claim for an increased rating was received on April 16, 2002, the rating period for consideration on appeal is from April 16, 2001. 38 C.F.R. § 3.400 (2007). Consideration must be given to whether an increased rating is warranted at any time during the appeal period. Hart v. Mansfield, No. 05-2424 (U.S. Court of Appeals for Veterans Claims, Nov. 19, 2007). The veteran was afforded VA examinations in July 2004 and April 2006, and has also submitted both VA and private treatment records for the rating period on appeal. The veteran presented at mental health at Fairbanks VA Community Based Outpatient Clinic (CBOC) in May 2002. At that time, he was concerned that his previous substance abuse had impaired his cognitive ability such that he was no longer able to function adequately. Upon observation, he was cooperative, well groomed, with a bright, appropriate, and stable affect. His speech was at normal rate and rhythm and his mood was euthymic. Thought processes were goal directed, judgment was good, and insight was fair. He denied any suicidal or homicidal ideations. At the time, the psychiatrist's impression was that the veteran was suffering from poly- substance dependence (in sustained remission), and an anxiety disorder, not otherwise specified. The veteran was reevaluated at this facility in December 2003. He reported intrusive thoughts of combat daily and increased sleep problems, including nightmares several times a year relating to combat. The veteran described his general mood on most days as a "5 or 6," and stated he had more days with depression then not, although denied suicidal ideation. He relayed difficulty in concentration and described feeling detached from most people except family and friends. He reported being startled easily at sounds and a past history of angry outbursts and hypervigilance. In addition, the veteran relayed that he had held roughly 60 different jobs as a laborer in construction projects and, though offered promotions, has turned them down due to an 'inferiority complex.' He was concerned with finances, as he was getting order and soon will not be able to manage physical labor. Upon observation, the veteran was found to be in the same cooperative and normal condition as previously observed. The nurse practitioner diagnosed the veteran with PTSD, anxiety disorder (not otherwise specified), and polysubstance dependence in sustained remission. The veteran was also assigned a GAF score of 62. At VA's request, the veteran was examined by a private psychiatrist, Dr. W.W. in March 2003. He was found to be alert and openly cooperative, with excellent physical hygiene. There were no psychomotor agitations or retardation and his thought processes were logical and coherent with good associations. He was not hallucinating or delusional and his affect was appropriate without any subjective depression of mood, or suicidal or homicidal ideations. The veteran was oriented to time, person, and place, with unimpaired simple integer arithmetic and short and long term memory. Insight into his emotional needs and interpersonal relationships was fair to good with somewhat below average psychological sophistication but without major distortions, and judgment was adequate. The veteran reported a history of mixed symptoms, including anxiety, depression, anger, confusion, and sleep disturbances, in the context of a combination of heavy substance abuse, a death in the family, and social rejection upon his return from Vietnam. However, in recent history, he described occasional stimulation of those past symptoms with isolated events such as 9/11 and the Iraq War. The veteran also reported irrational free-floating anxiety in the context of stressors; for example, his symptoms were occasionally exacerbated in the face of sights and sounds associated with military life and combat. In addition, the veteran had significant survivor guilt during and after his combat experiences, which significantly decreased over the years. The veteran relayed that he was a private person but did not have a temper problem. He functioned well socially and interpersonally and had a very active lifestyle. The examiner noted that the veteran described numerous traumatic incidents and events which cumulatively equated to elements of PTSD, but that a diagnosis could not be supported as he lacked the full complex and especially the functional impact required to diagnose a mental disorder. Alternatively, the psychiatrist diagnosed the veteran with generalized anxiety disorder (mild) and personality disorder (not otherwise specified), and assigned a GAF score of 78. The veteran was also provided with a VA examination in July 2004. The examiner noted that the veteran was very much as described in the March 2003 report by Dr. W.W., serious throughout the interview and admitting to mild, chronic depression. The veteran reported having a dream several times a month in which he is in various combat operations and fire fights. He had intrusive distressing memories once or twice a day, usually concerning a bad incident. While he denied flashbacks, the veteran had trigger-points that will bring back memories and anxieties. The veteran admitted trying for years not to think of Vietnam and the memories. In addition, he felt more distant and cut off from people as well as emotionally numb and detached. The veteran reported hypervigilance and a mild startled reaction, but denied anger or irritability. The staff psychiatrist diagnosed the veteran with PTSD and assigned a GAF of 62 in terms of active symptoms, and 50 in terms of life impact. Finally, the record contains a VA examination from April 2006. At the time, the veteran reported feeling anxious and depressed, with restless sleep, including nightmares of Vietnam once a month. In addition, he experienced panic attacks, with tachycardia and chest pain, but without shortness of breath. He found it difficult to learn new skills and reported feeling inadequate. He had low self- esteem and remorse about his past substance abuse. He was active with his church and enjoyed fishing and gardening. Upon examination, the veteran was neatly groomed and dressed, with thoughtful and police behavior and normal, coherent, and articulate speech. The veteran denied suicidal or homicidal ideations, psychotic symptoms, hallucinations, or delusions. He was alert and oriented, with good memory and fund of knowledge. Judgment and insight were good. The examiner diagnosed the veteran with dysthymia, PTSD, substance abuse in full sustained remission, and passive aggressive personality traits, with a GAF score of 78. Based on the foregoing, a rating in excess of 30 percent for the veteran's PTSD under Diagnostic Code 9411 is not warranted. The record does not contain any evidence of 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; impaired judgment; impaired abstract thinking; or disturbances of motivation and mood. At each of the veteran's examinations, his orientation was within normal limits, with appropriate appearance, hygiene, behavior, mood, and affect. Speech and communication were within normal limits, and no delusions or hallucination were observed. In addition, the veteran's thought processes were appropriate and both his judgment and his memory were within normal limits. Additionally, suicidal and/or homicidal ideations were absent. The Board does note that the veteran has experienced depression and panic attacks, and has reported difficulty in maintaining relationships. He is, however, married and resides with his wife. Further, he engages in social activities relating to his Church, and continues fishing and hunting. As has already been established, the veteran lacks the majority of symptoms considered in the higher rating criteria. Thus, the Board finds that, on the whole, the veteran's symptoms more accurately reflect an evaluation of 30 percent. Additionally, the veteran was assigned Global Assessment of Functioning (GAF) scores of 78, 62, 78, and 62. GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 32 (4th ed. 1994)). According to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (1994) (DSM-IV), a GAF score of 81 to 90 reflects absent or minimal symptoms (e.g., mild anxiety before an exam), good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns (e.g., an occasional argument with family members). A GAF score of 71 to 80 indicates the examinee has, if at all, symptoms that are transient or expectable reactions to psychosocial stressors but no more than slight impairment in social, occupational or school functioning. A GAF score of 61 to 70 indicates the examinee has some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functions pretty well with some meaningful interpersonal relationships. A GAF score of 51 to 60 indicates the examinee has moderate symptoms or moderate difficulty in social, occupational, or school functioning. See Quick Reference to the Diagnostic Criteria from DSM-IV, 46-47 (1994). The veteran was characterized as mildly impaired with a GAF score of 62 by the December 2003 and June 2004 examiners, and as slightly impaired with a GAF score of 78 by March 2003 and April 2006 examiners The Board acknowledges that a GAF score is probative as it relates directly to the veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. See Massey v. Brown, 7 Vet. App. 204, 207 (1994). However, the Board recognizes that the objective clinical findings are nevertheless more probative in making this important determination, as these findings more accurately portray the relevant symptoms of the veteran's PTSD. See 38 C.F.R. §§ 4.2, 4.6. There is no justification for increasing the rating for the veteran's PTSD on the basis of his GAF scores or objective clinical findings; they are commensurate with no more than his current rating. Therefore, the veteran's currently assigned 30 percent rating for his PTSD is appropriate and there is no basis for a higher evaluation. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt is given to the claimant. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). After careful consideration, the Board finds that the preponderance of the evidence in this case falls against the claim, making the benefit of the doubt rule inapplicable. Finally, the evidence does not reflect that the veteran's PTSD has caused marked interference with employment (i.e., beyond that already contemplated in the assigned evaluation), or necessitated any frequent periods of hospitalization, such that application of the regular schedular standards is rendered impracticable. Hence, assignment of an extra- schedular evaluation under 38 C.F.R. § 3.321 (2007) is not warranted. ORDER A rating in excess of 30 percent for post-traumatic stress disorder is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs