Citation Nr: 0814047 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 06-05 978 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to an initial evaluation in excess of 50 percent for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Saira Sleemi, Associate Counsel INTRODUCTION The veteran served on active duty from March 1970 to March 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision of the Regional Office (RO) that granted service connection for PTSD and assigned a 50 percent evaluation effective June 14, 2004. The veteran disagreed with this initial evaluation. FINDING OF FACT The veteran's service-connected PTSD is manifested by symptoms including sleep disturbance, nightmares, depression, flashbacks, emotional and social detachment, depression, increased startle reaction, irritability and poor short term memory. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 50 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). The notice requirements of the VCAA require VA to notify the veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; what subset of the necessary information or evidence, if any, the VA will attempt to obtain; and a general notification that the claimant may submit any other evidence he has in his possession that may be relevant to the claim. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule); see also Sanders, supra. In this case, in a July 2004 letter, issued prior to the decision on appeal, the RO provided notice to the veteran regarding what information and evidence is needed to substantiate the claim for service connection, to include evidence showing current disability, as well as what information and evidence must be submitted by the veteran, what information and evidence will be obtained by VA, and the need to advise VA of or submit any additional evidence that pertains to the claim. Following the grant of service connection and the appeal of the evaluation assigned, the RO issued a March 2006 letter, which provided notice to the veteran regarding what information and evidence is needed to substantiate his level of disability, including evidence from medical providers, and statements from others who could describe their observations of his disability level, as well as the distribution in duties of obtaining such. The letter also informed the veteran of the necessity of providing medical or lay evidence demonstrating the level of disability and the effect that worsening has on his employment and daily life. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). The notice included examples of pertinent medical and lay evidence that the veteran may submit (or ask the Secretary to obtain) relevant to establishing entitlement to a higher rating. The letter also addressed the evidence necessary to establish an effective date. The veteran was provided the rating criteria for evaluating his disability in the December 2005 statement of the case. The claim was last readjudicated in March 2007. Id. In any event, the veteran is challenging the initial evaluation assigned following the grant of service connection. In Dingess, the Court held that in cases in which 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. Id. at 490-91. See Turk v. Peake, 21 Vet. App. 565 (2008) (where a party appeals from an original assignment of a disability rating, the claim is classified as an original claim, rather than as one for an increased rating); see also Shipwash v. Brown, 8 Vet. App. 218, 225 (1995); Fenderson v. West, 12 Vet. App. 119 (1999) (establishing that initial appeals of a disability rating for a service-connected disability fall under the category of "original claims"). Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the veteran. Specifically, the information and evidence that have been associated with the claims file includes VA outpatient treatment records, Social Security Administration (SSA) records, lay statements from the veteran's ex-wife and current wife and VA examinations. As discussed above, the VCAA provisions have been considered and complied with. The veteran was notified and aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. He has submitted lay statements describing his symptoms and his own statement, and described the impact of his disability on his occupational and daily functioning to VA examiners. There is no indication that there is any additional evidence to obtain and no additional notice is necessary. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. See Sanders, supra. Thus, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Under the applicable criteria, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). As the veteran takes issue with the initial rating assigned when service connection was granted for malignant mesothelioma, the Board must evaluate the relevant evidence since the effective date of the award; it may assign separate ratings for separate periods of time based on facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The veteran's PTSD is evaluated pursuant to the General Rating Formula for Psychoneurotic Disorders which provides for the following ratings: A 100 percent rating is warranted 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; memory loss for names of close relatives, own occupation or own name. A 70 percent rating is warranted when there is 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); inability to establish and maintain effective relationships. A 50 percent rating is warranted 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 effective work and social relationships. One factor for consideration is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Richard v. Brown, 9 Vet. App. 266 (1996); Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). GAF scores ranging from 51 to 60 indicate moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peer or coworkers). A GAF score of 41 to 50 indicates serious symptoms and serious impairment in social, occupational, or school functioning (e.g., no friends), while a GAF score of 31 to 40 indicates 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 GAF score of 21 to 30 indicates that behavior is considerably influenced by delusions or hallucinations, or serious impairment in communication or judgment (e.g., sometimes incoherent, acting grossly inappropriately, suicidal preoccupation), or an inability to function in almost all areas (e.g., stays in bed all day; no job, home, or friends). A GAF score of 11 to 20 indicates that there is some danger of hurting oneself or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement), or an occasional failure to maintain minimal personal hygiene, or gross impairment in communication. See Diagnostic and Statistical Manual of Mental Disorders, (4th ed. 1994) (DSM-IV). While the Rating Schedule does indicate that the rating agency must be familiar with DSM-IV it does not assign disability percentages based solely on GAF scores. See 38 C.F.R. § 4.130 (2007). Accordingly, GAF scores do not automatically equate to any particular percentage in the Rating Schedule. Rather, they are but one factor to be considered in conjunction with all the other evidence of record. The veteran contends that his PTSD symptoms are severe enough to substantiate a higher rating than was assigned. For the reasons below, the Board finds that an evaluation in excess of 50 percent is not warranted for the veteran's service connected PTSD. A December 2003 private report for SSA noted the veteran never had psychiatric treatment. He had disturbed sleep and mildly depressed. Following examination, the psychiatrist noted that the veteran had no signs and symptoms of significant psychiatric impairment. The veteran was found to be disabled for SSA purposes due to ocular myasthenia gravis and cervical arthritis. A May 2004 initial VA outpatient mental health evaluation report revealed the veteran had difficulty with sleep, irritability, concentration, hypervigilance, and startle response. He was soft spoken with slow though processes. He reported nightmares. He had fair energy. His affect and mood were noted to be depressed frequently but not daily. His recent memory was variable. He reported that at times he hears someone talking to him but no major theme in what is said. His insight and judgment were fair, and he denied suicidal or homicidal ideation currently but had suicidal ideation in the 1980s. Diagnosis was rule out major depressive disorder and rule out PTSD. A GAF score of 48 was assigned. VA outpatient treatment records from May 2004 reported the veteran's complaints of sleep difficulty, dreaming of trauma, restlessness, short temper, memory difficulties, isolation, intrusive thoughts and constant thoughts about Vietnam. The veteran also reported an exaggerated startle reaction as he jumps at cars backfiring. The examiner noted the veteran's prior history of violence and impulsivity and the physical violence with his first wife. The veteran appeared cooperative, soft spoken and clean. He also displayed speech and thought processes that were comprehensible and retarded with a constricted affect, memory impairment and confusion. He was attending a depression group. In a June 2004 VA outpatient treatment report, the veteran reports trauma being triggered by news, nightmares, sleep difficulties and flashbacks. He also reports reactions to trauma of being hyper and argumentative. In addition, the veteran reports being isolated and feeling numb when it comes to love. He reports problems with his short term memory and concentration. He frequently stands on guard, looking out the windows at neighbors. He has an easy startle reaction to cars backfiring. A later report in June reflects a depressed mood, nightmares, intrusive thoughts, interrupted sleep and no suicidal or homicidal ideation. The veteran also began taking medication for depression and for sleep difficulty. A VA examination in July 2004 reported the veteran's PTSD was manifested by symptoms of increased arousal (poor sleep, irritability, startle response and hypervigilance), recurrence of trauma, avoidance of trauma stimuli and a numbing of general responsiveness. In addition the examiner noted the veteran reporting he frequently hears a male voice saying "get down." The veteran reported having short term memory loss. Past suicidal ideation in the 1980s was noted. Complaints of depression and isolation were also noted. He reported frequent verbal confrontations, but no physical confrontations. The veteran denied current suicidal or homicidal thoughts, and panic attacks. There was no impairment of thought process, impaired impulse control or ritualistic behavior that interferes with daily activities. His rate and flow of speech were normal. The examiner reported the veteran was able to maintain personal hygiene and basic activities of daily living, was oriented to person, place, and time, and had appropriate behavior. The veteran reported that his general work history was good, and that he is unable to work because of eye and back problems. The examiner concluded that PTSD had a mild impact on employment and routine responsibilities, and a moderate effect on his family role and relationships. He reported having a fair relationship with his wife and children, and having at least one best friend over the last year. He was on medication for depression and sleep disturbance. The examiner diagnosed PTSD and assigned a GAF score of 52. VA outpatient treatment reports from August 2004 report intrusive symptoms of depression and PTSD. In addition, the veteran demonstrated a sad mood and affect with no suicidal or homicidal intent or plan. He was assigned a GAF score of 45. In September 2004, VA outpatient treatment reports reflect the veteran stopped taking medication briefly with a resurgence of PTSD symptoms. However, he demonstrated a stable mood and affect. The examiner encouraged the veteran to continue medication and assigned a GAF Score of 53. In June 2005, the veteran received a certificate for completion of the PTSD program at the VA Medical Center in Washington, D.C. A July 2005 VA outpatient PTSD Clinical Team (PCT) treatment plan reported the veteran's PTSD symptoms included depression, difficulty managing anger, difficulty with concentration, social isolation, relationship difficulties, difficulty with trust, hypervigilance and sleep difficulty. He was assigned a GAF score of 50. A VA examination in June 2006 revealed the veteran's PTSD symptoms were of moderate severity. He reported poor memory, depression, sleep difficulty, nightmares, and hypervigilance. Although impaired impulse control was noted and the veteran reported frequent verbal confrontations, he denied physical confrontations. He reported increased irritability and isolation. In addition, the veteran claimed to hear voices at times, although hallucinations and delusions were denied. He reported no panic attacks, ritualistic behavior, or current suicidal or homicidal ideation, although he did note some suicidal ideation around Thanksgiving. Thought and communication were not impaired, and he had a normal rate and flow of speech. In addition, he was able to maintain basic activities of daily living and personal hygiene, although he was somewhat malodorous. The examiner specifically noted that the veteran was not on antidepressants at this time and that he displayed significant substance abuse (drinking a pint of cognac every 3 days). The veteran also reported he was unemployed due to a physical impairment of his eyes and back and not his mental condition. He reported a good relationship with his wife and a fair relationship with his children. Socially he reported having at least one best friend, but with few social activities. He reported that he goes to church occasionally. The examiner opined that the employment and routine responsibilities were mildly affected by PTSD, and that his family role and relationships are moderately affected. He was assigned a GAF Score of 52. In a VA examination in November 2006, the veteran reported complaints of difficulty sleeping and flashbacks. He also reported yelling and cursing at his wife which he acknowledged is often associated with drinking. Additional PTSD symptoms included mild to moderate memory impairment, primarily with the short term memory, depression, anxiety, irritability, startle response and hypervigilance. No panic attacks, suicidal ideation or homicidal ideation was noted. The veteran reported that he was asked to discontinue the PTSD program until he could stop drinking. He and his wife discussed the dilemma of his drinking instead of taking medication for PTSD and depression. The examiner noted his symptoms were of medium severity with a moderate impairment of employment, daily activities, routine responsibilities, family role, leisure activities and quality of life. His relationships are considered mildly impaired. He was assigned a GAF score of 52. The veteran also submitted lay statements from his wife and an ex-wife. In an October 2004 statement from his ex-wife, she reported knowing the veteran prior to entering service and marrying him after he was discharged from the Marines. She stated that after returning from Vietnam had recurrent thoughts and memories, sleep disturbance, startle response, detachment from family, irritability, anger and depression. In a May 2004 letter, veteran's wife reported that he experienced sleep difficulty, violent nightmares (hollering and kicking), paranoia, feelings of detachment, being withdrawn, irritability, anger and sadness. Based on the evidence of record, the Board finds that the veteran's PTSD symptoms do not more nearly approximate the criteria for an evaluation higher than 50 percent. While the veteran reported feeling suicidal around Thanksgiving in 2003, the medical evidence continuously noted the veteran denying current suicidal or homicidal ideation. Moreover, except for his initial intake report, his speech has always been noted to be of normal rate and content. The VA examiners have always noted that he is able to maintain personal hygiene, and that his symptoms only mildly to moderately impact his employment ability and his daily functioning. He is presently unemployed due eye and back problems. Moreover, while the veteran was noted to have some impulse control impairment in the form of verbal confrontations, he has consistently denied physical confrontations. A history of physical assaultiveness was reported as occurring many years ago. Although the Board acknowledges the veteran's GAF scores range from 45 to 55, indicating moderate to serious symptoms, the veteran's reported PTSD symptoms and the VA examinations all reflected the veteran's symptoms only moderately impact occupational and social functioning. Symptomatology consistent with a higher rating have not been shown to such frequency or extent as to more nearly more nearly approximates the criteria for a 70 percent evaluation at any point during the course of the appeal. Accordingly, the claim for an initial rating in excess of 50 percent is denied. In addition, the Board notes that there is no evidence of an exceptional or unusual disability picture with related factors, such as marked interference with employment or frequent periods of hospitalization, so as to warrant referral of the case to appropriate VA officials for consideration of an extra schedular rating under 38 C.F.R. § 3.321(b)(1); Shipwash v. Brown, 8 Vet. App. 218 (1995). Here the evidence clearly establishes the veteran's PTSD results in no more than moderate impact on employment, and that he is unemployed due to his eye and back conditions. In reaching the conclusions above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER An initial evaluation in excess of 50 percent for PTSD is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs