Citation Nr: 0814351 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 06-09 571 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an increased rating for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD A.G. Alderman, Associate Counsel INTRODUCTION The veteran had active military service from February 1968 to February 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas that granted service connection and a 30 percent evaluation for the veteran's PTSD. Upon receipt of additional information, the RO granted a 50 percent evaluation in February 2006. The matter is now before the Board for consideration. FINDING OF FACT The veteran's PTSD at this time is not manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood. CONCLUSION OF LAW The criteria for a higher disability rating for PTSD have not been met. 38 U.S.C.A. § 1155 (West Supp. 2005); 38 C.F.R. §§ 4.1-4.14, 4.130, Diagnostic Code 9411 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.20 (2007). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based upon the facts found. Fenderson v. West, 12 Vet. App. 119 (1999). See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original rating remains in controversy when less than the maximum available benefit is awarded). Reasonable doubt as to the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The veteran's PTSD is evaluated as 50 percent disabling under DC 9411. 38 C.F.R. § 4.130. The veteran's PTSD has been evaluated under the general rating formula for mental disorders. Under these criteria, a 70 percent rating is warranted where the disorder is manifested by 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 that is 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); and an inability to establish and maintain effective relationships. Id. A 100 percent rating is indicative 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 of names of close relatives, own occupation or own name. Id. The use of the term "such as" in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. Id. The evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to symptoms provided in that diagnostic code. Id. at 443. Instead, the rating specialist is to consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, as revised in the 1994, fourth edition (DSM-IV). Id. If the evidence demonstrates that a claimant suffers symptoms or effects that cause an occupational or social impairment equivalent to what would be caused by the symptoms listed in a particular diagnostic code, the appropriate, equivalent rating will be assigned. Id. In assessing the evidence of record, the Board has reviewed the veteran's Global Assessment of Functioning (GAF) score. It is important to note that, as noted by the Court, a GAF score reflects 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. (DSM-IV) at 32). A GAF score of 51-60 indicates 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 peers or co-workers). A score of between 61 and 70 represents some mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships (emphasis in original). DSM-IV at 32; 38 C.F.R. § 4.125. DSM-IV at 32; 38 C.F.R. § 4.125. The Board has thoroughly reviewed all the evidence in the veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The veteran had a VA exam in October 2004, and reported daily memories of his experiences in Vietnam. He indicated that he does not like crowds and does not socialize or befriend anyone; he sleeps hours at a time, 4-6 hours total; he does not nap; and he dreams about once per month. He reported low energy and inconsistent concentration. He indicated he liked golfing, but stated that he did not have the time or energy to play. He reported irritability but denied an exaggerated startle response. The veteran denied suicidal or homicidal ideation and admitted to a quick temper. He indicated that his temper can be explosive in that he will talk loudly or yell. He denied symptoms consistent with a hypomanic or manic episode, anxiety, and psychosis. He indicated that he avoided talking and thinking about his experiences in Vietnam. The veteran was unable to describe his routine since it frequently changes. However, he noted that he works approximately 60 hours per week and does chores around the house. He indicated that he lives with his girlfriend of 20 years and drinks 3 to 5 alcoholic beverages a day. As for employment, the veteran is a truck driver and has been employed with his current company for 7 years, prior to which he was self-employed for 12 years, and worked for a company for 12 years prior to self-employment. He indicated that he had never been fired and had no problems interacting with his coworkers. He missed one day of work in the last year due to symptoms. The veteran was diagnosed as having chronic PTSD with a GAF score of 53. The examiner indicated that he re-experiences events from Vietnam, has increased arousal, engages in avoidance behaviors, and has limited social contact. Based upon the symptoms found and described, the VA exam weighs against a 70 percent rating as it fails to show occupational and social impairment with deficiencies in most areas. If fact, the report provides evidence against such a finding, clearly indicating that the veteran can work and interact with people. The Board also reviewed VA outpatient treatment records. A record dated September 2004 indicates that the veteran was seen and treated in June for sleep difficulties and nightmares. He indicated experiencing intrusive memories daily and flashbacks accompanied by sweat, racing heart, tensing, and shakiness once a month. He indicated that he avoided conversations about trauma and his war experiences and avoided people that triggered memories of those events. He said he avoids crowds, loud noises, and has few friends. He indicated diminished interest and participation in activities he previously enjoyed, and stated that he occasionally plays golf, otherwise he stays home with his girlfriend. He indicated that he could relate to people at work and have loving feelings towards his girlfriend, but feels estranged and disconnected from others. He expressed emotional numbing and a feeling of a foreshortened future. He also indicated he is easily irritated and angered, has difficulty concentrating, is hypervigilant, and has a heightened startle response. He indicated occasional hallucinatory experiences. The examiner indicated that the PTSD impacts his relationship and social functioning on a daily basis and is a loner by preference. His GAF score was assessed at 65. A record dated January 2005 indicates that the veteran had continued nightmares and a GAF of 65. A May 2005 record indicates that the veteran's girlfriend wrote a letter describing the veteran's behavior while sleeping such as sobbing, attempting to run, and thrashing about. During a July 2005 appointment, he indicated that he was leaving the trucking business and taking a warehouse job. Each record indicated that the veteran was well groomed and cooperative, with appropriate psychomotor activity; good eye contact; fluent speech at a normal rate, tone and volume; stable effect; eurythmic mood; and logical thought process. The veteran denied suicidal and homicidal ideation and had no evidence of delusions or hallucinations. He was also oriented to person, place, and date and his memory, insight and judgement were intact, all facts providing more evidence against this claim. No additional GAF scores were provided. Based upon the symptoms found and described in the VA outpatient treatment records and in the VA exam, a 70 percent rating is not warranted as the evidence fails to show occupational and social impairment with deficiencies in most areas due to symptoms such as suicidal ideation, obsessional rituals which interfere with routine activities; speech that is 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); and an inability to establish and maintain effective relationships. The Board further finds that the evidence fails to show entitlement to a 100 percent rating under DC 9411, as the veteran does not have total occupational and social impairment. In addition, the GAF scores weigh against an increased rating. The GAF score at the October 2004 VA exam was 53, which indicates moderate symptoms OR moderate difficulty in social, occupational, or school functioning. The GAF score assigned prior to the VA exam and subsequent to the VA exam was 65, which represents some mild symptoms OR some difficulty in social, occupational, or school functioning, but generally functioning pretty well, has some meaningful interpersonal relationships. DSM-IV at 32; 38 C.F.R. § 4.125. DSM-IV at 32; 38 C.F.R. § 4.125. The Board also considered lay statements submitted by the veteran's girlfriend and acquaintances. However, their statements fail to show that the veteran has occupational and social impairment to a degree warranting a 70 percent rating under DC 9411. It is important for the veteran to understand that the Board does not dispute the fact that the veteran has problems with his PTSD. However, the problem the veteran describes indicates a 50 percent disability evaluation is in order. If the veteran did not have problems associated with this PTSD, the current 50 percent evaluation could not be justified. It is also important for the veteran to understand that the current evidence of record does not always clearly support the current disability evaluation, let alone a higher evaluation. Reviewing the evidence, the Board finds that the overall disability picture for the veteran's PTSD does not more closely approximate a 70 percent rating, as his symptoms do not cause occupational and social impairment with deficiencies in most areas. 38 C.F.R. § 4.7. Therefore, the preponderance of the evidence against this claim. 38 C.F.R. § 4.3. The Board finds that the post-service medical record, as a whole, provides evidence against a finding that the veteran meets the 70 percent criteria for PTSD. Finally, the Board finds no reason to refer the case to the Compensation and Pension Service for consideration of an extra-schedular evaluation under 38 C.F.R. § 3.321(b). That is, there is no evidence of exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, to suggest that the veteran is not adequately compensated by the regular rating schedule. VAOPGCPREC 6-96. Accordingly, the Board finds that the preponderance of the evidence is against entitlement to a rating greater 50 percent for PTSD. 38 C.F.R. § 4.3. The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a 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 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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 his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction, or regional office (RO). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the 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, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the veteran is challenging the initial evaluation assigned following the grant of service connection. In Dingess, the Court of Appeals for Veterans Claims 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. Id. at 490-91. 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. Here, the VCAA duty to notify was satisfied by way of a letter sent to the veteran in July 2004 that fully addressed all four notice elements and was sent prior to the initial RO decision in this matter. The letter informed the veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The veteran was also asked to submit evidence and/or information in his possession to the RO. The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), which held that notice complying with section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate an increased rating 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. The Board finds that this has been done in this case in light of the letter sent to the veteran by the RO. In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial, and that once an error is identified as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. The Federal Circuit stated that requiring an appellant to demonstrate prejudice as a result of any notice error is inconsistent with the purposes of both the VCAA and VA's uniquely pro-claimant benefits system. Instead, the Federal Circuit held in Sanders that all VCAA notice errors are presumed prejudicial and require reversal unless VA can show that the error did not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Although not specifically discussed by the court, some other possible circumstances that could demonstrate that VA error did not prejudice the claimant include 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. In this case, the Board, based on a review of the appellant's statements in this case, finds that the claimant has demonstrated an understanding of the evidentiary requirements, rebutting any presumption of prejudice. As such, even if there were some type of problem with the notice provided by the RO in light of recent decisions of the Court, the Board finds that there have been no notice errors that have resulted in any prejudice to the appellant or affected the essential fairness of the adjudication. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA outpatient treatment records. The veteran submitted private records, lay statements, and buddy statements. The veteran was afforded a VA medical examination in October 2004. Significantly, neither the veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to a rating in excess of 50 percent for PTSD is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs