Citation Nr: 0814396 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 07-05 984 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut THE ISSUE Entitlement to an initial higher rating in excess of 50 percent for the service-connected post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESSES AT HEARING ON APPEAL The veteran and his counselor ATTORNEY FOR THE BOARD A.M. Ivory, Associate Counsel INTRODUCTION The veteran had active military service from August 1963 to August 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 RO rating decision. As the claim on appeal involves a request for higher initial rating following the grant of service connection, the Board has characterized that issue in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing an initial rating claim from a claim for an increased rating for disability already service-connected). The veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in January 2008. After the hearing the veteran submitted medical evidence with a waiver of initial RO jurisdiction. The Board has accepted this additional evidence for inclusion into the record on appeal. See 38 C.F.R. § 20.800. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the issue on appeal has been accomplished. 2. The service-connected PTSD is shown to be productive of a disability picture that more nearly approximates that of occupational and social impairment with deficiencies in most areas and inability to establish and maintain effective relationships. CONCLUSION OF LAW The criteria for the assignment of an initial evaluation of 70 percent, but not more, for the service-connected PTSD are met beginning. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 2002 and Supp. 2007); 38 C.F.R. §§ 4.7, 4.130 including Diagnostic Code 9411 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Initially, the Board notes that, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Considering the duties imposed by VCAA and its implementing regulations, the Board finds that all notification and development action needed to fairly adjudicate the claims on appeal has been accomplished. The Board notes that this appeal addresses the "downstream" issue of entitlement to an increased initial rating. Prior to the January 2006 rating decision on appeal, the RO sent the veteran notice letter in July 2005 that addressed the elements and evidence required to establish service connection, but not the elements and evidence required to establish entitlement to an increased rating. However, the December 2006 Statement of the Case (SOC) told the veteran the criteria for a higher evaluation. The Board accordingly finds that the veteran has received sufficient notice of the information and evidence needed to support his claim for increased rating and has been afforded ample opportunity to submit such information and evidence. The Board also finds that the July 2005 letter satisfies the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained that the claimant, and what evidence, if any, will be obtained by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). The July 2005 letter advised the veteran that VA is responsible for getting relevant records from any Federal Agency including medical records from the military, VA hospitals (including private facilities where VA authorized treatment), or from the Social Security Administration. The letter also advised the veteran that VA must make reasonable efforts to help the veteran get relevant records not held by any Federal agency, including State or local governments, private doctors and hospitals, or current or former employers. In the decision of Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that proper VCAA notice should notify the veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; (3) the evidence, if any, to be provided by the claimant; and (4) a request by VA that the claimant provide any evidence in the claimant 's possession that pertains to the claim(s). As explained hereinabove, the first three content-of-notice requirements have been met in this appeal. The Board notes that the record does not show that the veteran was advised of the fourth content-of-notice requirement under Pelegrini (request that the claimant provide any evidence in his possession that pertains to the claim). However, even though the veteran was not expressly advised to "give us all you've got" the Board finds that this requirement has been constructively satisfied. As noted, the veteran has been advised of the evidence required to support a claim for increased rating, and of the evidence of record. The Board finds that he has accordingly been constructively invited to give VA all the relevant evidence in his possession not already of record at VA. Pelegrini also held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to VCAA be provided "at the time" that, or "immediately after," the Secretary receives a complete or substantially complete application for VA-administered benefits. In that case, the Court determined that VA had failed to demonstrate that a lack of such pre-adjudication notice was not prejudicial to the claimant. As indicated, in the matters now before the Board, documents fully meeting the VCAA's notice requirements were provided to the veteran after the rating action on appeal. However, the Board finds that the lack of full pre-adjudication notice in this appeal has not, in any way, prejudiced the veteran. The Board notes that the Court has held that an error in the adjudicative process is not prejudicial unless it "affects a substantial right so as to injure an interest that the statutory or regulatory provision involved was designed to protect such that the error affects 'the essential fairness of the [adjudication].'" Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board finds that, in this appeal, the delay in issuing section 5103(a) notice was not prejudicial to the veteran because it did not affect the essential fairness of the adjudication, in that his claim was fully developed and readjudicated after notice was provided. As indicated, the RO gave the veteran notice of what was required to substantiate the claim on appeal, and the veteran was afforded ample opportunity to submit such information and/or evidence. Neither in response to the documents cited above, nor at any other point during the pendency of this appeal, has the veteran or his representative informed the RO of the existence of any evidence-in addition to that noted below- that needs to be obtained prior to appellate review. Hence, the Board finds that any failure on VA's part in not completely fulfilling the VCAA notice requirements prior to the RO's initial adjudication of the claim is harmless. See ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998); Cf. 38 C.F.R. § 20.1102 (2007). More recently, the Board notes that, on March 3, 2006, during the pendency of this appeal, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the in rating cases, a claimant must be informed of the rating formulae for all possible schedular ratings for an applicable rating criteria. As regards the claim for increase on appeal, the Board finds that this was accomplished in the December 2006 SOC, which suffices for Dingess. The veteran was not informed of the information regarding the effective date that may be assigned; however, the Board's decision herein grants the claim for an increased initial rating back o the original effective date. Therefore, there is accordingly no possibility of prejudice under the notice requirements of Dingess as regards a claim for increased rating. With regard to the increased evaluation claim included in this decision, the Board is aware of the Court's recent decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). However, the Board notes that this case does not apply to initial rating cases and that the veteran's testimony and statements reflect that a reasonable person could have been expected to understand in this case what was needed to substantiate the claim. Moreover, as the veteran discussed his service-connected disability in terms of relevant symptomatology at his hearing and as he described the functional effects of his disabilities on his everyday life in support of his claims during his examinations, the Board is satisfied that he had actual knowledge of what was necessary to substantiate the claim. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). The Board finds that any notice errors are not prejudicial, inasmuch as they did not affect the "essential fairness of the adjudication." Sanders v. Nicholson, 487 F.3d at 889. The Board also notes that there is no indication whatsoever that any additional action is needed to comply with the duty to assist the veteran in connection with the claim on appeal. The veteran's service medical records and post-service VA medical records have been associated with the claims file. Neither the veteran nor his representative has identified, and the file does not otherwise indicate, that there are any other VA or non-VA medical providers having existing records that should be obtained before the claims are adjudicated. The veteran had VA examinations in August 2005 and September 2006. The veteran has also been afforded a hearing before the Board. Under these circumstances, the Board finds that the veteran is not prejudiced by the Board proceeding, at this juncture, with an appellate decision on the claim for increased ratings for the service-connected disability of PTSD. II. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which assigns ratings based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. See 38 C.F.R. §§ 3.102, 4.3 (2006). The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, in Fenderson, the Court noted an important distinction between an appeal involving a veteran's disagreement with the initial rating assigned at the time a disability is service connected. Where the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection, and consideration of the appropriateness of "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson, 12 Vet. App. at 126. The Board has accordingly considered the evidence of the severity of the veteran's symptoms since the June 22, 2005, effective date of the grant of service connection. At the August 2005 VA examination, the veteran reporting getting divorced from his wife of 31 years. He described significant reactivity to reminders of service, such as the sound of airplanes, emotional distress, and that he cried in response to any stimuli that referenced war. He also reported emotional and physiological reactivity to reminders of the war and that several times a week he had spontaneous, intrusive thoughts about Vietnam. He had trouble going and staying asleep and had an exaggerated startle response, night sweats, chronic nervousness, hypervigiliance, significant social anxiety, and variety of phobias. He described decreased interest in activities and decreased feelings of joy and pleasure. He reported that his PTSD symptoms were aggravated during the previous year due to his marital separation. He was a professional musician who gave up his job to be a stay at home dad and now that he was getting divorced and his daughter lived with his wife he had to look for work. During the examination, the veteran's affect was dysphoric and somewhat histrionic and near tears at times. His mood was depressed and anxious, his thought process was somewhat tangential, and his speech was somewhat pressured. He denied hallucinations and delusions. He reported suicidal thoughts that occurred all the time with thoughts of taking an overdose of medication but he adamantly denied any intent to carry that out. The examiner stated that the veteran's presentation was notable for a strong generalized anxiety/neurotic presentation, with possible histrionic and narcissistic traits and that it has caused some impairment in both social and vocational function. The VA examiner assigned the veteran a Global Assessment of Functioning (GAF) score of 55. At the September 2006 VA examination, the veteran was very histrionic and had a pressured manner. He thought about things from service on a constant basis. He described frequent, disturbing dreams and chronic and severe sleep disturbance. He was scared all the time with significant startle reactions, social anxiety, irritability, and hypervigiliance. He was so hypervigiliant at night that he frequently locked the doors, heard noises, and saw things out of the corner of his eyes. He had severe social avoidance and avoided crowds and social gatherings. He also had a long history of obsessive/perseverative thinking. At the examination, the veteran's affect was labile, intense, and histrionic, he cried when he refereed to military trauma. His speech was pressured and his mood was depressed; however, his thought process was generally logical. There was no evidence of hallucinations or delusions; however, there were daily suicidal thoughts. His insight was poor and his judgment was fair. The examiner stated that the veteran's reported with somewhat vague and rather pressured and histrionic report of symptoms. It appeared that there was a slight increase in symptomatology, per his report, in the context of the separation, divorce and estrangement from his daughter. The symptoms related to his combat-caused-PTSD continued to cause moderate impairment in function. The examiner assigned the veteran a GAF score of 50-55 and noted that in March 2006 his GAF score was 60 and by July 2006 it decreased to 40. In February 2007 the veteran was referred to an intensive outpatient program (IOTP) at the VA Medical Center. He was refereed due to problems in dealing with his divorce, as well as, nightmares and dreams from his in-service experiences. He reported a history of nightmares, problems with trust, avoidance of crowds, tendency to isolate, obsession about tasks, racing thoughts, and trouble with sleep. The veteran saw things in his periperhial vision and occasionally heard voices or screaming sounds. Occasionally objects would be distorted. He felt panic and that his heightened startle response was triggered by motorcycles, firecrackers, and backfires. He reported that he felt watched and followed. He also cried all the time. He thought about suicide all the time and had 1 attempt when he jumped into a fishpond of about 5 - 6 feet. When angered he hollered, was physically assaultive on several occasions, hit the wall, and destroyed property. The examiner diagnosed the veteran with major depression as evidenced by labile mood, sleep disturbance, subjective feelings of depression, ruminations of what he lost, and a negative outlook. In addition, he had PTSD from service with reported hypervigiliance, startle response, intrusive thoughts, nightmares, and emotional numbing. He was assigned a GAF score of 50. In a January 2008 statement the veteran's Vet Center social worker reported that in late 2006 the veteran was referred to an intensive outpatient program due to serious suicidal ideation and decreased capacity to manage psychotic and disorganized thoughts. It was noted the veteran had serious symptoms which interfered with his interpersonal functioning, his cognition, his capacity to work and/or handle pressure and his overall quality of life. He had a history of being obsessively protective of his family and property, mistrusting and avoidant of media portrayals of war or injury. It was noted that the veteran was a highly trained musician; however, he was eager to leave that and be a stay at home dad. He currently was teaching two students for an hour each a week and had increased anxiety over that. The veteran also had intensive discomfort with Vietnamese people and was distressed with physical suffering and that he walked out of group therapy due to those triggers. He was also overly sensitive. He did not socialize and preferred to keep to himself. He had an intense fear of loss of meaningful relationships and had episodes of panic and obsessive worrying. The veteran slept poorly with nightmares and ruminations that precluded his falling back to sleep and that during the day he was plagued by intrusive thoughts and haunted by survivor's guilt. He was very angry about the "no win" situations into which he was thrust. His speech was often tangential, he cried easily, and decision making was difficult for him. The veteran was overly-sensitive to issues of fairness and equity and much of the time he was paranoid about his environment. She opined that she could not think of any job he could sustain in order to earn a living and he demonstrated his difficulty with organization and task completion in the process of preparing his appeal. The Board notes that the veteran's treatment reports are also part of his claims file and described the same symptoms as described herein above. The veteran testified about his IOTP therapy and how it made him put himself in situations that caused him stress, one example was when they went to a Vietnamese restaurant where there was one Vietnamese man and pictures on the wall of Vietnam and that in response to the stress he ran out of the restaurant. His testimony also dealt with the daily stress and anxiety he had, as well as, the intrusive images he had every day. The veteran wrote down his testimony in order to organize his mind; however, he repeated himself and became distracted and confused. He also testified that he was working at a small music school. The veteran's Vet Center social worker also testified about his reactions to stimuli and the daily stress and triggers he had. In addition, she stated that he over prepared for his music lessons in order to deal with the anxiety of them. The Board notes that this is the same social worker who submitted the January 2008 statement. The ratings for the service-connected PTSD have been assigned under the provisions of Diagnostic Code (DC) 9411. Under the General Rating Formula that became effective on November 7, 1996, psychiatric disorders other than eating disorders, to include PTSD, are rated as follows: A rating of 30 percent is assignable 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, mild memory loss (such as forgetting names, directions, and recent events). A rating of 50 percent is assignable 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 per week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly-learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A rating of 70 percent is assignable 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 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 work like setting); inability to establish and maintain effective relationships. A rating of 100 percent is assignable 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. After a careful review of the veteran's VA examinations, treatment notes, and testimony the Board finds that the veteran's manifestations are shown to have more closely approximated the criteria warranting a rating of 70 percent. As noted, the VA examinations, treatment notes, and testimony showed that his service-connected disability picture tend to resemble occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Many of the characteristic symptoms cited in the criteria are reported in the examinations, e.g. inability to maintain effective relationships, impaired impulse control, difficulty in adapting to stressful circumstances, social impairment with family relations, judgment, thinking, and mood. Though some of the veteran's medical evidence showed impairment within the criteria for the next higher rating, 100 percent, the Board finds that they did not fully meet the criteria for total occupational and social impairment, i.e., 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. According to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), the GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." There is no question that the GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). GAF scores between 31 to 40 indicate some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or 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; child frequently beats up younger children, is defiant at home, and is failing at school). GAF scores between 41 and 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting), or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). GAF scores between 51 and 60 reflect moderate symptoms (e.g., flat affect, circumstantial speech, occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). The Board notes that the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, the GAF score must be considered in light of the actual symptoms of the veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). The Board finds, after careful review of the VA examinations, treatment notes and testimony, that the service-connected PTSD warrants the assignment of 70 percent rating, but higher for the period of this appeal. ORDER An initial rating of 70 percent for the service-connected PTSD is granted, subject to the regulations controlling the award of VA monetary benefits. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs