Citation Nr: 0814785 Decision Date: 05/05/08 Archive Date: 05/12/08 DOCKET NO. 06-10 603 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to an initial evaluation in excess of 30 percent for post traumatic stress disorder prior to January 25, 2006. 2. On and after January 25, 2006, entitlement to an initial evaluation in excess of 50 percent for post traumatic stress disorder. REPRESENTATION Appellant represented by: John S. Berry, Esq. ATTORNEY FOR THE BOARD K. Millikan Sponsler, Associate Counsel INTRODUCTION The veteran served on active military duty from May 1968 to October 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Lincoln, Nebraska, Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2006, the veteran's representative raised a claim for entitlement to an earlier effective date for the grant of a 50 percent evaluation for post traumatic stress disorder (PTSD). This issue is referred to the RO for appropriate action. FINDINGS OF FACT 1. Prior to January 25, 2006, PTSD was manifested by sleep disturbance, nightmares, flashbacks, intrusive recollections, and avoidance of reminders of war. The evidence also showed that the veteran was fully oriented with good hygiene and grooming, normal mood, no looseness of association, normal speech, intact memory, and effective occupational functioning. 2. On and after January 25, 2006, PTSD is manifested by avoidance of war reminders, a diminished interest in activities, detachment, sleep difficulty, irritability, hypervigilance, an exaggerated startle response, and suicidal thoughts. The evidence also showed that the veteran was fully oriented and neatly groomed and dressed, with normal speech, normal thought process, intact judgment, good impulse control, and normal memory, with no panic attacks or obsessive or ritualistic behavior. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 30 percent for PTSD prior to January 25, 2006, have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2007). 2. On and after January 25, 2006, the criteria for an increased initial evaluation for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the veteran's claim for entitlement to increased initial evaluations for PTSD, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Prior to initial adjudication of the veteran's claim for entitlement to service connection, a January 2004 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Although notice was not provided to the veteran prior to the initial adjudication of this claim informing him that a disability rating and an effective date would be assigned should the claim of service connection be granted, the Board finds that the veteran has not been prejudiced. "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." Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 491 (2006). The letter also essentially requested that the veteran provide any evidence in his possession that pertained to this claim. 38 C.F.R. § 3.159(b)(1). Further, the purpose behind the notice requirement has been satisfied because the veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, to include the opportunity to present pertinent evidence. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007); Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007) (holding that although VCAA notice errors are presumed prejudicial, reversal is not required if VA can demonstrate that the error did not affect the essential fairness of the adjudication). The veteran's service medical records, VA medical treatment records, VA examination reports, and identified private medical records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that additional evidence relevant to the issues decided herein is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 542-43 (2006); see also Dingess/Hartman, 19 Vet. App. 473. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2007). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2007). In resolving this factual issue, the Board may only consider the specific factors as are enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2007). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes, however, that this rule does not apply to the issue of increased initial evaluations, because the current appeal is based on the assignment of initial ratings for a disability following an initial award of service connection for this disability. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Instead, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson, 12 Vet. App. at 126. If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (holding that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). By a November 2004 rating decision, the RO granted service connection for PTSD and assigned a 30 percent evaluation under 38 C.F.R. § 4.130, Diagnostic Code 9411, effective December 8, 2003. In July 2005, the veteran filed a notice of disagreement regarding the evaluation. The RO issued a statement of the case in February 2006. That same month, the veteran filed a substantive appeal. In a February 2006 rating decision, the RO assigned a 50 percent evaluation for PTSD, effective January 25, 2006. Evaluation prior to January 25, 2006 For this time period, the veteran's PTSD was evaluated as 30 percent disabling which contemplates 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 normal conversation, due to such symptoms as: depressed mood, anxiety, suspiciousness, weekly or less often panic attacks, chronic sleep impairment, and mild memory loss, such as forgetting names, directions, recent events. 38 C.F.R. § 4.130, Diagnostic Code 9411. A January 2004 VA PTSD examination was conducted. The veteran reported current nightmares 2 to 3 times per week that ranged from a minimal to longer-lasting nightmare that interfered with his sleep. He also reported irritability, intrusive recollections, sadness, difficulty thinking or talking about the war, mild avoidance of reminders of war, and an exaggerated startle response. The veteran denied flashbacks and detachment from others. He had owned his own company as a real estate broker, auctioneer, and landlord for 20 years, but was currently working part-time. The veteran attended church twice per month, belonged to the American Legion, but did not typically attend, had 3 to 5 very close friends, periodically ate out, and went on 3 fishing trips per year, but had decreased interest in certain activities such as hunting. He and his wife were actively involved in a couple of different pitch groups. Upon examination, the veteran was oriented, with an adequate mood, periodic sadness, a mildly restricted affect, and an intact sensorium. There was unremarkable grooming and hygiene, coherent, relevant, and tight associations, fine concentration, and no hypervigilance. The examiner concluded that PTSD caused no restrictions on the veteran's ability to maintain gainful employment. A Global Assessment of Functioning (GAF) score of 85 was assigned, which contemplates PTSD with absent or minimal symptoms, such as 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, and no more than everyday problems or concerns, such as an occasional argument with family members. See QUICK REFERENCE TO THE DIAGNOSTIC CRITERIA FROM DSM-IV, 46-7 (1994) (DSM-IV). In a February 2004 statement, the veteran's wife reported that during their 37 years of marriage, the veteran rarely talked about Vietnam. She stated that he had sleep disturbance, was emotionally detached, and avoided any Vietnam reminders. At the September 2004 RO hearing, the veteran reported flashbacks of 4 nights per week. An October 2004 VA PTSD examination was conducted. The veteran reported intrusive memories, sleep difficulty, flashbacks, avoidance of war reminders, and being cut off and distant from others. He reported disturbing dreams that affected his ability to function the next day. The veteran reported that he had outside interests, but had quit the American Legion, the Elks, a card club, and church. Upon examination, the veteran was oriented and appropriately dressed and groomed, with an appropriate affect, normal mood, normal speech, intact memory, and satisfactory concentration. There was irritability, mild hypervigilance, dislike of crowds, and an increased startle response. There was no looseness of association, flight of ideas, delusions, paranoia, hallucinations, evidence of cognitive impairment, emotional numbing, or suicidal or homicidal ideations. The examiner found effective occupational functioning, but some impairment in social functioning. A GAF score of 68 was assigned, which contemplates some mild symptoms, for example, a depressed mood and mild insomnia, or some difficulty in social, occupational, or school functioning, for example occasional truancy, or theft within the household, but generally functioning pretty well, and has some meaningful interpersonal relationships. See DSM-IV at 46-47. In a January 9, 2006, letter, a private medical treatment provider stated that the veteran recently reported increasingly vivid nightmares, guilt, and suicidal thoughts. The examiner found noted depression and PTSD and prescribed daily medication. The Board finds that the evidence of record does not support an increased initial evaluation for PTSD prior to January 25, 2006. First, the veteran's GAF scores ranged from 85 to 68. The GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health - illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (quotation omitted). A GAF score is highly 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). The GAF scores reflect absent or minimal symptoms, some mild symptoms, or some difficulty in social, occupational, or school functioning. See DSM-IV at 46-47. These scores appear to be adequately reflected in the current 30 percent evaluation that contemplates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Second, although GAF scores are important in evaluating mental disorders, the Board must consider all the pertinent evidence of record and set forth a decision based on the totality of the evidence in accordance with all applicable legal criteria. See Carpenter, 8 Vet. App. at 242. The veteran reported sleep difficulty, nightmares, flashbacks, intrusive recollections, and avoidance of war reminders. The evidence also showed the veteran was fully oriented with a normal mood, adequate grooming and hygiene, normal speech, intact memory, and no looseness of association. The veteran remained married, had some close friends, was involved in some activities, and had effective occupational functioning. Accordingly, an initial evaluation in excess of 30 percent is not warranted. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (noting that a 50 percent evaluation contemplates PTSD with occupational and social impairment with reduced reliability and productivity due to symptoms such 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; and difficulty in establishing and maintaining effective work and social relationships). Evaluation on and after January 25, 2006 For this time period, the veteran's PTSD was evaluated as 50 percent disabling which contemplates occupational and social impairment with reduced reliability and productivity due to symptoms such 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; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A January 2006 VA PTSD examination was conducted. The veteran reported efforts to avoid thoughts, feelings, conversations, activities, places, or people associated with or that arouse recollection of the war. He reported a markedly diminished interest in activities, feelings of detachment or estrangement from others, a sense of a foreshortened future, sleep difficulty, irritability, outbursts of anger, difficulty concentrating, hypervigilance, and an exaggerated startle response. The veteran stated that he recently initiated treatment for PTSD and that he considered his main symptom to be his suicidal thoughts because it was scary. The veteran currently worked part-time but noted that his social life had become more limited. Upon examination, the veteran was fully oriented, neatly groomed, and appropriately dressed, with a restricted range of affect, unremarkable psychomotor activity, spontaneous and coherent speech, dysphoric mood, intact attention, and logical, relevant, and coherent thought process. The veteran was cooperative, friendly, and attentive. There was mild sleep impairment but intact judgment, average intelligence, good impulse control, and normal memory. There was no violence, delusions, obsessive or ritualistic behavior, panic attacks, inappropriate behavior, or homicidal thoughts. The veteran had no problems with the activities of daily living. The examiner diagnosed moderate PTSD with occasional mild or transient effects on efficiency, productivity, reliability, and inability to perform work tasks and occasional moderate effects on relationships. A GAF score of 59 was assigned, which reflects moderate symptoms, for example, a flat affect and circumstantial speech, or occasional panic attacks, or moderate difficulty in social, occupational, or school functioning, such as having few friends, and conflicts with peers or co-workers. See DSM-IV at 46-47. The Board finds that the evidence of record does not support an increased evaluation for the veteran's PTSD. First, the veteran's GAF score was 59. As noted above, the GAF is a scale reflecting the psychological, social, and occupational functioning due to mental health illness and is highly probative, because it relates directly to the veteran's level of impairment of social and industrial adaptability. See Carpenter, 8 Vet. App. at 242; Massey, 7 Vet. App. at 207. The GAF score of 59 for this time period reflects moderate symptoms or moderate difficulty in social, occupational, or school functioning. See DSM-IV at 46-47. This score is adequately reflected in a 50 percent evaluation which contemplates occupational and social impairment with reduced reliability and productivity and difficulty in establishing and maintaining effective work and social relationships. Second, although GAF scores are important in evaluating mental disorders, the Board must consider all the pertinent evidence of record and set forth a decision based on the totality of the evidence in accordance with all applicable legal criteria. See Carpenter, 8 Vet. App. at 242. The veteran reported avoidance of war reminders, a markedly diminished interest in activities, feelings of detachment, sleep difficulty, irritability, anger, difficulty concentrating, hypervigilance, an exaggerated startle response, and suicidal thoughts. The evidence showed the veteran was fully oriented and neatly groomed and dressed, with a restricted affect, normal speech, dysphoric mood, intact attention, normal thought process, intact judgment, good impulse control, and normal memory. There were no delusions, obsessive or ritualistic behaviors, or panic attacks. The examiner noted occasional mild or transient occupational effects and occasional moderate social functioning effects. The veteran continued to work part- time. Accordingly, an increased evaluation is not warranted. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (noting that a 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal 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 worklike setting); and inability to establish and maintain effective relationships). After a review of the evidence, the evidence of record does not warrant ratings in excess of 30 and 50 percent for PTSD at any time during the pertinent time periods. 38 U.S.C.A. 5110 (West 2002 & Supp. 2007); see also Hart, 21 Vet. App. 505. Other considerations In exceptional cases where schedular evaluations are found to be inadequate, the RO may refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2007). "The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." Floyd v. Brown, 9 Vet. App. 88 (1996). In this regard, the schedular evaluations in this case are not inadequate. Ratings in excess of 30 and 50 percent are provided for certain manifestations of PTSD but the medical evidence reflects that those manifestations are not present in this case. Moreover, the Board finds no evidence of an exceptional disability picture. The veteran has not required hospitalization and marked interference of employment has not been shown due to PTSD. In the absence of any additional factors, the RO's failure to consider referral of this issue for consideration of an extraschedular rating or failure to document its consideration did not prejudice the veteran. Finally, in reaching this decision the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An initial evaluation in excess of 30 percent for PTSD prior to January 25, 2006, is denied. On and after January 25, 2006, an initial evaluation in excess of 50 percent for PTSD is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs