Citation Nr: 0815023 Decision Date: 05/06/08 Archive Date: 05/12/08 DOCKET NO. 02-12 068 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana THE ISSUE Entitlement to an evaluation in excess of 50 percent for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The veteran had active service from January 1944 to December 1945. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a May 2002 decision by the RO which denied an increase in the 30 percent evaluation then assigned for the veteran's PTSD. By rating action in August 2002, the RO granted an increased rating to 50 percent, effective from January 4, 2002, the date of receipt of the veteran's claim for increase. 38 C.F.R. § 3.400(o)(2). In February 2004, the Board denied an evaluation in excess of 50 percent, and the veteran appealed the decision to the United States Court of Appeals for Veterans Claims (hereinafter, "the Court"). In September 2004, the Court granted a joint motion to vacate and remand the February 2004 Board decision. The Board remanded the appeal for additional development in December 2004. In December 2005, the Board continued the 50 percent evaluation, and the veteran appealed to the Court. In November 2006, the Court granted a Joint Motion to vacate and remand the December 2005 Board decision. The Board remanded the appeal for additional development in April 2007. FINDINGS OF FACT 1. All evidence necessary for adjudication of this claim have been obtained by VA. 2. The veteran's symptoms for PTSD are not shown to be productive of 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 an evaluation in excess of 50 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5106, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Part 4, including Diagnostic Codes 9411-9440 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Since the Board has concluded that the preponderance of the evidence is adverse to the veteran's claim for an increased evaluation for PTSD, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot, and no further notice is needed. See Dingess/Hartman, 19 Vet. App. 473. For an increased-compensation claim, § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation - e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Id. Here, the veteran was notified by VA to submit evidence which showed that his psychiatric disorder had worsened and the effect his disability had on his daily activities. The letter provided examples of the types of evidence the veteran could submit and informed him that VA would assist him in obtaining any such evidence. Further, the diagnostic code under which the veteran's PTSD is rated includes criteria demonstrating a noticeable worsening of symptoms and the effect it has on his employment and daily life. In this regard, the veteran reported the effect his PTSD had on his daily activities (the veteran is 88 years old and retired) on the various VA examinations and outpatient reports during the pendency of the appeal. Thus, to the extent that the VCAA notice in this case is deemed to be deficient under Vazquez- Flores, based on the communications sent to the veteran and his representative over the course of this appeal, he clearly has actual knowledge of the evidence he is required to submit in this case and, based on his contentions as well as the communications provided to him by VA, it is reasonable to expect that he understands what is needed to prevail. See Simmons v. Nicholson, 487 F. 3d 892 (2007); see also Sanders v. Nicholson, 487 F. 3d 881 (2007). Under the circumstances of this case, the Board finds that the veteran is not prejudiced by moving forward with a decision on the merits at this time. VA law and regulations also indicate that part of notifying a claimant of what is needed to substantiate a claim includes notification as to what information and evidence VA will seek to provide and what evidence the claimant is expected to provide. Further, VA must ask the claimant to provide any evidence in her or his possession that pertains to the claim. 38 U.S.C.A. § 5103 (West 2002 & Supp. 2006); 38 C.F.R. § 3.159(a)-(c) (2007); Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). In this case, VCAA letters dated in January 2002, January 2005, and May 2007 were sent to the veteran. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Although some of the letters were not sent prior to initial adjudication of the veteran's claim, this was not prejudicial to him, since he was subsequently provided adequate notice, the claim was readjudicated, and supplemental statements of the case (SSOC) were promulgated in October 2005 and August 2007. As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. Mayfield v. Nicholson, 444 F.3d at 1328, 1333- 34; See also Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) [hereinafter Mayfield III]. Here, the veteran was notified of the evidence that was needed to substantiate his claim; what information and evidence that VA will seek to provide and what information and evidence the veteran was expected to provide, and that VA would assist him in obtaining evidence, but that it was ultimately his responsibility to give VA any evidence pertaining to his claim, including any evidence in his possession. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The veteran was also notified of the evidence that was needed to substantiate his claim for a higher evaluation for PTSD, and why the current evidence was insufficient to award the benefits sought. The veteran's service medical records and all VA treatment records identified by him have been obtained and associated with the claims file. The veteran was examined by VA twice and was seen on an outpatient basis on numerous occasions during the pendency of the appeal. Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) [hereinafter Mayfield III]. The Board concludes that any deficiency in the notice to the veteran or the timing of any notice is harmless error. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that even though the Board erred by relying on various post- decisional documents to conclude that adequate 38 U.S.C.A. § 5103(a) notice had been provided to the appellant, the evidence established that the veteran was afforded a meaningful opportunity to participate in the adjudication of his claim, and the error was harmless). Additionally, there has been no prejudice to the veteran in the essential fairness of the adjudication. 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, 19 Vet. App. 103 (2005); rev'd on other grounds, 444 F.3d 1328 (Fed Cir. 2006). Increased Rating The United States Court of Appeals for Veterans Claims (Court) has held that "where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance." Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2 (2007). Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings." Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. See generally 38 U.S.C.A. § 5110(b)(2) (West 2002). Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1 (2007). Where PTSD results in 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 100 percent rating is assigned. Where PTSD causes 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); inability to establish and maintain effective relationships, a 70 percent rating is for assignment. Where PTSD results in 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 and maintaining effective work and social relationships, a 50 percent rating is awarded. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2007). PTSD The veteran is currently assigned a 50 percent evaluation for PTSD, and believes that a higher evaluation is warranted. The veteran's principal symptomatology includes difficulty sleeping, nightmares, and depressed mood. The Board has reviewed all the evidence of record, including but not limited to the numerous VA outpatient records from 2001 to the present and the March 2002 and June 2007 VA psychiatric examination reports. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, it is not required to discuss each and every piece of evidence in a case. In this case, the clinical findings do not show the frequency, severity, or duration of psychiatric symptoms necessary for a rating of 70 percent or higher under the criteria cited above at anytime during the pendency of this appeal. The Board does not dispute the fact that the veteran has significant symptoms associated with his PTSD and does not attempt to minimize his complaints or his great sacrifice and contributions to this country. However, the findings from the two VA examinations and the numerous outpatient reports during the pendency of this appeal do not show that his symptoms cause occupational and social impairment to the extent or severity commensurate with the rating criteria for an evaluation in excess of 50 percent. The evidence shows that the veteran has attended group counseling once a week, except when he vacations in Florida for two to three months a year, since 2001. Although the veteran's attorney's asserts in the September 2004 Joint Remand that the outpatient notes from June 2001 to July 2002 indicated that the veteran had "minimal participation and was mostly quiet and observant", a review of all of the notes from 2001 to the present showed that the veteran actively participated in group discussions and interacted well with all members, and has done so throughout the pendency of this appeal. Specifically, a clinical note in July 2001, indicated that the veteran alternated between periods of silence and observation and active process, but always contributed to the group. The records showed that while the veteran was sometimes less vocal in group discussions, he was always attentive, responded to direct questions, and accepting of other points of views. Most of the outpatient notes showed that the veteran was very active and vocal in the weekly sessions, and that he had good attention and processed information well, even when the subject matter was personally painful. (See November 2001 outpatient note). The veteran often offered advice to other members and engaged in spirited discussions on subjects ranging from personal combat experiences in World War II, current events and political issues, to the conflict in Iraq. The reports made frequent references to the veteran using his resources (information from group discussions) well and for his own benefit. (See November and December 2001 outpatient notes). The notes also indicated that the veteran reported that the sessions were helpful. (See April 2004 outpatient note). A VA evaluation report in July 2003, noted that the veteran still experienced major symptoms of PTSD. He was angry that his PTSD will not remit and was bitter about the lack of understanding of PTSD by the general public. The veteran was a farmer, but was less active in the business since turning his farm over to his sons, though he continued to help out when ever possible. On psychological assessment, the veteran's cognitive function was good and his communications skills were excellent. The veteran reported nightmares, intrusive thoughts, and weeping for no apparent reason, and said that he socialized only with extended family, including one group member he had known since childhood. The veteran was a popular member of the therapy group and was respected by his peers. He attended church on a regular basis, though he reported some problems with his pastor concerning comments the pastor made about PTSD. In a May 2005 progress note, it was reported that the veteran's attendance was good, but that he continued to exhibit symptoms of severe PTSD and had required post-group sessions on occasion due to depressive ideations. Issues/problems/needs were reported to be nightmares, intrusive thoughts, and severe depressive episodes secondary to PTSD episodes. In a December 2005 group counseling note, the veteran was reported to not seem depressed, but dispirited. In a January 2006 group counseling note, the veteran expressed frustration by the lack of remittance in symptoms after decades and the lack of recognition by veteran's benefits who continued to turn down the veteran's requests for increase. Later, at a January 2006 group counseling session, the veteran reported that he was upset by a physician who seemed to "scold" the veteran and advised him to stop dwelling on the war so much. The veteran reportedly felt upset and confused since he could not stop the process of intrusive thoughts. The veteran was described as deeply disturbed that there never seemed to be any answers to his most anguished questions about PTSD and his experiences. Later in a January 2007 group session, the veteran was described as more resigned each session that others, including the government "may never truly acknowledge" his PTSD. In a February 2006 psychiatry note, the veteran was reported to be doing fine, had no complaints, and was coping well. He was coherent and relevant. His mood was fair. He was in good contact with reality. Fair judgment and insight were reported. There were no hallucinations or delusions. The veteran continued to be an active group participant through June 2007 despite reported medical difficulties and advanced age. In November 2006, the veteran was noted to still be cognitively sharp and made good points, but continued to insist that combat veterans could never be fully understood by the public and remained bitter and disillusioned by this. Most of the group therapy notes did not include any mental status findings. However, the few notes that did, showed that the veteran was alert, stable, and well oriented. His attention was good and he was coherent and relevant. The veteran denied any suicidal or homicidal ideations or any hallucinations or delusions. His hygiene and grooming were good and his insight and judgment were fair. (See December 2001, July 2002, and February 2006 outpatient notes). It is significant to note, however, that while there were references to either a fair or depressed mood, there were no significant mental status findings reported on any of the numerous outpatient notes from 2001 to the present. The findings from the two VA examinations during the pendency of the appeal were not materially different and showed that the veteran was coherent, well oriented, and cooperative. Although the veteran was anxious, tense, nervous, and upset when examined by VA in March 2002, his memory was good and he denied any suicidal or homicidal ideations. The examiner noted that the veteran's symptoms had worsened since his last examination and that he was more emotional and more depressed. The examiner assigned a Global Assessment of Functioning (GAF) score of 50 for the current period, and a high of 65, presumably for the past year. Subsequent to the March 2002 VA examination, the RO granted an increased rating to 50 percent, effective from January 4, 2002, the date of receipt of the veteran's claim for increase. 38 C.F.R. § 3.400(o)(2). When examined by VA in June 2007, the examiner indicated that the claims file was reviewed and included a detailed description of the veteran's medical history from 1998 to the present. The examiner recorded the veteran's complaints and discussed the findings from various VA medical reports of record. He noted that the veteran was not taking any psychotropic medications and opined that, overall, the veteran's psychiatric symptoms appeared to be of moderate severity and occurred at various intervals over the past year. The veteran reported that he retired from farming in 1984, and turned over all of the business to his son and grandson in 2001. He said that he went to the farm about five days a week and helped out by running errands. The veteran reported a close and loving relationship with his wife of 65 years, and with his children and grandchildren. He went out to lunch with his wife on occasional, and attended church on Sundays. He reported several close friends from church and said that he and his wife enjoyed vacations together. On mental examination, the veteran was alert, coherent, and cooperative. He was appropriately dressed with good grooming and hygiene, and was able to independently care for his personal hygiene and other basic needs of daily living. His eye contact was good, his affect appropriate, and he displayed no inappropriate behaviors. The veteran's memory was fair and his concentration good. His insight, judgment, and comprehension were in the average range, though the veteran reported some minor memory problems since his cerebral accident in the recent past. The veteran's speech was fluent, of normal rate, and well articulated. His speech patterns were logical, relevant, coherent, and goal-directed. He denied any psychotic symptoms or any suicidal or homicidal ideations. Despite the veteran's complaints of disturbed sleep due to nightmares and pain related to his numerous physical problems, the examiner noted that he displayed an above average level of energy and activity for an 87 year old. The veteran did not report any panic attacks or panic like symptoms, or any obsessive or ritualistic behaviors that would interfere with routine activities. The examiner commented that the veteran described only mild to moderate psychosocial dysfunction related to his PTSD. The diagnoses included PTSD, and the examiner assigned a current GAF score of 55. The GAF score is an indicator of the examiner's assessment of the individual's overall functioning. A GAF score between 51 to 60 contemplates 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). American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (4th. ed., 1994) (DSM-IV). However, the Board is not required to assign a rating based merely on such score. The material question at issue is whether the veteran has sufficient occupational and social impairment to disrupt his performance of occupational tasks to the extent set forth in the rating criteria described above for an evaluation in excess of the 50 percent currently assigned. 38 C.F.R. § 4.130 (2007). Here, the record shows no findings or objective evidence of any of the criteria required for a 70 percent evaluation. There was no evidence of any thought disorder, psychosis, suicidal ideation, obsessional rituals, near-continuous panic, impaired intellectual functioning, or impaired judgment. The two VA examinations and numerous outpatient notes from 2001 to the present, showed that the veteran's thought processes were goal directed, logical and coherent. His personal hygiene was appropriate, and he displayed no evidence of a thought disorder or psychosis. The veteran has been married for 65 years and has a close and loving relationship with his wife, his children and his grandchildren. Although retired from farming for many years, he continues to help around the farm to the extent that his physical disabilities allow. He attends therapy sessions weekly, interacts well with other group members, takes yearly vacations with his wife, and visits with other family members on a regular basis. He also attends church on Sundays, and has several friends from the church. In short, the evidence of record does not show that the veteran's symptomatology is reflective of the severity and persistence to warrant an evaluation in excess of 50 percent under the criteria discussed above. The veteran does not demonstrate occupational and social impairment due to symptoms such as obsessional rituals which interfere with routine activities; intermittent, illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control; disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances, or an inability to establish and maintain effective relationships. Clearly, the evidence shows reduced reliability and some problems with depressed mood. However, the evidence does not suggest that his PTSD symptoms are of such severity to warrant a rating of 70 percent or higher. Accordingly, the Board concludes that the veteran does not meet or nearly approximate the level of disability required for a rating in excess of 50 percent at anytime during the pendency of the appeal. As the preponderance of the evidence is against the claim, the appeal is denied. ORDER An evaluation in excess of 50 percent for PTSD is denied. S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs