Citation Nr: 0815035 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 06-11 183 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased rating in excess of 50 percent for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD B.W. Hennings, Associate Counsel INTRODUCTION The veteran served on active duty from March 1966 to May 1986. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office in Waco, Texas. In this case the RO determined that the veteran submitted pertinent evidence subsequent to the May 2004 statement of the case, but within one year of the issuance of the notification of the rating decision being appealed. The RO issued a Supplemental Statement of the Case in February 2006 and informed the veteran that he had 60 days to submit a substantive appeal. The veteran submitted a substantive appeal within the 60 day time period and his claim is therefore properly in appellate status before the Board. See 38 C.F.R. § 20.302(b)(2) (2007). FINDING OF FACT The veteran's PTSD does not exhibit such symptoms as suicidal or homicidal ideation, obsessional rituals that interfere with routine activities, near-continuous panic or depression, impaired impulse control, spatial disorientation, neglect of personal appearance or hygiene, or inability to establish and maintain effective relationships. CONCLUSION OF LAW The criteria for a rating in excess of 50 percent for PTSD have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.130, Diagnostic Code 9411 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Legal criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2007). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2007). Each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2 (2007). 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. The veteran's entire history is to be considered when making a disability determination. 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). This includes consideration of the evidence pertaining to the level of disability from the time period one year before the claim was filed. 38 U.S.C. § 5110. In addition, the Court has determined that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). A 50 percent rating is warranted for PTSD if it is productive of 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. 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); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 100 percent evaluation is warranted 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. 38 C.F.R. § 4.130, Diagnostic Codes 9411. History and analysis By rating action in March 2003 the veteran was granted service connection and a 30 percent rating for PTSD, effective October 31, 2002. The veteran submitted his claim for an increased rating in October 2003. In August 2006 the veteran was granted an increased rating of 50 percent effective from October 31, 2002, but he has maintained his appeal, asserting that his symptoms entitle him to an even higher rating for his PTSD. The Board has reviewed all the medical records related to this claim including: February 2003, December 2003 and July 2006 VA examination reports, VA outpatient and progress notes from February 2000 to May 2006, an October 2004 private report from Quality Care, which according to a May 2006 letter from the veteran's representative, apparently is the only medical evidence the Social Security Administration evidence used in its evaluation of the veteran's disability. The February 2003 VA examiner noted that the veteran was pleasant, likable, had a sense of humor and was goal oriented. He was able to organize his thoughts and speak normally. The veteran reported nightmares about four to five times a week and flashbacks about two times a week. No psychosis, delusions, hallucinations or organicity were found by the examiner. Memory and judgment were good, with some insight. The examiner found the veteran's mood to be depressed, even on his anti-depressants. The February 2003 VA examination noted the veteran to have a General Assessment of Functioning (GAF) score of 65. The December 2003 VA examiner found that the veteran was cooperative, goal-oriented, and oriented as to time, place and person. The veteran was able to organize his thoughts and express himself. His affect showed moderate tension and anxiety and his mood showed moderate depression. There was no evidence of psychosis, delusions, hallucinations or organicity. His memory and judgment were good and he showed some insight. The December 2003 VA examination noted the veteran to have a GAF score of 60. A VA outpatient progress note from August 2004 shows that the veteran was stressed out by school and his wife's health problems. It was noted that the stresses make the veteran avoid feelings until they spin out of control in anger. The veteran was not suicidal, homicidal or psychotic, but his defenses are no longer working in the civilian world. His GAF score was listed at 40. The October 2004 Quality Care examiner reported that the veteran was cooperative and that the veteran's mood was euthymic. His affect was appropriate to the conversation. He indicated he had not had suicidal thoughts in a long time and denied suicidal ideation. His thoughts were coherent and well organized. He reported nightmares and daily flashbacks and indicated problems with sleep. The examiner stated that the veteran claimed to have difficulty maintaining the activities of daily living, including bathing and cleaning. The veteran also reported he socialized with his family once a month, attended classes but does not watch television and was "a hermit now." The October 2004 Quality Care examination report noted a GAF of 48. A March 2006 VA progress note reported that the veteran was continuing to display hypervigilance, avoidance of all trauma-related material as well as places and activities that might trigger his memories and precipitate flashbacks, and intrusive memories and nightmares of his combat experiences. He also had substantial interference with concentration and maintained a highly reclusive lifestyle. The VA outpatient progress note from March 2006 noted a GAF score of 41. The July 2006 VA examiner reported that the veteran stated he experiences some insomnia, migraine headaches, depression and high anxiety. The examiner observed he exhibited somewhat of a sense of humor and awareness of his situation. He indicated nightmares three or four times a week and flashbacks. He also became angry and agitated when talking about the Waco, Texas VA. The examiner observed the veteran was anxious and over talkative during the interview. He was well-oriented to time, place, person and situation. He stated he was failing in school, but only was failing math. He was articulate, verbal, well dressed and groomed and cooperative and mentally intact. His was listed as anxious and agitated. He stated he has been both suicidal and homicidal in the past. The examiner went on to opine that not all of the veteran's problems relate to his PTSD. It was the examiner's opinion that the individual's condition was likely worse than his current rating (which at the time was 30 percent). The July 2006 VA examination report indicates that the veteran had a GAF of 55, due to his PTSD. In assessing the evidence of record, it is important to note that the GAF score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). A score of 61- 70 is indicated where there are, "[s]ome 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. Id. A score of 51-60 is indicated where there are, "[m]oderate 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)." Id. A score of 41-50 is indicated where there are, "[s]erious symptoms (e.g. suicidal ideation, sever obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g. no friends, unable to keep a job)." A score of 31-40 is indicated where there is "[s]ome 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 bears up younger children, is defiant at home, and is failing at school.)" Although the veteran was given GAF scores of 40 and 41 in August 2004 and March 2006, respectively, the veteran's symptoms recorded more closely meet the criteria for a 50 percent rating. These symptoms included stress and anger, hypervigilance and intrusive memories and nightmares of his combat. The veteran was not found to be suicidal, homicidal or psychotic. Furthermore, he was given GAF scores of 48 and 55 in October 2004 and July 2006, respectively, which are in accord with the symptoms and the criteria for a 50 percent rating. These symptoms included nightmares and daily flashbacks and indicates problems with sleep, as well as being anxious and agitated. The veteran's thoughts were well-organized and coherent. The July 2006 examiner found the veteran had a sense of humor and awareness of his situation and was well oriented as to time, place, person and situation. The examiner went on to opine that not all of the veteran's problems relate to his PTSD. Therefore, the Board finds that the veteran's PTSD symptoms more nearly meet the criteria for a 50 percent rating than a 70 percent rating. The veteran does not meet the criteria for a 70 percent rating for PTSD. The evidence of record does not show obsessional rituals that interfere with routine activities; speech that is illogical, obscure or irrelevant; or spatial disorientation. While there is indication of depression, the record does not indicate that the veteran experiences near- continuous panic or depression that affects the ability to function independently or appropriately. Consequently, the Board finds that the disability picture for the veteran's service-connected PTSD does not more nearly approximate the criteria for a 70 percent evaluation than those for a 50 percent evaluation. The greater weight of the evidence indicate that the veteran's PTSD does not result in 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. Therefore, the preponderance of the evidence is against an increased rating. The Board finds that during the time period under consideration, the veteran's PTSD has met the criteria for a 50 percent rating and no higher. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In light of the above, a higher rating is not warranted. The preponderance of the evidence is against the claim and there is no doubt to be resolved. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). Duty to notify and assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 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 or her 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) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice 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 or her possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The timing notification requirements listed in 38 C.F.R. § 3.159 should include all downstream issues of the claim. (i.e., the initial- disability-rating and effective-date elements of a service- connection claim). See Dingess v. Nicholson, 19 Vet. App. 473 (2006). By a November 2003 letter, issued prior to the February 2004 denial on appeal, the RO sent the veteran the required notice. The letter specifically informed him of the type of evidence needed to support the claim, who was responsible for obtaining relevant evidence, where to send the evidence, and what he should do if he had questions or needed assistance. He was, in essence, told to submit all pertinent evidence he had in his possession pertaining to the claim. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). A March 2006 letter informed the veteran of the type of evidence necessary to establish disability ratings and effective dates in compliance with Dingess, supra. The March 2006 letter informed the veteran that he had to provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability, that if an increase in disability was found, a disability rating would be determined by applying relevant diagnostic codes which typically provide for a range in severity of a particular disability from 0% to as much as 100% depending on the disability involved, and provided examples of the types of medical and lay evidence that the veteran could submit or ask VA to obtain that are relevant to establishing entitlement to increased compensation. One such example was statements from employers regarding how the condition affects the ability to work. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Even if the veteran had not been provided the notice required by Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), the Board concludes that he would not have been prejudiced in this instance, as he was given specific notice concerning the rating criteria for the disability at issue in the rating decisions, statement of the case and supplemental statements of the case. Consequently, he had actual notice of the specific rating criteria for the disability, and why a higher rating had not been assigned, as well as an opportunity to present evidence and argument to support a higher rating. With respect to VA's duty to assist the veteran, the RO has obtained the veteran's service medical records and VA medical records. The veteran has been provided VA medical examinations. The RO also obtained Social Security Administration records used in its determination of disability benefits. The veteran provided private treatment records. The veteran has been accorded ample opportunity to present evidence and argument in support of the appeal and he has done so. The veteran has submitted medical records favorable to his claim. Neither the veteran nor his representative has indicated that there are any additional pertinent records to support the veteran's claim. In sum, the Board is satisfied that the originating agency properly processed the veteran's claim after providing the required notice and that any procedural errors in the development and consideration of the claim by the originating agency were insignificant and non-prejudicial to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). ORDER An increased rating in excess of 50 percent for PTSD is denied. ____________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs