Citation Nr: 1004012 Decision Date: 01/27/10 Archive Date: 02/16/10 DOCKET NO. 08-26 321 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD) with depressive disorder, not otherwise specified. ATTORNEY FOR THE BOARD B.W. Hennings, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1968 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. FINDING OF FACT Since the grant of service connection the Veteran has exhibited symptoms such as hypervigilance, impaired concentration and judgment, flashbacks, nightmares, flattened affect, social avoidance and isolation, an inability to deal with social gatherings, irritability and depression, due to PTSD. CONCLUSION OF LAW The criteria for an initial rating of 50 percent for PTSD have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.130, Diagnostic Code 9411 (2009). 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. 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. Each disability must be considered from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. 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 VA's Schedule for Rating Disabilities represents the average impairment in earning capacity resulting from injuries incurred in military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1, 4.10. Where, as here, entitlement to service-connection has been established, but a higher initial disability rating is at issue, the extent of impairment throughout the entire period, beginning with the filing of the claim, must be considered and a determination must be made regarding whether "staged" ratings are warranted. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999) (when a disability rating is initially assigned, separate ratings should be considered for separate periods of time, known as staged ratings). Since the Veteran is being granted an increased rating back to the date of service connection, staged ratings are inappropriate here. A 30 percent rating is warranted for PTSD if there is 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 conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. 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 Code 9411. History and Analysis An October 2007 rating decision granted the Veteran service connection and a 30 percent rating for PTSD. The Veteran has appealed this initial rating. VA treatment records from January 2004 to May 2005 show the Veteran was treated for simple phobia to heights, bridges and rodents, as well as for anxiety disorder, not otherwise specified. The Veteran denied symptomatology related to service in Vietnam, including flashbacks or nightmares. The Veteran's was given multiple Global Assessment of Functioning (GAF) scores of 65 and 60. A September 2006 private treatment examination report notes that the Veteran described numerous symptoms including intrusive thoughts, flashbacks, traumatic nightmares, sleep problems, social isolation, hyperirritability, problems with memory and concentration and exaggerated startle response. The Veteran reported often only sleeping two to three hours per night and avoids crowds. The examiner noted the Veteran had normal dress and was soft spoken. His mood was dysphoric, affect restricted. Judgment and insight were limited but there was no current suicidal or homicidal ideation. The examiner stated that the Veteran's symptoms interfered with his work productivity, ability to maintain work relationships and ability to sustain social relationships. The examiner considered the Veteran unemployable. The Veteran was reported to have a GAF score of 39. A January 2007 VA examiner noted that the Veteran was married twice and has been married to his current wife for 20 years. The Veteran stated he got along reasonably well with his two biological children. The examiner found the Veteran to be alert, oriented and cooperative. There was no evidence of any formal thought disorder, loosened associations, flight of ideas, inappropriate affect, hallucinations or delusions. He was oriented in all three spheres, but had some difficulty with attention and concentration. The Veteran reported depression and insomnia and nightmares multiple times a week. The Veteran reported increased startle response, hypervigilance and difficulties controlling his temper. The Veteran denied any attempts to socialize outside of home and reported some suicidal ideation, but without any plans or attempts. He indicated that he currently worked at a white collar job doing data collection and reports and stated he enjoyed the work because it tends to allow him to be isolated and not have to deal too much with other for the time he is working. He stated he had missed perhaps fifteen to twenty days over the previous year because of his symptoms. The Veteran was reported to have a GAF score of 51. 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.)" The lists of symptoms in Diagnostic Code 9411 are intended to describe the occupational and social impairment of a person with certain mental disorders. But it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21. Moreover, with respect to mental disorders, it is not the symptoms, but their effects, that determine the level of impairment. See 61 Fed. Reg. 52,697 (October 8, 1996) (comments accompanying amendments to the schedule of criteria for mental disorders). The October 2007 rating action granted the Veteran service connection and a 30 percent rating for PTSD. The Board finds, however, that the evidence of record meets the criteria for a 50 percent rating for the Veteran's PTSD. As shown above, the Veteran has symptoms of hypervigilance, impaired concentration and judgment, flashbacks, nightmares, flattened affect, social avoidance and isolation, an inability to deal with social gatherings, irritability and depression, due to PTSD. These symptoms, along with a GAF scores as low as 51 and 39 indicate that the Veteran meets the criteria for a 50 percent rating. Given the Veteran's contentions, his GAF scores, and his symptoms, the record more nearly approximates occupational and social impairment with reduced reliability and productivity than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks as contemplated in a 30 percent disability rating. See 38 C.F.R. § 4.7 (when 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). Therefore, the Board finds that the Veteran's PTSD symptoms most approximately meet the criteria for an initial 50 percent rating. None of the evidence of record shows active suicidal planning or action; obsessional rituals that interfere with routine activities; speech that is illogical, obscure or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; or spatial disorientation. While there is indication of depression, the record does not indicate that the Veteran experiences an inability to establish and maintain effective relationships, particularly as he has been married to his second wife for over twenty years thirty-two years and gets along reasonably well with his children. In addition, the Veteran reported enjoying his data collection and reporting job. Further, there is no indication of a neglect of personal hygiene or appearance and indication of periods of violence based on impaired impulse control. Although the Veteran was assigned a GAF score of 39, the Board notes that the symptoms recorded by the private examiner do not correspond with the DSM-IV description of a GAF score between 31-40, which is listed above. 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 Board finds that since the grant of service connection, the Veteran's PTSD has met the criteria for a 50 percent rating and no higher. Thus staged ratings are inapplicable to this case. See Fenderson. Accordingly an initial rating of 50 percent, and no higher, for the Veteran's PTSD is warranted. Extraschedular rating Under 38 C.F.R § 3.321(b)(1), in exceptional cases where schedular evaluations are found to be inadequate, consideration of an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be made. The governing norm in an exceptional case 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. See 38 C.F.R § 3.321(b)(1) (2009). Here, the rating criteria reasonably describe the Veteran's symptoms and provide for additional or more severe symptoms than currently shown by the evidence; thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). The Schedule does provide for higher ratings for the Veteran's PTSD. Moreover, as discussed above, the schedular criteria for higher ratings have not been shown for the entire period under appeal. The record does not reflect that the Veteran has required frequent hospitalizations for his PTSD during the period of time on appeal. In addition, there is no indication in the record that his PTSD alone markedly interferes with his employment-or daily activities, beyond what is contemplated in the rating schedule (as some occupational limitation is explicitly contemplated in the rating criteria). In sum, there is no indication in the record that the average industrial impairment from this disability would be in excess of that contemplated by the assigned evaluation; it is not impractical to apply the regular schedular standards. For these reasons, a referral for an extra-schedular rating is not warranted. Moreover, in light of the absence of evidence of marked occupational impairment (and the fact that the Veteran reported being currently employed and enjoying his job), resulting from this service-connected disability alone- without regard to the Veteran's age, the Board concludes that consideration of the issue of entitlement to a total disability rating based on individual unemployability is not appropriate. Rice v. Shinseki, 22 Vet. App. 447 (2009). Duties 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. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). 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. 2009); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Formerly, the elements of proper notice included informing 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 and (3) that the claimant is expected to provide. Section 3.159 was amended, effective May 30, 2008 as to applications for benefits pending before VA or filed thereafter, to eliminate the requirement that VA will request the claimant to provide any evidence in the claimant's possession that pertains to the claim. 38 C.F.R. § 3.159 (2009). 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 notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim, defined to include: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule); see also Shinseki v. Sanders, 129 S.Ct. 1696 (2009). In this case, the Veteran was notified of the respective duties of the claimant and of VA, as well as of the evidence needed to substantiate his claim for service connection for PTSD by a letter in August 2006, before any rating decisions were issued. This letter provided the Veteran with the specific notice required by Dingess, supra. The Board notes that VAOPGCPREC 8-2003 interpreted that, if, in response to notice of its decision on a claim for which VA has already given the section 5103(a) notice, VA receives a notice of disagreement that raises a new issue, section 7105(d) requires VA to take proper action and issue a statement of the case if the disagreement is not resolved, but section 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate the newly raised issue. The courts have held that once service connection is granted the claim is substantiated, additional VCAA notice is not required; and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Nonetheless, by a May 2008 letter the Veteran was provided notice of the evidence and information necessary for establishing an initial rating for PTSD, including information regarding rating criteria and specific diagnostic codes. The Board concludes that VA has met its duty to notify the Veteran concerning his claim. The Board also concludes that VA has met its duty to assist the Veteran in developing the evidence to support his claim. The record contains service treatment records and VA treatment records. Private records are contained in the claims file. The Veteran was given a VA examination with medical opinion, in connection with the claim. Statements of the Veteran and his representatives have been associated with the record. The Veteran has been accorded ample opportunity to present evidence and argument in support of the appeal. Neither the Veteran nor his representative has indicated that there are any available additional pertinent records to support her 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 initial rating of 50 percent for PTSD is granted, subject to the law and regulations regarding the payment of monetary benefits. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs