Citation Nr: 1007356 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 07-12 366 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Evaluation of posttraumatic stress disorder (PTSD), rated as 50 percent disabling prior to March 11, 2008. REPRESENTATION Appellant represented by: Attorney, Jacques P. DePlois ATTORNEY FOR THE BOARD Jon Schulman, Associate Counsel INTRODUCTION The Veteran had active service from August 1963 until May 1966. This matter comes before the Board of Veterans' Appeals (BVA or Board) from rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO) in Portland, Oregon. In July 1999 the Veteran submitted a claim of entitlement to service connection for PTSD. The Veteran's claim was eventually granted by a rating decision of June 2005, which assigned the Veteran a rating of 50 percent, effective January 22, 2001. In an August 2008 rating decision, a rating of 100 percent was assigned, effective March 11, 2008. By order of the Board in November 2009, the Veteran's initial 50 rating was made effective July 29, 1999. The Veteran now appeals from the assignment of a 50 percent initial rating. The issue of evaluation of PTSD prior to March 11, 2007 is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's PTSD has been productive of a global assessment of functioning score of 35, beginning March 11, 2007. CONCLUSION OF LAW Since March 11, 2007, PTSD has been 100 percent disabling. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.130 Diagnostic Code 9411 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the VCAA duty to notify was satisfied subsequent to the initial RO decision by way of information included with the Veteran's April 2007 SOC that fully addressed all notice elements. The Veteran was informed of what evidence was required to substantiate the claim and of the division of responsibility between VA and a claimant in developing an appeal. Therefore, the Veteran was "provided the content-complying notice to which he [was] entitled." Pelegrini, 18 Vet. App. at 122. Furthermore, the claim was readjudicated with the issuance of a supplemental statement of the case in December 2009. Consequently, the Board finds that any timing deficiency has been appropriately cured and that such deficiency did not affect the essential fairness of the adjudication. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Regardless, this is an appeal from the assignment of the initial evaluation. where, as here, service connection has been granted and the disability ratings have been assigned, the claims of service connection have been more than substantiated, the claims have been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Furthermore, once a claim for service connection has been substantiated, the filing of a notice of disagreement with the RO's decision as to the rating of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is no longer applicable following the initial grant of service connection. Dingess, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112, 116- 117 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008). VA has a duty to assist the Veteran in the development of the claim. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2009). Service treatment records have been obtained as have records of private and VA treatment. Furthermore, the Veteran was afforded a VA examination in June 2008 which included review of his claims file, interview of the Veteran, and conclusions reached that were consistent with the record. The examination is found to be adequate. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See, Bernard v. Brown, 4 Vet. App. 384 (1993). In addition to the evidence discussed above, the Veteran's statements in support of the claim are also of record. The Board has carefully considered such statements and concludes that no available outstanding evidence has been identified. Additionally, the Board has reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Rating on Appeal Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155 (West 2002 & Supp. 2007); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2009). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2009). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The severity of the Veteran's PTSD is determined by 38 C.F.R. § 4.130, Diagnostic Code (DC or Code) 9411. Under this code, a 50 percent rating requires occupational and social impairment with reduced reliability and productivity due to such symptoms as a 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; or difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, DC 9411 (2009). A 70 percent rating requires 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 work like setting); or the inability to establish and maintain effective relationships. Id. A 100 percent rating requires 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; or memory loss for the names of close relatives, own occupation, or own name. Id. In evaluating the Veteran's level of disability, the Board has considered the Veteran's Global Assessment of Functioning (GAF) scores as one component of his overall disability picture. GAF is a scale used by mental health professional and reflects psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. The scale may be relevant in evaluating mental disability. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (DMS) (4th ed. 1994). A GAF score between 40 and 31 represents 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). DMS (4th ed. 1994). A GAF score of 51 to 40 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school 41 functioning (e.g., no friends, unable to keep a job). Id. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, No. 05- 2424 (U.S. Vet. App. Nov. 19, 2007) (staged ratings are appropriate when the factual findings show distinct period where the service-connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). A disability may require re-evaluation in accordance with changes in a Veteran's condition. The Veteran's PTSD is service connected and a 50 percent evaluation was assigned, effective July 29, 1999. In a rating decision of August 2008, the RO rated the Veteran's PTSD as 100 percent disabling effective March 11, 2008. Evaluation of the claim requires that the Board consider the entire time period involved, and whether the current staged ratings may be appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999). A review of the record indicates that the RO selected March 11, 2008 as the effective date of the Veteran's 100 percent rating based on the fact that it was the date of the Veteran's first VA examination. During the examination, the examining psychologist indicated that the Veteran's Global Assessment of Functioning (GAF) score was 35. The examiner also indicated that the Veteran's GAF score reflected his level of functioning for the prior 12 months. The Board has reviewed the record and finds nothing to reflect that the Veteran's PTSD became suddenly worse on March 11, 2008. Rather, in spite of a lack of treatment records, the evidence shows that the Veteran was suffering from some impairment in reality testing or communication, or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood for one year prior to his examination on this date. The AOJ accepted as competent the examination report and determined that the report warranted a 100 percent evaluation. The AOJ has not presented a basis for rejecting the opinion that the condition had not changed in the prior one year. As stated, a 100 percent rating requires 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; or memory loss for the names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, DC 9411 (2009). The evidence shows that the Veteran's PTSD was 100 percent disabling at least as far back as March 2007. For the forgoing reasons, the Board grants a 100 percent rating effective March 11, 2007. ORDER A 100 percent evaluation for PTSD is granted, subject to the controlling regulations applicable to the payment of monetary awards, effective March 11, 2007 REMAND In his appeal from his initial 50 percent rating for PTSD, the Veteran has indicated, by way of his representative, that he is entitled to a forensic or retrospective psychological examination to determine his level of disability between 1997 and 2008. The Board notes that in the forgoing determination, the Board has ordered that a 100 percent rating be assessed, effective March 11, 2007 and thus the period beyond this time need not be evaluated. In reviewing the Veteran's claims file, the Board notes that the file lacks treatment records from the time in question. Rather, there is an undated private opinion, received by VA in 2001, and VA examination in 2008 which indicates that he was not under regular treatment. Based on this record, the Board cannot accurately evaluate the Veteran's historical level of disability dating to 1999. Accordingly, we find that VA's duty to assist dictates that the Veteran be afforded an examination to determine his level of disability from 1999, the effective date of his 50 percent rating, to 2007, the effective date of his 100 rating. Accordingly, the case is REMANDED for the following action: 1. The Veteran is to be scheduled for an examination, and his claims file should be made available for review by the examiner. The examiner is to discuss the Veteran's level of disability between 1999 and 2007. If, based on the evidence of record, the examiner cannot make such a determination, it should be noted in the examiner's report. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs