Citation Nr: 1007477 Decision Date: 03/01/10 Archive Date: 03/11/10 DOCKET NO. 08-13 927 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUE Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) prior to August 30, 2007. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD O. Lee, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1966 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision of the RO in Muskogee, Oklahoma, which granted service connection for PTSD and assigned an initial rating of 50 percent. During the pendency of the appeal, the initial evaluation for PTSD was increased from 50 percent to 70 percent by a rating decision dated in March 2005. Thereafter, a September 2007 rating decision further increased the evaluation for PTSD to 100 percent, effective August 30, 2007. The Board notes, with respect to increased ratings, the United States Court of Appeals for Veterans Claims (Court) has held that on a claim for an original or increased rating, the appellant will generally be presumed to be seeking the maximum benefit allowed by law or regulations, and it follows that such a claim remains in controversy where less than the maximum benefit is allowed. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Court further held that, where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the appeal. Id. In this case, the September 2007 rating decision was a complete grant of benefits for the Veteran's claim for a higher rating for the period from August 30, 2007 onward. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). It was not, however, a complete grant for the period prior to August 30, 2007. Indeed, the Veteran has specifically indicated that he is seeking a 100 percent initial rating for this earlier period. Therefore, the issue of entitlement to a higher initial rating for PTSD prior to August 30, 2007 remains on appeal. The Board has recharacterized the issue on appeal accordingly to more accurately represent the Veteran's claim. Subsequent to the issuance of the May 2008 statement of the case (SOC), the Veteran submitted additional evidence which was not considered by the RO. The Veteran, through his representative, has waived RO consideration of that evidence in a December 2009 submission. The Board may consider the appeal. 38 C.F.R. § 20.1304 (2009). The Veteran testified at a December 2009 videoconference hearing before the undersigned Veterans Law Judge. A transcript of that proceeding has been associated with the claims file. FINDING OF FACT Prior to August 30, 2007, the Veteran's PTSD was manifested by nightmares, flashbacks, sleep impairment, exaggerated startle response, hypervigilance, intermittent delusions and hallucinations, suicidal ideation, avoidance behavior, social isolation, irritability, anger, and concentration problems, resulting in serious social and occupational impairment. CONCLUSION OF LAW The criteria for an initial rating in excess of 70 percent for PTSD prior to August 30, 2007 are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the appellant's claims file, and has an obligation to provide reasons and bases supporting the decision. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. The Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, 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. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2009). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120- 21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA 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) request that the claimant provide any evidence in his possession that pertains to the claim. The requirement of requesting that the claimant provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Any error related to this element is harmless. Prior to the initial adjudication of the Veteran's claim, a letter dated in July 2004 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187; Pelegrini II, 18 Vet. App. at 120-21. The letter advised the Veteran of the information necessary to substantiate the claim, and of his and VA's respective obligations for obtaining specified different types of evidence. The Veteran was informed of the specific types of evidence he could submit, which would be pertinent to his claim, and told that it was ultimately his responsibility to support the claim with appropriate evidence. The Court has held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). In this case, the Veteran's claim was granted, a disability rating and effective date assigned, in an October 2004 decision of the RO. VA's duty to notify under 38 U.S.C.A. § 5103(a) is discharged. See Sutton v. Nicholson, 20 Vet. App. 419 (2006). In any event, it is noted that the Veteran was given proper notice concerning the assignment of disability ratings and effective dates in a February 2007 letter and was given ample opportunity to respond. Subsequently, the claim was readjudicated in a September 2007 rating decision and a May 2008 statement of the case (SOC). Thus, there was no deficiency in notice and a harmless error analysis is not necessary. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The Court has indicated, in the context of an increased rating claim, that if a disability rating cannot be awarded based on the available evidence, but there is evidence that indicates that a higher rating or ratings may be warranted, the agency must determine if a medical opinion is necessary to make a decision on the claim. See Chotta v. Peake, 22 Vet. App. 80, 86 (2008). Here, the Veteran was provided appropriate psychiatric examinations in September 2004 and August 2007. In this instance, as the inquiry centers on the Veteran's entitlement to a higher initial rating prior to August 30, 2007, i.e. the date of the August 2007 examination, it is the September 2004 examination that is particularly relevant. The Board finds that the Veteran's medical file more than adequately describes his disability level during the relevant period. A remand for further examination is therefore not warranted. 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 Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). II. Initial Rating The Veteran seeks a higher initial rating for his service- connected PTSD, evaluated as 70 percent disabling prior to August 30, 2007. For the following reasons, the Board finds that a higher rating for this period is not warranted. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." Fenderson v. West, 12 Vet. App 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's service-connected PTSD is evaluated under Diagnostic Code 9411. The regulations establish a general rating formula for mental disorders. See 38 C.F.R. § 4.130 (2009). Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a claimant's disability that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). Under the provisions for rating psychiatric disorders, a 70 percent disability rating requires evidence of the following: 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.) And a 100 percent disability 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; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. Within the DSM-IV, Global Assessment Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996). While not determinative, 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). According to the GAF scale, a score of 51 to 60 represents 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). DSM-IV at 47. A score of 41 to 50 reflects serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). Id. The medical evidence of record relating to the Veteran's PTSD prior to August 30, 2007 includes VA treatment records dated from February 2004 to August 2007, a QTC psychiatric examination report dated in September 2004, and a private PTSD evaluation report dated in April 2006. The Veteran was afforded a QTC psychiatric examination in September 2004. The Board finds the examination report to be comprehensive and sufficient in addressing the severity of the Veteran's service-connected PTSD. In this regard, it is noted that the examiner reviewed the Veteran's service records and provided a detailed history of the Veteran's combat experience in Vietnam. The Veteran reported symptoms of sleep impairment, nightmares, disturbing memories, and panic attacks. With respect to the traumatic event experienced by the Veteran, the examiner noted that such an event was persistently reexperienced as follows: recurrent recollections of the event; recurrent dreams of the event; feelings of the traumatic event recurring; intense distress at exposure to similar events; physiological reactivity to cues that resemble an aspect of the event, including shaking, sweating, heart pounding, trouble breathing, dizziness and nausea. It was noted that there was persistent avoidance of stimuli associated with the trauma as follows: efforts to avoid thoughts, feelings or conversations associated with the trauma; efforts to avoid activities, places or people that arouse recollections of the event; inability to recall an important aspect of the trauma; sense of foreshortened future; markedly diminished interest or participation in significant activities; feelings of detachment or estrangement from others, including problems maintaining relationships; and restricted range of affect. There were also persistent symptoms of increased arousal as follows: difficulty falling or staying asleep; irritability or outbursts of anger; exaggerated startle response; difficulty concentrating; and hypervigilance. On mental status evaluation, orientation was within normal limits. Appearance, hygiene, behavior and thought processes were appropriate. Communication, speech, abstract thinking and memory were within normal limits. Judgment was not impaired. Affect and mood were abnormal with findings of angry affect at times. Panic attacks were noted as occurring as often as four times a month with each episode lasting 20 minutes. History of delusions and hallucinations was present intermittently, but these symptoms were not observed at the examination. Suicidal and homicidal ideations were present. The examiner explained that the Veteran did not have any mental difficulty performing activities of daily living and had no difficulty understanding commands. It was noted that he did have difficulty establishing and maintaining effective work and social relationships, given that he avoided social contact, had never been able to maintain a relationship, and had problems getting along at work. The examiner observed that the Veteran appeared to pose no threat of persistent danger or injury to himself or others. The Veteran was diagnosed with PTSD and assigned a GAF score of 45. A private evaluation report from W.D. Rogers, Ph.D. shows that the Veteran presented for an initial interview for evaluation of PTSD in April 2006. It was noted that the Veteran had been divorced three times and that he was currently employed part time while attending a PTSD therapy group at VA twice a week. The Veteran was found to have many symptoms characteristic of PTSD, including an inability to get emotionally close to others, fatigue, loss of enjoyment, loss of ability to concentrate, sleep difficulties, psychological distress as a result of military cues, fear of sleeping at night, and difficulty expressing his feelings. In addition, the Veteran had fewer friends after service than before, was verbally and physically abusive if pushed too far, had an exaggerated startle response, felt misunderstood by his family, experienced anxiety when in crowds, had anger outbursts, and avoided military cues. Dr. Rogers stated that the Veteran's PTSD symptoms had increased in frequency and intensity. He had become more depressed and started having frequent anxiety attacks. The Veteran indicated that he had suicidal thoughts but that he had no plans to act on them. It was getting increasingly difficult for him to go to work, and he stated that he was not sure how much longer he could continue. Dr. Rogers expressed that it was his opinion that the Veteran was totally permanently occupationally impaired because his ability to recognize and control his impulses was increasingly diminishing. It was noted that the Veteran was socially isolated and was unable to maintain a relationship even though he would like to have one. Moreover, the Veteran's irritability and outbursts in the workplace had increased; he would isolate himself from other people and withdraw for fear of acting out his anger. The Veteran was diagnosed with chronic severe PTSD and major depression. A GAF score of 46 was assigned. VA treatment records show that the Veteran has been followed in the PTSD clinic and has participated in a PTSD recovery program as well as a Substance Abuse Treatment Center (SATC) program. Has has consistently been assigned GAF scores of 58 and 60. Taking into account all of the relevant evidence of record, the criteria for an initial rating in excess of 70 percent for PTSD prior to August 30, 2007 are not met. The Veteran's symptomatology during that period was not indicative of total occupational and social impairment so as to warrant a higher rating of 100 percent. The medical evidence, as described above, establishes that the Veteran's PTSD was manifested by nightmares, flashbacks, sleep impairment, exaggerated startle response, hypervigilance, intermittent delusions and hallucinations, suicidal ideation, avoidance behavior, social isolation, irritability, anger, and concentration problems. These symptoms, as well as the fact that he had difficulty establishing and maintaining effective work and social relationships, are already contemplated by his current 70 percent evaluation for this rating period. The evidence does not show that the Veteran exhibited symptoms that would warrant a 100 percent disability rating, such 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. Nor does the evidence indicate that the Veteran exhibited his symptoms with such frequency or severity so as to require a higher rating. Although the Veteran reported a history of intermittent delusions and hallucinations, and his symptoms were shown to have progressed over time, his overall level of disability is not shown to have warranted a total disability rating at any time prior to August 30, 2007. While the May 2006 evaluation report from Dr. Rogers reflects the opinion that the Veteran was totally permanently occupationally impaired, the Board finds that such a conclusion is not supported by the objective findings therein. Among other things, the Veteran was shown to be working part time. To the extent the Veteran is shown to have experienced difficulties at work due to his PTSD symptoms, the Board notes that such difficulties are accounted for by his 70 percent disability evaluation. In addition, it is noted that the Veteran had been assigned varying GAF scores of 45, 46, 58 and 60. The Board finds the Veteran's symptomatology to be reflective of serious impairment, consistent with a GAF score in the range of 41 to 50. See DSM-IV at 47. Considering the totality of the evidence, the findings indicate an overall level of occupational and social impairment prior to August 30, 2007 that is appropriately represented by a 70 percent disability rating. A higher initial rating of 100 percent for that period is therefore not warranted. The Board acknowledges the Veteran's contention that he deserves a higher initial rating for his PTSD prior to August 30, 2007 and the lay statements he has submitted in support of his claim. The Veteran can attest to factual matters of which he has first-hand knowledge, e.g., that he has frequent nightmares and panic attacks. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, as a lay person, he has not been shown to be capable of making medical conclusions, thus, his statements regarding the severity of his disability are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). While the Veteran is competent to report what comes to him through his senses, he does not have medical expertise. See Layno v. Brown, 6 Vet. App. 465, 469- 470 (1994). Therefore, he cannot provide a competent opinion regarding the severity of his service-connected disability. Furthermore, the Board has considered the rule for staged ratings. Fenderson, supra; Hart, supra. However, as the evidence does not show that the criteria for an initial rating in excess of 70 percent have been met at any time prior to August 30, 2007, the Board concludes that staged ratings are inapplicable during this period. In light of the foregoing, the Board concludes that the Veteran is appropriately compensated for his PTSD with an initial evaluation of 70 percent for the period prior to August 30, 2007. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for a higher initial rating. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Finally, the Board has considered whether a referral for extraschedular rating is warranted. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule; therefore, the assigned schedular evaluation is adequate, and no referral is required. See VAOPGCPREC 6-96; see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) (a threshold finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate is required for extraschedular consideration referral). The schedular evaluation for the Veteran's PTSD is not inadequate. His complained-of symptoms are those contemplated by the rating criteria. There are no symptoms left uncompensated or unaccounted for by the assignment of a schedular rating. It does not appear that the appellant has an "exceptional or unusual" disability; he merely disagrees with the assigned evaluation for his level of impairment. In other words, he does not have any symptoms from his service- connected disorder that are unusual or are different from those contemplated by the schedular criteria. The available schedular evaluations for that service- connected disability are adequate. Referral for extraschedular consideration is not warranted. See VAOPGCPREC 6-96. Further inquiry into extraschedular consideration is moot. See Thun, supra. ORDER Entitlement to a initial rating in excess of 70 percent for PTSD prior to August 30, 2007 is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs