Citation Nr: 1010803 Decision Date: 03/22/10 Archive Date: 03/31/10 DOCKET NO. 05-39 012A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to a disability rating in excess of 70 percent for service connected posttraumatic stress disorder (PTSD). 2. Entitlement to a compensable disability rating for right ear hearing loss. 3. Entitlement to service connection for heart palpitations. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD E. D. Anderson, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1973 to April 1974 and February 2003 to June 2004. This matter comes to the Board of Veterans' Appeals (Board) on appeal from April 2005 and December 2006 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. A hearing was held in October 2006 before a decision review officer, and a transcript of this hearing is of record. In December 2008, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to obtain the Veteran's Social Security Administration (SSA) records and service treatment records from the New Jersey National Guard. The action specified in the December 2008 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran has not demonstrated total occupational and social impairment due to such symptoms as, for example, gross impairment of 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 of names of close relatives, own occupation, or own name. 2. The Veteran's right ear hearing loss is manifested by no worse than Level I hearing in the right ear. 3. The Veteran's heart palpitations are not the result of a current heart disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation in excess of 70 percent disabling for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411 (2009). 2. The criteria for entitlement to a compensable disability rating for right ear hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100 (2009). 3. The criteria for entitlement to service connection for heart palpitations have not been met. 38 U.S.C.A. §§ 1110, 1112, 1131(West 2002); 38 C.F.R. §§ 3.102, 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran is seeking increased disability ratings for service connected PTSD and right ear hearing loss, as well as entitlement to service connection for heart palpitations. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (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 rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function, will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding the Veteran's increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. In Fenderson, the U.S. Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. In that decision, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126. Hart appears to extend Fenderson to all increased rating claims. PTSD The Veteran was granted entitlement to service connection for PTSD in an April 2005 rating decision and assigned an initial 30 percent rating, effective June 2004. In a December 2006 rating decision, the RO increased the Veteran's disability rating from 30 percent to 70 percent, effective June 2004. The Veteran's PTSD is rated under the General Rating Formula for Mental Disorders, found at 38 C.F.R. § 4.130 (2009). A 70 percent evaluation is warranted where there is 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; intermittently illogical, obscure, or irrelevant speech; 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); and inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted where there is 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; and memory loss for names of close relatives, own occupation, or own name. Id. It is further noted that the nomenclature employed in the portion of VA's Schedule for Rating Disabilities ("the Schedule") that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (also known as "the DSM-IV"). 38 C.F.R. § 4.130 (2009). The DSM-IV contains a Global Assessment of Functioning (GAF) scale, with scores ranging between zero and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. Higher scores correspond to better functioning of the individual. GAF scores ranging between 61 and 70 are assigned when there are some 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 when the individual is functioning pretty well and has some meaningful interpersonal relationships. American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th. ed., 1994). GAF scores ranging between 51 and 60 are assigned when there are moderate symptoms (like flat affect and circumstantial speech, and occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Id. GAF scores ranging between 41 and 50 are assigned when there are 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. GAF scores ranging between 31 and 40 are assigned when there is 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). Id. GAF Scores between 21 and 30 are assigned when behavior is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or inability to function in almost all areas (e.g., stays in bed all day; no job, home, or friends). Id. Symptoms listed in VA's general rating formula for mental disorders 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). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a) (2009). In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b) (2009). The Veteran was afforded VA psychological examinations in February 2005, March 2005, October 2006, and August 2007. At all of these examinations, the Veteran described symptoms of depression, anxiety, loss of concentration, irritability, nightmares and flashbacks, hypervigilance, social withdrawal and isolation, sleep disturbances, and suicidal and homicidal ideations without plan or intent. He reported difficulty focusing at work and reported conflict with both his employer and family. The Veteran reported that when he was angry, he would sometimes physically strike or break something. The Veteran was noted by examiners to have some impairment to concentration and memory, but was described as being appropriately groomed and well oriented, with clear and coherent speech, logical thought processes, and intact judgement and insight. He was able to maintain minimal personal hygiene and perform activities of daily living. There was no evidence of any delusions or hallucinations or of inappropriate or illegal behavior noted. The Veteran was consistently assigned a GAF score of 50, indicating a disability of moderate severity, providing evidence against this claim. The Veteran also submitted a private psychological evaluation performed by Dr. A.J. in May 2007. Again the Veteran was described as experiencing symptoms similar to those noted by the VA examiners. However, Dr. A.J. considered the Veteran's PTSD to be more severe than the VA examiners, assigning a GAF score of 39. It was noted that the Veteran was no longer employed. In December 2007, Dr. A.J. completed a mental status evaluation of the Veteran for the purpose of assisting the Veteran in obtaining SSA benefits. The Veteran was observed to be depressed, but was appropriately dressed with good hygiene and was described as alert and well-oriented. His thought processes were generally logical, without any evidence of psychosis, delusions, or hallucinations, although the Veteran had difficulty focusing and processing information and demonstrated an impaired short term memory. He also described difficulty sustaining close relationships and emotional outbursts. Finally, the Veteran was evaluated for SSA benefits in October 2007. The evaluator concluded that the Veteran had a markedly limited ability to understand, remember, and carry out detailed instructions; to maintain attention and concentration for extended periods; or to complete a normal work day or work week without interruptions or need for breaks due to psychological symptoms. He also noted a moderately limited ability to maintain a schedule, maintain regular attendance, be punctual, work with others or in proximity to others without being distracted by them, interact appropriately with the general public, accept instructions, respond appropriately to criticism, get along with co-workers or peers, respond to change, set goals, or make plans. However, he determined that the Veteran should have little difficulty remembering locations and work-like procedures, carrying out short and simple instructions, sustaining an ordinary routine without supervision, making simple work related decisions, asking simple questions or requesting assistance, maintaining socially appropriate behavior and adhering to basic standards of neatness and cleanliness, being aware of normal hazards and taking the appropriate precautions, traveling to unfamiliar places, or using public transportation. The examiner noted a history of conflict with co-workers and family, and concluded that the Veteran was incapable of sustained attention, concentration, pace and persistence and lacked the ability to respond, relate, and adapt adequately. He concluded that the Veteran's psychological symptoms resulted in moderate, but not marked, limitations on activities of daily living, social functioning, and concentration. The Veteran had no episodes of decompensation. Based on the above evidence, the Board finds that the Veteran's PTSD symptoms are more accurately rated as 70 percent, rather than 100 percent disabling, for all the period on appeal. While there is evidence that the Veteran's disability has resulted in significant limitations on the Veteran's social and occupational functioning and ability to perform activities of daily living, this impairment cannot be described as total. There is no evidence of, for example, 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 names of close relatives, own occupation, or own name. The preponderance of the evidence shows that the Veteran is generally alert, well-oriented, coherent, and capable of logical thought processes and self-care. Accordingly, entitlement to a disability rating in excess of 70 percent for service connected PTSD is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2009). In this regard, TDIU (a 100% rating) was granted by the RO in May 2008 and this issue is not before the Board at this time. Hearing Loss The Veteran is also seeking a compensable disability rating for a service connected right ear hearing loss disability. Evaluations of defective hearing are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by pure tone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz. 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI. Other than exceptional cases, VA arrives at the proper designation by mechanical application of Table VI, which determines the designation based on results of standard test parameters. Id. Table VII is then applied to arrive at a rating based upon the respective Roman numeral designations for each ear. Id. Where, as here, impaired hearing is service connected in only one ear, the non-service connected ear will be assigned a Roman numeral I rating purposes. Id. For exceptional hearing impairment, 38 C.F.R. § 4.86 (2009) states that when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear is to be evaluated separately. Id. Of record are results from a VA compensation examination in February 2005, which yielded test results of pure tone thresholds in the right ear at 500, 1000, 2000, 3000, and 4000 Hz of 15, 15, 15, 35, and 40 decibels, respectively, for an average over the four frequencies of interest of 26 decibels. Speech audiometry test results revealed speech recognition ability of 96 percent in the right ear. These results show that the Veteran does not have exceptional hearing loss as contemplated in 38 C.F.R. § 4.86. Application of 38 C.F.R. § 4.85 Table VI to these measurements results in assignment of Roman Numeral I to the right ear. As the Veteran is service connected in only the right ear, the non-service connected left ear will be assigned a Roman Numeral I for rating purposes. 38 C.F.R. § 4.85(f). A 0 percent rating is derived from Table VII of 38 C.F.R. § 4.85 by intersecting row I with column I. Also of record are results from a VA compensation examination in November 2006, which yielded test results of pure tone thresholds in the right ear at 500, 1000, 2000, 3000, and 4000 Hz of 20, 15, 20, 35, and 50 decibels, respectively, for an average over the four frequencies of interest of 30 decibels. Speech audiometry test results revealed speech recognition ability of 100 percent in the right ear. These results show that the Veteran does not have exceptional hearing loss as contemplated in 38 C.F.R. § 4.86. Application of 38 C.F.R. § 4.85 Table VI to these measurements results in assignment of Roman Numeral I to the right ear. As the Veteran is service connected in only the right ear, the non-service connected left ear will be assigned a Roman Numeral I for rating purposes. 38 C.F.R. § 4.85(f). A 0 percent rating is derived from Table VII of 38 C.F.R. § 4.85 by intersecting row I with column I. Also of record are results from a VA compensation examination in January 2008, which yielded test results of pure tone thresholds in the right ear at 500, 1000, 2000, 3000, and 4000 Hz of 20, 20, 20, 35, and 40 decibels, respectively, for an average over the four frequencies of interest of 28.75 decibels. Speech audiometry test results revealed speech recognition ability of 100 percent in the right ear. These results show that the Veteran does not have exceptional hearing loss as contemplated in 38 C.F.R. § 4.86. Application of 38 C.F.R. § 4.85 Table VI to these measurements results in assignment of Roman Numeral I to the right ear. As the Veteran is service connected in only the right ear, the non-service connected left ear will be assigned a Roman Numeral I for rating purposes. 38 C.F.R. § 4.85(f). A 0 percent rating is derived from Table VII of 38 C.F.R. § 4.85 by intersecting row I with column I. The Board notes that it appears from the results of the January 2008 examination that the Veteran's hearing loss in his left ear now meets the criteria to be considered a hearing loss disability. The issue of entitlement to service connection for left ear hearing loss is not properly before the Board, but even if the Veteran was service connection in his left ear and these results were used in calculating the degree of the Veteran's hearing loss, a compensable disability rating still would not be warranted. Based on the above evidence, a compensable disability rating for the Veteran's service connection right ear hearing loss is not warranted for any period on appeal. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2009). Extraschedular Consideration The Board has also considered whether the Veteran's PTSD and right ear hearing loss disability warrant referral for extraschedular consideration. To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2009). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. The Board finds that the schedular rating criteria reasonably reflect the Veteran's disability level and symptomatology. Difficulty hearing is measured by objective testing under the rating criteria for hearing loss, and the Veteran's reported hearing difficulties are not so exceptional or unusual a disability picture as to render impractical application of regular schedular standards. Additionally, the Board finds that the Veteran's PTSD symptoms are appropriately addressed under the regular rating schedule. Therefore, no referral for extraschedular consideration is required and no further analysis is in order. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2009). Service connection Finally, the Veteran is seeking service connection for heart palpitations. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2009). In general, service connection requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2009). Service treatment records show that the on a September 1996 Report of Medical History, the Veteran reported that he sometimes experienced heart palpitations. However, a physical examination at that same time showed no heart abnormalities. A September 1996 medical screening summary indicated that the Veteran's electrocardiogram results were normal. An electrocardiogram in February 2003 shows sinus bradycardia and incomplete right bundle branch block. However, on a Report of Medical Examination completed at the same time, the electrocardiogram results are characterized as within normal limits and the Veteran's heart was described as normal. The examiner noted no abnormalities, and the Veteran did not report experiencing palpitations at that time. In March 2004, the Veteran again complained of heart palpitations, of approximately two weeks duration that were worse at night and accompanied by mild shortness of breath. Physical examination and an electrocardiogram were normal. Post-service, VA treatment records note complaints of heart palpitations, but are absent any evidence of an underlying pathology. The Veteran was afforded a VA examination in February 2005. The examiner stated that the Veteran reported palpitations and noted that a previous EKG had recorded sinus bradycardia, but reported that no heart murmur was observed and described the examination results as unremarkable. The examiner diagnosed the Veteran with heart palpitations. Under 38 U.S.C.A. § 1131, a claimant must submit proof of a presently existing disability resulting from service in order to merit an award of compensation. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). While the Veteran has complained of heart palpitations, this is a symptom, rather than a disability for which service connection can be granted, and the Board can find no medical evidence of any underlying pathology. On the contrary, the evidence of record indicated that the Veteran's heart is considered within "normal" limits. As the Veteran does not have a current heart disability, entitlement to service connection for heart palpitations must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2009). The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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. 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159. 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 Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (the Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the elements of the claim, including notice of what is required to establish service connection. The veteran must also be informed that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Board is also aware of the Court's clarification of VCAA notice required for increased rating claims. See Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008). However, although two of the issues before the Board are whether the Veteran's PTSD and right ear hearing loss disability are properly rated, the appeal arises from a grant of entitlement to service connection, not an increased rating claim. See Fenderson v. West, 12 Vet. App. 119, 125 (1999) (explaining that a disagreement with an initial rating assigned for a disability following a claim for service connection is part of the original claim and technically not a claim for an increased rating). The VCAA duty to notify was satisfied by letters sent to the Veteran in January 2005, December 2006, and November 2007. This notice informed the Veteran of what evidence was required to substantiate his claims and of VA and the Veteran's respective duties for obtaining evidence. The Veteran was also informed of how VA assigns disability ratings and effective dates. However, some of these notice letters were not provided to the Veteran prior to the initial unfavorable decision on the claim by the RO. Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the RO's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the RO); 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 a statement of the case or a supplemental statement of the case, is sufficient to cure a timing defect). Although the December 2006 and November 2007 notice letters were not sent before the initial RO decision in this matter, the Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the RO also readjudicated the case by way of supplemental statements of the case issued in February 2008, June 2008, and January 2010. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. VA also has a duty to assist the claimant in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. 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). It appears that all evidence necessary for a fair adjudication of the claim is of record. The RO has obtained the Veteran's service treatment records, as well as VA, SSA, and private treatment records. The Veteran was also afforded multiple VA examinations, which were adequate for rating purposes. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Based on the above, 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). ORDER The appeal is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs