Citation Nr: 1124832	
Decision Date: 06/30/11    Archive Date: 07/06/11

DOCKET NO.  09-27 305	)	DATE
	)
	)


On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California




THE ISSUE

Entitlement to a rating for posttraumatic stress disorder higher than 30 percent before May 6, 2008, and a rating higher than 70 percent from May 6, 2008. 




ATTORNEY FOR THE BOARD

Cheryl E. Handy, Associate Counsel







INTRODUCTION

The Veteran, who is the appellant, served on active duty from April 1965 to April 1967, including service in the Republic of Vietnam, for which he received the Combat Infantry Badge and the Purple Heart Medal.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in May 2007 of a Department of Veterans Affairs (VA) Regional Office (RO or an Agency of Original Jurisdiction (AOJ)).  While on appeal, in a rating decision in June 2009, the RO increased the rating to 70 percent, effective date of May 6, 2008.  The Veteran continued to appeal both ratings.

Other Preliminary Matters

In May 2009, pursuant to 38 C.F.R. § 14.630, the Veteran appointed a private individual to represent him before VA.  In October 2010, the representation by a private individual was revoked.

In a rating decision in September 1969, the RO denied the claim of service connection for malaria.  In a rating decision in August 1996, the RO denied the Veteran's application to reopen the claim of service connection for malaria.  In a statement in April 2008, the Veteran again raised the claim of service connection for malaria, which is referred to an Agency of Original Jurisdiction for appropriate action.  

In February 2009, an Agency of Original Jurisdiction denied the Veteran's request for waiver of indebtedness.  In May 2009, the Veteran filed a notice of disagreement.  As the appropriate Agency of Original Jurisdiction has not had the opportunity to issue a statement of the case addressing the claim, the Board is required to remand the claim.  Manlicon v. West, 12 Vet. App. 238, 240-41 (1999). 




In a rating decision in September 2010, the RO granted the Veteran a total disability rating for compensation based on individual unemployability (TDIU), effective May 6, 2008, the same date as the increase to 70 percent for posttraumatic stress disorder.  In this decision, the Board has determined that the criteria for a 70 percent rating have been met since December 2007.  As the rating decision by the RO assigning an effective date of May 6, 2008, for the TDIU has not become final by operation of law, and as here a TDIU has been raised it is part of the claim for increase.  Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  For this reason, a TDIU claim before May 6, 2008, is REMANDED to the RO for appropriate action. 


FINDINGS OF FACT

1.  Before December 11, 2007, posttraumatic stress disorder was manifested by a disability picture that equates to occupational and social impairment with occasional decrease in work efficiency and intermittent periods of the inability to perform occupational tasks under the General Rating Formula for Mental Disorders and the symptoms associated with the diagnosis of posttraumatic stress disorder under the Diagnostic and Statistical Manual of Mental Disorders, but do not more nearly approximate or equate to occupational and social impairment with reduced reliability and productivity.

2.  From December 11, 2007, posttraumatic stress disorder has been productive of occupational and social impairments with deficiencies in most areas such as work, family relations, judgment, thinking, or mood, under the General Rating Formula for Mental Disorders and the symptoms associated with the diagnosis of posttraumatic stress disorder under the Diagnostic and Statistical Manual of Mental Disorders, but do not more nearly approximate or equate to total occupational and social impairment.





CONCLUSIONS OF LAW

1.  Before December 11, 2007, the criteria for a rating higher than 30 percent for posttraumatic stress disorder have not been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2010).

2.  From December 11, 2007, the criteria for a rating of 70 percent, but not higher, for posttraumatic stress disorder have been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § § 4.7, 4.130, Diagnostic Code 9411 (2010).

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.  

Duty to Notify

Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide.  

Also, the VCAA notice requirements apply to all five elements of a service connection claim.  The five elements are: (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.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).




In a claim for increase, the VCAA notice requirements are the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting Veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated).  

The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

The RO provided pre- and post- adjudication VCAA notice by letters dated in June 2006, in March 2007, and in July 2008.  The notice included the type of evidence needed to substantiate the claim for increase, namely, evidence that the disability had increased in severity and the effect that worsening has on the Veteran's employment.  

Additionally, the Veteran was notified that VA would obtain VA records and records of other Federal agencies and that he could submit other records not in the custody of a Federal agency, such as private medical records, or with his authorization VA would obtain any non-Federal records on his behalf.  The notice included the provisions for the effective date of a claim and for the degree of disability assignable. 

As for content the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (to the extent there was pre-adjudication VCAA notice); 




of Dingess v. Nicholson, 19 Vet. App. 473 (2006) (notice of the elements of the claim); and of Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment).  

To the extent that the VCAA notice came after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication.  The procedural defect was cured as after the RO provided content-complying VCAA notice the claim was readjudicated through a de novo review, as evidenced by the statement of the case in June 2009.  Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.).

Duty to Assist

Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim.  The RO has obtained VA and private medical records.  The Veteran has not identified any additional pertinent records for the RO to obtain on his behalf.  

The Veteran was scheduled for VA examination in July 2006, but as a homeless Veteran, the Veteran apparently did not receive notice of the examination.  When continued entitlement to a benefit cannot be established or confirmed without a current VA examination, and a claimant, without good cause, fails to report for such examination in conjunction with a claim for increase, the claim shall be denied.   38 C.F.R. § 3.655(b).  In this case, the record contains VA treatment records since 2006, psychological testing, a mental assessment in December 2007, and a comprehensive review of the Veteran's posttraumatic stress disorder by a VA psychologist, who has treated the Veteran.  As the record contains sufficient findings to rate the disability under the appropriate rating criteria, the record is adequate to rate disability without a current VA examination and the provisions of 38 C.F.R. § 3.655(b) do not apply. 

As the Veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

General Rating Policy 

A disability rating is 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.  Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155.

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 for that rating.  Otherwise the lower rating will be assigned.  38 C.F.R. § 4.7.

The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not.  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). 

Rating Mental Disorders

Posttraumatic stress disorder is rated under Diagnostic Code 9411 under the General Rating Formula, 38 C.F.R. § 4.130, as follows:  


The criteria for a 30 percent rating are 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, mild memory loss (such as forgetting names, directions, recent events). 

The criteria for a 50 percent rating are 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. 

The criteria for a 70 percent rating are 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); inability to establish and maintain effective relationships.

The criteria for a 100 percent rating are 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. 

The evidence considered in determining the level of impairment for posttraumatic stress disorder is not restricted to the symptoms provided in Diagnostic Code 9411. VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)).

The Global Assessment of Functioning (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 (1996), citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994).

GAF scores ranging from 41 to 50 reflect serious symptoms (e.g. suicidal ideation or severe obsessional rituals), or any other serious impairment in social or occupational functioning. GAF score from 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). A score from 61 to 70 represents 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, and has some meaningful interpersonal relationships.

While a GAF score is relevant evidence, a GAF score alone is neither statutorily nor regulatory controlling in rating a psychiatric disorder.  




Neither the number of symptoms, nor the type of symptoms, nor the GAF score controls in determining whether the criteria for the next higher rating have been met. It is the effect of the symptoms, rather than the presence of symptoms, pertaining to the criteria for the next higher rating, that is determinative.

Facts

The Veteran was originally granted service connection for posttraumatic stress disorder, effective in November 1992.  

VA records show that from July 2005 to February 2006 the Veteran attended a posttraumatic group orientation program. 

The Veteran filed the current claim for increase in March 2006.

There are no relevant VA records, covering the period from March 2006 to November 2007. 

VA records show that on a mental health assessment on December 11, 2007, the Veteran presented as a walk-in and he complained of homicidal ideation, bad dreams, and sleep disturbance of several weeks duration.  History included alcohol and substance abuse and frequent periods of incarceration.  On mental status evaluation, the Veteran was described as alert and oriented, but very agitated and hostile.  His speech and language patterns were normal, as were his thought processes, but he was angry and depressed.  He was impulsive with limited insight.  The Global Assessment of Functioning (GAF) score was 49.

In January 2008, on VA psychological testing, the findings were indicative of a moderate level of depression and anxiety, which needed to be monitored.





VA records show that in March 2008 the Veteran was seen for complaints of suicidal ideation as he felt overwhelmed. 

In a statement in April 2008, the Veteran complained of depressed, anxiety, mood swings, impaired thinking and judgment, and the inability to maintain any type of employment or social relationships.  He stated that he was irritable and he was often violent, which had resulted in criminal charges and incarceration.  

The Veteran stated he was working on controlling his anger, but his efforts were hampered by frequent panic attacks.  He described sleep disturbance with nightmares.  He complained of social detachment, of difficulty concentrating, of an exaggerated startle response, and of intrusive thoughts.  He stated that he took several medications, which left him without energy.  He described reduced productivity due panic attacks, difficulty understanding complex commands, memory problems, disturbances of motivation and mood, neglect of personal hygiene, and difficulty establishing and maintaining social and work relationships.

In May 2008, a VA psychologist, who has treated the Veteran, reported that the Veteran had a long history of anxiety, depression, and posttraumatic stress disorder for which the Veteran has been treated regularly by VA.  The VA psychologist stated that the Veteran's work and relationship history since service showed an inability to maintain any type of relationship for very long and that the Veteran was alienated from his family due to his violent tendencies, and that the Veteran had had multiple run-ins with the law.  The VA psychologist stated that the results of psychological testing showed severe depression, severe anxiety, severe hopelessness, and significant symptoms of posttraumatic stress disorder.  The VA psychologist stated posttraumatic stress disorder kept the Veteran from maintaining employment or engaging in meaningful social relationships.  The VA psychologist reported that despite consistent, ongoing treatment, the Veteran's symptoms continued without remittance and the Veteran continued to have severe depression and anxiety.  The GAF score was 45.
 


Analysis

A Rating before December 11, 2007 

Before December 11, 2007, the Veteran was attending a posttraumatic group orientation program.  The progress notes from July 2005 to February 2006 do not document any complaint or finding of symptoms associated with the criteria for the next higher rating, 50 percent, such as: flattened affect, circumstantial, circumlocutory, or stereotyped speech, panic attacks more than once a week, difficulty in understanding complex commands, impaired short- and long- term memory, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, or difficulty in establishing and maintaining effective work and social relationships under the General Rating Formula or symptomatology associated with the diagnosis of posttraumatic stress disorder under the DSM- IV.   There are no relevant VA records from March 2006 to November 2007. 

As it is not factual ascertainable that there was an increase in disability to the next higher level under Diagnostic Code 9411, the preponderance of the evidence is against a rating higher than 30 percent for posttraumatic stress disorder before December 11, 2007, and the benefit-of-the-doubt standard of proof does not apply.  38 U.S.C.A. § 5107(b).

A Rating from December 11, 2007

Beginning with the VA mental health assessment on December 11, 2007, the Veteran presented with a disability picture that equates to occupational and social impairment with deficiencies in most areas due to such symptoms as panic attacks and depression, affecting the Veteran's ability to function independently, as well as impaired impulse control and the inability to establish and maintain effective relationships.  The Global Assessment of Functioning (GAF) scores of 49 in December 2007 and of 45 in May 2008 are indicative of serious occupational and social impairment.  


In May 2008, the VA psychologist reported that despite consistent, ongoing treatment, the Veteran's symptoms continued without remittance and the Veteran continued to have severe depression and anxiety since January 2008. Therefore, the Board determines that a 70 percent rating more accurately reflects the Veteran's disability picture beginning December 11, 2007. 

As for a rating higher than 70 percent since December 11, 2007, the Veteran does not exhibit gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, although there is a history of violence, but none documented since December 2007, or intermittent inability to perform activities of daily living, or disorientation to time or place, memory loss for names of close relatives, own occupation, or own name.

Although the Veteran is occupational and socially impaired in most areas, total occupational and social impairment has not been shown under the General Rating Formula, and the symptoms attributable to posttraumatic stress under DSM-IV do not more nearly approximate or equate to total occupational and social impairment under the General Rating Formula.

In light of the foregoing, the Board finds that the Veteran's posttraumatic stress disorder warrants staged ratings of 30 percent before December 11, 2007, and 70 percent rating, but not higher, from December 11, 2007. 

Extraschedular Consideration 

Although the Board is precluded by regulation from assigning extraschedular ratings under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service.




The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for a service-connected disability is inadequate.  There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria.

If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required.  Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).

Here, the rating criteria reasonably describe the disability levels and symptomatology. In other words, the Veteran does not experience any symptomatology not already encompassed in the Rating Schedule.

As the disability picture is contemplated by the Rating Schedule, the assigned schedular ratings are therefore adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1).

ORDER

A rating higher than 30 percent for posttraumatic stress disorder before December 11, 2007, is denied. 

From December 11, 2007, a rating of 70 percent, but not higher, for posttraumatic stress disorder is granted, subject to the laws and provisions governing the award of monetary benefits.






REMAND 

On the Veteran's request for waiver of indebtedness, as an Agency of Original Jurisdiction has not had the opportunity to issue a statement of the case addressing the claim, the Board is required to remand the claim.  Manlicon v. West, 12 Vet.  App. 238, 240-41 (1999).

With the grant of a 70 percent rating for posttraumatic stress disorder since December 11, 2007, the record raises the claim of a total disability rating for compensation based on individual unemployability before May 6, 2008, which needs to be addressed in the first instance by an Agency of Original Jurisdiction. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).

Accordingly, the case is REMANDED for the following action:

1.  Refer the Veteran's notice of disagreement to the denial of his request for waiver of indebtedness to a Committee on Waivers and Compromises in order that the Committee can issue a statement of the case.  In order to perfect an appeal of the claim, the Veteran must still timely file a substantive appeal.

2.  Adjudicate the claim for a total disability rating for compensation based upon individual unemployability from December 11, 2007, when the Veteran met the percentage standards for a total disability rating under 38 C.F.R. § 4.16(a). 










The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

The claims 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.  38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).



____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs