Citation Nr: 1125909 Decision Date: 07/11/11 Archive Date: 07/19/11 DOCKET NO. 09-18 877A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to September 22, 2009. 2. Entitlement to a rating in excess of 50 percent for PTSD since September 22, 2009. 3. Entitlement to service connection for a left leg disorder. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran served on active duty from July 1950 to September 1953. He is the receipt of the Combat Infantryman Badge. This case comes before the Board of Veterans' Appeals (Board) from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The RO originally granted a 30 percent rating for PTSD and, in July 2010, increased the rating to 50 percent effective September 22, 2009, the date of a statement from the Veteran and his VA physician regarding increased symptomatology. Where a veteran has filed a notice of disagreement (NOD) as to the assignment of a disability evaluation, a subsequent rating decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Thus, the PTSD claim, prior to and since September 22, 2009, remain before the Board. The Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in April 2011. A transcript of this proceeding has been associated with the claims file. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to service connection for a left leg disorder 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 For the entire time on appeal, PTSD has been productive of occupational and social impairment with reduced reliability and productivity with such symptoms as some pressured speech; impairment of short term memory; panic attacks a few times per month when in crowds or closed spaces; depressed mood; and difficulty in establishing and maintaining effective work and social relationships. CONCLUSIONS OF LAW 1. The criteria for a 50 percent rating, but no more, for PTSD prior to September 22, 2009, have been met. 38 U.S.C.A. § 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 9411 (2010). 2. The criteria for a rating in excess of 50 percent for PTSD for the entire time on appeal have not been met. 38 U.S.C.A. § 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 9411 (2010). REASONS AND BASES FOR FINDING AND CONCLUSIONS Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2010). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2010). However, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2010). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2010). While a veteran's entire history is reviewed when assigning a disability evaluation, where service connection has already been established and an increase in the rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The Veteran's PTSD is rated under DC 9411. Under that code, a 30 percent disability rating is assigned when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned when there is 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. Id. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, 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); and the inability to establish and maintain effective relationships. Id. The Global Assessment of Functioning (GAF) is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994)). A GAF score of 41 to 50 is defined as denoting serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A score of 51 to 60 is defined as indicating 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 GAF score of 61 to 70 is indicative of 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 generally functioning pretty well, with some meaningful interpersonal relationships. A score of 71 to 80 indicates that, if symptoms are present at all, they are transient and expectable reactions to psychosocial stressors with no more than slight impairment in social and occupational functioning. See Carpenter v. Brown, 8 Vet. App. 240, 242- 244 (1995). In this case, there are two periods of time at issue: prior to September 22, 2009, for which the RO assigned a 30 percent rating for PTSD; and since September 22, 2009, to the present, for which the RO assigned a 50 percent rating. The Board will consider the proper evaluation to be assigned for both time periods. Turning first to the period prior to September 22, 2009, the Board finds that a 50 percent rating, but no more, is warranted. First, the evidence shows that PTSD the Veteran's abilities to function both in his occupation and socially, with such deficiencies as some pressured speech; impairment of short term memory; panic attacks a few times per month when in crowds or closed spaces; depressed mood; and difficulty in establishing and maintaining effective work and social relationships. Thus, as supported by the evidence of record, the Veteran's symptoms of PTSD more nearly approximate the level of impairment associated with a 50 percent evaluation. Therefore, in light of the evidence as noted above, the Board concludes that the Veteran's PTSD is productive of impairment warranting the higher evaluation of 50 percent under DC 9411. Having determined that a 50 percent rating is warranted for the period prior to September 22, 2009, the Board will now address whether a rating in excess of 50 percent is warranted for the entire time on appeal. The evidence does not demonstrate that PTSD is productive of occupational and social impairment with deficiencies in most areas or an inability to establish and maintain effective relationships. While the evidence shows that the Veteran suffers from social impairment, in that he has been irritable and isolative, with minimal socialization, the evidence does not show that he necessarily is unable to establish and maintain such relationships. Of note, the Veteran has been married to his wife for over 35 years and maintains a significant relationship with his grown children. As for industrial impairment, he worked for many years and retired in 1995 due to his age. While the Veteran reported irritability, depressed mood, avoidance behavior, intrusive thoughts, flashbacks, had lost interest in many activities, and felt detached from his family in an April 2008 VA examination, the mental status examination reflected that thought and communication were within normal limits with some pressured speech, no psychotic symptoms, appropriate eye contact and behavior, intact hygiene and other basic activities of daily living, orientation to person, place, and time, no obsessive ritualistic behaviors, and normal speech. Similarly, in a January 2010 VA examination, the Veteran reported dwelling on past experiences, and irritability and being ill-mannered toward his wife. Mental status examination revealed that he was alert and oriented times three, casually dressed and appropriately groomed, affect was tense, mood was "so-so," thinking was organized and logical and he was not pessimistic, worrisome, or self-condemnatory. His impulse control was intact, although he felt irritable, and frequently argumentative, though he walked away from fights. Concentration was moderately impaired, on mental calculations he had difficulty subtracting 7 from 100 in series and also spelling words backwards. He was able to repeat three words on one trial. Delayed recall was poor as he was only able to name one of the three words after several minutes. He indicated that his appetite was good and that he had gained some weight recently. Sleep was difficult. He was often restless and had difficulty falling asleep. He was restless throughout the night and chronically unable to sleep throughout the night. Hygiene was good and he denied panic attacks, suicidal or homicidal ideation, hallucinations, delusions and paranoia. Also of record are VA outpatient treatment records dated through July 2010 which reflect symptoms of PTSD described above. Of note, in June 2009, a nurse practitioner in the PTSD Clinic wrote that the Veteran's current PTSD symptoms included insomnia, hypervigilance, re-experiencing symptoms, and isolation. In a September 2009 statement, she wrote that she agreed with his request for a higher rating. In October 2009, he reported nightmares two times per months and flashbacks one to two times per week. While the evidence outlined above supports a 50 percent rating, it is not consistent with a 70 percent rating. Specifically, 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, and the inability to establish and maintain effective relationships have not been shown. The Veteran has reported some suicidal thoughts but denied intent or plans. He has complained of short-term memory loss (consistent with a 50 percent rating) but has always been noted to be oriented to person, place, and time. He has described panic attacks a few times per month when in crowds or closed places but not to such a degree as to affect his ability to function. He has noted depression but, again, not affecting his ability to function. The Board has considered the GAF scores. In April 2008, the GAF was 59. In the January 2010 VA examination, the GAF was 45. The examiner wrote that there seemed to be a discrepancy between the initial April 2008 examination and the current GAF. The examiner also noted that, in 2009, the GAF score was 35. The examiner reiterated that the current score of 45 was reflective of the most recent GAF score by the Veteran's treating psychiatrist which was 48. Even assuming GAF scores in the mid- to high 40s, this is indicative of serious symptoms, which the Board finds most consistent with a 50 percent rating, but no higher. The Board also finds that no higher evaluation can be assigned pursuant to any other potentially applicable diagnostic code. Because there are specific diagnostic codes to evaluate PTSD consideration of other diagnostic codes for evaluating the disability does not appear appropriate. See 38 C.F.R. § 4.20 (permitting evaluation, by analogy, where the rating schedule does not provide a specific diagnostic code to rate the disability); Butts v. Brown, 5 Vet. App. 532 (1993). The Board has also considered the Veteran's statements that his disability is worse. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. He is not, however, competent to identify a specific level of disability according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's PTSD has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which this disability is evaluated. As such, the Board finds these records to be more probative than the Veteran's subjective evidence of complaints of increased symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest in the outcome of a proceeding may affect the credibility of testimony). In conclusion, the Board finds that the preponderance of the evidence is against a rating in excess of 50 percent for the entire time on appeal. Next, the Board has considered whether referral for extra-schedular consideration is warranted. As above, the Veteran has been retired since 1995 due to age. In exceptional cases where schedular evaluations are found to be inadequate, consideration of an extra-schedular evaluation is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular evaluation is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of a veteran's service-connected disability and the established criteria found in the rating schedule to determine whether a veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimants exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The record does not establish that the rating criteria are inadequate. To the contrary, the very symptoms that the Veteran describes and the findings made by the various medical professionals, such as irritability, depressed mood, panic attacks, and difficulty sleeping are the symptoms included in the criteria found in the rating schedule for his disability and form the basis of a partial grant for benefits. Here, the record does not establish that the rating criteria are inadequate for rating the Veteran's PTSD. The competent evidence of record shows that his PTSD is primarily manifested by irritability, depressed mood, occasional panic attacks, and difficulty sleeping. The applicable diagnostic code used to rate PTSD provides for ratings based on such symptomatology. The applicability of "staged ratings" has been considered, in accordance with Fenderson v. West, 12 Vet. App. 119 (1999) (see also Hart v. Mansfield, 21 Vet. App. 505 (2007)); however, the medical evidence supports the assignment of a 50 percent evaluation, and no greater, for the entire time on appeal. Finally, 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). 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. 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). When VCAA notice is delinquent or erroneous, the "rule of prejudicial error" applies. See 38 U.S.C.A. § 7261(b)(2) (West 2002). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The Veteran's PTSD claim arises from his disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. As to VA's duty to assist, VA has obtained service treatment records, assisted the Veteran in obtaining evidence, afforded him adequate psychiatric examinations, obtained medical opinions as to the severity of his disability, and afforded him the opportunity to give testimony before the Board. All known and available records relevant to the issue on appeal have been obtained and associated with the claims file and he has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. The Board finds that no additional assistance is required to fulfill VA's duty to assist. 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). ORDER A 50 percent rating, but no more, for PTSD prior to September 22, 2009, is granted subject to the laws and regulations regarding the payment of benefits. A rating in excess of 50 percent for PTSD for the entire time on appeal is denied. REMAND The Veteran maintains that he injured his left leg while in South Korea approximately 1951 when a mortar blew up next to him injuring his left leg. He is the recipient of the Combat Infantryman Badge. In the case of a veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, VA shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304. Section 1154(b) does not provide a substitute for medical nexus evidence, but rather serves only to reduce the evidentiary burden for combat veterans with respect to the submission of evidence of incurrence or aggravation of an injury or disease in service. Kessel v. West, 13 Vet. App. 9 (1999) (en banc). Unfortunately, the Veteran's service treatment records were apparently destroyed in a fire at the National Personnel Records Center in 1973. The Board notes that in a case where the service treatment records are presumed destroyed, VA has a heightened obligation to explain its findings and conclusions, and to consider the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Here, the Veteran's credible testimony and documented combat service establish service incurrence. There is also evidence of complaints of left leg pain as early as September 1997 and evidence of current disorders of the left foot. Specifically, a July 2009 VA outpatient treatment record shows an impression of onychomycosis bilateral and hammertoes, left foot as well as debrided toenails, bilateral. Furthermore, during the April 2011 Board hearing, the Veteran reported that he had scars on his left leg secondary to his left leg disorder and that his claim for the left leg included a claim for scars of the left leg. To date, he has not been afforded a VA examination to determine whether he has a current left leg disorder which is related to service. Thus, on remand an examination and opinion are required. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. Obtain VA treatment records from the Bronx Medical Center for the period from July 2010 to the present. 2. Schedule the Veteran for an examination to determine the current nature and likely etiology of any demonstrated left leg disorder. All indicated testing in this regard should be performed and the claims file should be made available to the examiner for review. Based on the examination and review of the record, the examiner is requested to express opinions as to whether the Veteran has a current left leg disorder and if so, whether it is at least as likely as not that any current left leg disorder is the result of disease or injury in service. Complete rationale for all opinions expressed must be provided. 3. After completion of the above, review the expanded record. If the claim remains denied, the RO should issue a supplemental statement of the case and afford the Veteran and his representative an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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). 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. 2010). ______________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs