Citation Nr: 1125935 Decision Date: 07/11/11 Archive Date: 07/19/11 DOCKET NO. 09-33 889 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE 1. For the period prior to November 14, 2007, entitlement to an initial evaluation in excess of 10 percent disabling for posttraumatic stress disorder (PTSD). 2. For the period beginning on November 14, 2007, entitlement to an initial evaluation in excess of 30 percent disabling for PTSD. REPRESENTATION Appellant represented by: Richard Mahlin, Esq. ATTORNEY FOR THE BOARD J. Juliano, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1967 to May 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2007 and December 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) located in Lincoln, Nebraska. In July 2009, the Board remanded the Veteran's claim for further development. Such development has been completed and associated with the claims file, and these matters are returned to the Board for further review. By way of background, the Board notes that a May 2007 rating decision granted service connection for PTSD and assigned a 10 percent rating, effective October 30, 2006, and that a subsequent December 2007 rating decision granted a higher, 30 percent rating effective November 14, 2007. The Board acknowledges that the issue presently before the Board was previously characterized as two separate issues of entitlement to an increased rating for PTSD (from 30 percent disabling, effective November 14, 2007), and entitlement to an earlier effective date for the 30 percent rating (prior to November 14, 2007). In light of certain correspondence submitted by the Veteran relating to various psychological matters shortly after the May 2007 rating decision, which could be reasonably construed as a notice of disagreement regarding his disability rating, the Board has recharacterized the issues on appeal more broadly and most beneficially to the Veteran as involving entitlement to an initial rating in excess of 10 percent disabling prior to November 14, 2007, and in excess of 30 percent thereafter. The Board notes, therefore, that the earlier effective date claim for the 30 percent rating has been effectively subsumed into the broader initial rating issue, as the initial rating matter involves consideration of entitlement to the maximum benefit (100 percent), rather than merely 30 percent, and the initial rating matter also involves entitlement dating all the way back to October 30, 2006 (Form 21-526 date), as well as looking forward beyond just November 13, 2007. See 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(o). FINDING OF FACT For the entire period under consideration in this appeal, the Veteran's PTSD is manifested by symptoms of chronic sleep impairment, feelings of depression, disturbances in mood, and difficulty in establishing and maintaining effective relationships. CONCLUSION OF LAW For the entire period on appeal, the criteria for an evaluation of 50 percent disabling for PTSD have been met, but no more. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.130, Diagnostic Code 9411 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) With regard to the Veteran's claim for higher initial ratings for his service-connected PTSD, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5102, 5103(a), 5103A, 5106 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.326(a) (2010). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is generally required to "notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided . . . that is necessary to substantiate the claim." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2010). As part of that notice, VA must "indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary . . will attempt to obtain on behalf of the claimant." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2010). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board notes that where service connection has been granted and an initial rating has been assigned, the claim of service connection has been more than substantiated, as it has been proven. As such, 38 U.S.C.A. § 5103(a) notice is no longer required since the purpose that the notice was intended to serve has been fulfilled. Furthermore, once a claim for service connection has been substantiated, the filing of a notice of disagreement with the rating of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. Therefore, any defect as to 38 U.S.C.A. § 5103(a) notice is nonprejudicial. See Dingess v. Nicholson, 19 Vet. App. 473, 490-491 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008) (where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream elements). Nevertheless, the Board finds that a notice letter dated December 2006 fully satisfied the notice requirements of the VCAA with respect to the Veteran's claim for higher initial ratings. As noted above, in July 2009, the Board remanded the Veteran's claim so that he could be provided with a Statement of the Case (SOC). The Board finds that the appropriate SOC was issued to the Veteran in August 2009, followed by a Supplemental Statement of the Case (SSOC) in November 2009. Based thereon, the Board finds that there has been substantial compliance with the Board's remand directive. See Stegall v. West, 11 Vet. App. 268 (1998) (duty to ensure compliance with Board remand order). The Board also concludes that VA's duty to assist has been satisfied. The Veteran's service treatment records, VA treatment records, and private treatment records are all in the claims file. The Veteran has not referenced any outstanding records for VA to obtain relating to his claim. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of a veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2010). The Veteran was provided with VA examinations relating to his PTSD in March 2007 and November 2007. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's PTSD since he was last examined. See 38 C.F.R. § 3.327(a) (2010). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. VAOPGCPREC 11-95. The Board finds the above VA examination reports are thorough, complete, and adequate upon which to base a decision with regard to the Veteran's claim. The VA examination reports reflect that the examiners personally reviewed the claims file, examined the Veteran, and provided sufficient detail to rate the Veteran under the applicable diagnostic criteria. 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 Mayfield v. Nicholson, 20 Vet. App. 537. II. Analysis Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2010). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7 (2010). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2010). When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. See 38 U.S.C.A. § 5107(b) (West 2002). Where, as in the instant case, an appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's PTSD is currently assigned a disability rating of 10 percent disabling, effective October 30, 2006, and 30 percent disabling, effective November 14, 2007. The Veteran seeks higher initial ratings. The Veteran's PTSD is rated under Diagnostic Code 9411, which provides for ratings as follows: 10 percent - Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication 30 percent - 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, and mild memory loss (such as forgetting names, directions, recent events). 50 percent - 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 effective work and social relationships. 70 percent - 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 that 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. 38 C.F.R. § 4.130 (2010). The use of the phrase "such symptoms as" followed by a list of examples provides guidance as to the severity of symptomatology contemplated for each rating. The use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Global Assessment of Functioning (GAF) Scale is used to report a clinician's judgment of an individual's overall level of functioning. Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) at 44 (1994). A score of 61 to 70 reflects some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning, but generally functioning pretty well and having some meaningful interpersonal relationships. Id. at 46. A score of 51 to 60 reflects 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). Id. at 47. A score of 41 to 50 reflects serious symptoms, such as suicidal ideation or serious impairment in social or occupational functioning (e.g., no friends or unable to keep a job). A March 2007 VA examination report reflects the Veteran's history of serving as an infantryman in Vietnam, including in numerous helicopter air assaults, and a post-service history of myocardial infarctions and strokes. The examiner noted some impairment in cognitive functioning, including trouble concentrating due to the Veteran's CVAs, as well as being unable to do serial sevens or spell backwards, having trouble finding words, and difficulty driving to new locations. The examiner also noted that, with regard to the Veteran's social history, he had little social support other than his son, and that the Veteran did help some elderly women with things such as mowing their lawns. Psychiatric examination revealed that the Veteran's mood was noted as good, his affect was constricted, and it was noted that he was not receiving any psychiatric treatment. With regard to the Veteran's PTSD symptoms, the examiner noted that the Veteran had symptoms of intrusive thoughts, chronic sleep impairment with nightmares, avoidance of people and crowds, moderate detachment and that he was inclined to be a loner, emotional numbing, constriction in social functioning, social isolation, and difficulty getting along with people. The examiner recorded a diagnosis of chronic PTSD, and a GAF score of 61 "indicating a mild level of symptomatology." The examiner added that the Veteran only experienced mild symptoms of decreased work efficiency during periods of stress due to his PTSD, and that he had not worked since 1995 due to his physical conditions and not due to his PTSD. The Board also acknowledges an August 2007 private psychological evaluation report from Ms. D.W., a mental health therapist, that reflects diagnosed rule-out PTSD, rule-out adjustment disorder with depression, a reading disorder, and vascular dementia. Significantly, the Board notes that this report reflects symptomatology essentially consistent with that shown in the March 2007 VA examination report with the exception of symptoms of depression also being noted. The Veteran was provided with another VA examination on November 14, 2007. The examiner noted the Veteran's history of a double bypass procedure and strokes and post-stroke cognitive problems, including difficulty with reading, writing, and math, that he had some difficulty expressing his feelings and symptoms that was consistent with expressive aphasia, difficulty extracting proverbs, and that the "bottom line" was that the Veteran had difficulty being able to put into words his emotional problems. The examiner noted that the Veteran was accompanied by his son because the Veteran had difficulty driving to new places. The examiner also noted that the Veteran's son and daughter helped the Veteran and were very supportive, including going through his bills and writing his checks for him (because of his difficulty reading and doing math), and helping with household cleaning. Throughout the examination, the examiner noted certain cognitive problems relating to the Veteran's stroke history such as not being able to do serial 7's, not being able to spell forward and backwards, at times during the interview not being able to put words to an answer (although it was noted that his son would repeat the question in a different way and then the Veteran was able to respond), missing the date by two days, and that he could not understand proverbs. The examiner noted that the Veteran had not worked since 1994 due to his physical problems, and that his PTSD did not cause the Veteran to be impaired occupationally to any degree. With regard to the Veteran's PTSD, the November 2007 VA examiner noted the Veteran's history of combat in service, and that the Veteran had not had any outpatient treatment for a mental disorder. The examiner noted that the Veteran did not have too many social contacts outside of his children, neighbors, and elderly persons for whom he mowed lawns. The examiner noted symptoms of constricted and flat affect, chronic sleep impairment, no problems with activities of daily living (due to his PTSD), intrusive thoughts, nightmares, avoidance, feelings of detachment or estrangement from others, restricted range of affect, irritability with outbursts of anger, difficulty concentrating, and hypervigilance. The examiner added that the Veteran's impaired concentration was attributable in part to his PTSD and in part due to his cerebrovascular accident. The examiner went on to comment on several symptoms that the examiner noted were of the same severity as at the time of the last VA examination and had not worsened, except the examiner did opine that, overall, the Veteran had a mild increase in symptoms since the last VA examination, and that his symptoms were overall mild to moderate. The examiner recorded diagnoses of chronic PTSD and vascular dementia, and recorded a GAF score of 58. In light of the above, and in particular, the evidence of difficulty in establishing and maintaining relationships, the Board finds that for the entire period on appeal, the Veteran's overall disability picture more nearly approximates the criteria for a 50 percent rating, but certainly no more. In assigning this rating for the entire appeals period, the Board notes that none of the other criteria for a 50 percent rating have been met except that the November 2007 VA examiner noted symptoms of disturbances in mood, i.e., depression and irritability (but without periods of violence). Likewise, the Board notes that none of the criteria for a higher, 70 percent rating have been met for the entire appeals period, such as a total inability to establish and maintain effective relationships. As noted in the VA examination reports discussed above, while the Veteran tended to isolate and avoid people and crowds, he was able to maintain a close relationship with his two children, he was in touch with his neighbors, and he spent time mowing lawns for elderly persons, which shows that the Veteran was not totally unable to establish and maintain any effective social relationships, and the Board notes that there is no evidence indicating that there was any significant change in the Veteran's ability to establish and maintain effective relationships as between the first and latter periods on appeal. The Board also notes that both VA examination reports reflect that the Veteran has never sought any treatment for his PTSD, which also tends to indicate less severe symptomatology. The Board also emphasizes that, as discussed by both VA examiners in March and November 2007, the Veteran has a history of strokes and post-stroke cognitive impairment, and both examiners attributed the Veteran's cognitive impairment to his history of strokes and not his PTSD, including difficulty with reading, writing, and math, some expressive aphasia, difficulty extracting proverbs, difficulty driving to new places, not being able to do serial 7's, not being able to spell forward and backwards, and at times not being able to put words to an answer, (except the Board acknowledges that the November 2007 VA examiner opined that some of the Veteran's difficulty concentrating was attributable to his PTSD). See Report at 7. Likewise, neither the Veteran himself nor his son who accompanied him to both VA examinations has ever attributed his cognitive impairment to his PTSD. In reaching the above conclusions, the Board also has considered whether the Veteran is entitled to a greater level of compensation for his PTSD on an extra-schedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2010). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's PTSD is inadequate. A comparison between the level of severity and symptomatology of the Veteran's PTSD with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. In summary, the Board concludes that the preponderance of the evidence is in favor of granting a 50 percent rating for the Veteran's PTSD for the entire period on appeal. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2010). ORDER For the entire period on appeal, entitlement to an evaluation of 50 percent disabling for PTSD is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs