Citation Nr: 1126493 Decision Date: 07/14/11 Archive Date: 07/21/11 DOCKET NO. 10-17 407 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an initial evaluation in excess of 10 percent prior to July 15, 2009, for posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD Christopher Murray, Associate Counsel INTRODUCTION The Veteran had active military service from April 1969 to March 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal of a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, that awarded service connection for posttraumatic stress disorder (PTSD). An initial 10 percent disability evaluation was assigned, effective from December 27, 2005, the date of his claim for service connection. The Veteran perfected a timely appeal of the initial disability evaluation assigned for this disability. During the course of the appeal, the RO issued a rating decision in August 2009 that increased the disability evaluation for PTSD to 50 percent with assignment of a July 15, 2009 effective date. Applicable law provides that absent a waiver, a claimant seeking a disability rating greater than assigned will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and that a claim remains in controversy where less than the maximum available benefits are awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). In September 2009, the Veteran responded to the August 2009 decision noting his satisfaction of the 50 percent assigned. Specifically, he stated, "I accept the increase in severity of PTSD." However, he continued to express his disagreement with the effective date of the 50 percent evaluation. He asserted that the 50 percent evaluation should be effective the date of his claim for service connection (December 27, 2005). With respect to the issue certified to the Board, namely entitlement to an earlier effective date for the award of a 50 percent evaluation for the Veteran's service connected PTSD, the Board observes this issue is part and parcel of the Veteran's original increased initial rating appeal perfected in May 2009. See Fenderson v. West, 12 Vet. App. 119 (1999). In Fenderson, the United States Court of Appeals for Veterans Claims discussed the concept of the "staging" of ratings in evaluating medical evidence of record since the initial award of service connection. See also Hart v. Mansfield, 21 Vet. App. 505 (2007). While the Veteran has expressed satisfaction of the level of disability assigned since July 15, 2009, (i.e., the 50 percent disability evaluation), he continues to disagree with the disability evaluation assigned prior to July 15, 2009 asserting that a 50 percent evaluation is warranted for this period as well. Thus, under Fenderson, the Board will review the adequacy of the evaluation assigned for the period prior to July 17, 2009. The Board observes that the Veteran submitted additional evidence in January 2001. VA regulations generally require that pertinent evidence submitted by an appellant must be referred to the agency of original jurisdiction for review and preparation of a SSOC unless this procedural right is waived in writing by the appellant. 38 C.F.R. §§ 19.37, 20.1304 (2009). The Board observes that the Veteran has not provided a written waiver of review by the agency of original jurisdiction. However, upon review of the evidence of record, the Board has found that there is sufficient evidence to grant the benefit sought on appeal. That is, as explained in further detail below, the evidence supports assignment of a 50 percent disability evaluation from December 27, 2005, the date of receipt of the Veteran's claim. The decision granting the benefit sought therefore poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92 (July 24, 1992), 57 Fed. Reg. 49,747 (1992). To further develop the case by remand to the agency of original jurisdiction for purposes of issuing a supplement statement of the case would only result in unnecessary delay. FINDING OF FACT PTSD is manifested throughout the appeal period by no more than occupational and social impairment with reduced reliability and productivity due to such symptoms as depressed and anxious mood, chronic sleep impairment and irritability, with a Global Assessment of Functioning (GAF) score ranging from 30 to 80. CONCLUSION OF LAW The criteria for an initial evaluation for PTSD of 50 percent, but not greater, are met from December 27, 2005. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must (1) notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, (2) which information and evidence VA will obtain, (3) and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002). See also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). In the instant case, the Veteran received notification prior to the initial unfavorable agency decision in November 2006. The RO's March 2006 notice letter advised the Veteran what information and evidence was needed to substantiate the claim decided herein and what information and evidence must be submitted by him, namely, any additional evidence and argument concerning the claimed condition and enough information for the RO to request records from the sources identified by the Veteran. He was specifically told that it was his responsibility to support the claim with appropriate evidence. Finally the letters advised him what information and evidence would be obtained by VA, namely, records like medical records, employment records, and records from other Federal agencies. The duty to notify the Veteran was satisfied under the circumstances of this case. 38 U.S.C.A. § 5103. During the pendency of this appeal, on March 3, 2006, the Court issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006), which held that the VCAA notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. A May 2009 VCAA letter provided such notice. In light of the above, the Board finds that all notices required by VCAA and implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2010). Service treatment records have been associated with the claims file. Post-service VA and private treatment records and reports have also been obtained. The Veteran has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to assist the Veteran in obtaining records has been satisfied. The Veteran was afforded a VA contract examination in October 2006. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2010); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). The October 2006 VA contract examination is adequate for the purposes of evaluating the Veteran's PTSD, as it involved a review of the Veteran's pertinent medical history and includes a description of symptomatology related to the Veteran's PTSD. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Analysis Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). In Fenderson v. West, 12 Vet. App. 119 (1999), the Court held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. In Fenderson, 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. Fenderson at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). As noted in the Introduction above, the Veteran asserts that a 50 percent disability evaluation is warranted for his PTSD for the period from December 27, 2005, to July 15, 2009. After a review of the record, the Board finds his contentions are supported by the evidence. Prior to July 15, 2009, the Veteran was assigned an initial 10 percent disability evaluation for PTSD pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411 (2010). Under this diagnostic code, a 10 percent evaluation is warranted when there is 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. Id. A 30 percent evaluation is warranted 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). Id. A 50 percent evaluation is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereo-typed 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 disability evaluation is warranted when 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; 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 work like setting); inability to establish and maintain effective relationships. Id. A 100 percent disability evaluation is warranted when there is total occupational and social impairment, due to such symptoms as: 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 and place; memory loss for names of close relatives, own occupation, or own name. Id. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran meets the criteria for a 50 percent evaluation, but no more, for PTSD throughout the period on appeal. In this regard, the evidence of record, to include an October 2006 VA contract examination report and March 2007 private psychiatric evaluation, indicates that the Veteran's PTSD is characterized by a mildly depressed mood, irritability, some suicidal thoughts and chronic sleep impairment. Additionally, these records indicate that the Veteran reports having difficulty getting along with other people. As will be discussed in more detail below, such symptoms indicate some occupational and social impairment; however, they do not warrant a disability rating in excess of 50 percent. Moreover, as noted in the Introduction, the Veteran has expressed satisfaction of the 50 percent disability evaluation and is seeking to establish an effective date back to the date of claim for his current rating. He is not currently contending that a rating in excess of 50 percent is warranted for his PTSD at any time during the course of the appeal. In any event, the Board observes that a higher rating is not warranted because the competent evidence of record does not demonstrate that the Veteran's symptomatology most closely approximates a 70 percent evaluation or higher. In this regard, the Board notes that the Veteran's medical records do not contain evidence which supports a finding that he suffers from frequent panic attacks, delusions, or obsessive rituals. While the March 2007 private psychiatric evaluation notes the Veteran appeared anxious throughout the evaluation, the October 2006 VA contract examination report specifically notes no panic attacks or obsessional rituals. Higher ratings also take into account the inability to attend to basic personal appearance and hygiene, speech impairment, and impaired thought and judgment. The October 2006 VA contract examination report notes the Veteran's appearance and hygiene were appropriate, while the March 2007 private psychiatric evaluation notes the Veteran appeared well groomed and neatly dressed. The Board also observes that there is no evidence of record to indicate the Veteran suffers from any speech impairment. In fact, the October 2006 VA contract examiner expressly noted his speech and communication were within normal limits. Finally, both the October 2006 VA contract examination report and March 2006 private evaluation report indicate that the Veteran was oriented in all spheres. With regard to the Veteran's ability to establish and maintain personal relationships, the Board notes that the Veteran has been married to his current wife for over 35 years, and described his marriage as "good, because [his wife is] patient and understanding." See March 2007 private psychiatric evaluation. The October 2006 VA contract examination report notes the Veteran does not have any close friends or social life. Thus, the Board concludes that although the Veteran may have some relationship difficulties, particularly with society in general, he is capable of maintaining successful relationships. Therefore, the Veteran's impairment in this area is not significant enough to warrant a 70 percent rating. The Board acknowledges that the evidence of record demonstrates that the Veteran has some difficulty in establishing effective work relationships, which is contemplated by higher ratings. For instance, the Board notes that the Veteran has submitted a statement from his wife, who is also his business partner, that it is very difficult for the Veteran to operate a business where he constantly deals with customers and the demands of company representative. However, the evidence of record also indicates that the Veteran is able to perform activities of daily living (see October 2006 VA contract examination report), and that he does not meet the majority of the criteria for higher evaluations. Thus, although the Board finds that these symptoms indicate some serious symptoms, it concludes that the Veteran's overall disability picture continues to most closely approximate that contemplated by a 50 percent evaluation. Also of record are the Veteran's Global Assessment Functioning (GAF) scores. GAF scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). The Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) contemplates that the GAF scale will be used to gauge a person's level of functioning at the time of the evaluation (i.e., the current period) because ratings of current functioning will generally reflect the need for treatment or care. The Board notes that while GAF scores are probative of the Veteran's level of impairment, they are not to be viewed outside the context of the entire record. Therefore, they will not be relied upon as the sole basis for an increased disability rating. The Veteran's GAF scores are very inconsistent throughout the rating period. In this regard, the October 2006 VA contract examination report notes the Veteran's GAF score as 80, while the March 2007 private psychiatric evaluation report indicates the Veteran's GAF score was then 30. A GAF score of 71 to 80 is indicative of transient symptoms that are expectable reactions to psychosocial stressors, resulting in no more than slight impairment in social, occupational or school functioning. GAF scores ranging between 21 and 30 indicates behavior that is considerably influence by delusions or hallucinations or serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or an inability to function in almost all areas (e.g., stays in bed all day, no job, home or friends). The Board recognizes that the Veteran's GAF score as reported by the March 2007 private psychiatric evaluation indicates he suffers from severe PTSD symptoms. However, the Board again notes that GAF scores are just one component of the Veteran's disability picture, and that it does not have a "formula" that it follows in assigning evaluations. Rather, the Board considers the Veteran's entire disability picture, including GAF scores. Furthermore, the Board need not accept a GAF score as probative. See Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995) (it is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same). As such, in viewing the evidence of record in its entirety, the Board finds that the Veteran's overall disability picture most closely approximates that contemplated by a 50 percent evaluation throughout the appeal period. The Board acknowledges that not all of the evidence of record supports an evaluation of 50 percent for PTSD throughout the appeal period. For instance, as noted above, the October 2006 VA contract examination report reflects a GAF score of 50, and specifically notes the Veteran's psychiatric impairment at that time was not enough to interfere with social and occupational functioning or to require continuous medication. However, the Board has also taken into consideration statements submitted by the Veteran from his wife, daughter and son-in-law, each of whom described symptoms of anxiousness, irritability and depressed mood throughout the period on appeal. As such, resolving all doubt in favor of the Veteran, the Board finds that the evidence supports an evaluation of 50 percent throughout the appeal period including the period prior to July 15, 2009. In sum, the evidence of record demonstrates that the Veteran successfully maintains a relationship with his family as well as owns a business with his wife. Although the Veteran reports irritability and sleep problems, there is no evidence of any physical outbursts, nor does he report a lack of self-control with respect to his anger. The record also demonstrates that he is able to function independently, and has no delusions, panic attacks, obsessional rituals, or cognitive impairment. He does, however, exhibit a depressed mood, some anxiousness and chronic sleep impairment. In light of the evidence discussed above, the Board concludes that an initial evaluation of 50 percent is warranted throughout the appeal period. The Board acknowledges that the evidence of record demonstrates that the Veteran has some moderately severe symptoms such as irritability and difficulty establishing and maintaining effective social relationships, but his overall disability picture does not warrant a higher rating in excess of 50 percent. In reaching its decision, the Board considered the benefit-of-the-doubt rule. However, the preponderance of the evidence is against an evaluation higher than 50 percent, and therefore, does not apply. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Moreover, the Veteran does not currently contend that a rating in excess of 50 percent is warranted at any time during the course of the appeal. The Board also has considered whether the Veteran is entitled to a greater level of compensation 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 first 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 claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant'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 service-connected disability is inadequate. In this regard, the Board again notes the record indicates the Veteran does not receive treatment for his PTSD and is self-employed. Therefore, a comparison between the level of severity and symptomatology of the Veteran's disabilities on appeal with the established criteria found in the rating schedule for these disabilities show that the rating criteria reasonably describes the Veteran's disability level and symptomatology. As the first prong of Thun has not been satisfied, the Board therefore has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. In light of the foregoing, the Board concludes that the criteria for a 50 percent disability evaluation are warranted throughout the course of the appeal. That is, a 50 percent is warranted for this disability since December 27, 2009. This action constitutes a full grant of the benefit sought on appeal as the Veteran has expressly indicated his satisfaction with a 50 percent disability rating effective from the date of claim. ORDER An evaluation of 50 percent, but not greater, is granted effective from December 27, 2005, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs