Citation Nr: 1126719 Decision Date: 07/18/11 Archive Date: 07/21/11 DOCKET NO. 10-39 921 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. J. Nardone, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1945 to August 1946. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for PTSD with an evaluation of 30 percent effective June 12, 2009. The Board notes that the Veteran was scheduled for a Travel Board hearing in May 2011. However, in correspondence received by the RO in May 2011, the Veteran indicated that he wished to withdraw his hearing request. 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). FINDING OF FACT The Veteran's PTSD is manifested by symptoms resulting in reduced reliability and productivity; however, impairment in most areas such as work, school, family relations, judgment, thinking, or mood is not shown. CONCLUSION OF LAW From June 12, 2009, the criteria for an initial evaluation of 50 percent for PTSD have been more nearly approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act The Veterans Claims Assistance Act (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2008)) redefined VA's duty to assist the appellant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In a June 2009 letter, issued prior to the rating decision on appeal, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. This letter also advised the Veteran of how the VA determines a disability rating and assigns an effective date, and the type of evidence which impacts such. In any event, the appeal regarding the claim for a higher initial rating stems from the original award of service connection for PTSD. In Dingess, the United States Court of Appeals for Veterans Claims (Court) held that in cases in which service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 490-91; see also 38 C.F.R. § 3.159(b) (2010). Thus, because the notice that was provided before service connection was granted was sufficient, VA's duty to notify in this case has been satisfied. See generally Turk v. Peake, 21 Vet. App. 565 (2008) (where a party appeals from an original assignment of a disability rating, the claim is classified as an original claim, rather than as one for an increased rating); see also Shipwash v. Brown, 8 Vet. App. 218, 225 (1995); see also Fenderson v. West, 12 Vet. App. 119 (1999) (establishing that initial appeals of a disability rating for a service-connected disability fall under the category of "original claims"). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file include the service treatment records, the service personnel records, the reports of VA examinations, VA treatment records, private treatment records, documents pertaining to the Veteran's unit history, buddy statements, and statements from the Veteran. In response to the VCAA letter, which requested information concerning current treatment for PTSD, the Veteran identified only treatment with Dr. S. at the VA medical center. Those records have been obtained and no further assistance is necessary. As discussed above, the VCAA provisions have been considered and complied with. The appellant was notified and aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran has been an active participant in the claims process by reporting for VA examinations, responding to notices, and submitting evidence and argument. Thus, the Veteran has been provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's service-connected PTSD is evaluated under Diagnostic Code 9411. The regulations establish a general rating formula for mental disabilities. See 38 C.F.R. § 4.130 (2010). Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411, 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) warrants a 30 percent evaluation. Id. 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 warrants a 50 percent evaluation. Id. 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 worklike setting); inability to establish and maintain effective relationships warrant a 70 percent evaluation. Id. 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 warrants a 100 percent evaluation. Id. One factor for consideration is the Global Assessment of Functioning (GAF) score which reflects the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Richard v. Brown, 9 Vet. App. 266 (1996); Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). GAF scores ranging between 61 and 70 reflect 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, and has some meaningful interpersonal relationships. A score of 51 to 60 indicates 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 peer or coworkers). A GAF score of 41 to 50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). See DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, Fourth Edition (DSM- IV); see also 38 C.F.R. §§ 4.125, 4.126 (2010). While the Rating Schedule does indicate that the rating agency must be familiar with the DSM-IV, it does not assign disability percentages based solely on GAF scores. See 38 C.F.R. § 4.130. The Veteran contends that his service-connected PTSD is more severe than the currently assigned 30 percent rating reflects. The Board has thoroughly reviewed all the evidence of record and after careful consideration, the Board finds that the Veteran's PTSD symptomatology more nearly approximates the criteria for a 50 percent evaluation from the effective date of the award of service connection, June 12, 2009. Turning to the evidence, a July 2009 VA mental health note indicates that the Veteran reported having recently attended the theater. He said that his mood had been "not very well" and stated, "I'm not charismatic anymore... I was very outgoing, I was the life of the party." He said that he mostly gets out to go to church and to the store. The main activities he really enjoyed were reading and watching football, and he had been teaching himself script writing again. He indicated that his sleeping and eating were okay. He endorsed a lot of worrying, and felt that his anxiety level was "terrible" and he had to control it, although he felt that his medication was helpful. Upon mental status examination, the Veteran was casually attired, with good hygiene and nicely dressed. His speech was slightly hoarse and thready, with a hypophonic quality as per his baseline. His gait was normal and slightly stooped, and he had no tremors. His thought form/process was extremely circumstantial and digressive. With regards to though content, he had no active suicidal or homicidal plans, and no audio or visual hallucinations, paranoia, or psychosis. His mood appeared to be baseline. His affect was noted to be less irritable that day and had a dysphoric quality. He was reportedly oriented to July 26th, Friday, 2009, although the Board notes that the treatment note is dated July 24, 2009. The Veteran's memory was not formally tested. His insight was mixed and his judgment was intact. He was motivated for treatment. The Veteran denied any suicidality and said he would not do it because of his family. The Axis I diagnosis was PTSD versus anxiety not otherwise specified (generalized anxiety disorder). The Veteran was assigned a current GAF score of 60. The Veteran was provided another VA PTSD examination in November 2009, during which the claims file was reviewed. The examiner stated that the Veteran seemed to be a fair historian. The Veteran said the does not drink and does not abuse substances, and never has. He occasionally has Cold Duck on special occasions with his wife. The Veteran reported that he is currently married and had been since 1956. He said, "I married an angel." He has four children, three daughters and one son. He said he has good relationships with his children. He denied having any legal history. With regards to employment history, the Veteran said that after leaving the military he worked both for the Post Office in the registry section for 35 years, and in the point of purchase activities of his uncle's business for 20 years. His longest period of employment with the same organization lasted 35 years at the Post Office. He had been retired for seven years. He retired when he was 75 years old. The Veteran resided with his wife and cat. He reported waking up at about 5 a.m. and going to sleep at about 8 p.m. He was generally able to sleep about 8 hours a night. He spent the day walking in the morning, reading, and playing with his cat. He was not able to help with household cooking, cleaning, and chores because of his legs interfering with this at times. He was able to manage his own bills and finances. The Veteran was able to drive but he got frustrated and angry on the road and preferred his wife to drive. He said every day he prays and walks. He had dreams that were distressing of floating in the water with no clothes on, looking for his two arms, which were blown off, and kicking with his feet among debris until he sees two arms. However, they are not his because they have a wristwatch, and he does not wear a wristwatch. The Veteran reported that he reads and watches football on television for relaxation. He also reported an interest in watching other sports. He was unable to identify any other interests or hobbies even with prompts from the examiner. He had few friends and never socialized. He said that he "gets shaky" going to a restaurant. Upon mental status examination, the examiner noted that the Veteran drove himself to the examination. He appeared his chronological age. He was dressed casually and his hygiene appeared good. He wore glasses. His facial expressions were appropriate. His gait was unsteady. The Veteran's eye contact was good, and rapport was developed fairly easily. The Veteran was alert and oriented in all spheres during the evaluation. His speech was clear and no errors in articulation were noted. During the evaluation the Veteran described his mood as "tense and anxious." He was awake all night waiting to go to the appointment. His affect was congruent. The Veteran denied the presence of delusions and visual and auditory hallucinations. There was no evidence of a formal thought disorder, and his judgment appeared fair to good. His insight appeared to be good. He denied any current suicidal ideation or homicidal ideation. The Veteran's attention and concentration were fair to poor. He was able to correctly spell the word world backwards. He was unable to correctly do the serial sevens task. He was able to recall three of three objects presented to him. When asked to recite the names of the five most recent U.S. Presidents, he said "no, I don't think I could." The examiner said that the Veteran's reported symptoms of PTSD included intrusive thoughts and memories, nightmares, and flashbacks. When he feels these coming on, if he takes a drink of milk that sometimes helps to bring him back to the present. He also had hypervigilance, hyperarousal, anger and "hatred," sleep disturbance, although medication helped with this, emotional numbing, avoidance symptoms, and decreased concentration. The Veteran drives but says that sometimes he gets so angry behind the wheel that he probably should not be driving. The Axis I diagnosis was PTSD and the GAF score assigned to the Veteran was 55. The examiner stated that in summary, the Veteran is occupationally and socially impaired with reduced reliability and productivity due to symptoms of intrusive thoughts and memories, difficulty concentrating due to these intrusive thoughts and memories, sleep disturbance sometimes accompanied by dreams related to his experiences sweeping mines, hyperarousal and anger, and avoidance and emotional numbing. The Veteran had a hatred towards people and read only the death reports in the newspaper. He cannot watch war reports on the news or in the newspaper because they remind him of his own experience and make him angry. If they come on and he had not had a chance to change the channel he will turn his head away. The examiner stated that the Veteran's symptoms are more likely than not associated with his experience while serving in the military on voluntary hazardous duty. Upon review of the record, the Board will resolve all doubt in the Veteran's favor and find that the Veteran's symptomatology more nearly approximates the criteria for a 50 percent rating. 38 C.F.R. § 4.7. In this regard, the Board notes that the Veteran's speech was noted to be very circumstantial during a July 2009 clinic visit. During VA examinations the Veteran reported having few friends and that he never socialized. It was also noted that he had a "hatred" towards people. While the GAF scores assigned for this time period ranged from 55 to 60, which are indicative of only moderate impairment, the Board concludes that the Veteran's symptoms fall between the 30 percent and 50 percent criteria. Accordingly, the Board will award the higher 50 percent rating from the date of the award of service connection. An even higher rating is not warranted however. In this regard, the Veteran is not shown to have deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood. The Veteran had a long and successful work history having retired at age 75, and he has good relationships with his family. Other than the single episode of circumstantiality in July 2009, his speech has been normal. There is no indication of impaired impulse control or violence. His anxiety has not been shown to impair his ability to function independently. Further, while the July 2009 note reflects that the Veteran was apparently oriented to the wrong day, he was alert and oriented in all spheres during the November 2009 evaluation. Although the November 2009 VA examiner reported some memory impairment, the Board notes that mild memory loss is consistent with a 30 percent evaluation in the rating criteria. Additionally, mental status examinations during the appeal period noted the Veteran's hygiene was good, he denied experiencing any delusions or hallucinations, his judgment was intact, and he denied any suicidal or homicidal ideation. Moreover, the GAF scores assigned during the relevant period suggest moderate impairment and the VA examiner indicated that the Veteran's PTSD results only in reduced reliability and productivity. In sum, the symptomatology reported and the GAF scores assigned during the course of this appeal are adequately addressed by the 50 percent evaluation being assigned and do not support an initial evaluation in excess thereof. As a final matter, the Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2010); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology from his PTSD and provides for additional or more severe symptoms than currently shown by the evidence; thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. ORDER Entitlement to an initial evaluation of 50 percent for PTSD is granted, subject to the rules and regulations governing the payment of VA monetary benefits. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs