Citation Nr: 1126799 Decision Date: 07/19/11 Archive Date: 07/29/11 DOCKET NO. 08-32 613 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for posttraumatic stress disorder (PTSD) for the period January 23, 2002, to July 7, 2004. REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Board ATTORNEY FOR THE BOARD D. Whitehead, Associate Counsel INTRODUCTION The Veteran had active service from September 1968 to February 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. Procedural History The Veteran originally filed his claim of entitlement to service connection for PTSD on January 23, 2002. In an August 2004 rating decision, the RO awarded service connection for PTSD and assigned a 30 percent rating effective from July 8, 2004. Thereafter, the Veteran appealed the assignment of the July 8, 2004, effective date to the Board, claiming that an earlier effective date was warranted for his PTSD. In a December 2007 decision, the Board granted the claim for an earlier effective date, awarding the Veteran service connection for his PTSD from January 23, 2002, the date that he first filed his claim for service connection. In the January 2008 rating decision, the RO effectuated the Board's grant of an earlier effective date and assigned an initial 10 percent disability rating for the Veteran's PTSD, effective from January 23, 2002. The RO continued the assignment of a 30 percent disability rating effective from July 8, 2004. Thereafter, the Veteran filed a notice of disagreement with the January 2008 rating decision in April 2008, expressing his disagreement with the initial 10 percent rating assigned from January 23, 2002, to July 7, 2008, and requesting that a 30 percent rating be assigned for this time period. Subsequently, the Veteran and the RO essentially characterized the issue as entitlement to an earlier effective date for the assignment of a 30 percent disability rating. The Board notes, however, that the Veteran's claim stems from his disagreement with the initial assignment of a 10 percent rating for his PTSD; he essentially asserts that a higher, initial disability rating is warranted for his disability for the identified time period. Given this, the Board has recharacterized the issue as entitlement to an initial increased disability rating, as reflected on the title page. Rice Consideration The Board notes that "a request for entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities" (TDIU), whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation." See Rice v. Shinseki, 22 Vet. App. 447, 453-454 (2009). However, the record before the Board does not contain any indication that a claim for a TDIU was expressly raised by the Veteran or reasonably raised by the record. FINDINGS OF FACT 1. From January 23, 2002, to July 7, 2004, the preponderance of the evidence shows that the Veteran's PTSD disorder more closely approximated occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. The evidence does not demonstrate that the Veteran's service-connected PTSD is so exceptional or unusual that referral for extraschedular consideration by designated authority is required. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 30 percent for PTSD, and no greater, from January 23, 2002, to July 7, 2004, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.1- 4.3, 4.7, 4.10, 4.41, 4.130, Diagnostic Code 9411 (2010). 2. Application of extraschedular provisions is not warranted in this case. 38 C.F.R. § 3.321(b) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCCA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010) requires VA to assist a claimant at the time he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the information and evidence necessary to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will attempt to provide; and (3) that the claimant is expected to provide. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). 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) the degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the 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. Id. at 486. The U.S. Court of Appeals for the Federal Circuit previously held that any errors in notice required under the VCAA should be presumed to be prejudicial to the claimant unless VA shows that the error did not affect the essential fairness of the adjudication. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Under Sanders, VA bore the burden of proving that such an error did not cause harm. Id. However, in Shinseki v. Sanders, 129 S.Ct. 1696 (2009), the United States Supreme Court held that the Federal Circuit's blanket presumption of prejudicial error in all cases imposed an unreasonable evidentiary burden upon VA. Rather, in Shinseki v. Sanders, the Supreme Court suggested that determinations concerning prejudicial error and harmless error should be made on a case-by-case basis. Id. As such, in conformance with the precedents set forth above, on appellate review the Board must consider, on a case-by-case basis, whether any potential VCAA notice errors are prejudicial to the claimant. By letters dated in May 2002 and February 2004, the Veteran was notified of the information and evidence necessary to substantiate his original claim. VA told the Veteran what information he needed to provide, and what information and evidence that VA would attempt to obtain. Under these circumstances, the Board finds that VA has satisfied the requirements of the VCAA. As to the issue of a higher initial disability rating for the now service-connected PTSD, an increased rating is a "downstream" issue. Once a decision awarding service connection, a disability rating, and an effective date has been made, section 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated. See Sutton v. Nicholson, 20 Vet. App. 419 (2006) (citing Dingess). Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's relevant service and VA medical treatment records have been obtained. He was provided an appropriate VA medical examinations. There is no indication of any additional, relevant records that the RO failed to obtain. In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. Legal Criteria for Initial Increased Disability Ratings Disability ratings are based on the average impairment of earning capacity resulting from a disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. An evaluation of the level of disability present includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. §§ 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). In Fenderson v. West, 12 Vet. App 119 (1999), the Court emphasized the distinction between a new claim for an increased evaluation of a service-connected disability and a case (such as this one) in which the Veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been recognized as service-connected. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim-a practice known as "staged rating." In this regard, in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court held that "staged ratings" are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. at 510. The Veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C.A. § 5107(a). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id. The Secretary shall give the benefit of the doubt to the Veteran when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). PTSD Here, the Veteran claims that an initial disability rating in excess of the currently assigned 10 percent rating is warranted for his service-connected PTSD from January 23, 2002, to July 7, 2004. Having reviewed the evidence of record, and resolving all doubt in the Veteran's favor, the Board finds that the preponderance of the evidence shows that a 30 percent rating is warranted for this time period. In the present case, the Veteran's service-connected PTSD is evaluated pursuant to the criteria set forth in Diagnostic Code 9411. Under Diagnostic Code 9411, a 30 percent disability rating is appropriate 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). 38 C.F.R. § 4.130. A 50 percent disability rating is warranted when occupational and social impairment is found 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. 38 C.F.R. § 4.130. A 70 percent disability rating 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 a worklike setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. A 100 percent disability rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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. 38 C.F.R. § 4.130. In evaluating psychiatric disabilities, the Board has adopted the Diagnostic and Statistical Manual of Mental Disorders, 4th ed., American Psychiatric Association (DMS-IV). That manual includes a Global Assessment of Functioning (GAF) scale reflecting psychological, social and occupational functioning on a hypothetical continuum of mental illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DSM-IV). A GAF score of 41-50 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). A score of 51-60 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 score of 61 to 70 indicates some mild symptoms (e.g. depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning, but generally functioning pretty well with some meaningful interpersonal relationships. See Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Washington, DC, American Psychiatric Association, 1994. Turning to the merits of the claim, the Veteran's service treatment records have been reviewed and are negative for any reported symptoms or clinical findings applicable to the relevant rating criteria. The Veteran underwent a VA PTSD examination in March 2002. At that time, he reported his psychiatric symptoms to include nightmares, after which he would awaken covered in perspiration; he reported that he experienced this approximately once or twice per week, but that this did not bother him a great deal. The Veteran also reported having difficulty going back to sleep after experiencing a nightmare. He indicated that his sleep difficulties did not interfere with his work; he was noted to be employed with a gas company and to have a good work history. He was noted to have good peer relationships and a good relationship with his wife, as well as interests and hobbies. His interests were noted to include working on his house and cutting the grass. The examiner determined that the quality of the Veteran's peer relationships and social activities appeared to be quite good. The Veteran denied experiencing any flashbacks and stated that he very seldom felt depressed. He stated that he had never been suicidal or homicidal and he denied ever having any psychotic symptoms. On the mental status examination, the Veteran was pleasant and very cooperative. His sensorim was intact and he was fully oriented. The examiner commented that it did not appear that the Veteran was trying to impress or influence him with the severity of his symptoms. The Veteran's mood and affect were both normal. His thought content revealed no history of psychotic symptoms, such as hallucinations, delusions, referential thinking or paranoid ideas. The examiner summarized that the Veteran exhibited few PTSD symptoms, most notably occasional nightmares. Based on the Veteran's description, the examiner stated that his symptoms did not appear to be extremely upsetting to him, although he had difficulty getting back to sleep after a nightmare. The examiner noted that his nightmares were related to his military service and that the Veteran did not describe any other specific PTSD symptoms. Following the examination, the diagnosis was few PTSD symptoms manifested mainly by occasional nightmares. The Veteran's GAF score was recorded as 70. In an April 2002 statement, the Veteran described his psychiatric symptomatology. He reported that he experienced nightmares, flashbacks, night sweats, and night fright. He stated that he was a workaholic and that as long as he was busy, he did not have any major problems with his nerves. Therefore, he tried to stay as busy as possible. The Veteran essentially reported that the severity of his disability varied, as he stated that there were times during which his condition affected him more versus other time periods. In a November 2002, the March 2002 VA examiner reviewed the Veteran's claims file and reiterated the findings of the March 2002 PTSD examination. He highlighted that during the examination the Veteran reported few PTSD symptoms, with the exception of his occasional nightmares. He also noted that the Veteran reported waking up from his nightmares in a sweat, but that he readily admitted that this was not particularly bothersome. He concluded that the Veteran appeared to function well as far as his work, social relationships, and general activities. Although he had few PTSD symptoms, namely the occasional nightmares, the examiner determined that this did not appear to be seriously disabling for him. He further stated that the Veteran appeared to be truthful in relating his history and gave no indication that he was attempting to impress the examiner. The Veteran reiterated his psychiatric symptomatology in a statement received in April 2003. While he reported that he had a good relationship with his family and was a workaholic, he reported that he was bothered by memories of his experiences during his service in Vietnam. He reported that he lived near an airport and an airbase and that the sound of helicopters and sight of military aircrafts automatically triggered memories of Vietnam. The Veteran reported that these situations had begun to affect him more than they had in the previous years. Given the foregoing, and resolving all doubt in the Veteran's favor, the Board finds that a 30 percent rating is warranted for the Veteran's PTSD from January 23, 2002, to July 7, 2004. During this time period, the Veteran's most significant symptoms of PTSD were shown to include nightmares, night sweats, flash backs, and intrusive memories. The March 2002 VA PTSD examination report shows that his GAF score was 70. As such, while additional required criteria of anxiety, depression, suspiciousness, panic attacks, and mild memory loss were not shown at any point during this time period, the Board will give the Veteran the benefit of the doubt, and find that his PTSD symptoms were sufficient to meet the criteria for a 30 percent disability rating, but not higher, from January 23, 2002, to July 7, 2004. However, the preponderance of the evidence does not show that the Veteran's PTSD symptoms more closely approximate the criteria for a disability rating in excess of 30 percent for this time period. While the Veteran's disability was found to be consistently manifested by the symptoms noted above, the Board does not find that the Veteran's symptoms were consistent with the type of impaired thinking, judgment, and motivation required for a 50 percent disability rating, and clearly, the evidence does not demonstrate deficiencies in most areas or total social and industrial impairment for even higher ratings under the applicable rating criteria. Essentially, the evidence does not show that the Veteran's psychiatric symptomatology was manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; speech impairments; panic attacks occurring more than once a week; difficulty understanding complex commands; short- and long-term memory impairments; impaired judgment or thinking; or disturbances of motivation and mood. Therefore, the Board finds that although the evidence supports entitlement to a 30 percent rating from January 23, 2002, to July 7, 2004, the preponderance of the evidence is against a disability rating in excess of 30 percent for PTSD for this time period. The Board has considered the Veteran's statements as to the nature and severity of his PTSD symptomatology. The Veteran is certainly competent to report that his symptoms are worse. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, in evaluating a claim for an increased schedular rating, VA must only consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. Massey v. Brown, 7 Vet. App. 204, 208 (1994). To the extent that the Veteran argues or suggests that the clinical data supports an increased evaluation or that the rating criteria should not be employed, he is not competent to make such an assertion. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992) (holding that a witness must be competent in order for his statements or testimony to be probative as to the facts under consideration). Finally, the Board has considered whether the Veteran's claim warrant referral to the Chief Benefits Director of VA's Compensation and Pension Service under 38 C.F.R. § 3.321. In Thun v. Peake, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. As has been explained fully herein, the Board finds that the disability rating assigned herein for the Veteran's PTSD contemplates the level of impairment reported by the Veteran, and there is no aspect of his disability that is not contemplated by the schedular criteria. Indeed, while higher ratings are available for the Veteran's disability, his symptomatology simply does not meet the criteria for a higher rating during the period currently on appeal. For these reasons, referral by the RO to the Chief Benefits Director of VA's Compensation and Pension Service, under 38 C.F.R. § 3.321 is not warranted. See Bagwell v. Brown, 9 Vet. App. 337 (1996). In sum, the evidence of record shows that the Veteran's PTSD warrants a disability rating of 30 percent, but no higher, from the effective date of service connection to July 7, 2004. As there appears to be no identifiable period on appeal during which this disability manifested symptoms meriting a disability rating in excess of what has been assigned herein, staged ratings are not warranted. See Fenderson, 12 Vet. App. at 119. ORDER A 30 percent disability rating for PTSD from January 23, 2002, to July 7, 2004, is granted, subject to the laws and regulations governing monetary awards. ____________________________________________ K. A. KENNERLY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs