Citation Nr: 1127005 Decision Date: 07/20/11 Archive Date: 07/29/11 DOCKET NO. 08-04 364 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York 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 G. E. Wilkerson, Associate Counsel INTRODUCTION The Veteran served on active duty from May 2000 to October 2000, and from January 2005 to January 2006. This appeal to the Board of Veterans' Appeals (Board) arose from a September 2007 rating decision in which the RO granted service connection and assigned an initial 30 percent rating for PTSD, effective January 4, 2006. In September 2007, the Veteran filed a notice of disagreement with respect to the rating assigned. A statement of the case (SOC) was issued in October 2007, and the Veteran filed a substantive appeal (via a statement from his representative, accepted in lieu of a VA Form 9, Appeal to the Board of Veterans' Appeals) in January 2008. Because the appeal involves disagreement with the initial rating assigned following the grant of service connection for PTSD, the Board has characterized this matter in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. Since the January 4, 2006 effective date of the grant of service connection for PTSD, the Veteran's psychiatric symptoms have primarily included nightmares, irritability, flashbacks, survivor guilt, hypervigilance, and reduced attention and concentration; these symptoms are indicative of occupational and social impairment with no more than 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). CONCLUSION OF LAW The criteria for an initial rating in excess of 30 percent for PTSD are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (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. 2010)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353- 23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability, as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In this appeal, in an October 2006 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate his claim for service connection for PTSD. The letter also provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. After the award of service connection, and the Veteran's disagreement with the initial rating assigned, the November 2007 SOC set forth the criteria for rating PTSD (which, in part, suffices for Dingess/Hartman). Post rating, a June 2008 letter provided notice to the Veteran regarding what information and evidence was needed to substantiate the claim for a higher initial rating for PTSD, as well as what information and evidence must be submitted by a Veteran and what information and evidence would be obtained by VA. This letter specifically informed the Veteran to submit any evidence in his possession pertinent to the claim. After issuance of this notice, and opportunity for the Veteran to respond, the RO readjudicated the claim for a higher initial rating as reflected in the February 2009 supplemental SOC (SSOC). Hence, the Veteran is not shown to be prejudiced by the timing of this later notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or supplemental SOC (SSOC), is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the claim on appeal. Pertinent medical evidence associated with the claims file consists of service treatment records, VA outpatient treatment records, and the reports of a July 2007 VA examination. Also of record and considered in connection with this matter are various written documents provided by the Veteran, and by his representative, on his behalf. The Board also finds that no additional RO action to further develop the record in connection with the claim is warranted. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter on appeal, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 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 to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is entitlement to a higher initial rating since the grant of service connection, evaluation of the medical evidence since the award of service connection to consider the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson, 12 Vet. App. at 126. The 30 percent l rating for the Veteran's PTSD has been assigned pursuant to Diagnostic Code 9411. However, the actual criteria for rating the Veteran's disability are set forth in a General Rating Formula for evaluating psychiatric disabilities other than eating disorders. See 38 C.F.R. § 4.130. Under the formula, a 30 percent rating is assigned when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name. Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score. According to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." There is no question that the GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). Considering the pertinent evidence of record in light of the above, the Board finds that, the criteria for an initial rating in excess of 30 percent have not been met at any point pertinent to the January 4, 2006 effective date of the grant of service connection. The report of a December 2005 VA outpatient psychiatric evaluation shortly before the Veteran's discharge from active duty service reflects that the Veteran then reported that he had been married to his wife for five years and worked at UPS full time. On mental status examination, the Veteran was alert and oriented, casually attired, with sporadic eye contact. Affect was described as appropriate, and speech was clear and relevant with no indication of any bizarre thought content. He denied any thoughts of harming himself or others, and expressed that he did not feel that he was depressed. The Veteran reported that he experienced moderate-to-severe nightmares at least five to six times a week, as well as hypervigilance and sensitivity to sudden and loud noises. He also expressed survival guilt. The Veteran denied panic attacks and indicated that he was okay in crowds. Attention span and ability to focus were described as poor. He did indicate that the experienced intrusive thoughts at work, and noticed changes in his temperament since his discharge. The examiner noted that judgment was intact, but that insight into the changes he was experiencing would need to be explained more to him. The diagnosis was adjustment reaction and a GAF score of 45 was assigned. On VA examination in July 2007, the Veteran reported that he has experienced sleep difficulties since leaving Iraq, including nightmares three to four times per week. He also reported irritability with his wife, and that he used alcohol since his return to try to calm himself down. He avoided watching the news because it upset him too much. He indicated that he was constantly hypervigilant. With respect to activities, the Veteran noted that he still jogged and lifted weights. With respect to occupational functioning, the Veteran indicated that he worked full time for UPS. On mental status examination, the Veteran was described as casually dressed and adequately groomed. Eye contact was fair, and the examiner described him as alert and oriented to time, place and person. He shown no obvious psychomotor retardation or agitation, and speech was spontaneous and slightly anxious throughout the examination. His affect was anxious throughout the examination when talking about Iraq. He admitted to guilty feelings about not been wounded during an incident in Iraq for which he was awarded a Meritorious Mast award. Symptoms of hypervigilance and sleep problems were endorsed. There was no evidence of delusional features or auditory hallucinations. Thought processes were coherent. Insight appeared to be fair, though the examiner reported that the Veteran had sought counseling only on a very limited basis. The examiner noted that the Veteran was not taking any psychotropic medications, and that a activities of daily living appeared to be adequate. The examiner diagnosed PTSD and assigned a GAF score of 48. The examiner noted that the Veteran had occasional decreased work efficiency, as well as socially, as a result of his PTSD symptoms. She noted that only time will tell how his adjusts further to civilian life, but it appeared that he was struggling to some degree despite his discharge nearly two years ago. The aforementioned medical evidence reflects that, pertinent to the January 2006 effective date of the grant of service connection, the Veteran's psychiatric symptoms have primarily included hypervigilance, irritability, nightmares, sleep disturbance, and some social isolation, which have resulted in no more than 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). The record reflects that the Veteran is married and works full time. This evidence reflects a level of occupational and social impairment consistent with the currently assigned 30 percent disability rating. However, at no point has the Veteran's PTSD met the criteria for at least the next higher, 50 percent, rating. As noted above, a 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week, difficulty in understanding complex commands, impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks), impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. However, the objective medical evidence does not show such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impaired abstract thinking; impaired judgment; or difficulty in establishing and maintaining effective work relationships that are characteristic of the 50 percent rating. The Board further notes that neither of the GAF scores assigned since the effective date of the grant of service connection-45 and 48-alone, provides a basis for assigning a rating in excess of 50 percent for PTSD. According to DSM-IV, a GAF score ranging from 41 to 50 reflects severe 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). While the GAF scores of 45 and 48 assigned by the VA treatment provider and examiner, respectively, might, conceivably, suggest impairment greater than that contemplated in the initial 30 percent rating assigned, the symptoms shown, as noted above, simply are not among those identified in the DSM-IV as the basis for such a score. As indicated above, Veteran's noted symptoms are consistent with the assigned 30 percent rating, and there simply is no evidence of symptoms such as suicidal ideation, severe obsessional rituals, frequent shoplifting, or comparable symptoms indicative of serious impairment in occupational functioning. The Board emphasizes, as noted above, that the actual symptoms shown, and not merely examiner's assessment of the severity of a disability (to include as evidenced by an assigned GAF score) is controlling for rating purposes. See 38 C.F.R. § 4.126(a). The Board also points out that in both medical records in which a score is documented, the medical professional also referenced physical problems, the impairment from which may have been a factor in the assignment of these scores in this case. For example, the July 2007 VA examiner also diagnosed, on Axis III, migraine headaches. Neither provider fully explained the basis for either assigned score. As such, the Board is not persuaded that the assigned GAF scores accurately reflect the level of impairment due to the Veteran's PTSD. In determining that the criteria for a rating in excess of 30 percent are not met, the Board has considered the criteria set forth in the General Rating Formula for Mental Disorders not as an exhaustive list of symptoms, but as examples of the type and degree of the symptoms, or effects, that would justify a particular rating. The Board has not required the presence of a specified quantity of symptoms in the rating schedule to warrant the assigned rating for PTSD. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Under the circumstances of this case, the Board finds that, since the effective date of the award of service connection, the Veteran's PTSD symptomatology has not met the criteria for a 50 percent rating. See 38 C.F.R. § 4.7. As the criteria for the next higher, 50 percent, rating are not met, it follows that the criteria for an even higher rating (70 or 100 percent) likewise are not met. On these facts, there is no basis for staged rating, pursuant to Fenderson, and the claim for an initial rating in excess of 30 percent for PTSD must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against assignment of any higher rating, that doctrine is not applicable. See 38 U.S.C.A § 5107(b) 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER An initial rating in excess of 30 percent for PTSD is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs