Citation Nr: 1127923 Decision Date: 07/26/11 Archive Date: 08/02/11 DOCKET NO. 06-00 486 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a higher initial disability rating for posttraumatic stress disorder (PTSD), evaluated as 30 percent disabling prior to May 11, 2010 and as 50 percent disabling thereafter. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from April 1969 to April 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision by the Columbia, South Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). The issue of entitlement to service connection for ischemic heart disease has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Further, in the Veteran's February 2010 informal hearing presentation the Veteran claimed that the issue of entitlement to a total disability rating based on unemployability (TDIU) should be considered before the Board at this time. The Board notes, however, that the Veteran was denied entitlement to TDIU in August 2006 and, as noted in that rating decision, did not in fact respond to the RO's request for a VA form 21-8940 Application for Increased Compensation based on Unemployability. He additionally failed to submit timely notice of disagreement. Thus, the Veteran's assertions in the February 2010 informal hearing presentation are interpreted by the Board to be a new claim for TDIU. The Board does not, therefore, have jurisdiction these issues, and they are referred to the AOJ for initial adjudication. FINDINGS OF FACT 1. The Veteran's PTSD symptomatology includes anxiety, depression, irritability, impaired sleep, impaired social and occupational functioning, flashbacks, intrusive thoughts, increased startle response, impaired memory, hypervigilance and a restricted affect. 2. The record does not show occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to symptoms such as suicidal ideation, obsessional rituals which interfere with routine activities, illogical, obscure or irrelevant speech, near continuous panic or depression affecting the ability to function independently appropriately and effectively, impaired impulse control, neglect of personal appearance and hygiene or an inability to maintain effective relationships. CONCLUSIONS OF LAW 1. Resolving the benefit of the doubt in the Veteran's favor, the criteria for an initial evaluation of 50 percent, but no higher for service-connected PTSD prior to May 11, 2010 has been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2010). 2. The criteria for an evaluation in excess of 50 percent for PTSD have not been met at any time. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2010). REASONS AND BASES FOR FINDING AND CONCLUSIONS 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. 2009)) defines VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA are 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, 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 a 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 this case, the appeal arises from the initial award of service connection for PTSD. In this regard, Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. With respect to the VA's duty to assist, the record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the VA treatment records and examination reports. The Board finds that the examinations were adequate to allow proper adjudication of the issue on appeal. The examiners conducted complete examinations, recorded all findings considered relevant under the applicable diagnostic code, and considered the full history of the disability. There is no indication that any pertinent evidence is outstanding, nor has the Veteran so contended. The issue of entitlement to an increased initial rating was most recently before the Board in March 2010, when the case was remanded to the VA RO (via the Appeals Management Center (AMC), in Washington, D.C.). The purpose of this remand was to obtain any outstanding private and/or VA treatment records, to obtain records from the Social Security Administration and to obtain a VA psychiatric examination. All of the actions previously sought by the Board through its prior development request appear to have been substantially completed as directed, and it is of note that the Veteran does not contend otherwise. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). Further, the Board finds that the new examination afforded to the Veteran in May 2010 was adequate for adjudication purposes. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Subsequently, a supplemental statement of the case (SSOC) was issued in April 2011, which granted a 50 percent rating effective May 11, 2010, the date of the Veteran's VA examination. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his 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 was an active participant in the claims process by submitting evidence and argument, as well as presenting for a VA examination. Thus, he was 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 notices is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2010). 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 include: 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 (2010); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2010); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2010); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2010). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the claimant 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 PTSD is evaluated pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. Under Diagnostic Code 9411, which is governed by a General Rating Formula for Mental Disorders, a 30 percent rating is warranted for 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 (2010). A 50 percent rating is warranted for 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. Id. A 70 percent rating is warranted for 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 work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted for 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; 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. Id. One factor for consideration in evaluating mental disorders is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)). A GAF score of 31 to 40 is defined as exhibiting some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or any major impairment in several areas, such as work or school, family relations, judgment, thinking or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). Scores ranging from 41 to 50 reflect 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 GAF score of 51 to 60 reflects moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). A GAF score of 61 to 70 reflects some mild symptoms, or some difficulty in social, occupational, or school functioning. The VA Schedule of Disability Ratings will apply unless there are exceptional or unusual factors that 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). 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. The Board has reviewed all of the evidence in the Veteran's claims file. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran 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). Factual Background and Legal Analysis The Veteran's claims file includes a February 2004 VA medical center treatment note which reported that the Veteran did not sleep well and had not slept well for years. He stated that he had nightmares two or three times a week and that he experienced difficulty getting to sleep. He stated that he had constant thoughts of Vietnam when he tried to go to sleep. It was noted that the Veteran was alert, oriented and cooperative. The Veteran's clinic manager stated that the Veteran appeared to be quietly depressed. A global assessment score of 42 was provided. In January 2004, the Veteran was afforded a VA examination. During his examination, the Veteran described frequent nightmares and recurrent thoughts of Vietnam. He reported that he had been married twice. The examiner noted that the Veteran's social life was very limited and that he usually stayed by himself and did not socialize well. The Veteran stated that he had been unemployed since June 2001 as he was unable to work due to a heart attack. The Veteran stated that when he was working his sleeping problems had affected his job to some extent but he stated that he was able to get along with his boss and co-workers. The examiner stated that the Veteran presented with sleep disturbance, sleeping four or five hours at night and awakening with night sweats at least two times a night. The Veteran reported nightmares of Vietnam ten to fifteen times a month. He stated that he had recurrent thoughts about Vietnam every day. He stated that this caused him to become irritable and depressed. He also described having a short fuse. Objectively, the VA examiner stated that the Veteran was dressed appropriately and was cooperative but somewhat anxious in degree and mood and appeared to be moderately depressed. The Veteran was noted as free from hallucinations and as having an appropriate affect. There was no looseness of associations and no suicidal or homicidal ideas. The Veteran was noted as being alert and oriented to time, place and person. The Veteran's memory for recent and remote events appeared to be fair and there was no evidence of delusion. Judgment and insight were adequate. A global assessment of functioning score of 65 was given. A March 2004 treatment note reported that the Veteran was alert, oriented and cooperative, a global assessment of functioning score of 45 was provided. A later March 2004 treatment note reported that the Veteran felt better and that he had an appropriate affect and denied suicidal and homicidal ideation as well as hallucinations. A June 2004 VA medical center treatment note reported that the Veteran had experienced heart problems lately and that he felt he should be given a higher rating than the 30 percent given to him. It was noted that overall the Veteran's family was under financial stress. The Veteran was alert, oriented and cooperative. The Veteran's treating social worker stated that the Veteran suffered from PTSD symptoms more than one would think at first glance. A global assessment score of 40 was provided. In an August 2004 treatment note, the Veteran's treating social worker stated her belief that the Veteran underreported the severity of his symptoms. The Veteran reported that he became depressed easily and that he had nightmares about Vietnam two to three times a week. His wife stated that he jumped up and thrashed around in his sleep. The Veteran reported that he tried to avoid watching the news which made him easily upset. A global assessment score of 45 was provided. In a November 2004 VA medical center treatment note it was reported that the Veteran's main concern was his economic situation. The Veteran's doctor stated that it seemed like the Veteran's PTSD was moderate at one point but that his heart condition led to a mood disorder and that his degree of disability had increased substantially to the point where his global assessment score was barely 40. A December 2004 treatment note reported that the Veteran still woke up at night. It was noted that he was taking Wellbutrin for depression related to his PTSD and distress over not being able to work. It was further explained that he was more depressed when it was raining and humid as that weather reminded him of Vietnam. He stated that he was usually by himself and tended to avoid crowds and people other than his wife and parents. A global assessment of functioning score of 41 was provided. A November 2004 clinician document noted that the Veteran was alert and oriented and that his judgment and insight was fair. A diagnosis of PTSD by history was provided and global assessment score between 55 and 60 was assigned. The Veteran was given a VA examination in February 2005. It was noted that the Veteran's claims file was not available for review. During his examination, the Veteran reported symptoms to include nightmares and flashbacks about his traumatic Vietnam experiences about three to four times a week. The Veteran stated that he had nervousness and depression as well as irritability and a short temper frequently. The Veteran stated that he had occasional poor concentration as well as feelings of guilt, anger and isolation. The Veteran stated that he avoided crowds and noise as well as war movies or situations which would arouse recollection of his traumatic war experiences. On mental status examination the examiner noted that the Veteran's speech was coherent and relevant and that he was hyper alert with a frequent startle response. The Veteran's mood was described as nervous and frequently depressed with a constricted affect. The Veteran's thought process was intact except that he admitted to auditory hallucinations about Vietnam from time to time. There were no suicidal or homicidal ideas elicited. Orientation and memory were preserved and insight and judgment were intact. The Veteran stated that since his last examination his feelings of isolation with irritability and short temper affected him socially in his dealings with people. A global assessment score between 50 and 60 was provided and it was noted that the Veteran had moderate to severe impairment in his social and industrial adaptability and that he was unable to work due to his post traumatic stress disorder symptoms. A February 2005 treatment note revealed that the Veteran's Wellbutrin dosage was increased and that his financial situation had improved and that he thus had fewer worries. A global assessment of functioning score of 45 was assigned. A June 2005 treatment record noted the Veteran's reports that he was doing well and had good days and bad days, he stated that he experienced problems sleeping and had low energy and motivation. It was noted on mental status examination that the Veteran's mood continued to improve. A global assessment of functioning score of 58 was assigned. In December 2005 a global assessment of functioning score of 60 was assigned. A June 2007 treatment note reported that the Veteran was definitely not suicidal and that he was alert, oriented and depressed. The Veteran's affect was somewhat blunted and his speech was clear and coherent. His thinking was noted as logical and goal directed. A global assessment score of 59 was assigned. The Veteran was afforded a VA examination in May 2010. It was noted that his claims file was reviewed. The Veteran explained that he felt depressed every day off and on because of his heart and pancreatitis. The Veteran stated that his wife had left me two years prior but that he had since remarried and that his relationship with his new wife was good. He stated that he also had a good relationship with his daughter, mother and brother. The Veteran stated that he had two good friends whom he saw nearly every week. Regarding activities, the Veteran stated that he fished a little but was at home otherwise. There was no history of suicide or violence. On mental status examination it was noted that the Veteran was appropriately dressed, that he had unremarkable speech, was cooperative and had an appropriate affect. The Veteran was intact to person, time and place and his thought process and content were found to be unremarkable. It was noted that the Veteran experienced sleep impairment and that he slept about four or five hours a night. No hallucinations were reported and there was no inappropriate behavior, obsessive or ritualistic behavior, nor were panic attacks or suicidal or homicidal thoughts reported. The Veteran had fair impulse control and there no episodes of violence reported. There was no problem with activities of daily living reported. The Veteran's remote memory was normal. Recent memory and immediate memory was noted as mildly impaired. The Veteran's PTSD symptoms were reported as persistent re-experiencing traumatic events, avoidance of stimuli was also noted. The Veteran had markedly diminished interest or participation in significant activities and a restricted range of affect. There were symptoms of increased arousal to include difficulty falling or staying asleep, irritability or outbursts of anger, difficulty concentrating, hypervigilance and an exaggerated startle response. A diagnosis of PTSD was provided as was a global assessment score of 60. The Veteran denied experiencing any changes in his symptoms since his last examination. Given the foregoing evidence, the Board concludes that a disability rating of 50 percent is warranted prior to May 10, 2010. Resolving the benefit of the doubt in the Veteran's favor, the Board finds that the Veteran's symptoms to include sleep disturbance, intrusive thoughts, depression, avoidance, flashbacks, poor concentration, anxiety and irritability which most closely approximate the criteria described in the 50 percent disability evaluation. In this regard, the Board notes that the evidence indicates that the Veteran had been reported as under-reporting his symptoms to examiners and has been assigned global assessment scores raging between 40 at the lowest, representing major impairment in several areas and 69 representing moderate symptoms. Overall, considering both the symptoms described in his treatment records and examinations and the global assessment of functioning scores assigned to him, the Board finds that a 50 percent disability rating is appropriate prior to May 11, 2010. The Board finds that the current 50 percent rating accurately reflects the Veteran's symptomatology at all times since the grant of service connection, and that a rating in excess of 50 percent is not warranted. The Veteran has not, at any time, demonstrated symptoms which approximate suicidal ideation, obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure or irrelevant; near continuous panic; impaired impulse control, spatial disorientation or neglect of personal appearance and hygiene. Further, the GAF score of 60 assigned at his May 2010 examination describes moderate symptoms. The Board finds this GAF score, when taken into consideration with his described symptoms, is accurately reflected by a 50 percent disability rating. The evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected mental disability is inadequate. Thun v. Peake, 22 Vet App 111 (2008). A comparison of the level of severity and symptomatology of the Veteran's disability with the established criteria found in the rating schedule for a mental disability shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology. In short, there is nothing in the record to indicate that this service-connected disability on appeal causes impairment with employment over and above that which is contemplated in the assigned schedular ratings of 50 percent. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER Entitlement to a 50 percent disability rating between December 18, 2003 and May 10, 2010 is granted, subject to the regulations applicable to the payment of monetary benefits. Entitlement to a disability rating in excess of 50 percent is denied. ____________________________________________ MICHAEL MARTIN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs