Citation Nr: 1220331 Decision Date: 06/11/12 Archive Date: 06/22/12 DOCKET NO. 09-25 225 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD), prior to August 2, 2011. 2. Entitlement to a disability rating in excess of 50 percent for PTSD, to include an extraschedular basis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. M. Clark, Counsel INTRODUCTION The Veteran served on active duty from July 1965 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) from a February 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, that assigned a 10 percent rating for PTSD, after granting service connection for the same. By a rating action dated in March 2007, the 10 percent rating was increased to 30 percent, effective from October 5, 2005. The Veteran testified before the undersigned Veterans Law Judge in March 2012. A copy of the transcript is of record. The Board parenthetically notes that the Veteran filed his original claim for service connection for PTSD on October 5, 2005. In a February 2006 rating decision, the RO granted service connection for PTSD at 10 percent, effective October 5, 2005. In an October 2006 statement, within one year of the February 2006 rating decision, the Veteran asked for "reconsideration" of his claim. He stated that he believed that his 10 percent rating was not adequate and that a higher evaluation was warranted. He reported that he had intermittent periods of inability to perform occupational tasks, depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment and mild memory loss. He reported that he currently attended sessions at the Madison VA Outpatient clinic. A written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result will constitute a notice of disagreement (NOD). While special wording is not required, the NOD must be in terms which can be reasonably construed as disagreement with that determination and a desire for appellate review. 38 C.F.R. § 20.201. "[T]he actual wording of the communication and the context in which it was written" must be considered in determining whether it constitutes an NOD. Jarvis v. West, 12 Vet. App. 559, 561 (1999). All communications should be liberally construed. See id. at 561-62. The Court has made clear that the VA adjudication process "'is not meant to be a trap for the unwary . . . a stratagem to deny compensation [nor] a minefield" for claimants. See Percy v. Shinseki, 23 Vet. App. 37, 47 (2009) (quoting Comer v. Peake, 552 F.3d 1362, 1369 (Fed. Cir. 2009). Here, the Board finds that the Veteran's October 2006 correspondence can be liberally construed as an NOD. The Veteran did not expressly indicate that he "disagreed" with the February 2006 rating decision. However, the fact that he requested "reconsideration" and that he expressed his belief that he was not being compensated at the appropriate disability level is indicative that he was dissatisfied with the RO's decision to award him a higher disability rating. He identified evidence, including VA treatment records that he felt were important to his claim. He essentially expressed his disagreement with the part of the decision pertaining to the disability rating assigned to his psychiatric claim. A statement of the case was not issued until May 2009, and the Veteran filed a timely substantive appeal in July 2009. As the Board is finding that the Veteran's notice of disagreement was timely to the February 2006 rating decision, the rating decision on appeal is the one dated in February 2006, not the March 2007 rating decision identified by the RO. Indeed, it is noteworthy to mention that the March 2007 rating decision granted a 30 percent rating back to the Veteran's date of claim. Such would suggest that the RO also interpreted the Veteran's October 2006 statement as a NOD at one time. In April and May 2012, the Veteran submitted to the Board additional evidence for consideration in connection with the claim on appeal as well as a waiver of RO jurisdiction of such evidence. Thus, the Board accepts this evidence for inclusion in the record on appeal. 38 C.F.R. § 20.1304 (2011). The Board observes that the Veteran additionally filed a notice of disagreement and a substantive appeal with service connection claims for hearing loss and tinnitus. An October 2011 Decision Review Officer (DRO) decision granted entitlement to service connection for bilateral sensorineural hearing loss and service connection for tinnitus. The Veteran did not appeal the effective dates or rating assigned. Therefore, these issues are not in appellate status. The Board has additionally considered that the Veteran raised a claim for entitlement to a total disability rating based on individual unemployability (TDIU) due to his service-connected PTSD during the pendency of the appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The RO considered and subsequently denied his claim in a December 2011 rating decision. However, as the Veteran has not expressed disagreement with this decision and the appeal period has yet to expire, no claim regarding TDIU is in appellate status at this time. The issue of entitlement to a disability rating in excess of 50 percent for PTSD, to include an extraschedular basis is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's PTSD has been productive of reduced reliability and productivity with "difficulty" in establishing and maintaining effective work and social relationships. CONCLUSION OF LAW Prior to August 2, 2011, the criteria for a rating of at least 50 percent rating, for PTSD had been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.21, 4.126, 4.130, Diagnostic Code (DC) 9411 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Assist and Notify As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 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) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information 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 Veteran's increased rating claim for PTSD arises from his disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, and 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. Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2011). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO obtained the Veteran's service treatment records and VA treatment records. Significantly, neither the Veteran nor his representative has identified any other outstanding evidence, prior to August 2, 2011, that have not already been obtained. Next, VA examinations were obtained in January 2006 and March 2007. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. VAOPGCPREC 11-95. Here, there is no objective evidence indicating that there was a material change in the severity of the Veteran's disability prior to these examinations. The Board finds the above January 2006 and March 2007 VA examinations to be thorough and adequate upon which to base a decision with regard to the Veteran's claim. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information necessary to evaluate his disability under the applicable rating criteria. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2011) requires that the hearing officer who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the March 2012 BVA hearing, the VLJ identified the issues on appeal. See BVA Hearing T. at 2. Additionally information was solicited regarding the severity of his PTSD. There was no indication that outstanding treatment records were avaliable for the time period prior to August 2, 2011. See BVA Hearing T. at 9. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The Board concludes that all the available records and medical evidence have been obtained in order to make an adequate determination as to this claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Further, notwithstanding the foregoing, the Board notes that the decision herein represents a grant of a 50 percent rating for PTSD for the entire appeal period. The question of whether a higher a rating in excess of 50 percent is warranted is addressed in the Remand portion of the decision. It therefore stands to reason that any defect in VA's duty to notify or assist would be essentially non-prejudicial at this juncture. II. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2011). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2011). However, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2011). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2011). At the outset, the Board notes that the Veteran is appealing the initial disability ratings assigned for his PTSD. As such, the claims require consideration of the entire time period involved, and contemplates staged ratings where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). The RO granted service connection for PTSD in a February 2006 rating decision. A 10 percent disability rating was assigned and made effective the date his claim was received in October 2005. A subsequent March 2007 rating decision increased the Veteran's rating to 30 percent, effective his date of claim. An October 2011 DRO decision granted a 50 percent rating, effective August 2, 2011. PTSD is evaluated under the general rating formula for mental disorders. See 38 C.F.R. § 4.130, DC 9411. Under this general rating formula, a 30 percent evaluation is warranted where the evidence demonstrates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational asks (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). In order to be entitled to the next-higher 50 percent rating under DC 9411, the evidence must show 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 effective work and social relationships. The psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings. See Mauerhan v. Principi, 16 Vet. App. 436 (2002) (rating criteria provide mere guidance as to the severity of symptoms contemplated for each rating; they are not all-encompassing or an exhaustive list). Throughout the appeal period, the evidence of record reflects that the Veteran had reduced reliability and productivity with "difficulty" in establishing and maintaining effective work and social relationships. At the Veteran's January 2006 VA examination, he reported that he was self-employed as a janitorial contractor and carpet cleaner. He noted that he had been in jail five times in the past due to offenses including assault; however, he indicated that he had not had any legal problems since 1987. The VA examiner stated that it was likely that his PTSD did affect his social, occupational and personal relationships with others. However, he noted that it was equally likely that the Veteran's alcoholism contributed to complications in these areas. In an October 2006 statement, the Veteran explained that the reason he had been self-employed since 1984 was mainly due to his inability to trust and get along with others. He reported intermittent periods of inability to perform occupational tasks, depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment and mild memory loss. At a March 2007 VA examination, the VA examiner noted that the Veteran had fair impulse control. It was noted that the Veteran had difficulty with anger control and dealing with authority figures. The VA examiner stated that the Veteran experienced hypervigilance and exaggerated startle response. It was noted that the Veteran had daily, moderate to severe chronic PTSD symptoms. The VA examination report reflects that the Veteran was self-employed at the time and worked on a contract with an auto dealership, which ended in December 2006. The VA examiner summarized that the Veteran had difficulty dealing with people and experienced estrangement from others. It was noted that the Veteran had lost his janitorial contract in December due to problems with his anger toward his employer which the Veteran believed was related to his PTSD. Significantly, the VA examiner opined that the Veteran had reduced reliability and productivity due to PTSD symptoms. Rationale supporting this conclusion was provided. VA treatment records reflect complaints by the Veteran of sleep disturbances, avoiding crowds, being socially withdrawn and hypervigilent. VA treatment records in 2009 reflect the use of medications to control his symptomatology. See April 2009 VA treatment record. His Global Assessment of Functioning (GAF) scores have fluctuated between 45 and 55, which is indicative of moderate to serious symptomatology. A June 2011 Vocational Rehabilitation record noted that the Veteran's PTSD resulted in preventing the Veteran from succeeding in employment, even self-employment. Here, the Board finds that the VA examiner's March 2007 professional opinion, that the Veteran's PTSD symptoms resulted in reduced reliability and productivity, in combination with Veteran's statements and treatment records is most consistent with a 50 percent disability rating, reflecting 'difficulty' in establishing and maintaining effective relationships. Such has been shown since the Veteran's date of claim in August 2005. The question of whether the record supports a rating in excess of 50 percent is addressed in the Remand. ORDER A 50 percent rating, but no more, for PTSD, prior to August 2, 2011, is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND As indicated previously, the VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. The Board finds that further development is necessary with respect to the Veteran's claim for entitlement to a rating in excess of 50 percent for PTSD, for the entire period on appeal. The Veteran testified at his March 2012 BVA Hearing that he had recently been treated around November or December 2011 at the Huntsville Community Based Outpatient Clinic (CBOC). He emphasized that his feeling that those records were important, and that they needed to be considered with respect to his appeal. However, records in the claims file are only current through September 2011. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The AMC should obtain and associate with the claims file all outstanding VA records. Finally, the Board finds that the Veteran's claim for entitlement to a rating in excess of 50 percent for PTSD includes the question of whether he is entitled to an extraschedular rating. On remand, and after the above development, that question should be addressed. Accordingly, the case is REMANDED for the following actions: 1. The AMC should contact the Veteran and obtain the names, addresses, and approximate dates of treatment for all medical care providers, VA and non-VA, that treated the Veteran for his PTSD. After obtaining the appropriate releases, those records not already associated with the claims folder should be obtained and associated with the claims folder. Regardless of whether or not the Veteran responds, the AMC must obtain VA treatment records from the Huntsville CBOC (for the time period dated from September 2011 to the present). All attempts to procure records should be documented in the file. If the AMC cannot obtain records identified by the Veteran, a notation to that effect should be included in the file. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. The RO should then readjudicate the claim. Consideration should be given as to whether referral to the Director of Compensation and Pension Service is warranted for an extraschedular rating. If any benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded an opportunity to respond. The case should then be returned to the Board for appellate review. The Appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs