Citation Nr: 1301565 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 10-38 962 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUE Entitlement to an initial rating in excess of 70 percent for the service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Kenneth M. Carpenter, Attorney ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from June 1969 to January 1972. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a rating decision issued by the RO that granted service connection for PTSD and assigned a 50 percent rating. The Veteran's initial rating for his PTSD was increased to 70 percent disabling effective the date of his claim in a rating decision dated in July 2010. FINDING OF FACT The service-connected PTSD is not shown to cause total social and occupational impairment. CONCLUSION OF LAW The criteria for the assignment of a 100 percent rating for the service-connected PTSD have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2011); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.130 including Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate his or her claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper VCAA notice must inform the claimant of any information and 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. The Board notes that 38 C.F.R. § 3.159 was revised in part, effective May 30, 2008. See 73 Fed. Reg. 23,353-23,356. The third sentence of 38 C.F.R. § 3.159(b)(1), which stated that "VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim," was removed. This amendment applies to all applications pending on, or filed after, the regulation's effective date. The VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Id at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). The VA General Counsel issued a precedential opinion interpreting Pelegrini as requiring the Board to ensure that proper notice is provided unless it makes findings regarding the completeness of the record or other facts that would permit the conclusion that the notice error was harmless. See VAOGCPREC 7-2004. The United States Court of Appeals for the Federal Circuit reaffirmed the importance of proper VCAA notice in Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Mayfield and its progeny instruct that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements. Id at 1320. However, VCAA notification does not require a pre-adjudicatory analysis of the evidence already contained in the record. See, e.g. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements are applicable to all five elements of a service connection claim. Thus, the Veteran must be notified that a disability rating and effective date for the award of benefits will be assigned if service connection for a claimed disability is awarded. Id at 486. In this case, the Veteran was sent a letter in July 2008 which explained how VA could assist him with developing evidence in support of his claims. This letter also explained what the evidence needed to show in order to establish service connection for a claimed disability and explained how VA assigns ratings and effective dates for service connected disabilities. The Veteran's claim for a higher initial rating for the service-connected PTSD is a downstream issue from his claim for entitlement to service connection for that disability. The RO granted service connection for PTSD and assigned a 50 percent rating therefore. The Veteran then filed a notice of disagreement arguing that he should have received a higher rating. His initial rating for PTSD was subsequently increased to 70 percent, and he was assigned a total disability rating based on individual unemployability by reason of service-connected disability, but these actions did not satisfy the Veteran. In these types of circumstances, VA is not required to issue a new VCAA letter. See VAOPGCPREC 8-2003. In this precedential opinion, the General Counsel held that although VA is required to issue a statement of the case (SOC) if the downstream issue is not resolved, 38 U.S.C.A. § 5103(a) does not require separate notice of the information and evidence necessary to substantiate the newly raised issue. Id. An SOC addressing the appropriate evaluation for the service-connected PTSD was issued in July 2010. A Supplemental Statement of the Case (SSOC) was issued in April 2011. VA also must make reasonable efforts to assist the claimant with obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has of record evidence including service treatment records, VA treatment records, and Social Security Administration (SSA) disability records. Appropriate VA examinations were afforded to the Veteran in accordance with his claim. Initial Rating The Veteran contends that the service-connected PTSD is more disabling than is accounted for by the currently assigned 70 percent rating. The Veteran asserts that he is totally disabled by his PTSD. Disability ratings are determined by applying criteria that are set forth in the VA's Schedule for Rating Disabilities (38 C.F.R. Part 4). Ratings are based on average impairments of earning capacity resulting from particular diseases and injuries and the residuals thereof in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities are described utilizing diagnostic codes set forth in 38 C.F.R. Part 4. Where there is a question as to which of two evaluations 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. See 38 C.F.R. § 4.7. In cases, such as this one, in which a claim for a higher evaluation arises out of the initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the claim and appellate process. See generally Fenderson v. West, 12 Vet. App. 119 (1999). See also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's PTSD is evaluated under 38 C.F.R. 4.130, Diagnostic Code 9411. A rating of 70 percent is assigned where the Veteran exhibits 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 successful relationships. A rating of 100 percent is assigned where the Veteran exhibits total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The SSA records demonstrate that the Veteran filed for SSA disability in 2003, several years prior to filing the claim at issue herein. At the time of his application for benefits, the interviewer noted that the Veteran seemed very disturbed and negative, although he was somewhat normal in appearance and grooming. The SSA disability examiner diagnosed PTSD and a depressive disorder and assigned a global assessment of functioning (GAF) score of 39. A GAF of 31-40 is indicative of some impairment in reality testing or communication, or major impairment in several areas, such as work or school, family relations, judgment, thinking or mood. The Veteran filed his claim of service connection in June 2008 and was first examined with respect to his claim in February 2009. He had been treated at VA for his PTSD since 2004. He had been treated at a Vet Center since 2003. In 2007 and early 2008, one year prior to the date of claim, the primary mode of treatment was group therapy. At the February 2009 examination, the Veteran related that he was hospitalized for psychiatric reasons in 2004, but not since. He had been taking medication for several years. A mental status exam noted that the Veteran's orientation within normal limits. His appearance and hygiene were not appropriate and showed inability to maintain minimal personal hygiene. He had poor eye contact. There was disturbance of motivation and mood. He had a restricted affect and was withdrawn and vague. His speech and communication were within normal limits. There was no paranoia or delusions. There was no history of hallucinations. There were no obsessional rituals. There was no suicidal or homicidal ideation. The GAF score was that of 60. A GAF of 51-60 is indicative of moderate symptoms or moderate difficulty in social, occupational, or school functioning. Thereafter, in 2009, the Veteran continued to be seen by a psychiatric nurse practitioner. In April 2009, he was noted to have been noncompliant with his medication, and the medication was to be restarted. A treatment note indicated the Veteran was alert and oriented with fair hygiene. His speech was logical and coherent. He was noted to be depressed with a constricted affect. There were no signs of impulsivity. There was no suicidal or homicidal ideation or psychosis. His judgment and insight were noted to be good. A May 2009 treatment note indicated that the Veteran was alert and oriented, pleasant and cooperative. Speech was noted to be logical and coherent. His mood was depressed with a constricted affect. There was no suicidal or homicidal ideation. He had good judgment and insight. Subsequent notes dated after 2009 continued to report the Veteran had depression and anxiety. He was noted lack eye contact, but no suicidal or homicidal thoughts were identified. The Veteran did report having difficulty sleeping. The Veteran was reexamined in March 2010. He was noted to live alone and had no close family members; he seemed not to remember how many siblings he had. He did have friends from his therapy group, but they did not visit each other at home and saw each other only at VA. One of the group members accompanied him to the examination. He reported never having visitors. The Veteran reported having poor dietary habits and minimal food preparation and spending most of his days watching television. There was no history of violence or suicide attempts. Some tangential comments were made. The Veteran reported having flashbacks about once a month, but no other delusions or hallucinations were noted. His grooming was poor, and his clothes were dirty. The Veteran made no eye contact and was noted to be guarded and abrupt. At times, he appeared to dissociate or to be lost in thought watching the door. However, he was not disoriented or experience hallucinations or delusions. He also denied having any suicidal or homicidal thoughts. The Veteran was noted to have the ability to maintain minimal personal hygiene, but had some difficulty doing do so. He was able to take care of activities of daily living. He was fully oriented. He had no contact with family. He was noted to be competent to manage his own funds. The Veteran continued to be treated for PTSD in 2010 and 2011 with depressed mood, anxiety, and occasional flashbacks and dreams being noted. He was oriented and able to communicate, but made no eye contact. His judgment and insight were good. He had no suicidal or homicidal ideation. Based on a careful review of the entire record, the Board finds that evidence does not show that the Veteran meets the criteria for the assignment of a 100 percent rating in accordance with applicable rating criteria. The currently assigned rating of 70 percent is shown to clearly address his significant level of disablement. He is not shown to have suicidal or homicidal ideation or to experience psychotic manifestations. His behavior was generally appropriate, and he had good insight and judgment. He was fully oriented at all times. The Veteran appeared to forget the names of his siblings at one point and to have difficulty in maintaining his personal hygiene. However, he was noted generally to be able to accomplish activities of daily living and to be capable of maintaining minimal personal hygiene. He was not noted to have a significant memory deficit. Given the totality of the circumstances, the Veteran is not show to experience total occupational and social impairment. He had limited social contacts, but had been able to maintain some friends at VA where he participated in group therapy. The Board recognizes that a Veteran need not exhibit "all, most, or even some" of the symptoms enumerated in the General Rating Formula for Mental Disorders to warrant the assignment of a higher rating. .Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002) . However, on this record, he is not shown to experience disabling manifestations equate with any of those identified in the rating criteria. Rather, the criteria ('such symptoms as') provide guidance concerning the severity of symptoms that are contemplated for each rating, in addition to permitting consideration of other symptoms particular to the Veteran. Id. In this case, to the extent that the Veteran does demonstrate a greater level of impairment, his current disability picture is clearly contemplated by the assigned 70 percent rating. Significantly, the Veteran does not display overall manifestations that include psychotic behavior, homicidal or suicidal thoughts or behavior, disorientation or an inability to maintain basic activities of daily living that would tend to support the assignment of a 100 percent rating on a schedular basis in this case. The Board also finds that the Veteran's manifestations do not present an unusual or exceptional disability picture as to render the application of schedular criteria impractical in this case. 38 C.F.R. § 3.321(b). See also Thun v. Peake, 11 Vet. App. 111, 115 (2008) (the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the schedular evaluation is inadequate). The Veteran's symptoms such as poor grooming, occasionally tangential speech, difficulty sleeping, depressed mood, and poor eye contact are reasonably addressed by the established rating standards. Moreover, to the extent that the Veteran has already been assigned a total rating based on individual unemployability by reason of service-connected disability in this case, the question of a higher rating on this basis has been rendered moot and need not be addressed. Accordingly, on this record, the Board finds in this case that the preponderance of the evidence is against the Veteran's claim for increase. See, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). ORDER A rating in excess of 70 percent for the service-connected PTSD is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs