Citation Nr: 1303428 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 08-11 422 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to initial rating higher than 50 percent for the service-connected posttraumatic stress disorder (PTSD) from July 12, 2005, and in excess of 70 percent from March 12, 2009. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. R. dela Rosa, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1969 to August 1972. His awards and decorations include the Combat Infantryman's Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2006 rating decision by the Department of Veterans Affairs (VA) Atlanta Regional Office (RO) in Decatur, Georgia that granted service connection for PTSD and assigned an initial rating of 30 percent, effective from July 2005. Following the Board's 2012 Remand, the RO, in an October 2012 rating action, increased the Veteran's disability evaluation to 50 percent effective from July 2005, and to 70 percent effective from March 2009. The Veteran testified before the undersigned Veterans Law Judge in a hearing at the RO in September 2011; a transcript of that hearing is of record. FINDINGS OF FACT 1. The Veteran's PTSD has been manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood throughout the appeal period. 2. At no point in time that is covered by this claim has the Veteran's PTSD been manifested by total occupational and social impairment. CONCLUSION OF LAW The criteria for an increased rating of 70 percent, but not greater, for PTSD have been met from July 2005. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify & Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). At the outset, the Board notes that the Veteran is challenging the initial evaluation assigned following the grant of service connection. The United States Court of Appeals for Veterans Claims (Court) has held that in cases where service connection has been granted and an initial disability evaluation has been assigned, the service connection claim has been more than substantiated, the claim has been proven. This renders § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. See generally Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). As to VA's duty to assist, 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). VA treatment records and private medical records have been obtained. There is also no suggestion that treatment records exist, which have not yet been obtained, but are necessary to a fair evaluation of the Veteran's claim. The Veteran was also provided with VA examinations, the most recent of which was accomplished pursuant to the Board's 2012 Remand, and thus, substantial compliance with the Board's remand is shown. The Veteran was also provided an opportunity to set forth his contentions during the hearing before the undersigned in September 2011. In Bryant v. Shinseki, the U.S. Court of Appeals for Veterans Claims (The Court) held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the September 2011 hearing, the undersigned Veterans Law Judge enumerated the issue on appeal, and solicited information regarding the Veteran's current symptoms. The hearing discussion did not reveal any evidence that might be available that had not been submitted. Under these circumstances, nothing gives rise to the possibility that evidence had been overlooked with regard to the Veteran's claims. As such, the Board may proceed to adjudicate the claims based on the current record. VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. Increased Rating Disability ratings are based upon schedular requirements that reflect the average impairment of earning capacity occasioned by the state of a disorder. 38 U.S.C.A. § 1155 (West 2002). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4 (2012). In determining the level of impairment, the disability must be considered in the context of the entire recorded history, including service medical records. 38 C.F.R. § 4.2. An evaluation of the level of disability present must also include consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. Also, where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. The record shows service connection for PTSD was established in a rating decision dated in July 2006, and the RO assigned a 30 percent disability rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 9411, effective from July 12, 2005. The Veteran disagreed with the initial 30 percent disability rating assigned and this appeal ensued. As noted in the Introduction, in October 2012, the RO increased the Veteran's disability rating to 50 percent, effective July 12, 2005, and to 70 percent effective March 12, 2009, the date it considered treatment records to show the presence of the criteria for that level of impairment. While the Veteran's disability rating has been increased throughout the pendency of this claim and appeal, he is presumed to be seeking the highest rating available, and it follows that a partial grant of an increased rating does not terminate an appeal. See AB v. Brown, 6 Vet. App. 35 (1993). As such, the appeal continues. PTSD is evaluated under a general rating formula for mental disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). A 50 percent rating is warranted where there is an occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect, circumstantial, circumlocutory, or stereo-typed 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 warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, 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); and the inability to establish and maintain effective relationships. A 100 percent 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. The pertinent evidence of record includes Vet Center records which date from 2005 to 2010, VA treatment records that date from 2007 to 2011, a private evaluation report dated in February 2010, information from an employer, and a letter dated in September 2011 from a VA treatment provider. After reviewing this record in the context of the claim, the Board concludes it reasonably shows the Veteran's service connected disability has been productive of symptoms that have caused occupational and social impairment with deficiencies in most areas as to warrant a 70 percent disability evaluation throughout the appeal period. The Vet Center records show the Veteran was seen approximately weekly throughout 2005. As this was occurring while the Veteran was employed full time, the personal logistics that such frequency of treatment would require reflects a significant effort on the part of the Veteran, which in turn suggests a significant need. Although his attendance dropped off in 2006 and his case was closed in May of that year, in 2007, the records show the Veteran began regular treatment with VA (being seen approximately every other month). By July of 2008, his condition was being described in these VA records as severe. Contemporaneous with these years of treatment, the Veteran submitted information from this employer that showed a drop in his productivity (he was a paper salesman) at a time when the company as a whole was apparently enjoying robust sales. By December 2008, the Veteran lost his job with this employer (after 8 years with the company), and although he obtained other employment by March of 2009, it appears that his problems with memory, focus, and dealing with others (symptoms associated with this service connected disability), was the basis for his job loss. In 2009, the record shows the Veteran resumed treatment at the Vet Center, attending weekly treatment sessions, and in a March 2010 letter from that organization, the Veteran's symptoms were described as severe. A similar assessment of the Veteran's condition is reflected in VA treatment records dated in 2011, and in a September 2011 letter from his VA treatment providers, the Veteran's disability rating was described as being inconsistent with the burdensome symptoms the Veteran has been enduring. (At that time, the Veteran's PTSD was evaluated as 30 percent disabling.) The Veteran was examined for VA purposes in February 2012. At that time, the examiner expressed the opinion the Veteran's symptoms were productive of occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking and mood. This is consistent with the criteria for a 70 percent evaluation. The symptoms highlighted included the absence of any friends aside from his sister and daughter, flashbacks, avoidance, sleep impairment, hyper vigilance, exaggerated startle, emotional detachments and poor concentration. The Veteran also mentioned panic attacks, depression, memory impairment and difficulty adapting to stressful circumstances. In reviewing the various documents that chronicle the Veteran's condition, it appears that many of the symptoms noted at the time of the 2012 VA examination, have been present throughout the entire appeal period. That being the case, and considered together with the social and industrial effects the symptoms have had, and the frequency of treatment, the Board concludes that with the resolution of reasonable doubt in the Veteran's favor, a 70 percent evaluation for PTSD is the appropriate schedular rating for this condition throughout this time. The Board does not find that the Veteran's symptoms more nearly approximate total occupational and social impairment at any period of time that is covered by this claim. The evidence does not show that the Veteran has persistent impairment in thought processes or communication, grossly inappropriate behavior, persistent danger of hurting others, intermittent inability to perform activities of daily living, disorientation to time or place, or memory loss for names of close relatives, own occupation, or own names. Likewise, the evidence indicates the Veteran to be gainfully employed. As such, the Board does not find a rating in excess of 70 percent is warranted in this case. ORDER Entitlement to an initial disability rating of 70 percent from July 2005 for PTSD is granted. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs