Citation Nr: 1307866 Decision Date: 03/08/13 Archive Date: 03/11/13 DOCKET NO. 07-17 483 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to February 3, 2004. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The Veteran had active service from January 1966 to January 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal of an October 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. Clarification of Issue on Appeal The issue certified to the Board was framed as entitlement to an earlier effective date for a 100 percent evaluation for PTSD. However, as the Veteran has continuously prosecuted his appeal since the initial award of service connection, the Board has reframed the issue as reflected above so as to allow for consideration of intermediate stages of evaluation. See Fenderson v. West, 12 Vet. App. 119 (1999). In June 2012, the matter was remanded to obtain Social Security Administration records. The case has been returned to the Board for further appellate review. FINDING OF FACT Prior to February 3, 2004, PTSD is productive of, at most, occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood; it is does not result in total occupational and social impairment. CONCLUSION OF LAW The criteria for an initial 70 percent rating, but no higher, for PTSD have been met, prior to February 3, 2004. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection for PTSD. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial and will not be discussed. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; he did not identify any treatment records pertinent to the appeal that are not of record. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran's Social Security Administration disability determination was obtained in July 2012, and a Formal Finding of Unavailability reflects that additional SSA records are not available. The record reflects that, prior to the October 2004 rating decision in which service connection for PTSD was granted, the Veteran failed to report for a VA Compensation and Pension (C&P) examination in May 2004. Regardless, the record is replete with probative VA inpatient and outpatient treatment records during the relevant period. The Veteran has not argued, and the record does not reflect, that the evidence is inadequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c)(4). The opinions contained in the VA medical records are probative as the objective findings reported are based on observation, reliable principles and sound reasoning. The evidence is adequate for a determination. There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the 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 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 (2012). To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Separate ratings for distinct periods of time, based on the facts are for consideration. Fenderson v. West, 12 Vet. App. 119 (1999); see also See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's PTSD is currently rated pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. Under that code, pursuant to the general rating formula, a 50 percent rating is warranted if the evidence shows 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent evaluation is warranted if evidence shows 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); and an inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted if evidence shows 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; and memory loss for names of close relatives, own occupation, or own name. Id. In rating the severity of the Veteran's psychiatric disability under the criteria listed above, psychiatric health care providers have their own system for rating psychiatric disability. This is the Global Assessment of Functioning (GAF) rating scale, which is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM- IV); Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing DSM-IV. The GAF scale score assigned does not determine the disability rating VA assigns, but it is one of the findings employed in that determination. As relevant to this case, a GAF score from 41 to 50 is defined as serious symptoms or any serious impairment in social, occupational, or school functioning. A GAF score between 51 and 60 is indicative of 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 coworkers). The RO has assigned a 50 percent evaluation for PTSD, prior to February 3, 2004, and a 100 percent evaluation thereafter. Thus, the issue is whether a rating higher than 50 percent is warranted at any time during the appeal period, prior to February 3, 2004. Social Security Administration (SSA) records note that the Veteran was found to be medically disabled due to not only PTSD, but also heart problems, digestive problems and a hernia, since April 2000. Regardless, and although not bound by the determination, the Board has given consideration to the SSA determination/records. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (indicating the SSA's favorable determination, while probative evidence to be considered in the claim with VA, is not dispositive or altogether binding on VA since the agencies have different disability determination requirements); see also Martin v. Brown, 4 Vet. App. 136, 140 (1993) (while a SSA decision is not controlling for purposes of VA adjudication, it is "pertinent" to a veteran's claim). Prior to February 3, 2004 VA treatment records reflect a history of anger and aggressive behavior, along with prior incarceration, and complaints included a worsening mood. A September 2001 VA treatment record reflects GAF scores ranging from 45 to 51 from December 2000 to September 2001. Although GAF scores reported in July 2003 were 50 and 55, the degree of impairment was noted to be moderate to severe. Even though the records reflect antisocial traits, service-connected symptomatology was not distinguished from nonservice connected symptomatology. See 38 C.F.R. § 3.102; see also Mittleider v. West, 11 Vet. App. 181, 182 (1998). The criteria for both a 50 percent and 70 percent evaluation require occupational and social impairment and, resolving all doubt in the Veteran's favor, the Board finds that his PTSD symptoms more nearly approximate the criteria for a 70 percent rating for the period on appeal. The criteria for a 70 percent rating for PTSD are met when there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. See Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). A rating in excess of the 70 percent evaluation assigned in this decision is not warranted at any time during the appeal, prior to February 3, 2004. Comparing his reported and documented symptoms of PTSD to the rating schedule, he does not manifest or nearly manifest the behavioral elements of 100 percent disability due to PTSD, prior to February 3, 2004. The Board notes that an incident during which he threatened VA clinic staff prior to admission occurred in May 2004. The RO assigned a 100 percent evaluation, effective in February 2004. Prior to February 3, 2004, there is no competent evidence of gross impairment of thought processes or communication, and no documented instance of the Veteran being a danger to himself or others, let alone persistence of such danger. An April 2000 VA treatment record notes that the Veteran was alert, oriented and well groomed. No thought disorder was reported and mood was described as "ok now." No suicidal ideation was reported and insight and judgment were noted to be fair. A May 2000 record notes that he was well groomed and loud but friendly. Although angry outbursts and irritability were noted, improved sleep on medications was reported. The April 2000 record reflects a 30-year history of having worked in the construction business, and that he was widowed in 1992 after 24 years of marriage, residing with his girlfriend for at least the past year. Although confrontations with others were noted in August 2000, the record reflects that frequented venues with live music for entertainment. A December 2000 VA treatment record notes that his life was in some turmoil, yet a January 2001 record notes his report of having recently celebrated the best Christmas he had had in many years. Records dated in February 2001 reflect the Veteran's report that things were stable, that he kept in touch with his lady friend in another state and that he was hoping they would get back together. Records dated from August 2001 to November 2001, reflect that he was hopeful about getting his driver's license back, that progress building "bat nurseries" for the zoo was being made, and that he was commended for making good decisions. The 70 percent rating assigned in this decision contemplates serious symptoms or any serious impairment in social, occupational, or school functioning, as reflected in the GAF of 45 assigned in June 2000. The 70 percent evaluation granted in this decision, prior to February 3, 2004, contemplates impairment in earning capacity, including loss of time from exacerbations due to PTSD. 38 C.F.R. § 4.1 (2012). | The Veteran is competent to report his symptoms. The Board has accorded more probative value to the objective medical findings and opinions. The Board finds the Veteran's PTSD symptoms do not more closely approximate to the criteria for a 100 percent evaluation, prior to February 3, 2004. The evidence is in favor of a 70 percent evaluation, but no higher, for PTSD throughout the appeal, prior to February 3, 2004. Thus, a 70 percent evaluation is warranted for PTSD, prior to February 3, 2004. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the applicable rating criteria adequately contemplate the manifestations of the Veteran's PTSD symptoms. The 70 percent evaluation granted in this decision, prior to February 3, 2004, contemplates impairment in earning capacity, including loss of time from exacerbations due to PTSD. 38 C.F.R. § 4.1 (2012). Because the criteria are adequate to evaluate the disability and contemplate occupational and social impairment, referral for consideration of an extraschedular rating is not warranted. ORDER Prior to February 3, 2004, a 70 percent rating for PTSD is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs