Citation Nr: 1311641 Decision Date: 04/08/13 Archive Date: 04/19/13 DOCKET NO. 06-08 462 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a gastrointestinal disorder. 2. Entitlement to service connection for hypertension. 3. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) from September 22, 2003, to August 7, 2005. 4. Entitlement to a total disability rating for compensation based on individual unemployability, due to service-connected disabilities, prior to August 8, 2005. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The Veteran served on active duty from March 1984 to October 1984 and from December 1990 to June 1991, to include service in the Southwest Asia Theatre of Operations. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in October 2004 by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, granting service connection for PTSD and assigning a 50 percent rating therefor, effective from September 22, 2003, and denying service connection for a gastrointestinal disorder and hypertension. This case was previously before the Board in April 2010, at which time the issues on appeal, as well as the raised issue of TDIU entitlement, were remanded to the RO via the VA's Appeals Management Center (AMC) in Washington, DC, so that additional development could be undertaken. On remand, the RO by its rating decision of May 2010 granted TDIU entitlement as of March 6, 2007; the Veteran in May 2010 withdrew from appellate consideration all issues except for the initial rating to be assigned for PTSD; and the AMC by its rating decision of June 2011 assigned a 100 percent schedular evaluation for PTSD from August 8, 2005. The issues, cited on the title page of this document, have been modified accordingly. FINDINGS OF FACT 1. The Veteran by his written statement received by VA in May 2010 withdrew from appellate consideration the issues of his entitlement to service connection for a gastrointestinal disorder and hypertension, as well as TDIU entitlement. 2. During the period from September 22, 2003, to August 7, 2005, the Veteran's PTSD was productive of social and industrial impairment in most areas of life, but not complete social and/or industrial impairment. 3. The schedular criteria are adequate for the evaluation of the Veteran's PTSD from September 22, 2003, to August 7, 2005. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appellate issues involving claims of entitlement to service connection for a gastrointestinal disorder and hypertension and to a TDIU prior to August 8, 2005, have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 2. During the period from September 22, 2003, to August 7, 2005, the criteria for the assignment of a 70 percent rating, but not greater, for PTSD have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal of Certain Issues on Appeal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the Veteran by his written statement, received by VA in May 2010, withdrew from appellate consideration the issues of his entitlement to service connection for a gastrointestinal disorder and hypertension and to a TDIU prior to August 8, 2005. As there remain no allegations of error of fact or law for appellate consideration as to those matters, the Board does not have jurisdiction to review the appeal relating thereto and that portion of the appeal must therefore be dismissed. Initial Rating for PTSD from September 22, 2003, to August 7, 2005 Preliminary Matters As noted above, this matter was previously remanded by the Board in April 2010 so that additional development could be undertaken. All of the actions sought by the Board through its prior remand were accomplished and there is no contrary argument advanced by the Veteran or on his behalf. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). Before addressing the merits of the Veteran's claim on appeal, the Board is required to ensure that the VA's duties to notify and assist have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; see Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000). The notification obligation in this case was accomplished by way of the RO's letter, dated in October 2003, as to the Veteran's underlying claim for service connection for PTSD, and that was supplemented by a January 2007 mailing relating to the assignment of ratings and effective dates. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Moreover, the claim for initial rating herein on appeal is a downstream issue from that of service connection and further VCAA notice as to downstream matters is not required. VAOPGCPREC 8-2003 (Dec. 22, 2003). It also appears that the U.S. Court of Appeals for Veterans Claims (Court) has determined that the statutory scheme does not require another VCAA notice letter in a case such as this where the Veteran was furnished VCAA notice with regard to the claim of service connection itself. Dingess/Hartman, supra; see also Goodwin v. Peake, 22 Vet. App. 128 (as to a claim for an earlier effective date that "where a claim has been substantiated after the enactment of the VCAA, [the veteran] bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements." VCAA notice is to be furnished to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, complete VCAA notice was not provided to the appellant prior to the RO's initial decision in October 2004, but any error as to timing was cured by the subsequent issuance of one or more supplemental statements of the case. See Prickett v. Nicholson, 20 Vet. App. 370, 376-78 (2006) (validating the remedial measures of issuing fully compliant VCAA notification and readjudicating the claim in the form of a supplemental statement of the case to cure timing of a notification defect). In light of the foregoing, and in the absence of any allegation of prejudice by or on behalf of the Veteran, the Board cannot conclude that any defect in the timing or substance of the notice provided affected the essential fairness of the adjudication, with resulting prejudice to the Veteran. The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). The record includes service treatment records and reports of treatment compiled by various medical professionals postservice, in addition to lay statements from individuals familiar with the Veteran. The Veteran has not made the RO, AMC, or the Board aware of any additional evidence that needs to be obtained in order to decide fairly the claim herein addressed on its merits, and has not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of his appeal. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). The record indicates that the Veteran has been provided VA psychiatric or psychological examinations in connection with the instant appeal. The findings from those examinations are detailed and comprehensive in scope and are such as to permit the Board to evaluate the disability at issue both fairly and fully. On that basis, further development action relative to the Veteran's PTSD claim is not warranted. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In view of the forgoing, the Board finds that VA has satisfied its duty to assist under the governing law and regulations. Analysis The record reflects that service connection for PTSD was established by the RO through its rating decision of October 2004. At that time, a 50 percent schedular evaluation was assigned under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411, effective from September 22, 2003. Subsequent action led to the assignment of a 100 percent schedular evaluation for PTSD from August 8, 2005. The initial rating assigned was timely appealed and the question for review on appeal is therefore whether an initial rating in excess of 50 percent is for assignment at any point from September 22, 2003, to August 7, 2005. See Fenderson v. West, 12 Vet. App. 119, 126 (2001) (where an award of service connection for a disability has been granted and the assignment of an initial evaluation is at issue, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged"). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate DCs identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and there must be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. PTSD is evaluated under 38 C.F.R. § 4.130, DC 9411. Under the general rating formula for mental disorders, a 50 percent rating is warranted for PTSD if one exhibits 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. A 70 percent evaluation is warranted for PTSD if one 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 actives; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); or an inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned when there is total occupational or 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. Id. The symptoms recited in the criteria in the rating schedule for evaluating mental disorders are "not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id. at 443 . The Global Assessment of Functioning (GAF) is a scale reflecting psychological, social and occupational functioning on a hypothetical continuum of mental health-illness. Diagnostic and Statistical Manual of Mental Disorders, 32 (4th ed. 1994); see also Carpenter v. Brown, 8 Vet. App. 240, 243 (1995). A GAF of 51-60 indicates 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 of 41-50 indicates 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 of 31-40 indicates some impairment in reality testing or communication (e.g. speech is at times illogical, obscure, or irrelevant) or 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). A GAF scale score of 21 to 30 denotes behavior that is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or inability to function is almost all areas (e.g., stays in bed all day; no job, home or friends). Id. In connection with this appeal, the Veteran alleges that he is entitled to a rating in excess of 50 percent for the period in question, citing the many PTSD symptoms affecting his social and occupational functioning. He reports having been adversely affected by continuous nightmares of his service-related stressors and that his sleep was highly impaired as a result. His flashbacks were described as ongoing and he argues that he was extremely isolated during the relevant time frame. During the period in question, the Veteran was gainfully employed as a supervisor at a joist and deck factory and continued to work in that capacity until discharged due to insubordination in September 2006. That work activity, in combination with the evidence developed during the pertinent time frame, are inconsistent with the existence of total social and/or industrial impairment caused by his PTSD. That is not to say, however, that the Veteran's PTSD was other than severely disabling. The record reflects that at the time of a VA PTSD examination in September 2004, the Veteran had been placed involuntarily in a no-work status for a three-month period due to on-the-job behavioral problems. He also credibly indicates that his role as a supervisor was at least in part the result of his inability to interact satisfactorily with others on the factory line. A GAF score of 55 was assigned at that time on the basis of moderate to serious manifestations and GAF scores of 51 were recorded in September 2003, March 2004, and April 2004, with somewhat higher scores being assigned later during 2004 when seen on an outpatient basis by VA, but not exceeding 60. There is also for consideration that a mental health professional who evaluated the Veteran in August 2005 on behalf of the Social Security Administration determined that a GAF score of 35 was for assignment throughout the preceding one-year period. In all, there is evidence presented both for and against entitlement to a higher initial rating for PTSD, to include the written statements of Veteran and others, including family members, as to the impact of his PTSD on his daily life, which are credible and probative. Given the GAF scores primarily approximating 50, with one clearly below and several above, the Board determines that the disability picture presented more nearly approximates the criteria for the assignment of a 70 percent schedular evaluation, but not greater than 70 percent, for the period from September 22, 2003, to August 7, 2005. A preponderance of the evidence is against assignment of a 100 percent schedular evaluation under DC 9411 based on total social and/or industrial impairment. Lastly, a determination of whether the claimant is entitled to an extraschedular rating under 38 C.F.R. § 3.321(b) is required, and this is a three-step inquiry. First, the Board must determine if the evidence presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. To do this, the Board or the RO must determine if the criteria found in the rating schedule reasonably describes the claimant's disability level and symptomatology. If this is the case, the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral for extraschedular consideration is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, the Board must determine whether the claimant's exceptional disability picture exhibits other related factors, such as marked interference with employment and frequent periods of hospitalization. If the Board determines that the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, the case must be referred for completion of the third step--to determine whether, to accord justice, an extraschedular rating must be assigned. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this instance, the Veteran's service connected psychiatric disability of PTSD is clearly accounted for under DC 9411, which provides, as here, a 70 percent rating where there is social and industrial impairment in most of his life endeavors, but not complete social or industrial impairment. The Veteran is shown to be negatively affected by various PTSD symptoms, including anger, irritability, social isolation, nightmares, flashbacks, survivor guilt, memory or cognitive impairment, indifference toward authority, and interpersonal difficulties. All of the indicated manifestations are encompassed in the 70 percent schedular evaluation assigned for the period at issue and which reflects the existence of significant difficulties in most areas of life. There is otherwise no indication in the record that DC 9411 fails to describe adequately or contemplate the existing disability level, and, as such, the question of extraschedular consideration need not proceed further. In all, the record supports the assignment of an initial rating of 70 percent rating for PTSD throughout the pendency of the claim, i.e., from September 22, 2003, to August 7, 2005, but no schedular or extraschedular rating in excess of 70 percent. See 38 U.S.C.A. § 5107; 38 C.F.R. § 4.7; Mauerhan, Fenderson, supra. ORDER The appeal involving the Veteran's claims for service connection for a gastrointestinal disorder and hypertension and for a TDIU prior to August 8, 2005, is dismissed. An initial rating of 70 percent, but none greater, is assigned for PTSD for the period from September 22, 2003, to August 7, 2005. ____________________________________________ MICHAEL A. MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs