Citation Nr: 1316381 Decision Date: 05/20/13 Archive Date: 05/29/13 DOCKET NO. 06-33 700 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. Fields, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1967 to April 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which granted service connection for PTSD and assigned an initial evaluation and effective date for such disability. The Veteran appealed from the initial rating of 50 percent that was assigned for his PTSD. He was granted a temporary total (100 percent) disability rating from August 3 to October 1, 2005, based on hospitalization for treatment of PTSD. See September 2006 and October 2012 rating decisions. The rating then returned to 50 percent. As such, the issue remains entitlement to a rating in excess of 50 percent. The Veteran testified before the undersigned at a hearing at the RO in September 2012. A transcript of that hearing is of record. He also submitted new evidence at the hearing, along with a waiver of review of such evidence by the agency of original jurisdiction (AOJ). Therefore, the Board may properly consider this new evidence in the first instance. See 38 C.F.R. §§ 20.800, 20.1304(c) (2012). The Board notes that the Veteran's Virtual VA file (a highly secured electronic storage system) includes VA treatment records dated after the last adjudication by the AOJ in November 2008. As discussed below, such evidence generally reflects continuing treatment for similar psychiatric symptoms as reflected in the other evidence of record. As such, the evidence is generally duplicative and the Board may consider it in the first instance without prejudice to the Veteran. Id. FINDINGS OF FACT Throughout the relevant period, the Veteran's PTSD has resulted in occupational and social impairment with deficiencies in most areas, including work, family relations, judgment, thinking, and mood; but not total occupational and social impairment. CONCLUSION OF LAW The criteria for an initial rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b)(1), 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not in the 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, 186 (2002). Proper VCAA notice must be provided to a claimant prior to the initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). Where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven. In such cases, the intended purpose of the VCAA notice has been fulfilled and no additional notice is required as to downstream issues, including the disability evaluation. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Here, the Veteran's claim for a higher rating arises from his disagreement with the initial evaluation assigned following the grant of service connection for PTSD. He was notified in March 2005, prior to the initial unfavorable rating in October 2005, of the evidence and information necessary to substantiate his service connection claim, and the responsibilities of the Veteran and VA in obtaining such evidence. After the Veteran disagreed with the rating assigned, he was advised of the evidence and information necessary to establish a disability rating and effective date, in accordance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). He was also advised of the requirements to establish a higher rating (i.e., that the disability had increased in severity) at that time. In May 2008, the Veteran was also notified of the relevant diagnostic code and potential "daily life" evidence, although such additional notice is no longer strictly required. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (vacating Vazquez-Flores v. Peake, 22 Vet. App. 37, 43 (2008), to the extent that it requires more than "generic notice"). The timing defect as to post-adjudication notice letters was cured by the subsequent readjudication of the claim, including in a November 2008 Supplemental Statement of the Case. See Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). During the September 2012 Board hearing, the undersigned Acting Veterans Law Judge explained the evidence and information needed for a higher rating for PTSD and questioned the Veteran as to the severity of his PTSD symptoms. The Veteran discussed his asserted symptoms throughout the appeal, and he and his representative demonstrated actual knowledge of the elements necessary to substantiate the claim via questioning and testimony. There is no indication or argument that any notification deficiencies have resulted in prejudice or otherwise affected the essential fairness of the adjudication of the claim. In particular, neither the Veteran nor his representative has argued that VA failed to comply with 38 C.F.R. 3.103(c)(2), or identified any prejudice as a result of the Board hearing. To the extent that the Acting Veterans Law Judge did not explain the bases of the prior determinations, or suggest the submission of evidence that may have been overlooked, the Veteran has not been prejudiced. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). Rather, the Veteran has had ample opportunity to participate in the adjudication of his claim. He and his representative have submitted pertinent evidence and made pertinent arguments in support of his assertion as to a higher rating. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). VA has also substantially complied with the duties set forth in 38 C.F.R. 3.103(c)(2), consistent with Bryant. Accordingly, adequate notice has been provided. With regard to the duty to assist, all identified, available treatment records have been obtained and considered, and the Veteran was afforded several VA examinations in connection with his claim. There is no argument or indication that any pertinent medical records remain outstanding, or that the VA examinations are inadequate. Although the last examination in connection with this appeal was provided in August 2008, the Veteran has submitted several mental health evaluations and letters from his mental health providers since that time, and there are also treatment records dated through 2012. Additionally, he described the severity of his symptoms during the September 2012 hearing and provided a September 2012 letter from his Vet Center counselor. There is no indication that his symptoms of have increased in severity since the last medical evidence of record. As such, the medical evidence is sufficient for a fair adjudication. A remand would serve no useful purpose, as it would unnecessarily impose additional burdens on VA with no benefit to the Veteran. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). VA has satisfied its duties to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceedings. As such, the Veteran will not be prejudiced by a decision. II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated. Consideration must be given to staged ratings, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. Fenderson v. Brown, 12 Vet. App. 119, 126-127 (1999). Evaluation of a mental disorder requires consideration of the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. Evaluations will be assigned based on all evidence of record that bears on occupational and social impairment, rather than solely on an examiner's assessment of the level of disability at the moment of the examination. The extent of social impairment shall also be considered, but an evaluation may not be assigned based solely on the basis of social impairment. 38 C.F.R. § 4.126. Under 38 C.F.R. § 4.130, all service-connected mental health disabilities are rated pursuant to the General Rating Formula for Mental Disorders. The criteria for a 50 percent rating are: 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. The criteria for a 70 percent rating are: 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 effective relationships. The criteria for a 100 percent rating are: 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. 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. The symptoms listed in 38 C.F.R. § 4.130 are not intended to constitute an exhaustive list but, rather, serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating for a mental disorder. In addition to the symptoms listed in the rating schedule, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The DSM-IV provides for a global assessment of functioning (GAF), a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (quoting the DSM-IV). In this case, the lay and medical evidence of record is generally consistent with respect the severity of the Veteran's PTSD symptomatology. As discussed below, his PTSD has resulted in occupational and social impairment in most areas, but not total occupational and social impairment, throughout the period on appeal. As such, he meets the criteria for a 70 percent rating, but no higher. 38 C.F.R. § 4.130, DC 9411. The Veteran summarized his symptoms at the September 2012 Board hearing. He has frequent nightmares and flashbacks, feelings of isolation, and difficulty expressing himself and interacting with his family and at work. Although he has been married to his current wife for 20 years, this has involved domestic violence, for which he sought treatment through the Vet Center. He also has problematic relationships with his daughter and grandchildren, which continue to decline due to his behavior and lack of contact. The Veteran works on a regular basis from 3:00 a.m. to 11:30 a.m. to avoid contact with crowds, and he has problems with his coworkers and supervisors. He has trouble adapting to new circumstances, and his anxiety increases in unfamiliar situations, resulting in panic attacks more than once a week. The Veteran reported being heavily depressed, but he denied any suicidal or homicidal ideation in recent years. His wife sometimes reminds him to shave and bathe. He takes medications to treat his PTSD. He wears rubber bands on his wrist, which he "snaps" to bring him back to the present when he has a flashback or is disoriented, in that he feels as if he were back in Vietnam during combat service. The Veteran's statements in support of his claims at other times are generally consistent with his hearing testimony. He describes difficulty sleeping with nightmares, flashbacks, conflicts with coworkers and family members, continuous panic and depression, anger, unprovoked irritability, emotional numbing, and neglect of personal appearance and hygiene. He prefers to be alone or in a small group and dislikes large crowds, and he is hypervigilant or suspicious in public places. See October 2004, December 2004, and January 2009 statements. Additionally, the evidence includes lay statements from several family members and friends that corroborate the Veteran's reports as to the severity of his symptoms throughout the course of the appeal. See letters dated in November 2006 and July 2008 from Veteran's wife, step-daughter, and a friend or coworker. The Veteran was evaluated in connection with his claim in January 2005, May 2005, September 2006, and August 2008. He has also received VA therapy and psychiatric treatment, as well as counseling at the Veterans Outreach Center (Vet Center), throughout the appeal. Records and letters from these mental health professionals generally reflect symptoms similar to those reported by the Veteran in support of his appeal. See Vet Center treatment records dated in December 2004, and letters dated in April 2006, November 2006, July 2008, and September 2012; VA treatment records dated from 2004 to 2012, and letters from VA providers dated in June 2005, April 2006, September 2006, October 2006, and January 2009. In addition to the symptoms summarized above, during the January 2005 VA examination, the Veteran reported suicidal thoughts 2-3 times in the last six months. He also reported various obsessive behaviors. His wife had indicated that he would sometimes talk without making sense, and that he could go 3-4 days without showering. A VA psychiatrist further indicated in an April 2006 letter that the Veteran had to reread items multiple times to remember them. VA examiners and treating providers have assigned GAF scores ranging from 40 to 60 and described the Veteran's level of impairment as moderate or severe. See, e.g., January 2005 VA examination report (GAF score of "51-60"); January 2005 VA treatment record (GAF score of "41-50"); May 2005 VA examination report (GAF score of 45, moderate impairment); June 2005 letter from VA psychologist (GAF score of 45, severe impairment); April 2006 letter from VA psychiatrist (severe impairment); September 2006 VA examination report (GAF score of 50); July 2008 letter from Vet Center Counselor (GAF score of 40); August 2008 QTC examination report (GAF score of 49). In letters dated in June 2005 and January 2009, a VA psychiatrist opined that the Veteran meets the criteria for a 70 percent rating for PTSD, with specific references to his symptoms as summarized above. Similarly, in a September 2012 letter, Vet Center counselors assigned a GAF score of "40-50" based on similar symptoms, and opined that the Veteran is more impaired due to his PTSD symptoms than is represented by a 50 percent rating. The Board notes that a GAF score of 51 to 60 indicates the presence of moderate symptoms (e.g., flat affect, circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers). A GAF score of 41 to 50 indicates that the examinee has serious symptoms or a serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF score of 31 to 40 indicates that the examinee has 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., avoids friends, neglects family, and is unable to work). See Quick Reference to the Diagnostic Criteria from DSM-IV, 46-47 (1994). Neither the GAF score nor a medical professional's summary of the level of impairment is conclusive. Rather, the Board must consider all evidence of record that bears on social and occupational impairment together to arrive at a fair determination as to the appropriate mental health rating. See 38 C.F.R. § 4.126. Considering all lay and medical evidence of record, the Board finds that the Veteran's PTSD results in occupational and social impairment with deficiencies in most areas, including work, family relations, judgment, thinking, and mood. This is due to symptoms including chronic sleep impairment, memory impairment, obsessional rituals, suspiciousness, hypervigilance, near-continuous panic or anxiety and depression, recurrent suicidal ideation, anger, unprovoked irritability with periods of violence, intermittently illogical or irrelevant speech, spatial disorientation during flashbacks, intermittent neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances including work, and difficulties establishing and maintaining effective work and social relationships. However, the evidence does not establish total occupational and social impairment due to PTSD. Rather, throughout the period on appeal, the Veteran continued to be married and had some contact with his children and grandchildren, albeit it with strained relationships. He also continued to work full-time on the night shift. Further, there is no indication of gross impairment in thought processes or communication, or persistent delusions or hallucinations. There has also been no grossly inappropriate behavior or persistent danger of hurting self or others. Although there is some indication of domestic violence, this was not persistent or frequent during the period on appeal. Similarly, although the Veteran had occasional suicidal thoughts, these were not persistent and he had no plans to act on them. The Veteran has continued to perform activities of daily living, including generally maintaining minimal personal hygiene. The Board notes that the Veteran described being disoriented during flashbacks, in that he feels as if he is back in combat in Vietnam. This was described by his VA psychiatrist as spatial disorientation in a January 2005 treatment record and June 2005 letter. There was no memory loss for names of close relatives, own occupation, or own name. As such, considering all evidence, the Board finds that the Veteran's symptoms do not more nearly approximate the criteria for the next higher rating of 100 percent. Rather, his symptoms are most consistent with a 70 percent rating due to social and occupational impairment in most areas. 38 C.F.R. §§ 4.7, 4.130, DC 9411. All potentially applicable diagnostic codes have been considered, and there is no basis upon which to assign an evaluation in excess of 70 percent for the Veteran's PTSD. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Further, staged ratings are not appropriate, as the manifestations of such disability were relatively stable, and any increase is not sufficient to warrant a higher rating for the reasons discussed above. See Fenderson, 12 Vet. App. at 126-27. The Board has considered whether this case should be referred for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1). However, this case does not present such an exceptional or unusual disability picture that it would be impracticable to apply the schedular standards, and referral is unnecessary. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). Rather, the manifestations of the Veteran's PTSD are fully contemplated by the schedular rating criteria. Briefly, his mental health symptomatology resulted in occupational and social impairment in most areas due to symptomatology as discussed above. Therefore, the rating criteria reasonably describe the Veteran's disability level and symptomatology, and the rating schedule is adequate to evaluate his disability picture. Moreover, there are no related factors such as marked interference with employment or frequent periods of hospitalization. Although the Veteran was hospitalized for more than 21 days beginning in August 2005 for treatment of PTSD, he is already in receipt of a temporary 100 percent rating for that period. There is no indication of frequent hospitalizations otherwise. Further, the Veteran has continued to work, and the 70 percent schedular rating is intended to account for considerable interference or loss of working time. See 38 C.F.R. § 4.1. As such, referral for consideration of an extra-schedular rating is not necessary. See Thun, 22 Vet. App. at 115-16. The Veteran has been employed full time throughout the period on appeal, as indicated in the September 2012 hearing. As such, a claim for a TDIU is not raised and need not be addressed. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). A higher rating of 70 percent has been granted of the entire period on appeal based, in part, on the benefit-of-the-doubt rule. However, the preponderance of the evidence is against a higher rating. As such, the benefit-of-the-doubt doctrine does not apply, and the Veteran's claim must be denied in this respect. 38 C.F.R. § 4.3. ORDER An initial rating of 70 percent, but no higher, for PTSD is granted. ____________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs