Citation Nr: 1318841 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 09-36 627 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to an increased initial evaluation for posttraumatic stress disorder (PTSD), currently evaluated as 30 percent prior to March 5, 2012, and 50 percent from March 5, 2012, to February 11, 2013. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from September 1968 to September 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal of an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In April 2012, a hearing was held before the undersigned Veterans Law Judge (VLJ) of the Board. Relevant to this proceeding, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ explained the issues that were before the Board. The representative and the VLJ asked questions to ascertain whether the Veteran had submitted evidence in support of his claims. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims. Moreover, the Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), or otherwise identified any prejudice in the conduct of the hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. This case was remanded to the Agency of Original Jurisdiction (AOJ) for additional development in November 2012. On remand, the AOJ issued a rating decision in February 2013 awarding a 100 percent evaluation for the Veteran's PTSD effective February 12, 2013. This decision fully satisfied the Veteran's appeal as of this date. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The requested development having been completed, the case is once again before the Board for appellate consideration of the issue on appeal with the issue modified as reflected above. FINDINGS OF FACT 1. Prior to March 5, 2012, the Veteran's PTSD was manifested by disturbed sleep with nightmares, some depressed mood and minimal effect on social and occupational functioning. 2. For the period March 5, 2012, to February 11, 2013, the Veteran's PTSD is manifested by intermittent auditory hallucinations, frequent nightmares with associated outbursts of anger, tense, anxious and depressed mood and intrusive thoughts without suicidal or homicidal ideation, delusions or impaired grooming or hygiene, resulting in no more than a mild to moderate impairment of occupational and social functioning. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 30 percent prior to March 5, 2012, and 50 percent from March 5, 2012, to February 11, 2013, for PTSD have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In cases such as this, 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, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The appellant bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008); see also Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009). There has been no allegation of such error in this case. In any event, VA's duty to notify has been satisfied prior to the initial AOJ decision through a notice letter dated August 2008 that fully addressed all notice elements. This letter informed the Veteran of what evidence was required to substantiate his claim on both a direct and secondary basis, and of the Veteran's and VA's respective duties for obtaining evidence. The Veteran was requested to submit any evidence in his possession and has been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012). Service treatment records are associated with claims file. All post-service treatment records identified by the Veteran have also been obtained. He has not identified any additional records that should be obtained prior to appellate consideration. VA's duty to further assist the Veteran in locating additional records has been satisfied. The Veteran has been afforded two VA examinations in conjunction with his appeal. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2012); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). These VA examinations are adequate for the purposes of evaluating the Veteran's PTSD, as they involved a review of the Veteran's pertinent medical history as well as a clinical evaluation of the Veteran, and provide an adequate description of pertinent symptomatology. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As a final note, the Board again observes this case was remanded by the Board in November 2012 for additional development. Specifically, the Board instructed that outstanding VA treatment records be associated with the claims folder, and the Veteran be provided a new VA examination. All outstanding VA treatment records have been associated with the virtual claims file, and a VA examination was provided in February 2013. As such, the Board finds there has been substantial compliance with the prior remand, and adjudication of the instant claim may proceed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Analysis Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Evidence to be considered in the appeal of an initial assignment of a disability rating is not limited to that reflecting the current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In Fenderson, the Court discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it is possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran asserts that his service-connected PTSD is more severe than contemplated by the assigned evaluations. Service connection for PTSD was granted by an October 2008 rating decision, and an initial 10 percent evaluation assigned under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). The current 30 percent evaluation effective prior to March 5, 2012, and 50 percent evaluation effective March 5, 2012, to February 11, 2013, were assigned by a February 2013 rating decision. The issue of entitlement to an increased evaluation will be considered for both rating periods. Diagnostic Code 9411 is subsumed into the General Rating Formula for Mental Disorders (General Rating Formula). Under the General Rating Formula, a 30 percent evaluation contemplates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, and recent events). Id. A 50 percent evaluation is warranted where the disorder is manifested by 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 for example, 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. Id. A 70 percent evaluation is warranted where the disorder is manifested by 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 that is 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 disability evaluation is warranted when there is total occupational and social impairment, due to such symptoms as: 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 and place; memory loss for names of close relatives, own occupation, or own name. Id. The nomenclature employed in the rating schedule is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (also known as "the DSM-IV"). 38 C.F.R. § 4.130 (2012). The DSM-IV contains a Global Assessment of Functioning (GAF) scale, with scores ranging between zero and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). The DSM-IV contemplates that the GAF scale will be used to gauge a person's level of functioning at the time of the evaluation (i.e., the current period) because ratings of current functioning will generally reflect the need for treatment or care. While GAF scores are probative of the Veteran's level of impairment, they are not to be viewed outside the context of the entire record. Therefore, they will not be relied upon as the sole basis for an increased disability evaluation. Prior to March 5, 2012 An October 2008 VA examination report indicates the Veteran appeared alert and well-oriented with overall intellectual and memory functioning within normal age limits. His general appearance and eye contact were appropriate, speech was spontaneous and fluent, and there was no impairment in thought process or communication. His affect was full, stable and related, and insight, judgment, reasoning and impulse controls were intact, and he did not suffer from delusions or hallucinations. He reported that he and his wife worked as campground hosts for part of the year, where he checked on campers, collected fees and resolved minor complaints. He reported having lots of friends and enjoying a variety of recreational and social activities. He also reported receiving only about three and a half hours of sleep a night, taking medication to help him sleep and avoid nightmares. The VA examiner assigned a GAF score of 75, specifically finding that PTSD symptoms had not interfered with occupational or social functioning to a significant degree. A July 26, 2010, VA mental health note indicates the Veteran was alert, oriented in all four spheres and presented as casually dressed with good grooming and hygiene. He was open and friendly with a euthymic mood and full affect with speech normal in rate, rhythm, volume and tone. His thought processes were linear, logical and goal-directed, and insight and judgment were good and intact. An October 2010 VA nursing note indicates the Veteran reported chronic PTSD and denied suicidal and homicidal ideation. During this period, the Veteran was assigned wildly fluctuating GAF scores ranging from 46 (see, e.g., January 2009 mental health note) to 75 (see, e.g., October 2008 VA examination report; August 2009 VA mental health note). GAF scores of 41 to 50 contemplate serious symptoms (e.g.. suicidal ideation, severe obsessional rituals, frequent shoplifting) or serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF score of 71 to 80 indicates that, if symptoms are present at all, they are transient and expectable reactions to psychosocial stressors with no more than slight impairment in social and occupational functioning. See DSM-IV. Given the wide discrepancy in the assignment of GAF scores, particularly when viewed in context with the symptomatology described above, while the GAF scores of record have been considered, they will not be used as a sole basis for assigning an increased evaluation. A 50 percent evaluation contemplates occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect, impaired speech, panic attacks, difficulty in understanding complex commands or impairment of short- and long-term memory. See General Rating Formula. Such impairment and symptomatology is not demonstrated prior to March 5, 2012. Records indicate the Veteran is able to function well in both an occupational and social setting during this period. Therefore, while the Veteran asserts he is entitled to an evaluation greater than 30 percent, in viewing the evidence of record in its entirety, to include GAF scores recorded throughout this period of the Veteran's appeal, the Board finds that the Veteran's overall disability picture most closely approximate that contemplated by a 30 percent evaluation throughout the period prior to March 5, 2012. March 5, 2012, to February 11, 2013 A March 5, 2012, VA mental health note indicates the Veteran presented with fair hygiene and grooming, was alert, awake and oriented times three. His mood was anxious and depressed, his affect flat, and insight and judgment fair. He did not appear disorganized, delusional or paranoid, but reported auditory hallucinations at times. He denied suicidal ideation. Based on this record, the AOJ increased the assigned evaluation to 50 percent effective March 5, 2012. A July 2012 VA mental health note indicates the Veteran was oriented times four with clear and coherent speech. His mood and affect were tense, thoughts intrusive and cognitions, insight and judgment intact. He reported no delusions or hallucinations, and no suicidal or homicidal ideation. In August 2012, the Veteran again reported auditory hallucinations with no delusions, homicidal ideation or suicidal ideation. Insight and judgment were intact and he was oriented times four. A GAF of 65 was assigned. In October 2012, insight and judgment were intact and the Veteran reported no delusions, hallucinations or suicidal ideation. A GAF of 68 was assigned. Finally, a December 2012 VA mental health note indicates the Veteran was oriented times four with an adequate mood and affect. Cognition, insight and judgment were intact, thoughts intrusive with no delusions, hallucinations, suicidal ideation or homicidal ideation. A GAF of 63 was assigned. At the April 2012 Board hearing, the Veteran and his spouse testified that he continued to experience difficulty sleeping and, when he did sleep, he had nightmares. They also testified that following such a nightmare, he experiences outbursts of anger and irritability. They discussed the Veteran's retirement from construction in approximately 1999 resulting from an orthopedic disability of the knees. Finally, a VA examination conducted on February 12, 2013, the effective date of the assigned 100 percent evaluation, indicates increased symptomatology, including panic attacks more than once per week, memory loss, gross impairment in thought processes or communication, suicidal ideation and a neglect of personal appearance and hygiene. A GAF of 48 was assigned, and the VA examiner opined that the Veteran's PTSD symptoms resulted in total occupational and social impairment. While the evidence for this stage of the Veteran's appeal is somewhat sparse, records do not indicate the Veteran experienced symptomatology such as speech impairment, suicidal or homicidal ideation, panic attacks, impaired impulse control or neglect of personal hygiene, all symptoms congruent with evaluations higher than 50 percent. The Veteran did not report difficulties with personal, social or occupational relationships. While he did report auditory hallucinations and outbursts of anger after awaking from a nightmare, symptoms congruent with a higher evaluation, such symptoms were intermittent and did not lead to violence. Finally, to the extent GAF scores were assigned during this period, they remained relatively constant in the 60s, reflecting some mild symptoms with some difficulty in social and occupational functioning. See DSM-IV. In considering the evidence discussed above, as well as all other evidence of record, the Board finds that the evidence does not support the assignment of an initial evaluation in excess of 50 percent at any point during this stage of the Veteran's appeal. The Veteran did not report difficulty in occupational or social functioning during his treatment, and at no time was he disoriented, or was his speech abnormal, panic constant, or hygiene or grooming unsatisfactory. The Board finds the Veteran's symptomatology most closely approximates that contemplated by a 50 percent evaluation throughout this period of the Veteran's appeal. In reaching its decision, the Board considered the benefit-of-the-doubt rule. However, the preponderance of the evidence is against the Veteran's claim for an increased initial evaluation at any stage of the Veteran's appeal. Therefore, an initial evaluation in excess of 30 percent prior to March 5, 2012, or 50 percent from March 5, 2012, to February 11, 2013, is not warranted. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Additional Considerations The Board acknowledges the Veteran's contentions that his service-connected PTSD warrants an increased evaluation throughout the appeal. However, in determining the actual degree of disability, an objective examination is more probative of the degree of the Veteran's impairment. Furthermore, the opinions and observations of the Veteran alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.130 with respect to determining the severity of his service-connected PTSD. See Moray v. Brown, 2 Vet. App. 211, 214 (1993); 38 C.F.R. § 3.159(a)(1) and (2) (2012). The record does not establish that the rating criteria are inadequate for rating the Veteran's PTSD. The Veteran's disability is manifested by impairment in social and occupational functioning. The effects of the Veteran's disability have been fully considered and are contemplated in the rating schedule. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). Entitlement to a total disability rating based upon individual unemployability (TDIU) is an element of all increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The Board has considered whether remand or referral for consideration of a TDIU is warranted. However, the record is negative for evidence that the Veteran was unemployable prior to February 12, 2013, due to his service-connected PTSD. There has been no allegation, and there is no medical evidence that the Veteran's service-connected disability has markedly interfered with employment during these stages of the appeal. Therefore, remand or referral of a claim for a TDIU is not necessary as there is no evidence of unemployability due to the service-connected disability. ORDER An initial evaluation in excess of 30 percent prior to March 5, 2012, and 50 percent from March 5, 2012, to February 11, 2013, for PTSD is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs