Citation Nr: 1322650 Decision Date: 07/16/13 Archive Date: 07/24/13 DOCKET NO. 07-03 592 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to an evaluation in excess of 50 percent as of July 25, 2005, for posttraumatic stress disorder (PTSD) with depression. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from May 1969 to January 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. This rating decision, which effectuated a November 2005 Board decision granting service connection for PTSD, assigned an initial noncompensable evaluation for PTSD. The Veteran appealed the initial disability evaluation. A January 2007 rating decision assigned an initial evaluation of 30 percent prior to July 25, 2005, and 50 percent thereafter, for PTSD with depression. The maximum benefit available having not been granted, the Veteran's appeal continued. See AB v. Brown, 6 Vet. App. 35 (1993). In a January 2011 decision, the Board denied an increased initial evaluation prior to July 25, 2005, and remanded the issue of an increased initial evaluation as of this date for further development. The Board the remanded the case again in December 2012. There was substantial compliance with the Board's remand directives as will be discussed below. The case is once again before the Board for appellate consideration. FINDING OF FACT The Veteran's PTSD with depression is manifested throughout the appeal period by no more than intermittent auditory hallucinations, frequent nightmares with associated irritability, 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 50 percent as of July 25, 2005, for PTSD with depression have not been met. 38 U.S.C.A. § 1155 (West 2002);38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9434 (2012). REASONS AND BASES FOR FINDING 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 through a number of notice letters, including those sent in March 2006, June 2008 and January 2011, that fully addressed all notice elements. These letters informed the Veteran of what evidence was required to substantiate his claim for an increased initial evaluation, 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 aside from the New Albany VA clinic records. These records were requested multiple times and while some records were obtained it was ultimately determined that records from March 2006 to July 2009 were unavailable. Any further attempts to obtain these records would be futile. VA's duty to further assist the Veteran in locating additional records has been satisfied. The Veteran has been afforded 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 with depression, 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). 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 with depression is more severe than contemplated by the assigned evaluation. The current 50 percent evaluation, effective as of July 25, 2005, was assigned by a January 2007 rating decision. Diagnostic Code 9434, pertaining to major depressive disorder (as well as Diagnostic Code 9411 pertaining to PTSD), is subsumed into the General Rating Formula for Mental Disorders (General Rating Formula). Under the General Rating Formula, 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. Turning to the record, a February 2006 VA examination report notes the Veteran's subjective reports were inconsistent. For example, during the mental status examination, he denied feeling depressed, but on a self-report questionnaire, he reported extensive cognitive, vegetative and affective symptoms of depression. He also reported continued flashbacks, nightmares and intrusive thoughts. On mental status examination, the Veteran exhibited no impairment of thought or communication, denied paranoia and delusions, and his thought content was consistent reality-based and appropriate. He described fleeting auditory hallucinations once a month, and denied suicidal and homicidal ideation. He was able to maintain personally hygiene and other activities of daily living, and was oriented as to person, place and time. Memory abilities were intact, speech was consistently relevant and logical, and he denied obsessive thoughts or ritualistic behaviors. A GAF of 45 was assigned based on "serious" symptoms of depression based on the Veteran's self-report questionnaire. Also in February 2006, a VA mental health note indicates the Veteran reported feeling depressed and frustration at having been assigned a noncompensable evaluation for his PTSD. He reported nightmares and denied suicidal and homicidal ideation without psychotic symptoms. His affect was congruent to conversation, and he reported going out swimming with his daughter and grandchildren several times a week. Similar symptomatology is reflected by VA mental health records throughout the appeal period. For example, in March 2006 the Veteran denied suicidal and homicidal ideation, as he has throughout the appeal period. In October 2006, the Veteran reported eating most meals out and swimming twice a week. He reported remaining close to his three children and grandchildren, helping with babysitting when needed. A May 2007 VA mental health note indicates the Veteran exhibited a dysphoric mood with no suicidal or homicidal ideation, mania, anxiety, acute depression or psychosis. A January 2010 VA mental health note indicates the Veteran was alert and oriented times four, with normal thoughts and an upbeat mood. His affect was slightly depressed, insight and judgment intact, and had no suicidal or homicidal ideation or psychosis. He was diagnosed with chronic PTSD, mild to moderate, and depression not otherwise specified. See also July and December 2010 VA mental health notes. A January 2011 VA examination report notes the Veteran appeared clean, neatly groomed and casually and appropriately dressed. His speech was spontaneous clear and coherent, affect normal, and attention intact. He was oriented to person, time and place with unremarkable thought process and content and sound judgment. He denied hallucinations, panic attacks, suicidal or homicidal ideation, memory impairment or obsessive behavior. PTSD symptoms were noted to include recurrent and intrusive thoughts and irritability or outbursts of anger, which are occasional and of mild severity. A GAF score of 77 was assigned. Ultimately, the VA examiner concluded the Veteran's symptomatology is not severe enough to interfere with his social and occupational functioning. This GAF score and discussion of the Veteran's disability on his functioning were reiterated in an April 2012 addendum. During this period, the Veteran was assigned fluctuating GAF scores ranging from 45 (see, e.g., February 2006 VA examination report) to 77 (see, e.g., September 2011 VA examination report). 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. Records generated since July 25, 2005, do not indicate the Veteran has at all 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. In fact, the Veteran has repeatedly reported going out to eat often, playing with his grandchildren and going to the YMCA to swim multiple times per week. While he did report auditory hallucinations and irritability, symptoms congruent with a higher evaluation, such symptoms were intermittent and did not lead to violence. As such, 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 as of July 25, 2005. The evidence does not support a finding of occupational and social impairment sufficient to support the assignment of a higher evaluation. 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 the Veteran's appeal. The Board acknowledges the Veteran's contentions that his service-connected PTSD with depression 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). 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. Therefore, an initial evaluation in excess of 50 percent as of July 25, 2005, is not warranted. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). As a final note, the record does not establish that the rating criteria are inadequate for rating the Veteran's PTSD with depression. 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). ORDER An initial evaluation in excess of 50 percent for PTSD with depression as of July 25, 2005, is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs