Citation Nr: 1322835 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 05-14 489A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an initial rating in excess of 10 percent for posttraumatic stress disorder (PTSD) prior to May 12, 2009, and an initial rating in excess of 50 percent for the disability from May 12, 2009. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from May 1965 to May 1967. He died in August 2009 and the appellant is his surviving spouse. The procedural history as it pertains to the issue presently before the Board on appeal is complex and requires discussion. The Veteran filed a claim for service connection for PTSD in August 2003. The claim was denied in an October 2004 rating decision that the Veteran appealed. The Board subsequently remanded the claim for service connection for PTSD in August 2007. In an August 2009 rating decision issued by the Appeals Management Center (AMC), service connection for PTSD was granted. Initial ratings of 10 percent, effective August 23, 2003, and 50 percent, effective May 12, 2009, were assigned. The Veteran died prior to his receipt of notice of the August 2009 rating decision. The appellant filed a timely notice of disagreement (NOD) and requested to be substituted as the claimant on the issue of entitlement to higher initial ratings for PTSD. That request was denied in a December 2010 determination by the Roanoke RO. The appellant appealed that decision and the Board remanded the matter in September 2012. In a November 2012 memorandum decision, the Roanoke RO determined that appellant was a proper substitute with respect to the issue of entitlement to higher initial ratings for PTSD. The record before the Board consists of paper claims files and an electronic file known as Virtual VA. FINDING OF FACT Throughout the initial rating period, the Veteran's PTSD was manifested by occupational and social impairment that more nearly approximated reduced reliability and productivity than deficiencies in most areas. CONCLUSION OF LAW The criteria for a rating of 50 percent, but not higher, for PTSD have been met throughout the initial rating period. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Although the Veteran was not provided complete notice until March 2006, after the initial adjudication of the service connection claim, there is no prejudice to the appellant in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the claim. There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The record reflects that all pertinent available service treatment records (STRs) and all available post-service medical evidence identified by the Veteran or the appellant that is pertinent to the claim has been obtained. Neither the appellant nor her representative has identified any outstanding, existing evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. The Veteran also was afforded an appropriate VA examination in May 2009. Accordingly, the Board will address the merits of the claim. Legal Principles Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 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. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. When evaluating a mental disorder, the rating agency shall consider the frequency, severity and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustments during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on the social and occupational impairment rather than solely on the examiner's assessment of the level of disability at the moment of examination. The rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. Pursuant to the General Rating Formula for Mental Disorders, a 10 percent evaluation is warranted where the disorder is manifested by occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress; of for symptoms controlled by continuous medication. A 30 percent evaluation is warranted where the disorder is manifested by occupational and social impairment with an 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; and mild memory loss (such as forgetting names, directions, and recent events). A 50 percent evaluation is warranted when there is 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 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 contemplates occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activity; speech intermittently illogical, obscure or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances and inability to establish and maintain effective relationships. Lastly, a 100 percent evaluation is warranted where there is total occupational and social impairment, due to symptoms such as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting 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 name. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. Service connection for PTSD was granted prior to the Veteran's August 2009 death. Initial ratings of 10 percent, effective August 23, 2003, and 50 percent, effective May 12, 2009, were assigned pursuant to 38 C.F.R. § 4. 130, Diagnostic Code 9411. The Veteran died before he received notice that his claim for service connection had been granted. Prior to his death, however, he submitted several statements in order to support his claim for service connection and also provided testimony at a March 2007 Board hearing. The Veteran consistently reported handling his problems on his own and denied seeking any treatment for what he believed to be PTSD, but did report experiencing psychiatric symptoms since his return from service in the Republic of Vietnam. The symptoms he reported included nightmares; waking in a cold sweat; not sleeping well; depression; anxiety; flashbacks; and nervousness. The Board notes that it finds these statements from the Veteran to be both competent and credible. The appellant has also reported symptoms exhibited by the Veteran. She reports that she knew the Veteran about three years before he went into service and that they were married before he went to Vietnam. She asserts that the Veteran was never the same after he returned from Vietnam, that he was very nervous, lost his temper easily, went into rages over little things, had nightmares, would toss and turn and yell out loud about being surrounded, and would wake up in a sweat. She also reports that the Veteran was abusive towards her a number of times. She asserts that had the Veteran been afforded a VA examination prior to May 2009 (as in when he filed his claim), he would probably have met the 50 percent disability rating such that she feels his rating should have been effective from the date of service connection. The Board finds appellant's statements as to the Veteran's mental health symptoms to be both competent and credible. There is only one treatment record in which the Veteran's mental health was discussed, namely a January 2005 record from Dr. W.D.H. in which it was noted that the Veteran complained of his "nerves," and that he had been under a great deal of stress at work as he had been asked to treat people in a fashion that he was not agreeable to, which had made him depressed. It was also noted that the Veteran was not sleeping well at night and that his temper had been short, but that he had not been delusional or suicidal. Mental status examination revealed depressed affect and mood, but the Veteran was not tearful or suicidal. The Veteran was assessed with depressive disorder, major single episode, moderate. See record from Carillon Roanoke Memorial Hospital. The Veteran underwent a VA initial evaluation for PTSD examination on May 12, 2009, at which time his claims folder and medical records were reviewed. It was noted that the Veteran had not received any mental health treatment through VA but was receiving current treatment in the form of an antidepressant prescribed by his primary care provider. In pertinent part, the Veteran reported being married for 42 years and having a positive relationship with his wife, though he did report problems with irritability and verbal outbursts towards her. He indicated that he had a positive relationship with his daughter, but denied having any social relationships. The Veteran reported that he did not get out of the house to socialize because of physical ailments. He indicated that he spent the majority of his time watching television and playing with his dog and that he was no longer capable of engaging in previously enjoyable activities due to physical conditions. The Veteran denied a history of suicide attempts and history of violence/assaultiveness. The examiner noted that the Veteran's current psychosocial functioning was fair to poor and that he reported positive familial relationships but indicated that irritability and verbal outbursts towards his wife had caused difficulty. Declines in social and recreational functioning were reported to be due to physical conditions. Mental status examination revealed that the Veteran was clean and dressed appropriately and casually. Psychomotor activity was tense; speech was spontaneous, clear and coherent; attitude toward the examiner was cooperative and attentive; affect was appropriate and constricted; and mood was "pretty good." Attention was intact, as was orientation to person, time and place. Thought content was unremarkable and there were no delusions, but thought process was noted to be circumstantial. Judgment was not impaired (understood outcome of behavior); intelligence was average; and insight was normal (understood he had a problem). There was no sleep impairment, hallucinations, or inappropriate behavior. The Veteran was unable to interpret proverbs appropriately, which the examiner explained reflected substantial impairment of abstract thinking processes. The examiner indicated that there were no obsessive/ritualistic behavior; no panic attacks; no homicidal or suicidal thoughts; and no episodes of violence. The Veteran's impulse control was good. The Veteran was able to maintain minimum personal hygiene and problems with activities of daily living were reportedly related to physical, not mental, issues. Remote and immediate memory was normal but recent memory was mildly impaired. In pertinent part, the Veteran reported that symptoms of PTSD and depression had been persistently experienced since his discharge from service. The examiner noted that he endorsed the constant experience of moderately-severe symptoms of PTSD and severe symptoms of associated depression. There had been no remission. After the implementation of several psychological tests, Axis I diagnoses of chronic, delayed onset, PTSD; and chronic, severe, major depressive disorder, without psychotic symptoms, were rendered. A global assessment of functioning (GAF) score of 45 was assigned. The examiner specifically indicated that there was no total occupational and social impairment due to PTSD signs and symptoms and PTSD signs and symptoms did not result in deficiencies in judgment, thinking, family relations, work, mood or school. The examiner did report reduced reliability and productivity due to PTSD symptoms, evidenced by severe impairment in abstract thinking, mild impairment of memory related to nonlinear thought processes and problems with concentration, and severe depressive symptomatology. The examiner noted that the Veteran's symptoms resulted in difficulty maintaining an effective relationship with his wife due to irritability and outbursts of anger. After carefully reviewing the evidence of record, the Board concludes that the occupational and social impairment from the Veteran's PTSD throughout the initial rating period more nearly approximated the reduced reliability and productivity required for a 50 percent rating than the deficiencies in most areas required for a 70 percent rating In so finding, the Board acknowledges that the evidence of record does not reflect that the Veteran experienced all of the symptoms associated with the 50 percent schedular rating. The symptoms enumerated under the schedule for rating mental disorders, however, 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 disability rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board also acknowledges that there is very little medical evidence documenting the nature and extent of the Veteran's psychiatric impairment prior to the VA examination in May 2009; however, the Board does not believe that the appellant should be prejudiced because a VA examination was not scheduled at an earlier time. It appears from the VA examination report and the lay evidence of record that the social and occupational impairment evident on the VA examination was also present during the period of the claim prior to the VA examination. Therefore, the Board has determined that a 50 percent rating is warranted for the period of the claim prior to May 12, 2009. The preponderance of the evidence of record is against the assignment of a rating in excess of 50 percent. The symptoms endorsed or manifested by the Veteran prior to May 12, 2009, included depression, anxiety, nervousness, and sleep impairment, to include nightmares, tossing and turning, and waking in a sweat. The Veteran also reported experiencing flashbacks and being short-tempered. The appellant indicated that he went into rages over little things and had become abusive towards her a number of times, and the January 2005 private treatment record notes a depressed affect and the Veteran's report that he was stressed at work as he had been asked to treat people in a fashion that he was not agreeable to. Importantly, however, the Veteran remained married to his wife and was working. In addition, neither the January 2005 private treatment record, nor the lay statements submitted by the Veteran or his wife, report impaired speech (circumstantial, circumlocutory, or stereotyped), panic attacks, difficulty in understanding complex commands, or any impairment of memory, judgment or abstract thinking. The Veteran continued to manifest the symptoms discussed above, specifically depression, anxiety, nervousness, sleep impairment, to include nightmares, tossing and turning, and waking in a sweat, flashbacks and short-temperedness. Importantly, however, at the time of the May 2009 VA examination, the Veteran reported positive relationships with his wife of 42 years and with his daughter, and although he reported an absence of social relationships, the lack of getting out of the house to socialize was noted to be due to his physical, not mental, limitations. Therefore, it cannot be said that he was unable to establish and maintain effective relationships. In addition, the Veteran denied a history of suicide attempts and of violence/assaultiveness, such that it cannot be said there was evidence of suicidal ideation or impaired impulse control; there was objective evidence of spontaneous, clear and coherent, rather than illogical, obscure, or irrelevant speech; the Veteran was clean and dressed appropriately, such that it cannot be said there was neglect of personal appearance and hygiene; and there was no impairment of attention or orientation, such that it cannot be said there was spatial disorientation. The Board acknowledges that the Veteran manifested impaired thought process and abstract thinking. The examiner specifically acknowledged these deficits, however, and determined that the Veteran only had reduced reliability and productivity rather than deficiencies in judgment, thinking, family relations, work, mood or school. In addition, there is no objective or subjective evidence of obsessional rituals which interfered with the Veteran's routine activities and/or near-continuous panic or depression affecting the Veteran's ability to function independently, appropriately and effectively. The Board has also considered the GAF score assigned to the Veteran at the time of the May 2009 VA examination. A GAF score records the clinician's judgment of the individual's overall level of functioning and reflects the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994) (DSM-IV). At the time of the May 2009 VA examination, the Veteran was assigned a GAF score of 45, which represents serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). While the Board acknowledges this score, it also notes that the VA examiner specifically indicated that the PTSD signs and symptoms did not result in deficiencies in judgment, thinking, family relations, work, mood or school. Based on the foregoing, the Board finds that a rating in excess of 50 percent for PTSD is not warranted. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted more than a 50 percent rating. See Fenderson v. West, 12 Vet. App. 119 (1999). Other Considerations The Board has considered whether this claim should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration. In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). The symptoms and impairment from the Veteran's PTSD are consistent with those contemplated by the applicable schedular criteria. Therefore, referral for consideration of an extra-schedular rating is not warranted. The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) was raised prior to the Veteran's death. The Board acknowledges that the Veteran was not working at the time of his death and that he was in receipt of benefits from the Social Security Administration. He did not indicate, however, that he was not employed as a result of his PTSD. In the absence of such a history, or other competent evidence suggestive of unemployability due to the PTSD, the Board finds Rice is inapplicable. See also Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). (CONTINUED ON NEXT PAGE) ORDER The Board having determined that the Veteran's PTSD warrants a 50 percent rating, but not higher, throughout the initial rating period, the benefit sought on appeal is granted to this extent and subject to the criteria governing the payment of monetary benefits. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs