Citation Nr: 1322927	
Decision Date: 07/18/13    Archive Date: 07/24/13

DOCKET NO.  11-04 099	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to an initial evaluation in excess of 50 percent prior to December 29, 2009, and 70 percent from December 29, 2009 for posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

J. Chapman, Associate Counsel


INTRODUCTION

The Veteran had active duty service from June 1969 to July 1971.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio.  This rating decision granted service connection for PTSD with an evaluation of 50 percent effective August 12, 2008.  Courts have held that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim.  See Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010).

Although there is no submission or communication from the Veteran that may be construed as a notice of disagreement with the February 2009 rating action, VA was in receipt of new and material evidence (see December 2009 Veteran statement) within one year of a rating decision addressing the condition and must relate any subsequent evidence back to this original claim.  38 C.F.R. § 3.156(b).  Thus, the February 2009 rating action did not become final and remains pending.  See Charles v. Shinseki, 587 F.3d 1318, 1323 (Fed. Cir. 2009).  As such, the February 2009 rating action is the proper determination certified for appellate review.

A March 2011 rating decision increased the Veteran's rating to 70 percent effective December 29, 2009 (the date the RO considered as the Veteran's claim for increase).  Applicable law provides that absent a waiver, a claimant seeking a disabling rating greater than assigned will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and that a claim remains in controversy where less than the maximum available benefits are awarded.  AB v. Brown, 6 Vet. App. 35, 38 (1993).  The Veteran has not withdrawn the appeal as to the issue of the disability rating greater than assigned, and the issue therefore remains in appellate status.  



FINDING OF FACT

The Veteran's PTSD is manifested throughout the appeal period by no more than occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.


CONCLUSION OF LAW

The criteria for an initial evaluation of 70 percent for PTSD prior to December 29, 2009 have been met; the criteria for an initial evaluation in excess of 70 percent have not been met at any point during the appeal period.  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 FINDING AND CONCLUSION

Veterans Claims Assistance Act (VCAA)
 
The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of 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.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  The appellant bears the burden of showing harm when not notified whether the necessary information or evidence is expected to be obtained by VA or provided by the appellant.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).
 
As the rating decision on appeal granted service connection and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  August 2008 and January 2010 letters provided notice on the "downstream" issues of disability ratings and effective dates, prior to the February 2009 and February 2010 rating decisions (respectively).  38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006).  The Veteran has had ample opportunity to respond/supplement the record.  He has not alleged that notice in this case was less than adequate.  See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008)  ("where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues").
 
Regarding VA's duty to assist, all appropriate development to obtain the Veteran's service treatment records (STRs) and VA treatment records has been completed.  In connection with this claim, VA PTSD examinations were performed in November 2008 and January 2010.  These examinations are adequate.  The examiners specifically noted that the claims folder had been reviewed and they obtained a reported history from the Veteran and conducted a thorough examination, which included providing Global Assessment of Functioning (GAF) scores.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes).
 
The Board is satisfied that evidentiary development is complete; VA's duties to notify and assist are met.  The Veteran is not prejudiced by the process in this matter.  Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).
 
Legal Criteria, Factual Background, and 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.
 
In Fenderson v. West, 12 Vet App 119, 125-26 (1999), the U.S. Court of Appeals for Veterans Claims (Court) distinguished appeals involving a Veteran's disagreement with the initial rating assigned at the time a disability is service-connected.  Accordingly, where the question for consideration is the propriety of the initial rating assigned, as here, evaluation of the medical evidence since the effective date of the grant of service connection, and consideration of the appropriateness of "staged ratings" (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required.
 
Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).
 
Further, in determining the appropriate disability rating, the Board must consider whether the case should be referred for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1).  See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008).
 
When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.
 
When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

The Veteran's PTSD has been assigned an initial evaluation of 50 percent from August 12, 2008, and 70 percent as of December 29, 2009, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012).

Under this diagnostic code, a 50 percent evaluation is warranted where 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 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; and difficulty in establishing and maintaining effective work and social relationships.  38 C.F.R.       § 4.130, Code 9411.
 
A 70 percent rating is warranted where there is 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 worklike setting); inability to establish and maintain effective relationships.  Id.
 
A 100 percent rating is warranted for 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. Id.

The Global Assessment of Functioning (GAF) scale reflects the psychological, social and occupational functioning under a hypothetical continuum of mental illness.  See American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV).  See also Carpenter v. Brown, 8 Vet. App. 240, 243 (1995); 38 C.F.R. § 4.130.  According to the DSM-IV, a GAF score of 61-70 denotes some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships.  A GAF score of 51-60 indicates moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).  A GAF score of 41-50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).  A GAF score of 31-40 indicates some impairment in reality testing or communications or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood.

Following review of the evidence of record, the Board concludes that an evaluation of 70 percent, but no more, is warranted for PTSD throughout the appeal period.  VA treatment records and examination reports indicate that the Veteran's PTSD is characterized by increased difficulties concentrating at work and difficulties with his marriage.  The November 2008 VA examiner noted that "within the past year, his [the Veteran's] psychosocial functional status and quality of life have deteriorated to the point of adversely affecting his employment, family role functioning, social/interpersonal relationships, and recreation/leisure pursuits which he previously enjoyed.  The January 2010 VA examination report noted that the Veteran has had increased suicidal ideation which led him to returning to therapy.  The examiner noted that the Veteran is concerned that he could act upon these feelings and commit suicide, although he has no intent or plan.  Both VA examiners noted that the Veteran's PTSD signs and symptoms result in deficiencies in most areas (to include work, family relations, judgment, thinking and mood).

Additionally, VA treatment records and VA examination reports during the period on appeal reflect GAF scores ranging from 41-61.  On November 2008 VA examination, the Veteran was assigned a GAF score of 41, and on January 2010 VA examination, the Veteran was assigned a score of 50.  The majority of the Veteran's scores indicate serious symptomatology, which further serves to support a rating of 70 percent.

The Board observes that a higher rating is not warranted because the evidence of record does not demonstrate that the Veteran's symptomatology more nearly approximates a 100 percent evaluation.  In this regard, the evidence of record does not show total occupational and social impairment.  The Veteran is married and stated that he has good relationships with his sons and grandchildren.  The Veteran additionally reported having some close friends.  The record indicates that during the appeal the Veteran was employed as a truck driver and more recently worked days on a shipping and receiving dock.  Both the November 2008 and January 2010 VA examiners noted that the Veteran was oriented to time, place, and person, and indicated that he was competent to manage his own financial affairs.  And although the Veteran admitted to having suicidal ideation, he admitted to having no intent or plan.  

In sum, the evidence of record demonstrates that the Veteran has deficiencies in most areas, due to such symptoms as suicidal ideation, anxiety, depression, and difficulty in adapting to stressful circumstances.  Overall, the Board concludes that the evidence discussed above, to include the GAF scores, supports a 70 percent rating, and no higher, throughout the appeal period.  The Board notes the Veteran's representative's informal hearing presentation indicating that the Veteran indicated he thought his condition more closely represented a 70 percent evaluation, and they also feel his condition is 70 percent disabling.  The representative noted that since the Veteran was granted a 70 percent evaluation, they have not received any communication from him.  Accordingly, a 70 percent evaluation is warranted for the Veteran's PTSD throughout the appeal period.

The record does not establish that the rating criteria are inadequate for rating the Veteran's PTSD such that an extraschedular rating is warranted.  The Veteran's disability is manifested by impairment in social and occupational functioning, specifically:  discord with coworkers; marital discord; angry outbursts; diminished interest in activities; depressive cognition; and depressed mood.  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).

Finally, a claim for total disability based on individual unemployability (TDIU) is deemed to have been submitted as part of any claim for a higher rating when evidence of unemployability is submitted at the same time as the claim and the Veteran seeks the higher rating possible.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Here, the evidence reveals that the Veteran has been employed throughout the appeal.  The Veteran was employed as a truck driver working 12-hour shifts and more recently works days on a shipping and receiving dock.  Thus, the matter of a TDIU is not for present consideration.



ORDER

A rating of 70 percent, but no higher, is granted for PTSD, for the period prior to December 29, 2009, subject to the laws and regulations governing the payment of monetary benefits.

A rating in excess of 70 percent for PTSD is denied.



____________________________________________
M.C. GRAHAM
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs