Citation Nr: 1325040 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 11-13 188 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an initial disability rating higher than 30 percent for post-traumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from February 1958 to October 1980. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions by the Winston-Salem, North Carolina Regional Office (RO) of the United States Department of Veterans Affairs (VA). In a May 2010 rating decision the RO implemented a Board decision granting service connection for PTSD. The RO made service connection effective April 4, 2006, and assigned a 10 percent disability rating. The Veteran appealed the disability rating. In an April 2011 rating decision the RO increased the initial rating to 30 percent. In a July 2010 statement the Veteran expressed disagreement with the rating assigned for PTSD and indicated that his disagreement included individual unemployability (IU). VA regulations allow for the assignment of a total disability rating based on individual unemployability (TDIU) when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain combinations of ratings for service-connected disabilities. 38 C.F.R. § 4.16 (2012). Earlier, in a May 2014 rating decision, the RO granted a TDIU, effective April 29, 2004, for the Veteran. That TDIU has remained in effect since. As a TDIU for the Veteran is already in effect the TDIU benefit sought has already been granted and thus is not at issue before the Board. The Board has reviewed both the Veteran's paper claims file and the Veteran's file on the Virtual VA electronic file system, to ensure a total review of the evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT From April 4, 2006, the Veteran's PTSD has been manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as panic attacks, memory impairment, depression, difficulty with relationships, and occasional mild hallucinations, without deficiency in family relations, illogical speech, near-continuous panic or depression, or inability to maintain relationships. CONCLUSION OF LAW From April 4, 2006, the Veteran's PTSD has met the criteria for a 50 percent disability rating. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that his PTSD warrants a rating higher than the 30 percent rating in effect from April 4, 2006, the effective date of the grant of service connection for PTSD. As a TDIU is in effect the Veteran receives disability compensation at the 100 percent rate. A rating for PTSD higher than the existing 30 percent rating would not change the amount of compensation the Veteran receives. Nonetheless, the Board acknowledges the Veteran's concern regarding the rating for his PTSD, and the Board has reviewed the record carefully to consider the appropriate rating. VA assigns disability ratings by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10 (2012). If two ratings are potentially applicable, the higher rating 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. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. The United States Court of Appeals for Veterans Claims (Court) has held that, at the time of the assignment of an initial rating for a disability following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board will consider the evidence addressing the entire period since the April 4, 2006, effective date of service connection, and will consider whether higher ratings are warranted for any period. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. The rating schedule provides for evaluating mental disorders such as PTSD under a General Rating Formula for Mental Disorders, which follows: 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 .......................... 100 percent 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 ............................................. 70 percent 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 ........................... 50 percent 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, mild memory loss (such as forgetting names, directions, recent events) ..................................................... 30 percent 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, or; symptoms controlled by continuous medication ............................. 10 percent A mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication ................................ 0 percent 38 C.F.R. § 4.130. In treating and evaluating mental disorders, mental health professionals sometimes assign a Global Assessment of Functioning (GAF) score. The GAF scale is a scale of psychological, social, and occupational functioning a hypothetical continuum of mental health and illness. It is provided in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, 4th edition (DSM-IV). Assessments on the GAF scale are not to include impairment in functioning due to physical or environmental limitations. Clinicians have assigned the Veteran GAF scores of 40 through 60. GAF scores of 51 to 60 are for 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). GAF scores of 41 to 50 are for serious symptoms (e.g., suicidal ideation, severe obsessional rituals) or any serious impairment in social, occupation, or school functioning (e.g., no friends, unable to keep a job). GAF scores of 31 to 40 are for 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, family relations, judgment, thinking, or mood (e.g. avoids friends, neglects family, and is unable to work). DSM-IV. The Veteran was diagnosed with PTSD as a result of his experiences during service in Vietnam. The Veteran receives VA medical treatment. From the late 1990s forward that treatment has included some mental health consultations. He had VA mental health examinations in 2002 and 2010. He had a private mental health evaluation in March 2007, and has received private health treatment from 2007 forward. The private evaluation report and treatment records reflect that the psychiatrist treats the Veteran's PTSD with psychiatric medications. The Veteran indicated that he did not work after retiring from service in 1980. The psychiatrist noted the Veteran had panic attacks three to four times a month. He had nightmares three to four times a week, and flashbacks four to five times a week. He had difficulty sleeping and awakened several times per night. His memory was severely impaired, such that he could not remember what he read and he got lost when traveling. He experienced feelings of anger, sadness, and fear that arose without apparent reason. He had hallucinations in the form of hearing noises when no one was there. He became angry and irritated easily, felt depressed much of the time, and had crying spells. He indicated that he sometimes felt suicidal. The private psychiatrist opined that the Veteran's PTSD moderately compromised his ability to sustain social relationships and made him unable to sustain work relationships. The psychiatrist expressed the opinion that the Veteran's PTSD made him unemployable. The psychiatrist assigned a GAF scores of 40, 45, and 50. On VA PTSD examination in June 2010 the Veteran indicated that he had PTSD symptoms sporadically, about half of the time. He stated that symptoms included anxiety, poor, interrupted sleep, and nightmares. He reported that he was hypervigilant, easily startled, and intolerant of crowds. He indicated that he did not have panic attacks. He stated that his private psychiatrist treated his PTSD with medications. The Veteran reported that he was divorced and was close to his grown children. He stated that he stayed to himself but had some friends and was active in his church. The examiner observed that the Veteran had normal speech, a calm mood, and an appropriate affect. There was no indication of thought impairment, hallucinations, suicidal ideation, or memory impairment. The examiner described the Veteran's PTSD symptoms as mild, and assigned a GAF score of 55, providing evidence against this claim. The private treatment records indicate that the Veteran's PTSD is sometimes manifested by mood disturbance, panic attacks, and mild hallucinations. Although the treatment records and examination reports show varying levels of symptoms, applying the benefit of the doubt in favor of the Veteran's claim, the Board finds that there are reports of symptoms and impairment levels consistent with the criteria for a 50 percent rating. The Board therefore grants that rating. While the Board grants this rating, the effects of the Veteran's PTSD are not consistent with and do not closely approach the criteria for ratings higher than 50 percent. The treatment records and examination reports, as a whole, do not tend to show that the Veteran's PTSD produces deficiencies in most areas. He reportedly functions better than deficiently in family relations, judgment, and thinking. His speech is logical and he experiences panic and depression at times but not nearly continuously. There are reports of mild hallucinations but clinicians have not observed him to be disoriented. The assembled information indicates that he is able to maintain some relationships, such as with his children and some friends. While the Board has considered the March 2007 report in awarding the Veteran the 50% evaluation, it is important for the Veteran to understand that not all evidence supports this finding, let alone a higher rating. When there is an exceptional disability picture, such that the rating schedule criteria do not reasonably describe a claimant's disability level and symptomatology, an RO may refer a case to the VA Under Secretary for Benefits or to the Director of the VA Compensation and Pension Service for consideration of an extraschedular rating. See 38 C.F.R. § 3.321(b)(1) (2012); see also Thun v. Peake, 22 Vet. App. 111, 115 (2008). Extraschedular ratings are limited to cases in which it is impractical to apply the regular standards of the rating schedule because there is an exceptional or unusual disability picture, with such related factors as frequent hospitalizations or marked interference with employment. 38 C.F.R. § 3.321(b)(1). The Veteran's PTSD has not required frequent hospitalizations. A treating psychiatrist opined that the Veteran's PTSD makes him unemployable. The Veteran has not sought post-service employment, however, and he has heart disease rated as 60 percent disabling and has TDIU. He also reports good family relationships and significant church activity. The assembled evidence shows a PTSD disability picture that would be expected to affect capacity for employment to an extent less severe than marked interference. The 50 percent rating the Board grants in this decision contemplates potential difficulty with work relationships, which is consistent with the Veteran's disability picture. The rating criteria provide for higher ratings for disability more severe than is shown here. The regular rating criteria are adequate in this case, then, and it is not necessary to refer rating of the Veteran's PTSD for consideration of an extraschedular rating. As noted above, the Veteran has directly raised the issue of entitlement to a TDIU. The RO granted a TDIU effective in 2004, however, so that issue already is resolved in the Veteran's favor. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The Court has stated that the requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). Insufficiency in the timing or content of VCAA notice is harmless, however, if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). VA provided the Veteran with VCAA notice in letters issued in June 2001, April 2006, November 2006, December 2010, and December 2011. In those letters the Veteran what information was needed to substantiate claims for service connection. VA advised the Veteran how VA establishes disability ratings and effective dates. VA informed the Veteran what information and evidence must be submitted by the Veteran and what information and evidence would be obtained by VA. VA has made reasonable efforts to obtain relevant records identified by the Veteran. The claims file contains service treatment records, post-service treatment records, reports of VA medical and mental health examinations, and statements from the Veteran and persons who know him. The Veteran has had VA examinations that addressed the manifestations and effects of his PTSD. The Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claim, as well as the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran has actively participated in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process, and he has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication nor to have caused injury to the Veteran's interests. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless, and does not prohibit Board consideration of the claim on its merits. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). ORDER From April 4, 2006, a 50 percent disability rating for PTSD is granted, subject to the laws and regulations controlling the disbursement of monetary benefits. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs