Citation Nr: 1325126	
Decision Date: 08/07/13    Archive Date: 08/13/13

DOCKET NO.  06-15 076	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES


Entitlement to an initial rating for posttraumatic stress disorder (PTSD) in excess of 30 percent prior to May 26, 2006, and in excess of 50 percent as of May 26, 2006.  


REPRESENTATION

Appellant represented by:	New York State Division of Veterans' Affairs


ATTORNEY FOR THE BOARD

T. Hal Smith, Counsel


INTRODUCTION

The Veteran served on active duty from February 1944 to January 1946.  

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 & Supp. 2012).  

These matters are before the Board of Veterans' Appeals (Board) on appeal of an October 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, that granted service connection for PTSD and assigned a 0 percent rating, effective July 7, 2005.  An April 2006 rating decision increased the rating to 30 percent, effective July 7, 2005.  A July 2007 rating decision granted an increased rating of 50 percent, effective May 26, 2006.  However, as those increases do not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board.  AB v. Brown, 6 Vet. App. 35 (1993).

This claim was remanded by the Board in January 2013 for additional evidentiary development, to include a contemporaneous evaluation of the Veteran's PTSD.  The requested examination was conducted in May 2013, and the claim has now been returned to the Board .  The Board notes that the issue of entitlement to an effective date earlier than June 9, 2005, for the award of service connection for PTSD was also before the Board in January 2013.  That decision granted an earlier effective date of November 20, 2001, but not earlier, for the award of service connection for PTSD.  The 30 percent rating previously assigned was assigned from the initial date of November 20, 2001.  The earlier effective date claim is no longer on appeal.  


FINDING OF FACT

For the entire period on appeal, the Veteran's PTSD has been manifested by symptoms productive of occupational and social impairment comparable to no more than reduced reliability and productivity.  




CONCLUSION OF LAW

The criteria for a 50 percent initial rating, but not higher, for PTSD for the entire rating period as of November 20, 2001, have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411 (2012).  


REASONS AND BASES FOR FINDING AND CONCLUSION

VA has a duty to notify and assist claimants in substantiating claims for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA must inform the claimant of any information and evidence not of record (1) necessary to substantiate the claim; (2) VA will seek to provide; and (3) the claimant is expected to provide in accordance with 38 C.F.R. § 3.159 (2012).  The notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  The notice should also include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

The Veteran is challenging the initial rating of his service-connected disability.  Once service connection has been granted, in the context in which the claim initially arose, the claim has been substantiated.  Therefore, additional notice is not required, as the initial intended purpose of the notice has been fulfilled and any defect in the notice is not prejudicial.  Goodwin v. Peake, 22 Vet. App. 128 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  After the notice of disagreement to the initial rating and effective date, only the notice requirements for a rating decision and statement of the case control as to the further communications with the Veteran, including as to what evidence is necessary to establish a more favorable decision with respect to downstream elements of the claim.  38 U.S.C.A. §§ 5104, 7105 (West 2002); 38 C.F.R. § 3.159(b)(3) (2012).  Here, the RO provided the Veteran with the required statement of the case and supplemental statement of the case discussing the reasons and bases for not assigning a higher initial rating and citing the applicable statutes and regulations.  

VA also has a duty to assist the Veteran in developing the claim.  That duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012).  

The Board finds all necessary development has been accomplished, and therefore, appellate review may proceed without prejudice to the appellant.  Bernard v. Brown, 4 Vet. App. 384 (1993).  

The Veteran was provided a VA examination relevant to the issue on appeal in May 2013.  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  The Board finds the VA examination obtained in this case was adequate, as it was predicated on interviews with the Veteran regarding his symptoms and complaints.  The report provides findings relevant to the criteria for rating the Veteran's PTSD.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Accordingly, the Board finds VA's duty to assist with respect to obtaining a VA examination or opinion has been met.  38 C.F.R. § 3.159(c)(4) (2012).  

The RO obtained the Veteran's VA treatment records, service medical records, and various private treatment records.  VA is not required to search for evidence, which even if obtained, would not result in a change of outcome.  Soyini v. Derwinski, 1 Vet. App. 541 (1991) (declining to require strict adherence to technical requirements and impose additional burdens on VA when there was no benefit flowing to the claimant).  Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence necessary for a fair adjudication of the claim not previously obtained.  Therefore, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in developing the claim.  Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

Disability ratings are determined by the application of a schedule of ratings based on the average impairment of earning capacity.  38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. Part 4 (2012).  Separate Diagnostic Codes identify the various disabilities.  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1 (2012).  VA must interpret examination reports in light of the whole recorded history and reconcile various reports into a consistent picture so the current rating accurately compensates the elements of the disability.  38 C.F.R. § 4.2 (2012).  VA must also resolve any reasonable doubt regarding the degree of disability in favor of the claimant.  38 C.F.R. § 4.3 (2012).  Where there is a question as to which of two ratings apply, VA will assign the higher rating where the disability picture more nearly approximates the criteria for the higher rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2012).  VA must evaluate functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity.  38 C.F.R. § 4.10 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  However, when an appeal arises from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to compensate entitlement to a higher rating at any point during the pendency of the claim.  Fenderson v. West, 12 Vet. App. 119 (1999).  Staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  

Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different Diagnostic Codes, is to be avoided.  38 C.F.R. § 4.14 (2012).  It is possible, however, for a Veteran to have separate and distinct manifestations attributable to the same injury, which would permit a rating under several Diagnotsic Codes.  The critical element permitting assignment of multiple ratings under several diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition.  Esteban v. Brown, 6 Vet. App. 259 (1994).  

When rating a mental disorder, consideration shall be given to the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission.  The rating will be based on all the evidence of record bearing on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of examination.  38 C.F.R. § 4.126(a) (2012).  

The Veteran's PTSD is rated pursuant to 38 C.F.R. § 4.130, Diaganostic Code 9411 (2012).  Under the General Rating Formula for Mental Disorders, a 30 percent rating is warranted for occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally performing satisfactorily, with normal routine behavior, self-care, and conversation, due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (e.g., forgetting names, directions, or recent events).  38 C.F.R. § 4.130, Diaganostic Code 9411, General Rating Formula for Mental Disorders (2012).  

A 50 percent rating is warranted for 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 per week; difficulty understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly-learned materials, or forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances in motivation and mood; and difficulty establishing and maintaining effective work and social relationships.  38 C.F.R. § 4.130, Diaganostic Code 9411, General Rating Formula for Mental Disorders (2012).  

A 70 percent rating is warranted for 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; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (e.g., unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty adapting to stressful circumstances, including work or work-like settings; and an inability to establish and maintain effective relationships.  38 C.F.R. § 4.130, Diaganostic Code 9411, General Rating Formula for Mental Disorders (2012).  

A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment of thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting one's self or others; intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene; disorientation to time or place; memory loss of names of close relatives, one's occupation, or one's own name.  38 C.F.R. § 4.130, Diaganostic Code 9411, General Rating Formula for Mental Disorders (2012).  

The listed symptoms are not intended to constitute an exhaustive list, but rather are to serve only 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). 

The Global Assessment of Functioning (GAF) rating is a scale indicating the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness.  Richard v. Brown, 9 Vet. App. 266 (1996); American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994).  The Board also notes an examiner's classification of the level of psychiatric impairment by a GAF score is to be considered, but is not determinative of the percentage rating to be assigned.  VAOPGCPREC 10-95 (1995), 60 Fed. Reg. 43,186 (1995).  

GAF scores ranging from 91 to 100 indicate a complete absence of symptoms and superior functioning in a wide range of activities.  GAF scores ranging from 81 to 90 reflect absent or minimal symptoms (e.g., mild anxiety before an exam), good functioning in all areas, interest and involvement in a wide range of activities, social effectiveness, general satisfaction with life, and no more than everyday problems or concerns (e.g., an occasional argument with family members).  Scores ranging from 71 to 80 indicate symptoms, if present, are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after a family argument) and reflect no more than slight impairments in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork).  

GAF scores ranging from 61 to 70 indicate the presence of some mild symptoms (e.g., depressed mood or mild insomnia) or some difficulties in social, occupational, or school functioning (e.g., occasional truancy or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships.  

GAF scores ranging from 51 to 60 indicate more moderate symptoms (e.g., flat affect, circumstantial speech, or occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends or conflicts with peers or co-workers).  Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, or frequent shoplifting) or any serious impairment to social, occupational or school functioning (e.g., no friends or unable to keep a job).  

GAF scores ranging from 31 to 40 indicate some impairment in reality testing or communication (e.g., at times, speech is illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., a depressed man avoids his friends, neglects his family, and is unable to work; a child frequently beats up other children, is defiant at home, and is failing at school).  

GAF scores ranging from 21 to 30 indicate behavior, which is considerably influenced by delusions or hallucinations or serious impairments in communication or judgment, or an inability to function in almost all areas.  

GAF scores ranging from 11 to 20 indicate some danger of hurting one's self or others (e.g., suicide attempts without clear expectations of death, frequent violence, or manic excitement), occasional failure to maintain minimal personal hygiene (e.g., smears feces), or gross impairment in communication (e.g., largely incoherent or mute).  

GAF scores ranging from 1 to 10 are assigned when the person is in persistent danger of severely hurting one's self or others (e.g., recurrent violence), there is a persistent inability to maintain minimal personal hygiene, or serious suicidal acts with a clear expectation of death.  See Diagnostic and Statistical Manual of Mental Disorders, 46-47 (4th ed. 1994); 38 C.F.R. § 4.130 (2012).  

Service connection has been established for PTSD, effective November 20, 2001.  Therefore, the rating period for consideration on appeal is from that date.  38 C.F.R. § 3.400 (2012).  

The Veteran filed his initial claim for service connection for PTSD in 2001.  A VA treatment record dated in May 2004 show that the Veteran's psychiatric symptoms began when he was 69 years old.  That dates the onset of psychiatric symptoms to approximately 1994.  An October 2002, VA examination report shows a history of depression and anxiety.  

When examined by VA in April 2004, the Veteran's complains were primarily physical in nature, but he reported some memory problems.  The examiner noted that he had been referred to the mental hygiene clinical, examined by a psychiatrist, and diagnosed with a cognitive disorder.  The Veteran's complaints included flashbacks.  The examiner was unable to make a determination at that time as to whether the Veteran had PTSD in that enough material could not be elicited from the Veteran for full examination.  Therefore, no mental disorder was diagnosed and a GAF score of 65 was assigned.  

VA records from 2005 include a June report which assigned a GAF score of 50 for the Veteran's psychiatric symptoms.  A July 2005 report shows that the Veteran attended a World War II support group.  VA records dated in 2006 and 2007 show continued treatment for psychiatric symptoms.  These records show that he remained oriented and was not homicidal or suicidal, but he reported ongoing nightmares and flashbacks.  In November 2006, he continued to attend the support group.  A January 2007 VA report shows review of the record, to include notation that the Veteran's GAF scores included a 50 in February 2006 and May 2006, and a score of 55 in September 2006.  In early 2007 VA records, it was noted that he took medication for his psychiatric complaints.  In July 2007, his GAF score was 55.  

VA treatment records dated from 2008 through 2013, show continued treatment for various complaints to include psychiatric symptoms.  He continued to attend the support group at least through 2009.  His GAF score in June 2008 was 55.  

When examined by in May 2013, it was noted that the Veteran had a history of being diagnosed with PTSD.  It was noted that he attended a group therapy support group at VA until he moved to Florida in 2009.  This examiner found while the Veteran's symptoms appeared to have decreased, and he no longer met the full criteria for a diagnosis of PTSD.  He continued to present with hypervigilance, severe insomnia, poor concentration, and avoidance of thoughts and feeling associated with traumatic memories.  The diagnosis was anxiety disorder.  Currently, the Veteran denied reexperiencing symptoms.  He denied social withdrawal and enjoyed reading the Bible and attending church.  He said that he was not irritable or depressed.  He did admit to mild hypervigilance and sleep disturbance.  His GAF score was a 65.  

After review of the evidence, and resolving all reasonable doubt in the Veteran's favor, it is the Board's conclusion that the Veteran is entitled to a 50 percent rating, but not higher, for his service-connected PTSD for the entire period on appeal, dating to the effective date of service connection on Novembe 20, 2001.  Moreover, it is the Board's conclusion that a rating in excess of 50 percent is not warranted for any period during the appeal period from November 2001, through the present day.  

The record indicates manifestations of the disability at issue which are productive of occupational and social impairment comparable to no more than reduced reliability and productivity, but does not indicate that manifestations of the disability at issue are productive of occupational and social impairment more comparable to deficiencies in most areas, so as to warrant the next higher rating, nor total occupational and social impairment so as to warrant a 100 percent rating.  38 C.F.R. § 4.130 (2012).  The Board acknowledges that the Veteran's initial GAF score in 2004 of 65 represented only mild psychiatric symptoms, but shortly thereafter (in early 2005) his GAF score dropped significantly to the 50 to 55 range and stayed there until the most recent VA examination in May 2013, when his symptoms were reported as decreased.  Moreover, for the entire period in question, he continued to have flashbacks, nightmares, and was hypervigilant.  The Veteran's GAF scores, for the most part, indicate moderate symptoms or moderate difficulty in social or occupational functioning.  

Therefore, the Board finds the Veteran is entitled to a disability rating of 50 as ofNovember 20, 2001, but the Board finds that the preponderance of the evidence is against the assingment of a rating in excess of 50 percent .  Specifically, while the evidence shows decreased symptoms at the 2013 evaluation and improvement in his GAF score, sustained improvement is not indicated.  Thus, the Board finds that the proper disability rating for the entire period in question is 50 percent.  The Board finds that the Veteran does not meet the criteria for increased rating of 70 percent or more for any period in question.  He does not exhibit symptoms that would result in an increased rating, to include suicidal ideation; obsessional rituals, which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (e.g., unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty adapting to stressful circumstances, including work or work-like settings; or an inability to establish and maintain effective relationships.  

Additionally, the Board has considered whether the Veteran's claim warrants referral to the Chief Benefits Director of VA's Compensation and Pension Service for consideration of the assignment of an extraschedular rating.  38 C.F.R. § 3.321(b)(1) (2012).

The Board finds no evidence of any unusual or exceptional circumstances that would take the Veteran's case outside the norm so as to warrant an extraschedular rating.  Thun v. Peake, 22 Vet. App. 111 (2008).  Notably, the rating schedule contemplates loss of working time due to exacerbations commensurate with the level of disability.  38 C.F.R. § 4.1 (2012); VAOPGCPREC 5-2005 (2005), 72 Fed. Reg. 5,802 (2007).  Therefore, the Board finds that referral to the Chief Benefits Director of VA's Compensation and Pension Service is not warranted.  38 C.F.R. § 3.321(b)(1) (2012).


ORDER

Entitlement to an initial rating of 50 percent, but not higher, as of November 20, 2001 is granted.  



____________________________________________
HARVEY P. ROBERTS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs