Citation Nr: 1326332 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 13-09 630 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an increased rating for psychoneurosis, conversion reaction, chronic, moderate, currently rated as noncompensable from December 5, 1946, to November 3, 1947; 30 percent disabling from November 4, 1947 to June 28, 1949; and as 10 percent disabling thereafter. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1944 to November 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. The Board advanced this appeal on the docket (AOD) pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a) (2) (West 2002). The Board notes that in addition to the paper claims file, the Veteran's case is comprised of an electronic "Virtual VA" claims file. The Board has also reviewed the electronic file to ensure thorough review of the evidence. The Board also notes that an April 1949 rating decision reduced the rating for the disability on appeal from 30 percent to 10 percent effective June 29, 1949. Further, the Veteran has expressed disagreement with this reduction in his March 2013 formal appeal, VA Form 9. This issue has not been adjudicated by the agency of original jurisdiction (AOJ); therefore, this is not an issue over which the Board currently has jurisdiction. The matter of the Veteran's disagreement with the reduction is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. An acquired psychiatric disorder, including psychoneurosis, conversion reaction, chronic, moderate, is not shown in the VA examinations of record conducted during the pendency of this appeal. 2. The Veteran has a protected 10 percent disability rating for service-connected psychoneurosis, conversion reaction, chronic, moderate. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for psychoneurosis, conversion reaction, chronic, moderate, are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9202 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 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. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. 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) 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). However, the Court also stated that the failure to provide such notice in connection with adjudications prior to the enactment of the VCAA was not error and that in such cases, the claimant is entitled to "VCAA-content complying notice and proper subsequent VA process." Id. at 120. The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects the Veteran was granted entitlement to service connection in February 1948, before the enactment of the VCAA. He was provided VCAA notice in a letter mailed in May and June 2011 that included the disability rating criteria and effective-date element of the claim. The Board also finds that VA has complied with its duty to assist the Veteran in the development of this claim. The Veteran's service treatment records (STRs) and pertinent post-service records are associated with the claims file. The Veteran has also been afforded appropriate VA examinations in May and July 2011 and December 2012; the Veteran has not asserted, and the evidence of record does not show, that his disability has increased significantly in severity since then. The Board notes that the Veteran has stated in correspondence to VA in March 2011 and in his December 2012 VA examination that he is receiving benefits from the Social Security Administration (SSA). The Veteran did not specify the disability or disabilities upon which his Social Security disability payments are based. Moreover, the aforementioned VA examinations have shown that the Veteran does not currently have any acquired psychiatric disability and has not for many years. There are no treatment records in the claims file to suggest an acquired psychiatric disability exists. As such, obtaining these SSA records would serve no useful purpose in substantiating this claim. See Golz v. Shinseki, 590 F.3d 1317 (2010). Therefore, the Veteran has not identified any outstanding evidence that could be obtained to substantiate his claim. The Board is also unaware of any such evidence. In sum, the Board is satisfied that any procedural errors in the development and consideration of the claim by the originating agency were insignificant and not prejudicial to the Veteran. Accordingly, the Board will address the merits of the claim. Legal Criteria Disability evaluations are determined by the application of the VA's 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. 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. 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board notes that the U.S. Court of Appeals for Veterans Claims (Court) has held that in claims for increased rating, VA must consider that a claimant may experience multiple distinct degrees of disability, resulting in different levels of compensation, from the time the increased rating claim is filed to the time a final decision is made. Fenderson v. West, 12 Vet. App. 119 (1999), see also Hart v. Mansfield, 21 Vet. App. 505 (2007). As to claims of entitlement to an increased evaluation, as opposed to a higher initial evaluation, "the relevant temporal focus . . . is on the evidence concerning the state of the disability from the period one year before the claim was file until VA makes a final decision on the claim." Hart, 21 Vet. App. at 509. This is because the effective date of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year of such date. 38 U.S.C.A. § 5110 (b) (2) (West 2002 & Supp. 2012). Psychoneurosis, conversion reaction, chronic, moderate, is rated under 38 C.F.R. § 4.130, Diagnostic Code 9202. The rating criteria are as follows. A 0 percent disability rating is warranted when 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. A 10 percent disability rating is warranted when there is 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. A 30 percent rating is warranted for 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). 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 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 effective work and social relationships. 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; 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. A 100 percent evaluation 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. 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 v. Derwinski, 1 Vet. App. 49, 55 (1990). Analysis Historically, the Veteran was granted service connection for psychoneurosis, conversion reaction, chronic, moderate, in a February 1948 rating decision with an evaluation of 30 percent. As noted above, an April 1949 rating decision reduced the rating for the disability on appeal from 30 percent to 10 percent effective June 29, 1949. It has remained 10 percent to the present time and is considered a "protected" rating and may not be reduced based on the lack of current symptomatology. See 38 C.F.R. § 3.951 (2012). The Veteran submitted the instant claim for an increased rating in March 2011. The Veteran was afforded a VA examination in May 2011 in which he reported flashbacks and nightmares associated with service-related experiences; these symptoms were rarely experienced and very, very mild. The Veteran stated that these symptoms never impacted his functioning. He also reported sleep disturbances. Examination showed unremarkable speech, normal affect, intact orientation, unremarkable thought process and content, no hallucinations, appropriate behavior, good impulse control, abitlity to maintain minimum personal hygiene, no problems of daily living, and normal memory. The VA examiner stated that the diagnosis of psychoneurosis, or anxiety disorder, was a plausible diagnosis in the late 1940's when the Veteran was hospitalized and early after his discharge from service when he was experiencing emotional effects of his military service. The examiner stated that based on the findings of the examination, the Veteran currently had no diagnosable mental disorder and assigned a Global Assessment of Functioning (GAF) score of 80. The Veteran was afforded a VA examination in July 2011 in which he did not report any significant mental health symptoms and expressed some puzzlement as to why he was referred for another examination. The results of the evaluation did not reveal any evidence of a diagnosable posttraumatic stress disorder or any other mental disorder. The examiner opined that the Veteran presented as a relatively high-functioning individual with no history of any sustained and significant mental health problems. The examiner did not note a diagnosis and assigned a GAF score of 88. The Veteran was afforded a VA examination in December 2012 in which the examiner stated that "no mental disorder diagnosis" best summarized his level of occupational and social impairment with regards to all mental diagnoses. The examiner stated that there was no history of any significant mental health problems for over 60 years. The examiner stated that the Veteran did not present with evidence of a diagnosable mental disorder. The Board notes that the language employed in the portion of VA's Rating Schedule that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (also known as "DSM-IV"). 38 C.F.R. § 4.130. DSM-IV contains a 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. Higher scores correspond to better functioning of the individual. Under DSM-IV, GAF scores ranging between 71 and 80 are assigned when there are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument) and no more than slight impairment in social, occupational, or school functioning (e.g. temporarily falling behind in schoolwork). GAF scores of 81 to 90 indicates absent or minimal symptoms, good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, with no more than everyday problems or concerns. The Board notes that while the GAF is not the sole basis for assigning a disability rating, it provides a clinical indicator of the patient's functional ability. Rather, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue, and the GAF score must be considered in light of the actual symptoms of the veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). In this case the GAF assigned is consistent with the Veteran's minimal or lack of symptoms, as detailed by the medical evidence of record. As noted above, schedular rating of 10 percent disability rating is warranted when there is 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. A 30 percent rating is warranted for 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); but the evidence does not show the Veteran's psychoneurosis, conversion reaction, chronic, moderate, approximates such impairment. The evidence of record shows the Veteran is not currently diagnosed with a psychiatric disability, and has not been for many years. Although he has reported symptoms to include flashbacks and nightmares associated with service-related experiences, he has stated that these symptoms were rarely experienced and very, very mild. The Veteran stated that these symptoms never impacted his functioning. The Veteran has also expressed confusion as to why he was examined for a psychiatric disability, further demonstrating his lack of symptoms. As the evidence does not show any current evidence of a psychiatric disability, an increased rating is not warranted. The Board notes however, that the Veteran has been assigned a 10 percent rating since April 1949. As this rating has been in effect for more than twenty years, it is considered a "protected" rating and may not be reduced based on the lack of current symptomatology. See 38 C.F.R. § 3.951 (2012). For the reasons above the Board finds the criteria for increased schedular ratings for psychoneurosis, conversion reaction, chronic, moderate, are not met. Further, the criteria for an evaluation in excess of the ratings assigned were not met at any time during the period under review, and the Board accordingly concludes "staged ratings" are not for application. Hart, 21 Vet. App. 505. The Board has considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(a). 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. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). The record reflects the Veteran has not required frequent hospitalizations for his psychoneurosis, conversion reaction, chronic, moderate, and that the manifestations of the disability are not in excess of those contemplated by the schedular criteria. In sum, there is no indication in the record that the average industrial impairment from the disability would be in excess of that contemplated by the assigned evaluations. Accordingly, the Board has concluded that referral of this case for extra-schedular consideration is not in order. The Board must consider whether a claim has been raised for a total disability rating for individual unemployability due to service-connected disabilities. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran has not asserted his service-connected psychoneurosis, conversion reaction, chronic, moderate, renders him unemployable; accordingly, Rice is not applicable. In addition to the medical evidence, VA must consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, in addition to the medical evidence above, the Board has considered the Veteran's correspondence to VA. A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). The Board finds the Veteran in this case to be competent and credible in reporting his own symptoms. However, even affording the Veteran full credibility, the Board finds nothing in his correspondence showing symptomology more closely approximating the criteria for higher ratings. In sum, based on the evidence and analysis above the Board finds the criteria for higher ratings for psychoneurosis, conversion reaction, chronic, moderate, are not met. Accordingly, the claim must be denied. For the reasons and bases expressed above, the Board concludes that the evidence in this case preponderates against the claim and the benefit of the doubt rule is not for application. Gilbert, 1 Vet. App. 49, 53. ORDER Entitlement to an increased rating for psychoneurosis, conversion reaction, chronic, moderate, is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs