Citation Nr: 1327281 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 08-30 816 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S.J. Janec, Counsel INTRODUCTION The Veteran had active duty from November 1968 to August 1970. The Veteran died in February 2012. This is a certified substitution case and the appellant has been approved for substitution. This appeal comes to the Board of Veterans' Appeals (Board) from a February 2006 rating decision of the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA) that granted service connection for PTSD and assigned a 30 percent rating, effective October 11, 2005. In June 2010, the Board remanded the claim for further evidentiary development. The requested development was accomplished and the case was returned to the Board. Unfortunately, the Veteran passed away in February 2012 while the claim remained pending. In March 2012, the Board dismissed the claim. Zevalkink v. Brown, 102 F.3d 1236 (Fed. Cir. 1996). In March 2012, the appellant and her sister filed a motion seeking to be substituted for their father for the purpose of pursuing his claim to completion and authorized the Veterans of Foreign Wars of the United States to serve as appointed representative. In January 2013, the New Orleans, Louisiana, RO issued a letter indicating that the appellant was eligible for substitution, and granted the motion. Therefore, the Board's March 2012 dismissal is vacated. FINDINGS OF FACT 1. The Veteran died in February 2012. 2. The appellant is the daughter of the Veteran, and filed a request for substitution within one year of his death. 3. From October 11, 2005, to July 11, 2010, the Veteran's PTSD was productive of no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to characteristic symptomatology such as chronic sleep impairment, depressed mood, anxiety, and suspiciousness as a result of weekly nightmares, hypervigilance, insomnia, and avoidance. 4. From July 12, 2010, the Veteran's PTSD was manifested by severe anxiety and depression, impairment in thought processes and communication, nightmares, flashbacks, and sleep difficulties that resulted in total occupational and social impairment. CONCLUSIONS OF LAW 1. From October 11, 2005, to July 11, 2010, the criteria for an initial rating in excess of 30 percent for PTSD were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.130, Diagnostic Code 9411 (2012). 2. From July 12, 2010, the criteria for a 100 percent rating for PTSD were met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Substitution When a claimant dies while a claim is pending, an eligible person may be substituted. A person eligible for substitution includes a living person who would be eligible to receive accrued benefits due to the claimant under 38 U.S.C.A. § 5121(a). An eligible party seeking substitution in an appeal that has been dismissed by the Board due to the death of the claimant may file a request for substitution with the RO from which the claim originated. 38 U.S.C.A. § 5121A (West 2002 & Supp. 2012). In this case, the Veteran died in February 2012 and in January 2013, the RO determined that the appellant was eligible to seek substitution regarding his pending claim. The Board finds that the appellant met the requirements for substitution. 38 U.S.C.A. § 5121A (West 2002). Duties to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice is harmless because of the thorough and informative notices provided throughout the adjudication and because the Veteran had a meaningful opportunity to participate effectively in the processing of the claim during his lifetime with an adjudication of the claim by the RO subsequent to receipt of the required notice, including in a November 2011 supplemental statement of the case. The record does not show prejudice to the Veteran, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was provided appropriate notice, including in letters dated in November 2005 and June 2010. Moreover, the Veteran's appeal of the initial rating assigned for his disability is a downstream issue, and additional notice is not required. 38 C.F.R. § 3.159(b)(3) (2012); Hartman v. Nicholson, 483 F.3d. 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). With regard to claims for substitution, all 38 C.F.R. Part 3 regulations that would have been applicable to the Veteran had he not died would be applicable to the substitute under the proposed regulations. Therefore, VA would only be obligated to send a substitute notice under 38 CFR 3.159(b) if the required notice was not sent to the deceased claimant or if the notice sent to the deceased claimant was inadequate. The Board finds that VA's duty to notify the Veteran was satisfied prior to his death, and therefore no additional notification is due the appellant. Moreover, the appellant has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls upon the party attacking the agency determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained examinations with respect to the claim on appeal that include opinions and information necessary to rate the Veteran's condition relevant to the rating criteria for the disability. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). Thus, the Board finds that VA has satisfied the duty to assist . No further notice or assistance to the appellant is required to fulfill VA's duty to assist in the development of this 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). Increased Initial Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2012). The Schedule is primarily a guide in the rating of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole recorded history is necessary so that a rating may accurately compensate the elements of disability present. 38 C.F.R. § 4.2 (2012); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31 (1999). Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, 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. When the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two rating is to be applied, 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 (2012). The Veteran's PTSD has been initially rated as 30 percent disabling under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9411. Under that Diagnostic Code, a 30 percent rating is assigned 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 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 (such as forgetting names, directions, recent events). A 50 percent rating requires 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. A 70 percent rating requires occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 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 work-like setting); and inability to establish and maintain effective relationships. A 100 percent rating requires total occupational and social impairment, due to such symptoms as: grossly inappropriate behavior; persistent danger of hurting oneself or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives or one's own occupation or name. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). Global Assessment of Functioning (GAF) scores are a scale indicating the psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness. Carpenter v. Brown, 8 Vet. App. 240 (1995); Richard v. Brown, 9 Vet. App. 266 (1996); American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM IV) (1994). A GAF score of 41 to 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 51 to 60 indicates the examiner's assessment of moderate symptoms (e.g., a 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 61 to 70 indicates the examiner's assessment of 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 and having some meaningful interpersonal relationships. While the Rating Schedule does indicate that the rating agency must be familiar with the DSM IV, it does not assign disability percentages based solely on GAF Scores. 38 C.F.R. § 4.130 (2012). GAF scores are only one factor to be considered in conjunction with all the other evidence of record. Words such as mild, slight, moderate, and serious are not defined in VA's Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6 (2012). The use of such terminology by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. 38 C.F.R. §§ 4.2, 4.6 (2012). The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating in the General Rating Formula for Mental Disorders. In particular, use of such terminology permits consideration of symptoms listed and other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation. Mauerhan v. Principi, 16 Vet. App. 436 (2002). When rating 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 adjustment during periods of remission. The rating agency shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. However, when rating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126 (2012). The Board finds that the medical evidence preponderates against the assignment of a rating in excess of 30 percent for the Veteran's PTSD from October 11, 2005, to July 11, 2010. During that period, the medical records show that the Veteran was generally functioning well with symptoms compatible with a 30 percent rating, such as chronic sleep impairment, depressed mood, anxiety, irritability, hypervigilance, an exaggerated startle response, insomnia, decreased efficiency with activities of daily living, and avoidance. For example, on VA contract examination in February 2006, the examiner concluded that the Veteran occasionally had interference in performing activities of daily living, but he posed no threat of persistent danger or injury to his self or others; there was no evidence of drug or alcohol abuse disability; his appearance and hygiene were appropriate; behavior, affect, and mood were all normal; communication was within normal limits; and there were no panic attacks, hallucinations, delusions or obsessional rituals. His GAF was estimated to be 50. Similar findings were made on a private psychological evaluation in February 2005. He was cleanly and neatly groomed; he was attentive and alert; he was oriented to time, person, and place; and he maintained good eye contact. His mood was anxious and his social-adaptive behavior showed difficulty communicating and difficulty with judgment in a work situation. However, he was able to avoid common danger, and maintain his own hygiene and activities of daily living. He denied hallucinations and delusions, but admitted to paranoid thinking, nightmares, intrusive thoughts, and flashbacks. His immediate retention and recall memory was assessed as adequate but his short-term memory was impaired. The assessment was chronic and severe PTSD with a GAF estimate of 50. The Board acknowledges that a Social Security Administration assessment dated in February 2006 concluded that the Veteran was totally disabled from the time that he stopped working in 2004 due to anxiety-related disorders, a personality disorder, and physical impairments. However, personality disorders are not disabilities under VA regulations and may not be compensated. 38 C.F.R. § 3.303(c) (2012). Notably, his functional limitations were only adjudged to be moderate, he did not exhibit any unusual behaviors during the evaluation, he was appropriately dressed and groomed, and he went out daily and was able to drive and manage money. The Board notes that the SSA's determination is not binding on VA because different standards are reviewed to determine the qualification for the different benefits. The impairment shown by the medical evidence relied upon the SSA does not support a finding that a rating greater than 30 percent was warranted. In short, the symptoms and resulting impairment experienced by the Veteran prior to July 12, 2010, more nearly approximate the criteria for a 30 percent rating. The Veteran had symptoms such as depressed mood, hypervigilance, anxiety, suspiciousness, and chronic sleep impairment. The evidence does not show symptoms associated with a 50 percent rating such as panic attacks more than once a week, impaired judgment, difficulty understanding complex commands, impaired abstract thinking, or circumstantial, circumlocutory, or stereotyped speech. Therefore, the Board concludes that his symptomatology more nearly approximated the criteria for a 30 percent rating prior to July 12, 2010. Accordingly, the Board finds that under the criteria of Diagnostic Code 9411, a rating higher than 30 percent is not warranted from October 11, 2005, to July 11, 2010. 38 C.F.R. § 4.130 (2012). On VA examination on July 12, 2010, the Veteran complained of increased symptoms and decreased ability to function adequately. Mental status evaluation revealed that he was appropriately dressed and groomed, and his speech and psychomotor activity were unremarkable. However, his recent behavior was deemed inappropriate. He had a history of violence and assault, and he returned to abusing alcohol. Although his GAF was estimated to be 55, the clinician noted that the Veteran exhibited total occupational and social impairment as a result of his service-connected PTSD. He and his spouse were divorced, he lived alone in a remote cabin, and he had no interest in previous activities. Based on that clinical evaluation, the Board finds that the evidence demonstrates a disability picture consistent with total occupational and social impairment as detailed in Diagnostic Code 9411. Therefore, resolving reasonable doubt in favor of the Veteran, the Board finds that a 100 percent rating is appropriate from the date of the examination on July 12, 2010. While the record does not indicate that the Veteran experienced persistent delusions or hallucinations, he suffered from severe anxiety and depression, difficulty sleeping due to nightmares and flashbacks, and essentially lived in seclusion. Resolving all reasonable doubt in favor of the Veteran, the Board concludes that a 100 percent rating is warranted from the date the date of the examination on July 12, 2010, but not before. The Board finds that the preponderance of the evidence is against the assignment of a rating higher than 30 percent prior to July 12, 2010. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 4.3, 4.7 (2012); Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An initial rating in excess of 30 percent for PTSD from October 11, 2005, to July 11, 2010, is denied. A 100 percent rating for PTSD as of July 12, 2010, is granted. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs