Citation Nr: 1330993 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 11-10 767 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent prior to December 2, 2009 for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for right elbow disorder. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from January 2000 to July 2000 and from October 2003 to April 2005. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office in Portland, Oregon (RO). In June 2011, the Veteran and his wife testified before the undersigned Veterans Law Judge at hearing held at the RO. As a matter of background, in a November 2008 rating decision, the RO denied an increased evaluation in excess of 10 percent for PTSD disability. The Veteran appealed. In a March 2010 rating decision, the awarded an increased from 10 to 30 percent disabling for PTSD disability, effective from December 2, 2009. In a March 2010 correspondence, the Veteran stated that he was satisfied with the 30 percent evaluation for his PTSD disability and withdrew his claim for an increased rating in excess of 30 percent thereafter. He expressly stated that he wanted to continue his appeal of the denial of an evaluation in excess of 10 percent for PTSD disability for the period prior to December 2, 2009. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Initially, the Board notes that the RO characterized the current matter on appeal as entitlement to an effective date prior to December 2, 2009 for the award of 30 percent rating. However, the Board finds that the Veteran's claim is essentially a claim for an increased rating for the applicable period prior to December 2, 2009, and the matter has been re-characterized on the first page. In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the Veteran's file on the "Virtual VA" system to ensure a complete assessment of the evidence. FINDINGS OF FACT 1. In a February 2007 rating decision, the RO awarded service connection for PTSD and assigned a 10 percent evaluation, effective from July 17, 2006. The Veteran did not appeal that decision and it became final. The Veteran's request for an increased rating was received on July 9, 2008. 2. For the period from July 9, 2007, to December 2, 2009, the Veteran's PTSD disability has been manifested by no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, due to such symptoms as: diminished interest, anger outburst, irritability, mild memory impairment, and sleep impairment. 3. In a June 2011 written statement, the Veteran expressed his desire to withdraw from appellate review his claim for entitlement to service connection for right elbow disorder. CONCLUSIONS OF LAW 1. The criteria for an evaluation of 30 percent, and not higher, from July 9, 2007, to December, 2, 2009, for PTSD disability has been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.400, 4.130, Diagnostic Code 9411 (2012). 2. The criteria for a withdrawal of the Veteran's substantive appeal on the issue of entitlement to service connection for right elbow disorder have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.200, 20.202, 20.204(b), (c) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. VA's Duty to Notify and Assist Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. In the notice, VA will inform the claimant which information and evidence, if any, that the claimant is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (2008); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Notice should also address the rating criteria and effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the case at hand, the record reflects that the originating agency provided the Veteran with the required notice by a letter dated in July 2009. This letter also included notice with respect to the effective-date element of the claim. The claim was subsequently adjudicated by the originating agency in October 2009. In short, the record indicates the Veteran received appropriate notice pursuant to the VCAA. Accordingly, with respect to VCAA notice, there is no prejudice to the Veteran in the Board's proceeding with the issuance of a decision on the merits as to his increased rating claims. Concerning VA's duty to assist, the Board notes that the VA has obtained the Veteran's service treatment records, post-service treatment records, and his testimony and lay statements. The Veteran was afforded VA examination in October 2008. The examination reports reflect that the examiners interviewed and examined the Veteran, reviewed his claims folder, reviewed his past medical history, documented his current medical conditions, and rendered appropriate diagnosis consistent with the remainder of the evidence of record. The Board acknowledges the Veteran's contention that the October 2008 VA examination report is inadequate, because he felt that the examiner "insisted on [keeping] to an exact script provided by the VA [Compensation and Pension] Office." He also felt that the findings in the examination report do not accurately reflect the severity of his PTSD problems because his wife was not permitted to attend the clinical evaluation, and the Veteran has stated that he had "a lot of trouble opening up and being totally honest with a women (psychologist)" about his symptoms. See the Veteran's statement in conjunction with his December 2008 notice of disagreement. Although the Board does not discount the Veteran's belief that he was unable to fully convey to the October 2008 VA examiner the depths of his PTSD symptomatology, the report clearly demonstrates that the VA examiner based her medical conclusions off a review of the claims folder, including the Veteran's reported medical history, an August 2008 statement from his wife, and the clinical findings from the examination. The Board has considered the Veteran's contentions; however, the Board finds no reason to doubt the adequacy of the examination reports for VA adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The RO has substantially complied with the Board's 2009 and 2011 remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). Furthermore, the examination report contain sufficient information to rate the Veteran's left knee disability under the appropriate diagnostic criteria for the applicable periods under appeal. See 38 C.F.R. § 4.2; see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In short, the Board has carefully considered the provisions of the VCAA, in light of the record on appeal and, for the reasons expressed above, finds that the development of the Veteran's claims has been consistent with said provisions. The Board is satisfied that any procedural errors in the originating agency's development and consideration of the claims were insignificant and nonprejudicial to the Veteran. The Veteran has been accorded ample opportunity to present evidence and argument in support of his claims. See 38 C.F.R. § 3.103. He has retained the services of a representative, and he had the opportunity for a personal hearing before a member of the Board in June 2011. During the June 2011 Board hearing, the Veteran and his representative presented oral argument in support of his claim for an increased evaluation prior to December 2, 2009. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ fully explained the issue on appeal during the hearing and specifically discussed the basis of the prior determination, the element(s) of the claim that were lacking to substantiate the claim for benefits, and suggested the submission of evidence that would be beneficial to the appellant's claim. Significantly, neither the appellant nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has she identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Accordingly, the Board will address the claims on appeal. 2. Increased Rating prior to December 2, 2009 Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4. 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. See 38 C.F.R. § 4.7. 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. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. 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, 58 (1994). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. See Hart v. Mansfield, 21 Vet. App. 505 (2007) (VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending). Prior to December 2, 2009, the Veteran's PTSD disability has been rated as 10 percent under a general set of criteria applicable to psychiatric disabilities found at 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the criteria found at Diagnostic Code 9411, a 10 percent disability rating is warranted for 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 when psychiatric disability causes 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, and mild memory loss. A 50 percent evaluation 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. 38 C.F.R. § 4.130. Higher disability ratings are warranted when more severe symptomatology is shown. Id. It is not expected that all cases will show all the findings specified; however, in all instances it is expected that there will be sufficient findings as to identify the disease and the disability there from, and to coordinate the rating with the identified impairment of function. 38 C.F.R. § 4.21. Where there is a question as to which of two rating 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. In rating the severity of the veteran's service-connected psychiatric disability under the criteria listed above, the Board is aware of the fact that psychiatric health care providers have their own system for rating psychiatric disability. This is the Global Assessment of Functioning (GAF) rating scale, and it is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM- IV); Richard v. Brown, 9 Vet. App. 266, 267 (1996)(citing DSM-IV). The GAF scale score assigned does not determine the disability rating VA assigns, however, it is one of the medical findings employed in that determination and it highly probative as it relates directly to the veteran's level of impairment of social and industrial adaptability. VAOPGCPREC 10-95; See Massey v. Brown, 7 Vet. App. 204, 207 (1994). Regarding the GAF score relevant to the case at hand, the following applies: a GAF score from 61 to 70 represents mild symptoms or some difficulty in social or occupational functioning, but generally functioned pretty well with some meaningful interpersonal relationships. When all 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 preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Any reasonable doubt will be resolved in favor of granting the veteran's claim. 38 U.S.C.A. § 5107 (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. § 3.102 (2009). In this case, the Veteran seeks an evaluation in excess of 10 percent prior to December 2, 2009 for his PTSD disability. The Veteran was originally awarded service connection for PTSD and assigned a 10 percent evaluation in a February 2007 rating decision. The record does not contain any additional evidence or correspondence from the Veteran dated within a year of the February 23, 2007 notification of that rating decision; that decision became final. See 38 U.S.C.A. § 7105(b)-(c). On July 9, 2008, VA received the Veteran's "Request for Re-evaluation" of his PTSD disability. The RO increased his assigned rating from 10 to 30 percent disabling, effective from December 2, 2009. The Veteran withdrew his claim for increased rating following the assignment of a 30 percent rating, effective from December 2, 2009, and he has continued his appeal of an evaluation in excess of 10 percent prior to December 2, 2009. As such, the Board will only address whether the severity of the Veteran's PTSD disability supported an evaluation in excess of 10 percent prior to December 2, 2009. The Board notes that in pursuant to VA regulations on the assignment of effective dates for increased rating, that the effective date of an award 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 from such date. 38 C.F.R. § 3.400(o)(2). In this regard, July 9, 2007, the date one-year prior to the date the Veteran's claim was received is the earliest possible effective date for an increased rating. See Id. However, there are no VA treatment records pertaining to complaints or treatment for the Veteran's PTSD disability during the one year prior to submission of his claim for increased rating in July 2008. Although the record does contain some mental health records from Vet Center dated during this time period, those records were not received by VA until August 2008, just after the Veteran initiated his increased rating claim. The treatment records from the Vet Center in Eugene, Oregon, starting in July 2007 show that the Veteran's PTSD disability has been manifested by irritability, anger, and intrusive thoughts. These records show that the Veteran was consistently described as friendly and cooperative during his counseling session, but he complained of stress arising from work and his desire to return school as well as familial problems. The record contains an August 2008 statement from the Veteran's wife, in which she described her observations of the Veteran. She noted the following: the Veteran had mood swings that included lack of energy or motivation; he was constantly forgetting things such as appointments and daily schedules; he was irritable with others, including picking fights; and he has problems falling to sleep at night. In October 2008, the Veteran was afforded a VA psychiatric examination in conjunction with his claim for increased rating. The examination report shows that the Veteran complained of sleep impairment, flashbacks, memory impairment, diminished interest in activities that he used to enjoy, detachment from others, withdrawal, irritability, anger outburst, and stress. The Veteran reported examples of being hyper-vigilant around his house where he double checks locks at nights and positions his dogs and geese as sentries around the entrance ways. He informed the examiner that he stays in contact with some members from his military unit and he has good familial relationships. He was employed in his own general contracting business. He reported that he receives mental health counseling sessions once per week at the Eugene Vet Center. On mental status examination, the 2008 VA examiner observed that the Veteran was appropriate dressed and cooperative during the clinical examination. His affect, memory, concentration, and speech were evaluated as normal. His insight and judgment were assessed as good. The examiner confirmed the diagnosis of PTSD and assigned a GAF scaled score of 65. The examiner found that the Veteran had a number of PTSD symptoms, but he was still able to function both in school and at work. His functional level was assessed as consistent over the past two years. Subsequent records from the Eugene Vet Center show that the Veteran continued to seek treatment for his PTSD disability. The Veteran was afforded another VA examination in December 2009. The RO, in the March 2010 rating decision used the findings from that examination to support the award of a 30 percent evaluation for PTSD disability as the date of that 2009 examination. As noted above, the Veteran withdrew his appeal for an evaluation in excess of 30 percent after December 2, 2009. Based on a review of the evidence of record prior to December 1, 2009, the Board finds that the Veteran's PTSD disability supports the criteria associated with a 30 percent evaluation under Diagnostic Code 9411. Collectively, the evidence of record during his period shows that the Veteran's disability is manifested by diminished interest and motivation, intrusive thoughts, anger outburst, irritability, mild memory impairment, and sleep impairment. This symptomatology more likely results in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. These objective findings support the criteria for a 30 percent rating. See 38 C.F.R. § 4.130, Diagnostic Code 9411. At no point during the appeal period does the Veteran's overall PTSD symptomatology meet the criteria for a rating in excess of 30 percent. In this regard, the medical evidence does not show the Veteran to have circumstantial, circumlocutory, or stereotyped speech, panic attacks, 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, and impaired abstract thinking, or other symptoms that are characteristic of a 50 percent rating. Rather, the Veteran effectively participated during his examinations and in mental health counseling sessions, he denied panic attacks, and he has demonstrated that he has organized goal directed thought process. It is noted that throughout this period, the Veteran has been assigned a GAF scaled score of 65. As described above, a GAF scaled score between 61 to 70 represents mild symptoms or some difficulty in social or occupational functioning. Such an assessment does not reflect symptomatology as severe to support a higher, 50 percent, evaluation under Diagnostic Code 9411. The Board also considered the Veteran's entitlement to a higher 70 or 100 percent disability rating. There is no indication of occupational and social impairment with deficiencies in most areas or total occupational and social impairment, as would be required by either higher rating. There is no evidence of suicidal ideation; obsessed 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; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; inability to establish and maintain effective relationships. Or any evidence of gross impairment in thought processes and communication or persistence danger of hurting self or others; nor is there persistent delusions and hallucinations, intermittent inability to perform activities of daily living, disorientation to time or place, or memory loss for names of close relatives or own name. The evidence as shown above does not show the level social and occupational impairment as contemplated by the 70 or 100 percent schedular evaluations. In short, after a review of all the evidence of record, the Board finds that for the period from July 9, 2007, to December 2, 2009, the objective medical findings of record more closely approximate the symptoms listed under the criteria for the 30 percent disability rating. The GAF scores assigned are also consistent with such a conclusion. At no point does the medical evidence show that his symptomatology warrants an assignment of the next higher, 50 percent, rating for PTSD (and does not approximate those criteria). The evidence is strongly in favor of the current 30 percent rating for the entire period on appeal. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Other Considerations The Board has also considered whether this 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(b) (1). The United States Court of Appeals for Veterans Claims has held that the threshold factor for extra-schedular consideration is a finding on part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the 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. Thun v. Peake, 22 Vet. App. 111 (2008). In the case at hand, the record reflects that the Veteran has not required frequent hospitalizations for his PTSD and that the manifestations of his symptomatology are not in excess of those contemplated by the schedular criteria. In sum, there is no indication that the average industrial impairment from the disability would be in excess of that contemplated by the assigned ratings. Accordingly, the Board has determined that referral of the issue of entitlement to a higher rating for PTSD for extra-schedular consideration is not in order. Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service- connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. Here, the record shows that the Veteran has been employed throughout the applicable period under appeal. Accordingly, the Board concludes that a claim for TDIU has not been raised. 3. Withdrawal of Service Connection Claim The Board notes the ability to dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). Withdrawal may be made by the Veteran or by his authorized representative. Id. The record reflects that the Veteran perfected timely appeal of a June 2007 rating decision that denied entitlement to service connection for right elbow disorder. Thereafter, in a June 2011 written statement, the Veteran expressed his desire to withdraw these claims from appellate review. The Board finds that this statement qualifies as a valid withdrawal of the issues. See 38 C.F.R. § 20.204 (b). In view of the Veteran's expressed desires, the Board concludes that further action with regard to the issue is not appropriate. The Board does not have jurisdiction over the withdrawn claim. As such, the issue is dismissed. ORDER Entitlement for an evaluation of 30 percent, and not higher, from July 9, 2007 to December 1, 2009 for PTSD disability, is granted. The appeal, concerning entitlement to service connection for right ankle disorder, is dismissed. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs