Citation Nr: 1335943 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 05-38 293 ) DATE ) ) On appeal from the Department of Veterans Affairs Office in Milwaukee, Wisconsin THE ISSUE Entitlement to an increased rating for service-connected major depressive disorder, and posttraumatic stress disorder (PTSD), evaluated as 30 percent disabling prior to September 6, 2012, and as 50 percent disabling thereafter. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from January 30, 1962 to February 20, 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2009 rating decision that denied entitlement to an increased rating for service-connected anxiety disorder, which was rated as 30 percent disabling. The RO recharacterized the Veteran's disability as PTSD, and major depressive disorder, and continued the 30 percent rating. See October 2012 supplemental statement of the case. The RO indicated that the Veteran's PTSD was an exacerbation of his previously diagnosed anxiety disorder. In August 2013, the Appeals Management Center (AMC) increased the Veteran's rating to 50 percent, with an effective date of September 6, 2012. Since this increase did not constitute a full grant of the benefits sought, the increased rating issue remained in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). The matter was most recently Remanded by the Board in May 2013 for additional development. FINDINGS OF FACT 1. Prior to September 6, 2012, the Veteran's PTSD and major depressive disorder is not shown to have resulted in occupational and social impairment with reduced reliability and productivity. 2. As of September 6, 2012, the Veteran's PTSD and major depressive disorder is not shown to have resulted in occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. Prior to September 6, 2012, the criteria for a rating in excess of 30 percent for service-connected PTSD and major depressive disorder have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.130, Diagnostic Code 9411 (2013). 2. As of September 6, 2012, the criteria for an evaluation in excess of 50 percent for service-connected PTSD and major depressive disorder have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased Rating By way of history, the RO granted service connection for an anxiety disorder in August 2006. A 30 percent disabling. The Veteran did not appeal this decision, nor did he submit any additional evidence within a year of that decision. Thus, that decision became final one year later and represents the last final denial of the claim. 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). Entitlement to an increased rating for anxiety disorder was denied in January 2009. Additional VA treatment reports were received within the one year period following the January 2009 decision, which triggered the RO to issue a March 2010 decision that again denied the increased rating claim. A timely notice of disagreement was received as to the RO's March 2010 decision, and in March 2011, a statement of the case was issued. That same month, an appeal (VA Form 9) was received. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, 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. The RO has evaluated the Veteran's PTSD and major depressive disorder under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. Under DC 9411, Under DC 9411, a 30 percent rating is assigned when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactory, 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; or mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is warranted where the disorder is manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks (more than once a week); difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted where there is 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 ideations; obsessional rituals that 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 work-like setting); inability to establish and maintain effective relationships. Id. The Global Assessment of Functioning (GAF) scale is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994). GAF scores ranging from 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). GAF scores ranging between 61 to 70 reflect some 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 has some meaningful interpersonal relationships. See Quick Reference to the Diagnostic Criteria from DSM-IV at 47 (American Psychiatric Association 1994) ("QRDC DSM-IV"). Although some of the Veteran's recorded symptoms are not specifically provided for in the ratings schedule (e.g., such symptoms as nightmares), the symptoms listed at 38 C.F.R. § 4.130 are not an exclusive or exhaustive list of symptomatology which may be considered for a higher rating claim. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has similarly emphasized that the list of symptoms under a given rating is a nonexhaustive list, as indicated by the words "such as" that precede each list of symptoms. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). It held that a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage or others of similar severity, frequency, and duration. Id. at 4. Other language in the decision indicates that the phrase "others of similar severity, frequency, and duration," can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. With regard to the history of the disability in issue, VA progress notes show complaints of psychiatric symptoms as early as 1997, to include substance abuse treatment, and diagnoses in 1998 of cocaine dependence, and a personality disorder. Reports, dated in 2004, contain notations of PTSD due to MST (military sexual trauma). An August 2006 VA examination report contains an Axis I diagnosis of anxiety disorder, not otherwise specified, and an Axis V diagnosis of a GAF score of 60. A December 2006 VA progress note contains a GAF score of 55/50 (current/past year). See 38 C.F.R. § 4.1 (2013). A. Prior to September 6, 2012 VA progress notes show that the Veteran received ongoing treatment for psychiatric symptoms. He repeatedly complained about the state of his relationship with his girlfriend, and his brother. He was consistently noted to be AO (awake and oriented) times three (to person, place and time), or times 4 (awake, alert, and oriented to person, place, time and date). In February 2008, he was assigned a GAF score of 55/50 (current/past year), and in June 2008, he was assigned a GAF score of 60/50. Notwithstanding an April 2008 report noting suicidal ideation with vague plan, he was frequently noted to have denied suicidal ideation or homicidal ideation. There was likewise no evidence of psychotic symptoms; and, he retained an intact cognition and memory, normal speech, and linear thought processes. He used medications that included ambien and citalopram. Judgment and insight were adequate, fair, or limited. The Veteran stated that he drove an ice cream truck. In October 2010, he was assigned a GAF score of 65. In 2011 he complained that rumors had been started about him being a pedophile, and that his ice cream truck business was suffering as a result. In September 2011, he reported that he was doing better and had improved symptoms. He reported receiving a DUI (driving under the influence of alcohol) citation in November 2011. He sold his ice cream truck in December 2012. A VA examination report, dated in January 2009, shows that the examiner stated that the Veteran's C-file had been reviewed. The Veteran reported the following: he has been separated from his wife since 1989. He has two sons, one with whom he has had no contact in the last two years, and one whom he has contact with two times a year over major holidays. He only has contact with one of his three siblings, once a year, and he currently lives with another brother during the winter months. He was engaged in a seasonal business involving the manufacture and sale of an eyeglass cleaner that was owned by his brother. They traveled to trade shows during the winter months, and he helped fill mail orders during the rest of the year. During the summer, the Veteran has an ice cream vendor service, a truck, which he engages in from May to December. For the last year he has owned the truck, and he ran his own business out of it, seven days per week. He was receiving ongoing psychiatric treatment at VA on a monthly basis. He was taking Celexa, (citalopram), Zolpidem Tartrate, and Bupropion. He reported having about two drinks, once a week. He complained of difficulty rising, and of insomnia, and ongoing nightmares occurring from once every two weeks to twice per week. He complained of ongoing anxiety and depression, exacerbated by his brother's critical demeanor and attitude. On examination, the Veteran was noted to have good to fair personal hygiene and personal care. Thought processes were logical, coherent, and organized. He denied suicidal or homicidal ideation. There was no evidence of florid psychosis. Mood was slightly dysphoric, but not markedly anxious. Upon formal testing, he demonstrated "an entirely unremarkable mental status examination." He had excellent reality, accuracy, and orientation, immediate and short-term recall, attention and concentration, calculation ability, abstract thinking, social judgment, and general fund of information. The examiner stated that the Veteran's anxiety disorder not otherwise specified remained at a level fairly consistent with that noted in August 2006. The examiner stated that the Veteran has mild to moderate impairment in social and vocational functioning, and that his current mental processes and memory function "remain well preserved and intact." The Axis I diagnoses were anxiety disorder, not otherwise specified, with subclinical features of PTSD related to MST (military sexual trauma), depressive disorder, not otherwise specified, and cocaine dependence currently in sustained remission. The Axis V diagnosis was a GAF score of 60. The Board finds that prior to September 6, 2012, a rating in excess of 30 percent is not warranted. The Veteran's symptoms are not sufficiently severe to have resulted in occupational and social impairment with reduced reliability and productivity. The totality of the evidence more closely resembles the criteria for not more than a 30 percent rating. The Veteran reported that he worked throughout the year, to include running his own business out of a truck seven days a week between May and December of every year. There is little or no demonstrated impairment of memory, or thought process, and no evidence to show the presence of hallucinations or delusions. He is not shown to be suicidal or homicidal. Insight and judgment have been characterized as "adequate", "fair", and "lacking." The Veteran's GAF scores have ranged between 50 and 65, which indicates mild to serious symptoms. See QRDC DSM-IV. The January 2009 VA examiner afforded him a GAF score of 60, which is evidence of moderate symptomatology. At his examination, the Veteran demonstrated "an entirely unremarkable mental status examination." The examiner further stated that his anxiety disorder remained at a level fairly consistent with that noted in August 2006 (at which time the Veteran was afforded a GAF score of 60). The examiner stated that the Veteran has mild to moderate impairment in social and vocational functioning, and that his current mental processes and memory function "remain well preserved and intact." To the extent that there are GAF scores of 50, the Board finds that when these scores are read in context with the findings in the medical evidence of record, that this evidence is insufficient to warrant a rating in excess of 50 percent. See Brambley v. Principi, 17 Vet. App. 20, 26 (2003) (although a GAF score may be indicative of a certain level of occupational impairment, it is only one factor in determining an appellant's degree of disability). Indeed, while not outcome determinative, symptoms as flattened affect, irregular speech, difficulty in understanding complex commands, impairment of short- and long-term memory, and/or impaired abstract thinking have not been shown. Nor are there other psychiatric symptoms of similar severity, frequency, and duration. Emphasis is placed on the fact that the VA examiner specifically noted that the Veteran only experienced mild to moderate social and occupational impairment. The Veteran's symptoms are not of such severity to approximate, or more nearly approximate, the criteria for a rating in excess of 30 percent under DC 9411 prior to September 6, 2012. See 38 C.F.R. § 4.7. B. As of September 6, 2012 The Veteran was next afforded a VA examination on September 6, 2012, which included a review of the claims file. The Veteran reported that he had operated an ice cream truck for the last 17 years, but now had his truck up for sale. He complained that one of his competitors had started a rumor that he was a pedophile, and that business had dramatically declined. He also manufactured a glass cleaner with his brother, and that the work was mostly with trade shows, and that it kept him busy. He admitted that he had stolen from former employers over the years, but could not state why. He denied a history of mental health hospitalizations. He complained of a bad mood, with daily thoughts of his sexual trauma since he had been working less. The Veteran reported having depression, avoiding crowds, and having a hard time with relationships. He denied suicidal thoughts. He had anger, irritability, and a poor memory. He currently did not have a driver's license because of a DUI charge, and he was required to go to AA (alcoholics anonymous) meetings by the state court. He had improved nightmares, once per week, which were not as severe as in the past. He lived alone, and cooked his own meals. The examiner noted that the Veteran had depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or worklike setting. His symptoms were found to be productive of 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. The Axis I diagnoses were PTSD, and major depressive disorder, and cocaine dependence (in remission). The Axis V diagnosis was a GAF score of 55. Contemporaneous VA progress notes show that the Veteran was noted not to have suicidal ideation or homicidal ideation, not to have psychotic symptoms, and to have intact cognition and memory. Judgment and insight were limited. A September 17, 2012 report shows that the Veteran was noted to be non-compliant with his medications. See also reports, dated in December 2012 and April 2013 (same). In September 2012, he stated that he was giving up his ice cream truck business due to rumors that had been started against him. A June 2013 report notes that he used medications that included aripiprazole for "delusional (paranoid) d/o (disorder)", and citalopram. Based on the foregoing, the Board finds that a rating in excess of 50 percent is not warranted for the period from September 6, 2012. The Veteran's symptoms are not shown to be sufficiently severe to have resulted in occupational and social impairment with deficiencies in most areas. The symptoms of his PTSD and depressive disorder more closely resemble the criteria for not more than a 50 percent rating. The findings as to such things as the Veteran's speech, thought processes, memory, and insight, and judgment, are not shown to be sufficiently severe to warrant an increased evaluation. The VA examination report shows that his GAF score was 55, which indicates moderate symptoms. Moreover, the examiner specifically determined that the Veteran's symptoms were productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Consideration has been given to the fact that the Veteran ceased working as an ice cream truck driver in 2012, which had been a self-run business operation for 17 years. There is no indication that the Veteran's psychiatric disorder played a role in that decision. Rather, he reported that he did not have a driver's license due to a DUI, and in December 2012, the Veteran reported that he had sold his ice cream truck due, in part, to business problems. There is also ample evidence showing that he continues to work with his brother in a small business venture. Similar recognition is provided to the Veteran's consistent report of having a hard time with relationships. He is divorced and sees his children and sibling on an infrequent basis. However, evidence that the Veteran has an inability to establish and maintain effective relationships is not shown. He has had a girlfriend and discussed his relationship with other women at his September 2012 examination. He also lives with one of his brothers and works with that brother, which includes participating in trade shows. In summary, there is insufficient evidence of such symptoms as suicidal ideations, obsessional rituals that 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, and an inability to establish and maintain effective relationships, nor are there other psychiatric symptoms shown to have resulted in such impairment. The Board therefore finds that the Veteran's symptoms are not of such severity to approximate, or more nearly approximate, the criteria for an evaluation in excess of 50 percent under DC 9411 as of September 6, 2012. See 38 C.F.R. § 4.7; Vazquez-Claudio v. Shinseki, 2012-7114 (Fed. Cir. Apr. 8, 2013) (38 C.F.R. § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas). C. Conclusion In deciding this claim, the Board acknowledges that the Veteran is competent to report symptoms of his psychiatric disability. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). Additionally, he is credible in his reports of symptoms and their effect on his activities. He is not however competent to identify a specific level of disability of his disability according to the appropriate diagnostic code. Such competent evidence concerning the nature and extent of the Veteran's service-connected psychiatric disability has been provided by VA medical professionals who have examined him. The medical findings directly address the criteria under which this disability is evaluated. The Board finds these records to be the only competent and probative evidence of record, and therefore is accorded greater weight than the Veteran's subjective complaints of increased symptomatology. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). Consideration has also been given to whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2012); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the veteran or reasonably raised by the record). In determining whether an extra-schedular evaluation is for consideration, the Board must first consider whether there is an exceptional or unusual disability picture, which occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, the Board must next consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-16. When those two elements are met, the appeal must be referred for consideration of the assignment of an extra-schedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1) (2013); Thun, 22 Vet. App. at 116. The schedular evaluations in this case are not inadequate. Evaluations in excess of 50 percent are provided for certain manifestations of the service-connected PTSD and depressive disorder disability, which have been discussed. The evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disability, as the criteria assess the level of occupational and social impairment attributable to the Veteran's symptoms, and the level of functioning. As the Board finds that the Veteran's disability picture is contemplated by the rating schedule, the inquiry ends and the Board need not consider whether the disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. Accordingly, referral for consideration of an extra-schedular rating is not warranted. Although the Veteran has submitted evidence of medical disability, and made a claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable. He reports full-time employment as an ice cream truck driver in 2012, but that he had his licensed suspended and later sold his truck, and that he works with his brother selling a cleaning product. See e.g., report of VA examination, dated in September 2012. Therefore, the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In deciding the Veteran's claim, the Board has considered the determination in Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. As noted above, the Board does not find evidence that the Veteran's evaluations should be increased for any other separate period based on the facts found during the whole appeal period. The evidence of record supports the conclusion that the Veteran is not entitled to increased compensation during any time within the appeal period. The Board therefore finds that the evidence is insufficient to show that the Veteran had a worsening of the disability on appeal such that an increased rating is warranted. In reaching this decision, the Board considered the benefit- of-the-doubt rule; however, as the preponderance of the evidence is against the appellant's claim, such rule is not for application. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. The Veterans Claims Assistance Act of 2000 The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103 , 5103A (West 2002); 38 C.F.R. § 3.159 (2013). Here, although no such notice or response is of record, the March 2011 statement of the case indicates that the Veteran was sent a VCAA notice in November 2009, and that a response was received later that same month. See Mindenhall v. Brown, 7 Vet. App. 271 (1994) (applying the presumption of regularity to procedures at the RO). In any event, recent court decisions indicate that when VA fails to furnish information that is necessary to substantiate the claim ("Type One error"), such error is presumed prejudicial, and requires reversal unless VA can show that the error did not affect the essential fairness of the adjudication. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), reversed and remanded on other grounds sub nom, Shinseki v. Sanders, 129 S.Ct. 1696 (2009). To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Although not specifically discussed, some other possible circumstances that could demonstrate that VA error did not prejudice the claimant include where the claimant has stated that he or she has no further evidence to submit, or where the record reflects that VA has obtained all relevant evidence. In this case, the Board finds that any notice error did not affect the essential fairness of the adjudication as VA has obtained all relevant evidence, and as the appellant has demonstrated actual knowledge of what was necessary to substantiate the claim. In this regard, the Veteran has been provided a meaningful opportunity to participate effectively in the processing of his claim, as he has been afforded the opportunity to submit additional argument and evidence, which he has done. Following the initial adjudication of the claim, the RO reconsidered the appellant's claim, as evidenced by Supplemental Statements of the Case, dated in October 2012, and in August 2013. In addition, a review of the appellant's representative's submission, received in May 2013, indicates an accurate understanding of the issue on appeal. These actions indicate actual knowledge on the part of the claimant, and that a reasonable person could be expected to understand from the notice what was needed. Id.; see also Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (holding that VA cured any failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case). The Board therefore finds that no prejudice to the Veteran will result from proceeding with adjudication without additional notice or process. Furthermore, as discussed below, it appears that VA has obtained all relevant evidence. Id. The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available post-service records relevant to the issue on appeal have been obtained and are associated with the Veteran's claims file. The RO has obtained the Veteran's VA and non-VA medical records. No outstanding records have been identified that have not otherwise been obtained. Relevant VA examinations were obtained in order to assess the current severity of the Veteran's service-connected psychiatric disorder. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The examination reports are thorough and adequate upon which to base a decision with regard to the claim. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information necessary to evaluate the Veteran's disabilities under the applicable rating criteria. In May 2013, the Board remanded this claim. The Board stated that a supplemental statement of the case, dated in October 2012, indicates that a statement of the case was issued in March 2011, and that an appeal (VA Form 9) was received that same month. The Board noted that neither of these documents were of record, and directed that they be obtained. This has been done. The Board also directed that an attempt be made to obtain all records of the Veteran's treatment at the Milwaukee VAMC dated between May 2006 and October 2011 (i.e., other than VA examinations dated in August 2008 and January 2009) and from September 2012 to the present. This also has been done. Specifically, records from the Milwaukee VAMC dated between 2006 and 2013 have been obtained. The Board concludes, therefore, that a decision on the merits at this time does not violate the VCAA, nor prejudice the appellant under Bernard v. Brown, 4 Vet. App. 384 (1993). Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER Prior to September 6, 2012, a rating in excess of 30 percent for service-connected PTSD with depressive disorder is denied. As of September 6, 2012, a rating in excess of 50 percent for service-connected PTSD with depressive disorder is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs