Citation Nr: 1336505 Decision Date: 11/08/13 Archive Date: 11/22/13 DOCKET NO. 11-23 799A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an initial rating for posttraumatic stress disorder (PTSD) higher than 30 percent for the period prior to January 29, 2013, and higher than 50 percent for the period beginning January 29, 2013. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Chris Miller, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1985 to April 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which granted service connection for PTSD and assigned an initial 30 percent rating from the date he filed his claim on April 28, 2010. The Veteran appealed that decision by requesting a higher initial rating. The RO has since assigned staged ratings for this disability. In a March 2013 rating decision, the RO increased his rating from 30 to 50 percent, but only effective from January 29, 2013, which is the date a VA treatment record showed a worsening of symptoms. As a result of these staged ratings, the Board must adjudicate whether the Veteran is entitled to an initial rating higher than 30 percent for the period prior to January 29, 2013, and a rating higher than 50 percent since January 29, 2013, for PTSD. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (a Veteran is presumed to be seeking the highest possible rating unless he expressly indicates otherwise). In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. The documents in this virtual file were reviewed in conjunction with this appeal. FINDING OF FACT Since the effective date of the grant of service connection, the symptoms of the veteran's PTSD have resulted in occupational and social impairment, with deficiencies in most areas. CONCLUSION OF LAW The Veteran's PTSD meets the criteria for an initial 70 percent rating for the entire course of his appeal. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.125, 4.126, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not in the record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002). These notice requirements apply to all elements of a claim, including degree of disability and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Proper VCAA notice must be provided to a claimant prior to the initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). Where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven. In such cases, the intended purpose of the VCAA notice has been fulfilled and no additional notice is required as to downstream issues, including the disability evaluation. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Here, the Veteran's claim for a higher rating for PTSD arises from his disagreement with the initial evaluation assigned following the grant of service connection for such disability. The Veteran was notified in May 2010 of the evidence and information necessary to substantiate his service connection claim, the responsibilities of the Veteran and VA in obtaining such evidence, and the evidence and information necessary to establish a disability rating and effective date, in accordance with Dingess/Hartman. Therefore, the Board finds that no further notice is required in this case. VA's duty to assist includes assisting in the procurement of pertinent treatment records and providing an examination when necessary. 38 C.F.R. § 3.159. The Veteran's service treatment records, post-service VA records, and a May 2011 summary of treatment from his Vet Center counselor have been obtained and considered. Further, the Veteran was afforded VA mental health examinations in August 2010 and January 2013. Neither the Veteran nor his representative have argued that such examinations are inadequate for rating purposes, and a review of the examination reports reveals no inadequacies. Concerning the Veteran's Vet Center counseling records, the Board does note that there may be records outstanding from May 2011 forward. However, there is no indication that any of these outstanding treatment records would provide any further support for the Veteran's claim, or that he has been prejudiced by their absence. For the foregoing reasons, the Board finds that the medical evidence of record is sufficient to decide the Veteran's claim. In the circumstances of this case, a remand would serve no useful purpose, as it would unnecessarily impose additional burdens on VA with no benefit to the Veteran. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). VA has satisfied its duties to inform and assist the Veteran at every stage, at least insofar as any errors committed were not harmful to the essential fairness of the proceedings. Therefore, he will not be prejudiced by a decision on the merits of his claim. II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson v. Brown, 12 Vet. App. 119, 126-127 (1999). Evaluation of a mental disorder requires consideration of the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. Evaluations will be assigned based on all evidence of record that bears on occupational and social impairment, rather than solely on an examiner's assessment of the level of disability at the moment of the examination. The extent of social impairment shall also be considered, but an evaluation may not be assigned based solely on the basis of social impairment. 38 C.F.R. § 4.126. Under 38 C.F.R. § 4.130, all service-connected mental health disabilities are rated pursuant to the General Rating Formula for Mental Disorders. The criteria for a 30 percent rating are: 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 normal conversation), 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). The criteria for a 50 percent rating are: 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. The criteria for a 70 percent rating are: 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 work like setting); inability to establish and maintain effective relationships. The criteria for a 100 percent rating are: 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. 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. The symptoms listed in 38 C.F.R. § 4.130 are not intended to constitute an exhaustive list but, rather, serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating for a mental disorder. In addition to the symptoms listed in the rating schedule, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The DSM-IV provides for a global assessment of functioning (GAF), a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (quoting the DSM-IV). A. Prior to January 29, 2013 During the period from the effective date of the Veteran's claim until January 29, 2013, the Veteran's PTSD has an initial rating of 30 percent. After carefully reviewing the evidence of record, the Board finds that the rating for this period should be increased to 70 percent. At his examination in August 2010, the Veteran discussed the end of his first marriage. He said that his wife told him that he was distant when he returned from Operation Desert Storm, and that the Army ruined him. The Veteran stated that he had a recent relapse of his drinking problem. The Veteran reported intrusion symptoms four times per week, and that he used to have them daily. The Veteran stated that he frequently had disturbing thoughts, dreams, flashbacks, panic attacks, avoidance behavior, and sleep disturbances. He also stated that he frequently feels distant and cut off, numb, and worried that his future will be cut off. The Veteran stated that he is on high alert at all times, and reported a moderate amount of irritability and anger outbursts. The Veteran also stated that he fills his day with unnecessary chores to avoid talking about the war. The examiner noted that the Veteran showed no signs of delusional thinking, and that he had adequate insight, memory recall, and judgment. There was no indication that the Veteran neglected his appearance or hygiene. The examiner diagnosed the Veteran with chronic, severe PTSD, and assigned a GAF score of 48. The Veteran also submitted an August 2010 report from Dr. L.L., a private psychologist. He noted that the Veteran has anxiety attacks when exposed to certain smells and sounds, and obsessively checks the locks several times per night. He also stated that the Veteran reported obsessing over every detail in his life. Dr. L.L. assigned the Veteran a GAF score of 48. The Board has reviewed a May 2011 assessment from the Veteran's counselor at the Harrisburg, PA, Vet Center. His counselor noted persistent anger outbursts and sleep disturbances, and other symptoms of irritability, depression, intrusive thoughts, and survival tactics when under stress. The Counselor stated that the Veteran reported little to no improvement in his symptoms. He also stated that the Veteran reported missing work at a state prison one day per week, and recently had his work schedule changed due to such absences or late arrivals. The Board has finally reviewed VA treatment records of the Veteran, which date from January 2011 to December 2012. In those records, the Veteran consistently denied hallucinations, and was judged to be a low risk for harmful behavior. He reported some suicidal ideation in January 2011. On November 11, 2011, the Veteran's psychiatrist noted that the Veteran was struggling at work and had "significant problems with absenteeism." On December 28, 2011, the Veteran's psychiatrist noted the Veteran's was continuing to struggle at work but that his absenteeism issues were improving; however, the psychiatrist noted that the Veteran had an upcoming hearing at work with regards to that issue. While the Veteran's GAF scores in these records ranged from 51 to 65, he received a score of 51 in December 2011, a score of 54 in February and August 2012, and a score of 55 in May 2011 and May 2012. Based on all lay and medical evidence of record, and resolving all reasonable doubt in the Veteran's favor, the Board finds that he is entitled to an initial rating of 70 percent, but no higher, from the effective date of the Veteran's claim (April 28, 2010) until January 29, 2013. Specifically, the evidence establishes a difficultly in adapting to stressful circumstances, such as his place of employment. The record shows that the Veteran had significant trouble with absenteeism at work. The Veteran's habit of checking the locks throughout the night is an obsessive ritual that interferes with his sleep. The record also indicates a high frequency of intrusion symptoms, thought disturbances, nightmares, flashbacks, panic attacks, avoidance behavior, and sleep disturbances. The Board also notes the instance of suicidal ideation, and the Veteran's report of a fatalistic outlook on life, inasmuch as he worries that his future will be cut off. The Veteran also had the inability to maintain a relationship with his ex-wife. Finally, the Veteran was assigned a GAF score of 48 by both the VA and the private examiner, which indicates consistent serious symptomology or serious impairment in social and occupational functioning. See DSM-IV at 46. In considering the Veteran's symptoms, the Board finds that the Veteran's overall disability does not most nearly approximates a 100 percent disability rating. There is no evidence of total occupational and social impairment, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting himself or other, an intermittent inability to perform activities of daily living, disorientation to time or place, or memory loss. In summary, the Board finds that the Veteran's overall disability picture most nearly approximates a 70 percent rating for PTSD from the effective date of the Veteran's claim until January 29, 2013. See 38 C.F.R. § 4.7. B. Since January 19, 2013 The Veteran had a VA examination on January 29, 2013. The examination report indicates that he remarried in 2011, and lives with his wife, son, and parents. The examiner indicated that child protective services was involved with the Veteran's family in 2012 due to the fear that he would harm his son. In 2012, the Veteran was switched from a guard position to a clerical position at the state prison that he is employed at to prevent him from harming prisoners. The report indicates that he was also suspended from work that year for having 67 days off work. The examiner stated that the Veteran had recurrent and distressing recollections of the traumatic events he experienced via recurrent thoughts, dreams, flashbacks, and panic attacks. Further, the Veteran persistently avoided stimuli associated with his trauma and demonstrated a numbing of general responsiveness via avoidance behavior, detachment, restricted range of affect, anger outbursts, hypervigilance, and exaggerated startle response. The examiner also noted other symptoms, such as chronic sleep impairment, depression, anxiety, suspiciousness, flattened affect, difficulty in understanding commands, impaired abstract thinking, mood and motivation disturbances, difficulty in maintaining and establishing relationships, and neglect of personal appearance and hygiene. He was assigned a GAF score of 50. Based on all lay and medical evidence of record, and resolving all reasonable doubt in the Veteran's favor, the Board finds that he is not entitled to an initial rating in excess of 70 percent from the period beginning January 29, 2013. Specifically, the evidence establishes unprovoked irritability with periods of violence, as demonstrated by his involvement with child protective services and his record of harming prisoners at his job. The Veteran's trouble with prisoners, and his absenteeism and subsequent suspension from work, demonstrates occupational impairment and a difficulty in adapting to a work setting. The examiner also noted that the Veteran neglected his personal appearance and hygiene. Finally, the Veteran's GAF score of 50 indicates consistent serious symptomology or serious impairment in social and occupational functioning. See DSM-IV at id. The Board notes that the evidence reflects some symptoms that are contemplated by a rating of 100 percent for PTSD, such as the maintenance of personal hygiene and a danger of hurting others. However, even considering these symptoms, the Board finds that the Veteran's overall disability most nearly approximates a 70 percent disability rating. The Veteran does not have delusions or hallucinations, and he is currently employed. The reports of the Veteran posing a danger to others does not rise to a persistent frequency. While there is some inability to understand commands, there is no indication that he does not remember names of close relatives, his own occupation, or his own name. There is also no indication that the Veteran's appearance at his examination demonstrates a consistent inability to maintain minimal personal hygiene. Additionally, the Veteran does not have total social impairment. He married his wife in 2011, and lives with her, his son, and his parents. In summary, while the evidence reflects some symptoms that are contemplated by the higher ratings for mental disability, the Board finds that the Veteran's overall disability picture most nearly approximates a 70 percent rating for PTSD for the period beginning January 29, 2013. See 38 C.F.R. § 4.7. C. Conclusions To summarize, the Veteran's PTSD has an initial rating of 70 percent throughout the entire course of the appeal. In making this determination, the Board has considered all potentially applicable diagnostic codes, and finds no basis upon which to assign an evaluation in excess of the rating assigned herein for PTSD under any alternate code. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The Board has further considered whether this case should be referred for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1). However, this case does not present such an exceptional or unusual disability picture, with such related factors as marked interference with employment or frequent periods of hospitalization, that it would be impracticable to apply the schedular standards. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). In short, the Veteran has occupational and social impairment due to the symptoms discussed above, which are contemplated by the rating criteria. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. Therefore, it is unnecessary to determine whether there are any related factors such as hospitalization or interference with employment. The Board also notes that a claim for entitlement to a total disability rating based on individual unemployability due the Veteran's service-connected disability cannot be inferred, inasmuch as there is no assertion of unemployability by the Veteran. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Finally, the Board has considered the applicability of the benefit of the doubt doctrine. The Veteran's claim has been granted to the extent discussed above, based in part on such doctrine. However, the preponderance of the evidence is against an initial rating in excess of 70 percent prior to January 29, 2013, and is against a rating in excess of 70 percent beginning on January 29, 2013. As such, the benefit of the doubt doctrine does not apply, and the Veteran's claim must be denied to this extent. 38 C.F.R. § 4.3. ORDER An initial 70 percent rating for PTSD is granted effective April 28, 2010, subject to the laws and regulations governing the payment of VA compensation. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs