Citation Nr: 1337525 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 11-21 747 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder ("PTSD"). REPRESENTATION Appellant represented by: Marine Corps League WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD T. Y. Hawkins, Counsel INTRODUCTION The Veteran served on active duty from July 1966 to February 1969, with an unverified period of reserve service from 1972 to 1977. This matter comes before the Board of Veterans' Appeals ("Board") on appeal from a June 2010 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Detroit, Michigan, which granted the Veteran's claim of entitlement to service connection for PTSD and assigned an initial disability rating of 30 percent, effective October 27, 2009. In March 2012, Veteran testified during a Board video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims folder. During the hearing, the Veteran and his representative requested that the record be held open for an additional 30 days in order to allow him to submit more evidence. However, despite the fact that the record remained open, the Board did not receive any additional evidence. FINDING OF FACT Throughout the course of the appeal, the Veteran's PTSD has been manifested by symptoms no greater than depressed mood, anxiety, irritability, chronic sleep impairment, suspiciousness, panic attacks, impairment of short- and long-term memory, intrusive thoughts, flashbacks, hypervigilance, difficulty in adapting to stressful circumstances disturbances of motivation and mood, impaired judgment and difficulty in establishing and maintaining effective work and social relationships. CONCLUSION OF LAW Resolving all doubt in favor of the Veteran, the evidence establishes that throughout the course of the appeal, the criteria for an initial evaluation of 50 percent, and no more, for PTSD were met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.27, 4.126, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 ("VCAA") With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). A.) Duty to Notify Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) ("Pelegrini II"), the United States Court of Appeals for Veterans' Claims ("Court") held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. Element (4), the requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim, was eliminated by the Secretary of VA (the "Secretary") prior to this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini, effective May 30, 2008). The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). In this case, service connection for PTSD has already been established, and the current appeal arose from a claim for an increased initial rating. In a November 2009 letter, the Veteran was informed of how to substantiate a claim of entitlement to service connection for PTSD. This letter advised him of what he should do and what VA would do to assist him in obtaining evidence, including the specific types of evidence, both lay and medical, that could be submitted in support of a service connection claim. This letter also satisfied the requirements of Dingess/Hartman by advising the Veteran how VA assigns the disability rating and effective date elements of a claim. However, where, as here, service connection has been granted and an initial rating has been assigned, the claim for service connection has been more than substantiated, as it has been proven, thereby rendering 38 U.S.C.A. §5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Once the claim for service connection has been substantiated, the filing of a notice of disagreement with the RO's initial disability rating does not trigger additional 38 U.S.C.A. § 5103(a) notice. Accordingly, as the notice provided before service connection was granted was legally sufficient, VA's duty to notify the Veteran in this case was satisfied. See Hartman v. Nicholson, 483 F.3d 1311 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Goodwin v. Peake, 22 Vet. App. 128, 136 (2008). B.) Duty to Assist The Board further concludes that the duty to assist has been satisfied. The claims file contains the Veteran's service and post-service treatment records, as well as a March 2010 VA examination report. Additionally, the claims file contains the Veteran's statements in support of his claim, both in writing and in the form of the transcript for the March 2012 video conference hearing. The Veteran has not referenced any outstanding, available records that he wanted VA to obtain or that he felt were relevant to the claim that have not already been obtained and associated with the record. The PTSD examination report shows that the examiner reviewed the Veteran's treatment reports of record, performed a comprehensive psychiatric evaluation, elicited from the Veteran his history of PTSD symptoms, and provided clinical findings detailing the examination results. For these reasons, the Board concludes that the examination report is adequate upon which to base a decision in this case. Further, as noted above, in March 2012, the Veteran was affording a hearing before the Board. In this regard, the Board observes that in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge ("VLJ") 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 Board finds that the hearing generally was held in compliance with the provisions of Bryant. Additionally, a review of the record also reveals no assertion, by the Veteran or his service organization representative, that VA or the VLJ failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any other prejudice in the conduct of the Board hearing. Moreover, the Veteran's statements and submissions during the course of the appeal, as well as those of his representative, demonstrate actual knowledge of the elements and evidence necessary to substantiate his claims because the submissions and statements focus on the evidence and elements necessary to substantiate such claims. As such, the Board finds that the VLJ complied with the duties set forth in Bryant and the claim may be adjudicated based on the current record. Cf. Procopio v. Shinseki, 26 Vet. App. 76 (2012). 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 claim has been consistent with the provisions of the VCAA. The appellant has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to the VCAA notice. The purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his appealed claim. II. Legal Criteria and Facts. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, and by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries, and the residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). Separate Diagnostic Codes ("DC") identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2013). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2013). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue, and such symptoms warrant different evaluations, staged evaluations may also be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2008). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2013). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When evaluating 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 an evaluation 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. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. The Veteran's service-connected PTSD is evaluated under DC 9411. The regulations establish a general rating formula for mental disabilities. See 38 C.F.R. § 4.130 (2013). Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a claimant's disability 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"). The criteria for the current 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 conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 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 worklike setting); inability to establish and maintain effective relationships. And, 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 9411 (2013). The Board must also consider the Global Assessment of Functioning ("GAF") scores that have been reported. GAF scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the DSM-IV, p.32). GAF scores from 61 to 70 represent some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functioning pretty well, with some meaningful personal relationships. GAF scores from 51 to 60 represent moderate symptoms, such as flat affect and circumstantial speech, and occasional panic attacks, or moderate difficulty in social, occupational, or school function (such as few friends, conflicts with peers or co-workers). GAF scores ranging from 41 to 50 reflect 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). Lower GAF score represent a greater degree of psychological, social, and occupational functioning. Review of the claims folder reveals that the Veteran initially sought treatment for a mental health disorder in September 2009 when he presented to the VA Vet Center with feelings of guilt regarding the death of a close friend during service in the Republic of Vietnam. His reported symptoms included hyperstartle reaction, isolation and nightmares. In March 2010, the Veteran was afforded a VA PTSD compensation and pension examination, during which, he reported that, over the years following his active duty service, he had experienced persistent avoidance, anxiety, re-experiencing of traumatic combat experiences, nightmares, hypervigilance, mood swings and anger problems. The clinician noted that his present psychiatric symptoms still included difficulty taking care of himself , avoidance, re-experiencing and intrusive recall, occasional flashbacks, sleeping problems and some anxiety in crowds. It was noted he had worked 27 years for the same company until it closed and moved to a different state. Since then, he was only working part-time and reported having increased symptomatology. He reported being married for 39 years and had a daughter and two sons with whom he maintained a relationship. During the mental status evaluation, the Veteran was alert, oriented times three and anxious. He denied suicidal or homicidal ideations, as well a hallucination or delusions. His thinking was rational with no evidence of a thought disorder. The Veteran was diagnosed with PTSD and assigned a GAF score of 57. In a November 2010 letter, the Veteran's VA Vet Center psychologist confirmed that he was a participant in her PTSD counseling group, but did not specifically discuss his symptoms. In a July 2011 letter, however, the appellant's Vet Center psychologist noted that, during his initial 2009 assessment, he presented with guilt, nightmares, difficulty in large crowds, intrusive thoughts, depression, anxiety, panic attacks, lack of motivation, flashbacks, chronic sleep disorder, hypervigilance and emotional numbing/lack of feeling. She concluded that his PTSD symptoms had "incapacitated him to the point of denying him the quality of life he so desires." In addition to the medical evidence of record, the Board has also considered the Veteran's statements regarding his PTSD symptoms. In a letter received in August 2011, the Veteran reported that he was experiencing long- and short-term memory problems, difficulties maintaining relationships, difficulties in crowds, depression, stress over small matters, mood swings and anger. He added that his issues negatively affected his marital relationship. During his March 2012 hearing before the Board, the Veteran reported experiencing nightmares, memory problems, panic attacks, isolation, chronic sleep problems, depression, anxiety and persistent anger issues, including frequent periods of road rage and loss of patience during his part-time job as a schoolbus driver. III. Analysis and conclusion It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. As noted above, when, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Court has stated that "[i]t is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, based on a review of the aforementioned evidence, the Board finds that, throughout the period on appeal, the symptoms associated with the Veteran's PTSD have more nearly approximated the criteria required for the 50 percent rating. In this regard, the Board observes that, during the appeal period, the Veteran's PTSD has been manifested by depressed mood, anxiety, irritability, chronic sleep impairment, suspiciousness, panic attacks, impairment of short- and long-term memory, intrusive thoughts, flashbacks, hypervigilance, difficulty in adapting to stressful circumstances disturbances of motivation and mood, impaired judgment and difficulty in establishing and maintaining effective work and social relationships. While the Board is cognizant that the Veteran did not manifest all of the symptoms suggested under 38 C.F.R. § 4.130, DC 9411, as noted above, the Court has held that the symptoms listed in the rating criteria are not intended to constitute an exhaustive list, and that VA must instead consider all symptoms of a claimant's disability that affect the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436. In addition, the Board notes that the Veteran's GAF score assigned during the VA examination was 57, which is suggestive of moderate symptoms, such as occasional panic attacks, or moderate difficulty in social, occupational, or school function (such as few friends, conflicts with peers or co-workers). In this case, the Board concludes that the Veteran's symptomatology, combined with his moderate GAF score, make it more likely that his symptoms have been more reflective of additional impairment in most areas, including occupational and social difficulties. With regard to assigning a higher disability rating for the Veteran's PTSD, the Board has considered whether either a 70 or 100 percent disability rating is warranted. However, there has been no probative medical or lay evidence to suggest that the Veteran ever experienced such symptoms as suicidal ideation; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; spatial disorientation; neglect of personal appearance and hygiene; 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; or memory loss for names of close relatives, own occupation, or own name. With regard to assessing the evidence of record, the Board specifically notes that the claims folder does not contain mental health treatment records for the Veteran's PTSD group therapy although letters from the Vet Center have been associated with the claim. However, as discussed above, during the Travel Board hearing, the VLJ specifically asked the Veteran about the symptoms he was experiencing. In this regard, the Court has specifically held that a veteran is competent to describe symptoms of which he or she has first-hand knowledge. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). Moreover, in this case, the Board has found no reason to doubt his credibility. While the Veteran endorsed several symptoms associated with the 50 percent rating, he did not claim to experience the symptoms commonly associated with a higher, 70 or 100 percent rating. Additionally, VA's General Counsel has held that the VCAA duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted (see VAOPGCPREC 11-95). Accordingly, the Board concludes that the 50 percent rating being assigned by this decision is the highest rating warranted in this case. In summary, and for these reasons, the Board finds that the Veteran's symptoms more closely approximate a 50 percent disability rating. To this extent only, the Veteran's appeal is granted. In closing, the Board has also considered the potential application of 38 C.F.R. § 3.321(b)(1) for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's condition with the established rating criteria shows that the rating criteria adequately describe the Veteran's symptomatology and disability level. The Board further observes that, even if the available schedular evaluation for the disability were inadequate (which it manifestly is not), the Veteran does not exhibit other related factors, such as those provided by the regulation as "governing norms." Here, the record does not show that the Veteran has required any hospitalization or inpatient treatment for his PTSD depression during the course of this appeal. Thus, the Board finds that the requirements for referral for an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) have not been met. (Continued on the next page) ORDER An initial evaluation of 50 percent for PTSD, and no more, is granted, subject to the laws and regulations governing the payment of monetary awards. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs