Citation Nr: 1338554	
Decision Date: 11/22/13    Archive Date: 12/06/13

DOCKET NO.  06-02 191	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement to an initial rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) from July 8, 1986 through April 30, 1992 and from July 1, 1992 to May 10, 1994.  


REPRESENTATION

Veteran represented by:	Vietnam Veterans of America


ATTORNEY FOR THE BOARD

K. M. Schaefer, Counsel



INTRODUCTION

The Veteran served on active duty from July 1969 to July 1972. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office in Detroit, Michigan (RO). 

The April 2005 rating decision granted service connection for PTSD, and assigned a 70 percent initial rating, effective from February 3, 1995.  A RO Decision Review Officer's rating decision in December 2005 granted an earlier effective date of May 11, 1994 for the award of service connection for PTSD, and assigned a 100 percent initial rating effective May 11, 1994.

In a March 2011 decision, the Board granted an effective date of July 8, 1986 for the grant of service connection for PTSD and remanded the matter as to the rating to be assigned for the period from July 8, 1986 through May 10, 1994 as the rating period prior to May 11, 1994 had yet to be rated by the agency of original jurisdiction (AOJ).  In a June 2011 rating decision, a 50 percent initial rating was assigned effective from July 8, 1986 through May 10, 1994.  Thereafter, a May 2012 rating decision awarded a temporary total hospitalization rating (pursuant to 38 C.F.R. § 4.29) effective from May 1, 1992 through June 30, 1992, and continued a 50 percent rating from July 1, 1992 through May 9, 1994.  As of May 10, 1994, a 100 percent schedular rating was resumed for PTSD.  In light of these developments, the Board finds that the issue is better characterized as an initial rating claim as indicated on the title page.  The March 2013 supplemental statement of the case issued by the AOJ continued to frame the issue as an effective date claim; however, the claim was adjudicated under the rating criteria for rating psychiatric disabilities appropriate to the appeal period as opposed to the law of effective dates.  Therefore, the Board finds that no prejudice to the Veteran has resulted from the recharacterization of the issue for the purposes of this decision.     



FINDING OF FACT

From July 8, 1986 through April 30, 1992 and from July 1, 1992 to May 10, 1994, the Veteran's PTSD was manifested by moderate social impairment resulting from social isolation and anger/rage reactions and severe vocational impairment productive of an unstable and volatile work history without total isolation or incapacitating symptoms causing repudiation of reality with disturbed thought processes, confusion, panic, or explosions of anger in a profound retreat from mature behavior or a demonstrated inability to retain employment.    


CONCLUSION OF LAW

Resolving all reasonable doubt in the Veteran's favor, the criteria for an initial 70 percent rating, but no greater, for PTSD have been met for the period from July 8, 1986 through April 30, 1992 and from July 1, 1992 to May 10, 1994.  38 U.S.C.A. 
§§ 1155, 5103, 5103A (West 2002); 38 C.F.R. § 4.132, Diagnostic Code 9411 (1994).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Stegall Considerations

The Board observes that this case was remanded by the Board in March 2011.  The United States Court of Appeals for Veterans Claims (Court) has held "that a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, a right to compliance with the remand orders."  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  The purpose of the remand was allow the AOJ to assign an initial rating for the period of service connection from July 8, 1986 through April 30, 1992 and from July 1, 1992 to May 10, 1994, after the Board had granted an earlier effective date of July 8, 1986 for the grant of service connection for PTSD.  A 50 percent rating was assigned in a June 2011 rating decision.  Therefore, the Board determines that the RO/AMC substantially complied with the Board's orders in the March 2011 remand, and that the Board may now proceed with adjudication of the claim.

II. VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) imposes certain duties upon VA to notify the claimant of the shared obligations of the claimant and VA in developing his or her claim and to assist the claimant by making reasonable efforts to obtain relevant evidence in support of the claim.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). 

Here, the Veteran is appealing the initial rating assignment as to his PTSD.  Once service connection has been granted, the context in which the claim initially arose, the claim has been substantiated; therefore, additional VCAA notice under 
§ 5103(a) is not required because the initial intended purpose of the notice has been fulfilled, so any defect in the notice is not prejudicial.  Goodwin v. Peake, 22 Vet. App. 128 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Rather, thereafter, once a notice of disagreement (NOD) has been filed, for example contesting a downstream issue such as the initial rating assigned for the disability or an effective date, only the notice requirements for a rating decision and statement of the case (SOC) described in 38 U.S.C. §§ 5104 and 7105 control as to the further communications with the Veteran, including as to what evidence is necessary to establish a more favorable decision with respect to downstream elements of the claim.  38 C.F.R. § 3.159(b)(3) (2013).  The RO has provided the Veteran the required SOC, and supplemental statements of the case, discussing the reasons and bases for not assigning a higher rating at any stage of the appeal period and citing the applicable statutes and regulations.

VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim and providing him with a VA examination.  The Veteran's service treatment records, VA medical records, private treatment records, and the report of a June 1989 VA examination were reviewed by both the AOJ and the Board in connection with adjudication of the claim.  The Veteran has not identified any additional, relevant treatment records the Board needs to obtain for an equitable adjudication of the claim.

With regard to the VA examination, the Board notes that once VA undertakes to provide a VA examination, it must ensure that the examination is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  In this case, the examiner documented the Veteran's subjective complaints and medical history, and evaluated the Veteran.  The Board acknowledges that none of the VA examiners reviewed the claims file.  However, this fact alone does not render that examination inadequate.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008).  In an initial rating claim, it is the current medical findings that are most salient.  Moreover, nothing suggests that the examiner documented findings inconsistent with the medical history outlined in the claims file or not representative of the Veteran's symptomatology.  Therefore, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met.  38 C.F.R. § 3.159 (c)(4). 

In light of the above, the Board concludes that the medical evidence of record is sufficient to adjudicate the Veteran's claim without further development and additional efforts to assist or notify the Veteran in accordance with VCAA would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran).  Therefore, the Board determines that the Veteran will not be prejudiced by the Board proceeding to the merits of the claim.

III. Initial Rating

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2013).  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10.

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 for that rating.  Otherwise the lower rating will be assigned.  38 C.F.R. § 4.7.  All benefit of the doubt will be resolved in the Veteran's favor.  38 C.F.R. § 4.3.

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25.  Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities.  38 C.F.R. § 4.14.

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).  Where a veteran appeals the initial rating assigned for a disability at the time that service connection for that disability is granted, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous . . . ."  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  If later evidence 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.  Id. 

As in effect prior to November 7, 1996, PTSD was rated in accordance with 38 C.F.R. § 4.132, Diagnostic Code 9411 (1994).  Under that code, a 50 percent rating was warranted when the ability to establish or maintain effective or favorable relationships with people was considerably impaired, and, where, by reason of psychoneurotic symptoms, the reliability, flexibility, and efficiency levels were so reduced as to result in considerable industrial impairment. 

A 70 percent rating was warranted when the ability to establish or maintain effective or favorable relationships with people was severely impaired.  In such cases, the psychoneurotic symptoms were of such severity and persistence that there was severe impairment in the ability to obtain or retain employment. 

A 100 percent rating was warranted when the attitudes of all contacts, except the most intimate, were so adversely affected as to result in virtual isolation in the community.  In such cases, there were totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic, and explosions of aggressive energy in a profound retreat from mature behavior.  A 100 percent rating was also warranted when the Veteran was demonstrably unable to obtain or retain employment. 

The evidence relevant to the appeal period includes a June 1989 VA examination and VA and private treatment records.  At the June 1989 VA examination, the examiner noted highly repetitious and circumstantial narrative, but no psychotic thinking, hallucinations, or delusions.  The examiner stated that the Veteran's social adjustment was moderately impaired and his vocational adjustment was severely impaired.  

A July 1986 private evaluation from the Veteran's counselor documents severe depression, mood swings, paranoia, violent outbursts, insomnia, obsessional thoughts, isolationist behavior, suicidal and fatalistic feelings, homicidal and an inability to maintain stable employment for the past several years and a volatile and unstable marital history.  In March 1989, the counselor reiterated the above symptoms and further indicated that the Veteran had severe family problems directly related to his emotional state and that the Veteran found interacting with his family irritating and intolerable.  She reported that the police had been called to remove the Veteran from his home or calm him down from a rage and that his work history was also volatile.  Subsequent VA treatment notes continued to indicate that the Veteran's marriage was volatile.

A December 1993 VA psychological evaluation found that the Veteran was alert and oriented with normal range of affect.  Thought process was coherent, but tangential at times.  Insight and judgment were fair.  The Veteran reported that he socially isolated and anxious in crowds or traffic jams and complained of irritability.  The psychologist noted that his mood ranged from animated to depressed and apathetic.  

Based on the above evidence, the Board finds that an initial rating of 70 percent, but no greater is warranted for the period prior to May 10, 1994, with the exception of the period of a temporary total hospitalization rating under 38 C.F.R. § 4.29.  In this regard, the Board notes that the Veteran's family relationships were impaired due to social isolation and anger/rage reactions and that his work history was unstable and volatile.  The June 1989 VA examiner specifically stated that the Veteran's social impairment was moderate, but his vocational impairment was severe.  Therefore, the Board determines that the Veteran's symptoms from July 8, 1986 through April 30, 1992 and from July 1, 1992 to May 10, 1994 more closely approximate a 70 percent rating under the applicable rating criteria.  

However, the Board finds that a rating in excess of 70 percent was not warranted for that period.  While the Veteran's social interactions were impaired, he as not described as totally isolated or having incapacitating symptoms to the point of repudiating reality with disturbed thought processes, confusion, panic, or explosions of anger in a profound retreat from mature behavior.  In this regard, the Board notes that the Veteran did not exhibit hallucinations or delusions.  Further, while the Veteran had been unemployed during the appeal period, he was also noted to have a strong work ethic and value system, feeling humiliated and emasculated due to not being able to work for his family according to the March 1989 counselor report.  The counselor also noted that these feelings contributed to his feelings of depression, rage, paranoia, and low self-esteem as opposed to the other way around.  Thus, while the Board notes the Veteran had an unstable employment history, having held many jobs over a few years until he ceased work entirely, the Board does not find that the Veteran's psychiatric symptoms during this period rendered him entirely unable to retain employment.  

Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient.  See 38 C.F.R. 
§§ 4.20, 4.27 (2013).  However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability.  However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extra-schedular rating.  38 C.F.R. § 3.321(b) (2013). 

The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate, a task performed either by the RO or the Board.  Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60   (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical.").  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability.  Thun, 22 Vet. App. at 115.  If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. 

The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render the already assigned rating inadequate.  Service-connected PTSD is evaluated under the schedular criteria, which the Board has found to specifically contemplate the level of occupational and social impairment caused by this disability.  38 C.F.R. § 4.132, Diagnostic Code 9411 (1994).  The Veteran's service-connected psychiatric disability during the appeal period was manifested by moderate social impairment and severe vocational impairment due to social isolation, rage, depression, and suicidal and homicidal thoughts, without disturbed thought processes such as hallucinations and delusions, leading to panic or confusion or resulting in explosive or other inappropriate or immature behavior.  When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's symptoms are congruent with the disability picture represented by the 70 percent disability rating assigned by the Board throughout the appeal period.  Evaluations in excess of that assigned are provided for functional impairment that has not been demonstrated in this case.  The criteria for the 70 percent rating assigned by the RO reasonably describe the Veteran's disability level and symptomatology.  Consequently, the Board concludes that a schedular evaluation is adequate and that referral of the Veteran's case for extra-schedular consideration is not required.  See 38 C.F.R. § 4.132, Diagnostic Code 9411 (1994); see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996).

The Board has considered the applicability of the benefit of the doubt doctrine in assigning a 70 percent rating.  The competent evidence does not support a higher rating for service-connected PTSD than the 70 percent herein assigned, and thus, the preponderance of the evidence is against a rating in excess of the 70 percent.  Therefore, the benefit of the doubt doctrine is not applicable to assigning a rating in excess of 70 percent, and such rating is denied.  38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7. 

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, 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.  In this case, the Veteran has not argued, and the record does not otherwise reflect, that the disability at issue rendered him totally unemployable at any time during the period from July 8, 1986 through April 30, 1992 or from July 1, 1992 through May 10, 1994.  Accordingly, the Board concludes that a claim for TDIU has not been raised for the relevant rating period on appeal.



ORDER

Entitlement to an initial rating of 70 percent, but no greater, for PTSD from July 8, 1986 through April 30, 1992 and from July 1, 1992 to May 10, 1994, is granted.


_________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs