Citation Nr: 1340461 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 04-19 035 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) from April 16, 2001, to October 4, 2011, and in excess of 70 percent, from October 5, 2011. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S.J. Janec, Counsel INTRODUCTION The Veteran had active service from August 1968 to August 1970. This matter arises before the Board of Veterans' Appeals (Board) on appeal from a February 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran testified before the undersigned Acting Veterans Law Judge at a Board hearing at the RO in February 2010. A transcript of the hearing is of record. The issue on appeal was adequately explained to him and the submission of evidence which he may have overlooked and which would be advantageous to his position was suggested. See 38 C.F.R. § 3.103(c) (2013). Subsequently, the Board, among other things, remanded this issue for additional development in November 2010, September 2011, April 2012, and February 2013. FINDING OF FACT From April 16, 2001 to the present, the Veteran's PTSD has been manifested by sleep difficulties, nightmares, increased startle response and irritability that results in severe impairment in social and occupational functioning; total occupational and social impairment due to mental disability has not been demonstrated during the appeal period. CONCLUSION OF LAW From April 16, 2001, the criteria for the assignment of a 70 percent rating, but no higher, for PTSD have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2013); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Veteran's appeal of the initial ratings assigned for PTSD is a downstream issue, and additional VCAA notice is not required. 38 C.F.R. § 3.159(b)(3) (2011); see Hartman v. Nicholson, 483 F.3d. 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Rather, the Veteran's appeal as to the initial rating assignment triggers VA's obligation to advise the Veteran of what is necessary to obtain the maximum benefit allowed by the evidence and the law. 38 U.S.C.A. §§ 5104, 7105 (West 2002). This was accomplished in the statement of the case provided to the Veteran. The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified appropriately in numerous letters throughout the appeal period which has been ongoing for more than a decade. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence, and stated in August 2013 that there was no outstanding evidence. VA has obtained examinations with respect to the claim on appeal that include opinions and information necessary to rate the Veteran's condition relevant to the rating criteria for the disability. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the appellant is required to fulfill VA's duty to assist in the development of this claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1 (2013). Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, staged ratings are appropriate in any initial rating/increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999) Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's PTSD has been rated 30 percent for the period from April 16, 2001 to October 4, 2011, and 70 percent from October 5, 2011, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. Diagnostic Code 9411 provides that a 30 percent rating is assigned for 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), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment; and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411 (2013). A 50 percent rating is assigned when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation requires 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 adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted where there is 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. Id. Global Assessment of Functioning (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 American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM IV), page 32]. A GAF score of 31 to 40 reflects some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood, (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). A GAF score of 41 to 50 indicates 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). A GAF score of 51 to 60 indicates the examiner's assessment of moderate symptoms (e.g., a 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). ). A GAF score of 61 to 70 indicates the examiner's assessment of 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 having some meaningful interpersonal relationships. While the Rating Schedule does indicate that the rating agency must be familiar with the DSM IV, it does not assign disability percentages based solely on GAF Scores. See 38 C.F.R. § 4.130 (2013). Rather, GAF scores are but one factor to be considered in conjunction with all the other evidence of record. Words such as "mild", "slight", "moderate" and "serious" are not defined in VA's Schedule for Rating Disabilities [or in the DSM-IV]. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2013). It should also be noted that use of such terminology by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. See 38 C.F.R. §§ 4.2, 4.6 (2013). The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). In the context of a 70 percent rating, the rating criteria require not only the presence of certain symptoms, but also that those symptoms have caused occupational and social impairment in most of the referenced areas and that the regulation requires an ultimate factual conclusion as to the level of impairment in most areas. Vazquez-Claudio v. Shinseki, 713 F.3d. 112 (Fed. Cir. 2013). 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. 38 C.F.R. § 4.126(a) (2013). 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. Id. However, 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 on the basis of social impairment. 38 C.F.R. § 4.126(b) (2013). The regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). After careful consideration of the evidence, any reasonable doubt remaining should be resolved in favor of the veteran. 38 C.F.R. §§ 3.102, 4.3 (2013). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Private medical records dated in June 2001 show that the Veteran was hospitalized for suicidal thoughts. Letters dated in July 2001 and September 2001 from private medical doctors at Mountain View Hospital noted that the Veteran had been treated for bipolar disorder since June 2001 and PTSD since August 2001. Social Security Administration (SSA) records dated in October 2001 noted that the Veteran reported that he believed his family would be better off without him. It was also reported that the Veteran's depression alone would not prevent him from working, but in combination with his physical disabilities, he was not employable. Upon VA examination in January 2002, the Veteran denied suicidal ideations. His GAF was estimated to be 71. The examiner noted that he was 100 percent disabled and unemployable, but other conditions were responsible for that as well, for example cardiovascular diseases, peripheral vascular disease and diabetes mellitus. In a March 2002 record, the Veteran reported severe anxiety but no suicidal ideation. There were no psychotic symptoms, no hallucinations. Upon VA vocational rehabilitation evaluation in May 2002, the Veteran was oriented times three, cooperative and responsive. He appeared to be very anxious very tense and moderately depressed. He stayed on task during the evaluation and focused on PTSD issues but was extremely restless and demonstrated abnormal facial movements. His cognitive state seemed to be intact, however, and his thought processes were logical and somewhat goal-oriented. He presented with a long history of having difficulty interacting with people at work, with friends, and with family members. The examiner noted that his inability to cope with the stress and pressures of competitive employment led to a deteriorating work performance for the last many years. He had "marked impairment" in carrying out the demands of a full time competitive employment job, and is extremely impaired in responding appropriately to supervision, to co-workers on the job, and in being able to follow work instructions. His cognitive functioning is estimated to be in the average range at the present time although he may have functioned at a higher level at one time. The examiner concluded that the "marked severity" of the Veteran's symptoms limited his ability to process work procedures and instructions, and the emotional lability prevented him from getting along with co-workers without distracting them or exhibiting behavioral extremes. The severe physical and psychiatric problems prevented him from being able to meet the demands of work on a sustained basis in a competitive work environment, and the symptoms had been present for over 12 consecutive months and were chronic in nature. It was noted he had an extremely poor prognosis for improvement. Finally, because of the Veteran's history of working in high stress occupations and his inability to handle the demands of working in the competitive job market, he was considered to be not employable nor feasible for vocational rehabilitation due to the extreme severity of his physical and psychiatric problems. In October 2006 and November 2006, the Veteran was seen for complaints of intense irritability and dysphoria, with almost total social isolation except for interaction with his 4-year old son, for whom he was the primary caretaker. He continued to have bad sleeping patterns and his neuropathic pain was worse. He commented that if it were not for his son, he would already have committed suicide. Upon VA examination in June 2008, the Veteran's GAF was 50. It was noted that his unemployability could not solely be attributed to his mental disabilities. A VA treatment record dated October 2007 noted that the Veteran reported that his last VA compensation and pension examination showed a Global Assessment of Functioning (GAF) Score of 71. The examiner, however, stated that it was surely an error since his GAF scores had not been in that range for years. A copy of GAF scores from November 2003 to October 2007 was provided showing a GAF score range of 40 to 44. In a September 2008 VA outpatient record it was noted that the Veteran was seen for supportive psychotherapy and medication monitoring for diagnosis of chronic PTSD. The clinician noted that his PTSD symptoms were of such a chronicity and severity to be disabling to the point of preventing competitive employment even in the absence of his physical limitations. A December 2008 VA treatment note showed the Veteran reported that he experienced fleeting suicidal ideation without any plan to harm himself. He was provided with the number for the National Suicide Prevention Hotline. He denied symptoms of psychosis, and denied any history of substance abuse. He remarked that he felt "worthless" because he could not do anything with his son. He also stated that his inability to perform daily tasks, due to his peripheral neuropathy contributes greatly to his depression and exacerbates his PTSD symptoms. A March 2009 VA Mental Health clinic note showed that the Veteran was seen for supportive psychotherapy and medication management for PTSD and bipolar disorder. He had been compliant with medications and he denied psychosis, mood swings, recent alcohol or substance use, or suicidal or homicidal ideations. He was noted to be casually dressed, his demeanor was cooperative, and speech was of normal rate and rhythm. Mood was neutral and affect was appropriate. Thought process was linear and goal directed. There were no observed abnormalities in abstract thought and thought content indicated no overt psychosis. He denied perceptual disturbances, and he was alert and oriented to person, place and time. Intelligence was noted to be average; judgment was intact and insight was present. In a February 2010 VA outpatient record, the Veteran was neat, casually dressed, cooperative. His mood was "down" and his affect was depressed. There was no overt psychosis; speech was normal. Judgment was intact and insight was present. His GAF was estimated to be 48. Upon VA examination in October 2011, symptoms included impaired abstract thinking, suspiciousness, chronic sleep impairment, memory loss, impaired impulse control, difficulty establishing and maintaining relationships, panic attacks weekly or less often, recurrent dreams, exaggerated startle response, and a feeling of detachment from others. His GAF was50. In a November 2012 VA record, the Veteran's GAF was reported to be 50. It was noted that his sleep was not good; it was interrupted with nightmares every night and he had disturbing memories frequently. He was irritable and isolative lately. He described an episode in which he threatened his wife and daughter. He reported lack of interest in hunting and holidays. He was hypervigilant and often anxious. Panic attacks were infrequent. He enjoyed time with his grandchildren and drove them to school. He was alert, well groomed, mood and affect congruent, although tearful at times, with full range, speech and thought processes. In a December 2012 VA record, the Veteran's GAF was reported to be 50. It was noted that he was very close to his children and wanted to live and be healthy for them. He enjoyed his youngest son very much; and they have a close relationship. He denied thoughts, plan, or intent of suicide. He assured the clinician that he would come to the clinic or call the crisis line should he be in crisis or have thoughts of harming himself. He had on his bracelet with the crisis line on it and stated "I always have this number with me." It was noted that he was not unemployable due solely to his mental disorder/PTSD. In VA records dated from January 2013 through May 2013, the Veteran's GAF was reported to be 50. He exhibited good grooming; he was alert and oriented but anxious. He was deemed a low suicide risk. Based on a review of the record, the Board finds that the clinical evidence reveals a disability picture consistent with the criteria for a 70 percent rating for the Veteran's PTSD throughout the appeal period. While the record does not indicate that he experiences persistent suicidal ideation, obsessional rituals, or illogical, obscure, or irrelevant speech, it does show that he has exhibited consistent thoughts of suicide without plan, unprovoked irritability, difficulty in adapting to stressful circumstances (particularly in the work-place setting), persistent intrusive thoughts and nightmares, chronic sleep impairment, limited insight, as well as an inability to establish and maintain effective relationships. For example, in May 2002, VA vocational rehabilitation reports documented "marked impairment" as a result of the Veteran's symptoms and concluded that his symptoms limited his ability to process work procedures and instructions. In 2006, it was noted that he had "almost total social isolation." Upon VA examination in June 2008, his GAF was 50 and although his unemployability could not be solely attributed to his mental illness, he was severely disabled. In September 2008, it was noted that his mental disability prevented "competitive employment." Upon VA examination in October 2011, symptoms included chronic sleep impairment, memory loss, impaired impulse control, exaggerated startle response, a feeling of detachment from others, and difficulty establishing and maintaining relationships. Notably, a clinician also stated in October 2007 that an earlier GAF score of 71 was surely an error as his GAF had not been in that range for years. Her estimate of the Veteran's GAF during the period from November 2003 to October 2007 was between 40 and 44, which is most reflective of serious impairment in social, occupational, or school functioning. Hence, in light of the foregoing evidence, and resolving any reasonable doubt in the Veteran's favor, the Board concludes that a 70 percent rating is warranted throughout the appeal period. See 38 C.F.R. §§ 4.3, 4.7. The Board further finds that the record does not reflect that the Veteran's symptoms result in total occupational and social impairment due to such symptoms as gross impairment in thought processes or communication, persistent delusions or hallucinations, persistent danger of hurting self or others, or grossly inappropriate behavior. Although he has demonstrated some danger of harming himself, this behavior is not shown to have been persistent over the course of this appeal. Nor is there evidence of a gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, intermittent inability to perform activities of daily living, disorientation to time or place, or memory loss for names of close relatives, own occupation. or own name. Upon VA clinical evaluations, the Veteran is typically described as alert and oriented, with good attention to grooming. He appears for his appointments on a regular basis, he maintains a positive relationship and is a major caregiver for his young son. The evidence does not demonstrate a total occupational and social impairment due to such symptoms as: Overall, it has been the opinion of his caregivers and examiners that he was not unemployable solely as a result of his psychiatric disabilities. It is also significant to note that a separate 100 percent service-connected disability ratings and special monthly compensation have been in effect since April 16, 2001. Hence, the Board concludes that the preponderance of the evidence is against the assignment of a 100 percent schedular rating for the Veteran's PTSD at any time during the appeal period. ORDER From April 16, 2001, a 70 percent rating, but no higher, for PTSD is granted, subject to the regulations governing the payment of monetary awards. ____________________________________________ T. L. DOUGLAS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs