Citation Nr: 1341053 Decision Date: 12/12/13 Archive Date: 12/20/13 DOCKET NO. 12-25 414 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD Kimberly A. Mitchell, Associate Counsel INTRODUCTION The Veteran served on active duty from November 2001 to December 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office in San Diego, California. Although the case was originally developed on appeal as entitlement to an increased rating in excess of 30 percent for post traumatic stress disorder, following the February 2013 decision's grant of 50 percent effective September 24, 2012, the Veteran communicated satisfaction with the 50 percent rating, but dissatisfaction with a 30 percent rating prior to September 24, 2012. Therefore, the Board has recharacterized the issue on appeal as stated on the title page of this decision. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, the evidence of record supports an initial rating of 50 percent for post traumatic stress disorder, effective from January 10, 2011. CONCLUSION OF LAW With resolution of all reasonable doubt in the Veteran's favor, the criteria for a 50 percent schedular rating for PTSD, for the period beginning on January 10, 2011, are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013) 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.20, 4.130, 4.132, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION 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. 2013); 38 C.F.R. § 3.159 (2013); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any 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. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). Regarding the previously denied claim of entitlement to a 50 percent rating effective from January 10, 2011, there is no need to undertake any review of compliance with the VCAA and implementing regulations in this case. There is no detriment to the Veteran as a result of any VCAA deficiency in view of the fact that the full benefit sought by the Veteran for the aforementioned issue is being granted by this decision of the Board. Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2013); 38 C.F.R. Part 4 (2013). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating applies. 38 C.F.R. § 4.7 (2013). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2013). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, and the entire history of the Veteran's disability. 38 C.F.R. § 4.1 (2013); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). However, where the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of different ratings for different periods of time, based on facts found, is required. Fenderson v. West, 12 Vet. App. 119 (1999). In a November 2012 Supplemental Statement of the Case (SSOC), the RO assigned an increased rating of 50 percent for the Veterans posttraumatic stress disorder, effective September 24, 2012. The RO stated the increased rating was based on a September 24, 2012, letter from the Veteran's treating psychologist, Dr. Messinides, an October 2012 VA examination, and a GAF score of 50. In December 2012, the Veteran responded to the SSOC and submitted a statement that he was satisfied with and agreed with the 50 percent rating for his posttraumatic stress disorder, but was dissatisfied with the effective date of September 24, 2012. The RO stated that the effective date of September 24, 2012, was used because it was the date the evidence showed an increased rating was warranted. The Veteran has consistently maintained, since the initial May 2011 rating decision which granted a 30 percent rating for his post traumatic stress disorder, that his symptoms warranted a higher rating. Additionally, in a December 6, 2012, letter, Dr. Messinides stated that the Veteran had been treated by her, and other staff in her department, for his post traumatic stress disorder since November 2010. She went on to say that based on her observations and the records of other staff in her department who had evaluated the Veteran as early as March 2010, the level of disability the Veteran currently experienced had been constant over the period of time he has been under her care. Based on the above, the Board finds that a preponderance of the evidence supports a finding that the service connected post traumatic stress disorder warrants an initial rating of 50 percent, effective January 10, 2011. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In light of the Veteran's statements of satisfaction as previously noted, this constitutes a full grant of the benefits sought on appeal, and discussion with respect to entitlement to an even higher rating is not necessary. ORDER Entitlement to an initial rating of 50 percent, effective from January 10, 2011, for posttraumatic stress disorder, is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ Michael Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs