Citation Nr: 1341992 Decision Date: 12/19/13 Archive Date: 12/31/13 DOCKET NO. 10-21 821 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado THE ISSUE Entitlement to an effective date earlier than May 26, 2010 for the assignment of a 70 percent disability rating for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant (the Veteran) is represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The Veteran had active service from March 1967 to October 1970. This appeal comes before the Board of Veterans' Appeals (Board) from a July 2009 rating decision of the RO in Denver, Colorado. In August 2013, the Veteran presented testimony at a Board hearing, chaired by the undersigned Veterans Law Judge, sitting at the RO. A transcript of the hearing is associated with the claims file. The Board has characterized the issue somewhat differently than did the RO in the most recent supplemental statement of the case. The issue appealed was the initial rating of 50 percent for PTSD. In a January 2013 rating decision, the RO granted a 70 percent rating, but made the increase effective May 26, 2010. The Veteran testified that, although he was satisfied with the 70 percent rating, he believed it should be effective throughout the period on appeal. Thus the Board has characterized the issue as an effective date claim to better reflect the benefit the Veteran is actually seeking. This change is also consistent with what has been adjudicated by the RO. In a March 2011 letter from the Veteran's treating VA psychiatrist, an opinion was provided that the Veteran's PTSD symptoms render him unable to work even in a loosely supervised work environment, and that he meets the criteria for permanent unemployability. The Board acknowledges that a claim of entitlement to TDIU is a component of an increased rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). However, here, the Veteran has testified that he is not seeking a rating in excess of 70 percent for PTSD. The Veteran's clearly expressed intent would apply to ratings in excess of 70 percent on any basis, to include TDIU. In reviewing this case the Board has not only reviewed the physical claims file, but has also reviewed the electronic file on the "Virtual VA" system to insure a total review of the evidence. FINDING OF FACT During the entire period on appeal, the Veteran's PTSD has been manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; the Veteran does not contend that there has been total occupational and social impairment during any portion of the period on appeal. CONCLUSION OF LAW From December 18, 2008 to May 26, 2010, the criteria for a disability rating of 70 percent for PTSD were met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION This appeal arises from a claim of entitlement to service connection for PTSD that was received at the RO on December 18, 2008. In a July 2009 rating decision, the RO granted service connection for PTSD and assigned a 50 percent initial rating pursuant to Diagnostic Code 9411, effective January 23, 2009. The RO acknowledged that the claim had been received on December 18, 2008, but chose the date of diagnosis of PTSD, January 23, 2009, as the effective date. The Board notes initially that the RO's selection of January 23, 2009 as the effective date for the grant of service connection is not in accordance with the facts in this case. The record shows that the initial VA mental health assessment on December 4, 2008 resulted in a diagnosis of probable PTSD based on the Veteran's description of ongoing symptomatology since his return from Vietnam. The Board acknowledges that a diagnosis characterized as "possible" is essentially inconclusive. However, a diagnosis characterized as "probable" is not inconclusive and is adequate to establish the presence of the disorder at the time of the examination, particularly, as here, where the diagnosis was confirmed without reservation shortly thereafter by a VA psychiatrist. VA's standard in resolving all questions material to the determination of the appeal is an approximate balance of the evidence, not absolute certainty. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2013). Also highly significant, in confirming the diagnosis in the January 23, 2009 note, the VA psychiatrist commented that the Veteran had likely had PTSD for many years. On the facts of this case, the Board is left with no doubt that the Veteran had PTSD at the time he filed his claim on December 18, 2008. While the issue of entitlement to an earlier effective date for the grant of service connection for PTSD was not specifically listed in the statement of the case, the Board finds that the current appeal reasonably encompasses that portion of the July 2009 decision. Moreover, there is no prejudice to the Veteran in the Board's addressing the issue, as the earliest possible effective date is being assigned. Here, the date entitlement to service connection arose is prior to the date the claim was received. In this situation, and as the claim was received more than 1 year after the date of discharge or release from service, the date of receipt of the claim is the appropriate effective date for the grant of service connection. See 38 C.F.R. § 3.400. During the course of the appeal, the RO granted an increased 70 percent rating for PTSD, effective May 26, 2010, corresponding to the date of the VA Form 9 and a statement in support of the claim. The Veteran is seeking an earlier effective date for the grant of an increased 70 percent disability rating for PTSD. The Veteran testified that he is satisfied with the 70 percent rating and is not seeking any higher rating, but that he believes the 70 percent rating is warranted for the entire period on appeal. The rating criteria pertinent to this appeal provide that a 50 percent rating is warranted if it is productive of 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 compete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating, may be assigned for 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); and inability to establish and maintain effective relationships. Id. The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). After a review of all of the evidence, the Board finds that a 70 percent rating is warranted for the entire period on appeal. The Veteran submitted a written assessment of his symptoms in May 2010. He specifically described his impairments in work, school, judgment, thinking, family relations, and mood in presenting his argument that a 70 percent rating was warranted. The Veteran also described his determination not to take his own life, but noted that he thinks about it daily, and these thoughts evoke an almost weightless, giddy sensation. The RO accepted these descriptions as competent and credible evidence of entitlement to a 70 percent rating, and it accordingly assigned a 70 percent rating. Notably, the Veteran did not assert that there had been a recent increase in symptoms. Rather, it was clear from his description that the symptoms he reported had been present on a long-term basis. Moreover, the Veteran testified that his condition has remained the same during the entire period since he filed his claim of entitlement to service connection. Thus accepting, as the RO did, the accuracy of the Veteran's account, the Board finds that it is factually ascertainable during the entire period on appeal that a 70 percent rating is warranted. The Board emphasizes that the date of receipt of evidence is not the determining factor in establishing an effective date for an increased rating. VA law specifically contemplates that effective dates for increased ratings will be made on the basis of the earliest date as of which it is factually ascertainable that an increase in disability had occurred. While a particular piece of evidence may provide the facts upon which the decision to increase the rating is made, the date of receipt of such evidence is not determinative if those facts establish that the increase in disability occurred prior to the date of receipt. In this case, the evidentiary picture demonstrates a consistent level of impairment due to PTSD over the entire period on appeal, and that such impairment most closely approximates occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Notably, an April 2010 mental health note reveals that the Veteran had unprovoked irritability and reported that he often feels on the edge of acting violently. He had difficulty adapting to stressful situations. He was found to be unable to establish or maintain effective relationships. These are symptom examples of the 70 percent level occurring prior to the current effective date for the 70 percent rating. In a May 2010 mental health note, the examiner found that the severity of PTSD symptoms creates deficiencies in occupation, socialization, family relationships, judgment, thinking, and mood. This closely maps the criteria for a 70 percent rating. In assessing the evidence of record, it is also important to note that the Global Assessment of Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing Diagnostic and Statistical Manual of Mental Disorders, 4th ed. (DSM-IV) at 32). In the December 2008 initial mental health assessment, the examiner assigned a GAF score of 48. A GAF score of 44 was assigned in February 2009. GAF scores of 41-50 indicate 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). While a GAF score is not determinative of the rating, the Board notes that the examples provided for scores in this range closely map the criteria and symptom examples provided for the 70 percent rating. These are assigned prior to the current effective date of the 70 percent rating. The Board acknowledges a specific finding of a VA examiner in June 2009 that the Veteran's symptomatology most closely approximated the criteria for a 50 percent rating. The June 2009 VA examiner also assigned a GAF score of 52, which indicates moderate symptoms (e.g., 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). However, the June 2009 examiner also described the Veteran's symptoms as "severe," and found that the Veteran would only be employable in settings in which he has little or no contact with the public and loose supervision. These findings would appear to conflict with the overall assessment and assignment of a GAF score by that examiner. Thus, the June 2009 VA examiner's findings are to some degree internally inconsistent. In any event, the Board places greater probative weight on the scores assigned by his treating VA psychiatrist than on a score assigned based on a single evaluation. For the reasons stated, the Board finds that a 70 percent rating is warranted for the entire period of this appeal. However, the Veteran has specifically asserted that he is not seeking a rating in excess of 70 percent. The potential application of the various other provisions of Title 38 of the Code of Federal Regulations have also been considered, including 38 C.F.R. § 3.321(b)(1) (2013), which provides procedures for referral or assignment of an extraschedular evaluation. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The VA Compensation and Pension Service is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular 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. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd 572 F.3d 1366 (Fed. Cir. 2009). Here, all the Veteran's PTSD symptoms are either explicitly part of the schedular rating criteria under the general formula for rating mental disorders at 38 C.F.R. § 4.130; are analogous to the schedular rating criteria (see 38 C.F.R. §§ 4.20, 4.21), or are "like or similar to" the schedular rating criteria (see Mauerhan at 442-43). The schedular rating criteria, Diagnostic Code 9411, specifically provide for disability ratings based on a combination of history and clinical findings. The Veteran's symptoms of irritability, social withdrawal, depressed mood, anxiety, suspiciousness, chronic sleep impairment, and memory loss are specifically included in the rating schedule, and the assigned 70 percent disability rating specifically rates based on the degree of occupational and social impairment, including due to specific symptomatology. The GAF scores indicated in the DSM-IV, which reflect overall degree of impairment due to psychiatric disorders, and which the Board weighed and considered in this case, are part of the schedular rating criteria. Because the schedular rating criteria are adequate to rate the Veteran's service-connected PTSD, there is no exceptional or unusual disability picture to render impractical the application of the regular schedular standards. For these reasons, the Board finds that the criteria for referral for extraschedular rating have not been met. 38 C.F.R. § 3.321(b)(1). The Veterans Clams Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). As the Board is granting the full 70 percent rating sought by the Veteran, the claim is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-368 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). ORDER For the entire period since December 18, 2008, a disability rating for PTSD of 70 percent, but not higher, is granted. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs