Citation Nr: 1401846 Decision Date: 01/14/14 Archive Date: 01/31/14 DOCKET NO. 11-13 031 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A.P. Armstrong, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1969 to January 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which granted service connection and assigned an initial disability rating. After the original rating decision, the Veteran filed a Notice of Disagreement (NOD). On April 2, 2010, the RO issued a Statement of the Case (SOC) increasing the disability rating from 30 to 50 percent. On July 7, 2010, the RO received a formal, substantive appeal from the Veteran. However, this formal appeal was not within the required 60 day period, and the RO informed him the appeal was not timely and would not be accepted. The Veteran disagreed that his appeal was not timely and explained that he did not receive the SOC because he had issues with his mail not being forwarded while he was on vacation. In any event, a substantive appeal is not jurisdictional in nature, and as such, the Board may waive the requirement of a timely-filed appeal and proceed with adjudication. Rowell v. Principi, 4 Vet. App. 9, 17 (1993); see also Beryle v. Brown, 9 Vet. App. 24, 28 (1996). In this case, the Board finds the Veteran's excuse for timeliness reasonable, accepts his substantive appeal, and will adjudicate his claim as follows. FINDINGS OF FACT 1. The Veteran's disability picture most closely approximates the criteria for a 50 percent rating, or occupational and social impairment with reduced reliability and productivity, for the period from the date of entitlement to April 5, 2009. 2. From April 6, 2009 forward, the Veteran's disability picture most closely approximates the criteria for a 70 percent rating, or occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. An initial rating in excess of 50 percent disability for PTSD for the period from the date of entitlement to April 5, 2009 is denied. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.14, 4.126, 4.130, Diagnostic Code 9411 (2013). 2. A 70 percent disability rating, but no higher, is granted from April 6, 2009 forward for the Veteran's PTSD. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.14, 4.126, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran was granted service connection for PTSD and assigned a 50 percent disability rating by the RO. In July 2010, he filed a substantive appeal with the RO claiming his condition merited a higher rating. As mentioned, that appeal was not timely. However, the Board waives the 60-day filing requirement and proceeds to adjudicate his claim. See Rowell, 4 Vet. App. at 17 (1993). I. Procedural Duties The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). These notice requirements apply to all elements of a claim, including the degree and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to the initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). In July 2008, the RO sent a letter to the Veteran giving him notice, which satisfied the requirements of the VCAA. See 38 U.S.C.A. § 5103; 38 C.F.R. §3.159(b). This letter was sent prior to initial adjudication of his claim for service connection and explained how ratings and effective dates would be determined, pursuant to Dingess/Hartman. Next, VA has a duty to assist the Veteran in the development of claims. This duty includes assisting him in the procurement of pertinent treatment records and providing an examination when necessary. 38 C.F.R. § 3.159. All pertinent, identified medical records have been obtained and considered. The Veteran was afforded VA mental health examinations in August 2008 and February 2010 to evaluate his PTSD symptoms. There is no argument or indication that the examinations or opinions are inadequate. During VA treatment, the Veteran indicated "disability" as his employment status, and Social Security Administration (SSA) information indicates disability awards began in September 2003. Because the Veteran was not diagnosed with PTSD until April 2006, SSA records of a disability beginning on or before September 2003 are not relevant to the instant claim and remand for these records would impose an unnecessary burden on VA with no benefit to the Veteran. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). As VA satisfied its duties to notify and assist the Veteran, there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A , or 38 C.F.R. § 3.159, and the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. II. Analysis The Board has determined that staged ratings are appropriate. For the period prior to April 6, 2009, the Veteran's PTSD symptoms most closely resembled that of a 50 percent disability rating. On April 6, 2009, the Veteran submitted an NOD and stated that his condition was deteriorating. Based on subsequent medical and lay evidence, the demonstrated symptoms most closely approximate a rating of 70 percent, but no higher, from April 6, 2009 forward. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability is resolved in favor of the claimant. 38 C.F.R. § 4.3. In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson v. Brown, 12 Vet. App. 119, 126-127 (1999). Psychiatric disorders are rated based on the General Rating Formula codified in 38 C.F.R. § 4.130, which provides disability ratings based on a spectrum of symptoms. "A veteran may qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of a similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). VA must consider all symptoms of a claimant's condition 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). See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The criteria for 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. 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. The criteria for 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; obsessive 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); inability to establish and maintain effective relationships. Id. The criteria for 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 behaviour; 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. The Veteran's claims file includes statements from the Veteran, his sister, and two friends. The Veteran, his sister, and friends are competent to provide statements of his observable symptoms. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As these statements are internally consistent and consistent with medical evidence, the Board also finds them credible. A. Rating for symptoms before April 6, 2009 For the period before April 6, 2009, the Veteran's PTSD symptoms impaired his occupational and social life such that he had reduced reliability and productivity warranting a 50 percent rating. He suffered from some episodes of depression, nightmares and sleep impairment, memory loss, anxiety, and irritability. See Sister's Statement March 2009, JAH Statement January 2009. The Veteran was active in the American Legion but did not socialize otherwise. His friend from the American Legion noticed a change in his mood, personality, and attentiveness. See Statement January 2009. VA treatment records indicate that the Veteran had nightmares, occasional flashbacks, and often isolated himself from other people. During VA treatment in this period, the Veteran was assigned Global Assessment of Functioning (GAF) scores of 54 and 52, signifying moderate symptoms and moderate difficulty in social or occupational functioning. See 5/08 treatment, 9/07 treatment; see also American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). In the August 2008 VA examination, the Veteran reported nightmares, depression, problems socializing and avoiding others, irritability, and hypervigilance. The examiner assigned a GAF score of 59, or moderate symptoms with moderate difficulty functioning. See DSM-IV. Overall, the Veteran's PTSD symptoms prevented him from socializing well and affected his mood, memory, and sleep meriting a 50 percent disability rating. During the period in question, the Veteran's symptoms did not rise to the level of occupational and social impairment with deficiencies in most areas or total occupational and social impairment to warrant a 70 or 100 percent rating for this period. As mentioned, he was active with the American Legion and socialized through that outlet, holding a position as an officer. See Statement RWB January 2009, VA Treatment, August 2008 VA examination. Further, he improved relationships with his daughter and sister during this time. See VA Examination February 2010. Although, his friend expressed concerns about his personal hygiene, the VA providers found his appearance normal and unremarkable. See Statement JAH January 2009, VA Treatment, August 2008 VA examination. Moreover, at times during this period, the Veteran reported that he was not depressed, distant from others, or hyper-alert. See VA Treatment April 2006, March 2008, April 2008, May 2008. VA treating providers did not record any objective findings of depression or hypervigilance. See id. The VA examiner in August 2008 could not determine the effect of PTSD on occupational functioning, as the Veteran was not working due to an unrelated disability. However, the Veteran was able to manage his own finances and affairs and the accounting books for the American Legion. See August 2008 VA examination; Statement RWB January 2009. Additionally, the VA examiner concluded the Veteran had normal speech and fair judgment. Despite the above noted symptoms, the Veteran did not have difficulties in most areas; he had relationships with his family and socialized in the American Legion, and was able to accomplish occupational-style tasks such as managing the American Legion books. B. Rating for symptoms after April 6, 2009 For the period after April 6, 2009, the Veteran's PTSD symptoms most closely approximate a 70 percent disability rating, or occupational and social impairment with deficiencies in most areas. The Veteran reported his symptoms worsening and the onset of suicidal thoughts. See 4/09 Statement (NOD). During VA treatment for this period, the Veteran had symptoms of depression, anxiety, increased nightmares and sleep problems, and reported being stressed and unsatisfied with his activities at the American Legion. In August 2011, he reported limited motivation, irritability, feeling hopeless, a lack of enjoyment from life, and continued sleep issues. See VA Treatment. The Veteran was diagnosed with depression. See VA Treatment February 2010. The VA examiner in February 2010 noted intrusive memories, nightmares, feelings of guilt, avoidance of possible stressors, problems with social relationships, insomnia, anger problems, and suicidal thoughts with no plan. The examiner found that he had normal speech and there were no panic attacks. The Veteran had decreased motivation, pessimism, and loss of pleasure in life. The examiner assigned a GAF score of 48, signifying serious symptoms with serious impairment of functioning. See DSM-IV. The February 2010 examiner concluded that the Veteran may not be employable and his symptoms affect his mood, thought process, and judgment. Although he maintained good personal appearance, the examiner expressed concern with his ability to maintain his household. See VA Examination February 2010. Overall, for this period forward, the Veteran's symptoms interfere with his mood, cause depression, feelings of hopelessness, and suicidal thoughts giving him deficiencies in most areas, including socializing, working, and keeping up with his home. While a 70 percent evaluation is deemed warranted for the period in question, his symptoms do not warrant a rating of 100 percent disability, as there is no showing of total social and occupational impairment. Indeed, the Veteran continues to have relationships with his daughter, grandchildren, and sister, and he participates in hobbies. See VA Treatment February 2010, VA Examination February 2010. He takes care of himself and his finances. See VA Examination February 2010. He does not have panic attacks or obsessive behaviors that prevent him from doing activities he chooses. See id. Although his depression, mood, and suicidal thoughts significantly interfere with his social and occupational functioning, they do not totally impair him as he continues to function and enjoy some activities. Before April 6, 2009, the Board finds that the Veteran had symptoms which most closely approximated a 50 percent rating, but subsequently his symptoms worsened and he has functional impairment in most areas, meriting a 70 percent rating from that time forward. See 38 C.F.R. § 4.130, DC 9411; see also Fenderson 12 Vet. App. at 126-127. All potentially applicable diagnostic codes have been considered, and there is no basis upon which to assign an evaluation in excess of the rating assigned herein. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The Board has also considered whether this case should be referred for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1). However, this case does not present such an exceptional or unusual disability picture that it would be impracticable to apply the schedular standards, and referral is unnecessary. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). Rather, the manifestations of the Veteran's PTSD are fully contemplated by the schedular rating criteria. Specifically, the rating criteria and case law for evaluating psychological disorders is intentionally broad to take into account a variety of symptoms and the entire effect of the disability on the Veteran's life. Therefore, the rating schedule is adequate to evaluate his disability picture. As such, referral for consideration of an extra-schedular rating is not necessary. See Thun, 22 Vet. App. at 115-16. The benefit of the doubt has been applied and the Veteran has been granted a 70 percent rating from April 6, 2009 forward. See 38 C.F.R. § 4.3. However, the evidence does not support a rating in excess of 50 percent for PTSD for the period before April 6, 2009 or in excess of 70 percent thereafter; therefore claims for higher ratings are denied. ORDER An initial rating of 70 percent disability rating for PTSD for the period from April 6, 2009 forward is granted. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs