Citation Nr: 1418465 Decision Date: 04/25/14 Archive Date: 05/02/14 DOCKET NO. 10-47 607 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an initial disability evaluation for posttraumatic stress disorder (PTSD) in excess of 50 percent prior to December 15, 2010, and 70 percent thereafter. REPRESENTATION Appellant represented by: Matthew J. Gindele, Esq. ATTORNEY FOR THE BOARD M. Sopko, Associate Counsel INTRODUCTION The Veteran had active service from January 1967 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was granted a total disability rating based on individual employability due to service-connected disabilities (TDIU), effective December 15, 2010. A review of the Virtual VA paperless claims processing system reveals additional documents pertinent to the present appeal. FINDING OF FACT Throughout pendency of the claim beginning March 7, 2008, PTSD has been manifested by occupational and social impairment, with deficiencies in most areas such as family relations, judgment, and mood, due to such symptoms as suicidal ideation; impaired impulse control (such as unprovoked irritability with periods of violence); and difficulty in adapting to stressful circumstances (including work or a worklike setting). CONCLUSION OF LAW The criteria for entitlement to a 70 percent disability evaluation for PTSD have been approximated since submission of the claim on March 7, 2008. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 ("VCAA") describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as an effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105. Goodwin v. Peake, 22 Vet. App. 128 (2008). Where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. Id. There has been no allegation of prejudice with regard to the notice, hence further VCAA notice is not required with regard to the initial rating appeal. VA has satisfied its duty to notify by issuing a pre-adjudication notice letter in March 2008. This letter advised the Veteran of what evidence was required to substantiate his claim, and of his and VA's respective duties for obtaining evidence. The duty to assist provisions of the VCAA have been met. The claims file contains service treatment records (STRs), reports of post-service medical treatment, and reports of VA compensation examinations in September 2009 and August 2013. The examinations were adequate because they were based on a thorough examination, a description of the Veteran's pertinent medical history, a complete review of the claims file, and appropriate diagnostic tests. The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal. He has been given ample opportunity to present evidence and argument in support of his claim. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). Merits Analysis Where entitlement to compensation has already been established and an increase in the disability is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, where the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411, a 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood, due to such symptoms as: suicidal ideations; 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 worklike setting); and the inability to establish and maintain effective relationships. A 100 percent rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. The Board is to consider the Global Assessment of Functioning ("GAF") scores that have been reported during the rating period for consideration. 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). GAF scores of 31 to 40 indicate 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). GAF scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideations, severe obsessional rituals, frequent shoplifting); or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). GAF scores from 51 to 60 represent moderate symptoms, such as flat affect and circumstantial speech, and occasional panic attacks; or moderate difficulty in social, occupational, or school function (such as few friends, conflicts with peers or co-workers). GAF scores ranging from 61 to 70 indicate some mild symptoms (e.g., depressed mood and insomnia); or some difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers). See 38 C.F.R. § 4.130 (incorporating by reference the VA's adoption of the American Psychiatric Association: DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), for rating purposes). The Veteran presented with PTSD in September 2008. A private treatment record reveals he "struggles with isolation from others, mood swings, issues with anger and poor anger control, poor concentration, and a lack of interest in things he once enjoyed. He was assigned a GAF score of 50. A February 2009 private treatment record reveals the Veteran was "appropriately dressed for the occasion of the interview and appeared to practice good hygiene." He reported being under "terrible stress," "periods of thought confusion and times of daydreaming," and "sleep interruption." He was assigned a GAF score of 40. A September 2009 VA treatment record reveals "periodic treatment for depression." The Veteran reported not having contact with his biological children, but reported a "good relationship" with his three stepchildren. The Veteran was granted Social Security Administration (SSA) disability for his PTSD, effective September 2009. The Veteran was afforded a VA examination in September 2009. He presented with mild to moderate PTSD. He reported not "socializing often." The examiner found the Veteran did not have total occupational and social impairment due to his PTSD. He was assigned a GAF score of 60. A November 2009 VA treatment record reveals the Veteran and his wife "are starting to get along better." He reported that they were "now intimate and starting to do things together." A December 2009 VA treatment record reveals the Veteran's thoughts are "organized and goal directed." Also, his "insight and judgment are good." A January 2010 private treatment record reveals the Veteran was "appropriately dressed for the occasion of the interview and appeared to practice good hygiene." He reported "periods of thought confusion and times of daydreaming," suicidal ideation, and "sleep interruption." He was assigned a GAF score of 39. An April 2010 private treatment record reveals the Veteran was "appropriately dressed for the occasion of the interview and appeared to practice good hygiene." He reported "periods of thought confusion and times of daydreaming," suicidal ideation, and "sleep interruption." He was assigned a GAF score of 38. An April 2010 VA treatment record reveals the Veteran has a "logical thought process," and he denied any suicidal or homicidal ideation. A December 2010 private treatment record reveals the Veteran was "appropriately dressed for the occasion of the interview and appeared to practice good hygiene." He reported "periods of thought confusion and times of daydreaming," suicidal ideation, and "sleep interruption." He was assigned a GAF score of 39. An April 2011 VA treatment record reveals the Veteran feels his wife "resents him for not working," but that he "feels he does enough [tasks] around the house and should be able to relax when he wants." He is also "excited" about monitoring his ongoing weight loss, has "more energy," and he "feels like he is accomplishing something." The Veteran had an SSA mental health examination is June 2011. "The claimant's thought processes were logical." Also, "there was not evidence of flight of ideas, delusions, or paranoia." His judgment was "poor," but he would not "have trouble working independently." He was assigned a GAF score of 71. The Veteran was afforded a VA examination in August 2013. He presented with anxiety, chronic sleep impairment, mild memory loss, flattened affect, and suicidal ideation. He displayed hypervigilance and feelings of detachment from others. The examiner found the Veteran did not have total occupational and social impairment due to his PTSD, but did present with a decrease in his ability to perform occupational tasks due to it, especially since his September 2009 VA examination. He was assigned a GAF score of 43. A September 2013 VA treatment record reveals the Veteran's thoughts are "logical and goal directed." Also, his "insight and judgment are good." He and his wife reported planning to "visit friends in Las Vegas." The Board concludes that while the Veteran's symptoms clearly meet the criteria for a 50 percent evaluation prior to December 2010, he has also demonstrated numerous psychiatric behaviors that, with the benefit of the doubt in his favor, support a 70 percent rating for the entire appellate period. The evidence, however, also reveals the Veteran's symptoms do not rise to the criteria for a 100 percent rating. The Veteran, although primarily socially isolated, has a working relationship with his wife, his stepchildren, and some limited friendships. Moreover, his hygiene and attire at his medical appointments were proper, and he demonstrated logical thought processes. Additionally, neither of the two VA examiners found the Veteran to have total occupational and social impairment. Extra-Schedular The Board finds there is no basis for referral for consideration of an extra-schedular rating. 38 C.F.R. § 3.321(b)(1) (2013). The Veteran has not presented any evidence that his PTSD results in a unique disability that is not addressed by the rating criteria. The predominant symptomatology the Veteran experiences as a result of his PTSD are already contemplated and compensated for by the current rating criteria. Thus, there is no basis for referral of the case for consideration of an extraschedular disability evaluation. See Thun v. Peake, 22 Vet. App 111, 115-16 (2008). ORDER An initial 70 percent rating for PTSD is granted effective March 7, 2008 and throughout the entire appellate period. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs