Citation Nr: 1605513 Decision Date: 02/11/16 Archive Date: 02/18/16 DOCKET NO. 00-21 671 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to September 17, 2014. 2. Entitlement to an initial staged rating in excess of 70 percent for PTSD from September 17, 2014. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD David Nelson, Counsel INTRODUCTION The Veteran had active service from October 1966 to July 1968. This case comes before the Board of Veterans' Appeals (BVA or Board) from a December 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In December 2012, the Board denied the Veteran's claim seeking an initial disability rating in excess of 30 percent for his service-connected PTSD. The Veteran filed a timely appeal with the Court of Appeals for Veterans Claims (Court), and by Order dated October 2013, the Court granted a Joint Motion for Partial Remand. This case was most previously before the Board in March 2014. A review of the record shows that the Veteran was originally represented in this matter by the Vietnam Veterans of America (VVA). See VA Form 21-22, dated September 2009. That representation was then revoked when the Veteran executed another VA 21-22 in July 2012 that designated the Texas Veterans Commision as his representative. The Board regrets the oversight in its decisions post-July 2012 that designated the incorrect representative. The Veteran and his wife testified before a Decision Review Officer (DRO) at a hearing held at the RO in May 2001. A transcript of the hearing has been associated with the claims file. FINDINGS OF FACT 1. Prior to October 30, 2009, the Veteran's PTSD has been manifested by symptoms productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks; reduced reliability, deficiencies in most areas, and total occupational and social impairment are not shown. 2. From October 30, 2009 through September 16, 2014, the Veteran's PTSD has been manifested by symptoms productive of occupational and social impairment with reduced reliability and productivity. 3. From September 17, 2014, the Veteran's PTSD was manifested by occupational and social impairment, with deficiencies in most areas, such as work, family relations, and mood. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 30 percent for PTSD prior to October 30, 2009, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2015). 2. The criteria for an initial staged rating of 50 percent for PTSD from October 30, 2009 through September 16, 2014 have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2015). 3. The criteria for an initial staged rating in excess of 70 percent for PTSD from September 17, 2014 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 2014); 38 C.F.R. § 3.159 (2015); 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 any notice error. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). 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 by letters, including in July 2001 and March 2007. 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 an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). As VCAA notice was not completed prior to the initial AOJ adjudication of the claims, such notice was not compliant with Pelegrini. However, as the case was readjudicated thereafter, there is no prejudice to the Veteran in this regard. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Importantly, the Board notes that the Veteran is represented in this appeal. Overton v. Nicholson, 20 Vet. App. 427 (2006). The Veteran has submitted argument in support of the appeal. Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of the claim such that the essential fairness of the adjudication is not affected. As for assisting the Veteran, the Veteran's service medical records are associated with the claims file, as are VA and private medical records. VA medical opinions obtained in this case are adequate as they are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints and symptoms. 38 C.F.R. § 3.159(c)(4) (2015); McLendon v. Nicholson, 20 Vet. App. 79 (2006); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2015). The Board finds that there has been substantial compliance with its prior remand instructions. D'Aries v. Peake, 22 Vet. App. 97 (2008). The Veteran has not referenced any other pertinent, obtainable evidence that remains outstanding. VA's duties to notify and assist are met, and the Board will address the merits of the claims. During the May 2001 RO hearing, in order to assist the Veteran, the hearing officer asked the Veteran questions to determine the circumstances during service that led to his PTSD. The Board notes that the hearing dealt with the issues of service connection for PTSD. The RO officer's actions fulfilled the duties in Bryant v. Shinseki, 23 Vet. App. 488 (2010), and the Veteran has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conduct of the hearing. As such, the Board finds that, consistent with Bryant, the Board complied with the duties set forth in 38 C.F.R. 3.103(c)(2). The Veteran has not referenced any other pertinent, obtainable evidence that remains outstanding. VA's duties to notify and assist are met, and the Board will address the merits of the claims. Legal Criteria Disability ratings are determined by comparing a Veteran's present symptoms with criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2015). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 is assigned. 38 C.F.R. § 4.7 (2015). After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2015). Diagnostic Code 9411 addresses PTSD. Under that code, a 50 percent rating for PTSD is appropriate 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; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating for PTSD is provided 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent rating for PTSD is provided for 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. 38 C.F.R. §§ 4.125-4.130. That portion of VA's Schedule for Rating Disabilities ("the Schedule") that addresses service-connected psychiatric disabilities was based on the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM) IV prior to a change effective August 4, 2014. 38 C.F.R. § 4.130 (2015). The regulation has been changed to reflect the current DSM, the DSM V. The DSM-IV contained a Global Assessment of Functioning (GAF) scale, with scores ranging between zero and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. Higher scores correspond to better functioning of the individual. This case involves assignment of GAF scores and those assignments are relevant to the Veteran's level of impairment due to his PTSD. GAF scores from 51 to 60 are indicative of 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). GAF scores from 41 to 50 reflect 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). Scores from 31 to 40 indicate 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). The Board observes that to adequately evaluate and assign the appropriate disability rating to the Veteran's service-connected psychiatric disability, the Board must analyze the evidence as a whole, including the Veteran's GAF scores and the enumerated factors listed in 38 C.F.R. § 4.130, Diagnostic Code 9411. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002) (holding that "the rating specialist is to consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV [Diagnostic and Statistical Manual of Mental Disorders, 4th ed.]. Before undertaking analysis, it is notable that the Veteran is service-connected for PTSD, but not for disorders such as adjustment disorder, depression, and dysthymia. The Board is precluded from differentiating between symptomatology attributed to a non-service-connected disability and a service-connected disability in the absence of medical evidence which does so. Mittleider v. West, 11 Vet. App. 181 (1998). A December 2001 rating decision granted the Veteran service connection for PTSD and assigned a 10 percent rating, effective August 18, 1998. In July 2004 the RO increased the rating to 30 percent, effective August 18, 1998. In April 2015 the RO increased the rating to 70 percent, effective September 17, 2014. Initial rating in excess of 30 percent for PTSD prior to September 17, 2014. The evidence for this claims period includes VA examinations in July 1999, May 2001, February 2003, November 2004, and September 2007, as well as VA and Vet Center treatment records. Diagnoses have included PTSD, depressive disorder, dysthymia, and adjustment disorder. The Veteran's reported symptoms have included stress, difficulty getting along with his supervisor and colleagues, nightmares, anger, intrusive thoughts, lack of interest in hobbies, thoughts of suicide and of homicide. The evidence of record for this time period does not show does not show such symptoms as difficulty in understanding complex commands, impaired judgment, or impaired abstract thinking, as contemplated by the next higher rating of 50 percent. While some memory loss has been noted, and disorganized thinking was noted on one occasion, no cognitive disorder or speech disorder has been assessed. While episodic panic attacks were noted, there has been no demonstration of panic attacks consistently more than once a week. No examiner has indicated that the Veteran lacks insight or judgment. While the Veteran has indicated that he sometimes had thoughts of suicide and of homicide, he stated that he had no plan to act on the thoughts. While the Veteran's report of symptoms may arguably indicate some disturbances of motivation and mood, the May 2001 VA psychiatric examiner indicated that the Veteran's PTSD was said to be mild and not truly disabling, and the February 2003 VA psychiatric examiner stated that PTSD was not interfering with the Veteran's employment. In this regard, the Board observes that the Veteran's GAF scores have been 70 (September 1998), 75 (July 1999), and 75 (May 2001), 65 (November 2004), 60 (September 2007), findings that tend to generally reflect mild levels of PTSD symptoms. In sum, a review of the clinical findings from the psychiatric records does not reveal symptoms which more closely approximate the criteria for a rating of 50 percent prior to October 30, 2009. October 30, 2009 Beginning with a private October 30, 2009 private psychiatric examination the Veteran's PTSD symptoms began to more closely approximate the criteria for a 50 percent rating. In this regard, the October 2009 examiner noted that the Veteran had recently separated from his wife. It was noted that he had recently undergone back surgery and had recently been diagnosed with prostate cancer. The examiner said it was not surprising that the Veteran was depressed, and indicated that it was difficult to determine if the depression was part of PTSD or new onset depression. A mental status evaluation showed that the Veteran's affect was replete with significant depressive symptoms and decreased self worth, some anhedonia and malaise. At an April 2010 VA psychiatric examination the Veteran reported that he was in the process of a divorce. He reported significant problems with anger and the examiner noted some possible psychotic tendencies likely associated with his depression. The Veteran's affect was primarily irritable and depressed, and the Veteran reported a decline in concentration and memory. The GAF was 50. As such criteria as difficulty in establishing and maintaining effective social relationships, and disturbances of motivation and mood are shown, as well as a decline in the Veteran's GAF scores, the Board finds that a rating of 50 percent is warranted. While a speech disorder, difficulty in understanding complex commands, memory problems, impaired judgment, and impaired abstract thinking have not been demonstrated, the Board concludes that the Veteran has shown symptoms associated with PTSD that more nearly approximate the criteria for a 50 percent rating from October 30, 2009. A review of the evince for this time period does not reveal symptoms such as obsessional rituals which interfere with routine activities, depression affecting the ability to function independently, or spatial disorientation. No formal speech or cognitive disorder has been noted, and it does not appear that the Veteran has ever asserted as much. While a GAF of 33 to 35 was noted at the October 2009 private psychiatric evaluation, the Veteran at the time of the examination demonstrated that he was fully oriented and his insight and judgment were deemed to be intact, and the examiner noted that the Veteran had recently had severe back problems and had been diagnosed with prostate cancer. Further, the October 2009 GAF score is significantly lower than reported on all other examinations, such as 50 on the April 2010 VA psychiatric examination and the 60 to 65 reported on the January 2012 VA psychologist's report. Such findings tend to reflect moderate levels of PTSD symptoms, and a review of the clinical findings from the psychiatric records do not reveal symptoms which more closely approximate the criteria for a rating of 70 percent. As such, a rating in excess of 50 percent for PTSD is not warranted at any time from October 30, 2009 through September 16, 2014. Initial staged rating in excess of 70 percent for PTSD from September 17, 2014. The evidence for this time period, including a January 2015 VA examination, does not reveal symptoms due to PTSD such as gross impairment in thought processes or communication. No formal speech or cognitive disorder related to PTSD has been suggested, and the January 2015 VA examiner specifically stated that the Veteran had just mild memory loss and no impaired thinking, impaired abstract thinking, or any gross impairment in thinking. While occasional visual hallucinations were noted, acts of violence to others have not been noted, and there has been nothing resembling a pattern of grossly inappropriate behavior. Further, disorientation to time or place, or memory loss for names of close relatives due to PTSD, or just minimal hygiene, has not been shown. As for social impairment, the Veteran indicated that he had two friends and some contact with his family. There is nothing suggesting that the Veteran has difficulty performing activities of daily living. The Veteran's judgment and insight have always been noted to be at least adequate. Based on the foregoing, a rating in excess of 70 percent for PTSD is not warranted from September 17, 2014. The Board finds that there is not such an approximate balance of the positive evidence and the negative evidence to permit a more favorable determination. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Conclusion In adjudicating a claim the Board must assess the competence and credibility of the Veteran. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362 (2005). The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences concerning PTSD. Layno v. Brown, 6 Vet. App. 465 (1994). However, he is not competent to identify a specific level of disability of PTSD according to the appropriate diagnostic code. Competent evidence concerning the nature and extent of the Veteran's PTSD and depression has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings directly address the criteria under which the Veteran's PTSD and depression is evaluated. Therefore, the Board finds these records to be the most probative evidence with regard to whether an increased rating is warranted. As for extraschedular consideration, the threshold determination is whether the disability picture presented in the record is adequately contemplated by the rating schedule. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board must first determine whether the schedular rating criteria reasonably describe or contemplate the severity and symptomatology of the service-connected disability. If so, then the assigned schedular rating is adequate, referral for extra-schedular consideration is not required, and the analysis stops. If the Board finds that the schedular rating does not reasonably describe or contemplate the severity and symptomatology of the service-connected disability, then the Board must determine whether the exceptional disability picture includes other related factors such as marked interference with employment or frequent periods of hospitalization. If additional factors are found, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether justice requires assignment of an extra-schedular rating. Thun v. Peake, 22 Vet. App. 111 (2008). The evidence of record does not show that the Veteran's PTSD and additional service-connected disabilities are so unusual or exceptional in nature as to make the schedular rating inadequate. The PTSD has been rated under the applicable Diagnostic Code that has specifically contemplated the level of occupational and social impairment caused by the service-connected PTSD. In addition, the Veteran's symptoms such as depression and sleep impairment are specifically enumerated under the applicable Diagnostic Code. The evidence does not show frequent hospitalization due to the service-connected disabilities, or marked interference with employment beyond that envisioned by the ratings assigned. Therefore, the Board finds that referral for consideration of the assignment of an extra-schedular rating is not warranted. Floyd v. Brown, 9 Vet. App. 88 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). ORDER An initial rating in excess of 30 percent for PTSD prior to October 30, 2009, is denied. An initial staged rating of 50 percent for PTSD from October 30, 2009 through September 16, 2014 is granted, subject to the applicable law governing the award of monetary benefits. An initial staged rating in excess of 70 percent for PTSD from September 17, 2014 is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs