Citation Nr: 1752755 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 12-33 420 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial rating in excess of 50 percent from February 28, 2006 to February 5, 2012 for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Robert Chisolm, Esq. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Sopko, Counsel INTRODUCTION The Veteran served on active duty from March 1945 to December 1946. The Veteran died in September 2016. The Appellant is the Veteran's widow. This case comes before the Board of Veterans' Appeals (Board) on appeal from September 2010 and January 2011 rating decisions of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO). In the September 2010 rating decision, the RO granted service connection for PTSD and assigned a 30 percent disability rating, effective February 28, 2006. In January 2011, the RO increased the disability rating to 50 percent disabling, effective December 22, 2010. In August 2013, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing. In September 2013, the Board remanded the claim for additional development and adjudicative action. Thereafter, in a February 2014 Decision Review Officer (DRO) decision, the RO again increased the Veteran's service-connected PTSD disability rating to 70 percent disabling, effective October 10, 2013. In a May 2014 decision, the Board increased the disability rating for the service-connected PTSD to 50 percent disabling prior to October 10, 2013, and denied an increased rating in excess of 70 percent disabling from October 10, 2013. The Veteran appealed the Board's May 2014 decision to the United States Court of Appeals for Veterans Claims (Court). By Order dated June 2015, the Court granted a Joint Motion for Partial Remand (JMR), vacated the May 2014 Board decision to the extent that it denied entitlement to an initial rating in excess of 50 percent prior to October 10, 2013, and remanded the case for compliance with the terms of the JMR. In August 2015, the Board remanded this case. In a November 2015 decision, the Board denied a rating in excess of 50 percent prior to February 6, 2012, and it granted a 70 percent rating from February 6, 2012. The Veteran appealed the Board's November 2015 decision to Court. The Veteran died in September 2016 while the appeal was pending at the Court. In November 2016, the Court substituted the Appellant for the above-referenced appellate issue. In April 2017, the Court vacated the part of the Board's November 2015 decision that concerned the above-referenced appellate issue. The Board notes that the Veteran filed a claim of total disability based upon individual unemployability (TDIU) in November 2015 after the Board issued its decision of the same month. This claim was related to, but separate, from the November 2015 Board decision the Veteran appealed to the Court. VA denied a TDIU in June 2016. The Appellant's counsel filed a Notice of Disagreement with VA's denial in June 2017. However, because VA has not substituted the Appellant for the TDIU issue, the Board does not have jurisdiction over it. The Court's November 2016 substitution applies only to the above-referenced appellate issue. Therefore, the Board refers this issue to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT From February 28, 2006 to February 5, 2012, the Veteran's PTSD resulted in occupational and social impairment with deficiencies in most areas, but it did not cause total occupational and social impairment. CONCLUSION OF LAW From February 28, 2006 to February 5, 2012, the criteria for a rating of 70 percent for PTSD have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Under the VCAA, when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159. Here, the Veteran was provided with the relevant notice and information in a May 2006 letter prior to the initial adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The Veteran has not alleged any notice deficiency during the adjudication of the claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). With regards to the claim for a higher initial rating for PTSD, the Veteran is challenging the initial evaluation assigned following the granting of service connection for this disability. In Dingess, the Court held that in cases, as here, where service connection has been granted and an initial disability rating and effective date assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose the notice is intended to serve has been fulfilled. Id., at 490-91. Thereafter, once a notice of disagreement (NOD) has been filed contesting a "downstream" issue such as the initial rating assigned for the disability, the notice requirements of 38 U.S.C. §§ 5104 and 7105 regarding a rating decision and SOC control as to the further communications with the Appellant, including as to what evidence is necessary to establish a more favorable decision with respect to the downstream element of the claim. See Goodwin v. Peake, 22 Vet. App. 128 (2008). Here, in the NOD, the Veteran took issue with the initial disability rating assigned, currently noted to be 50 percent, and it is presumed he is seeking the highest possible rating or maximum benefits available under the law. Id.; see also AB v. Brown, 6 Vet. App. 35, 38-39 (1993). Therefore, in accordance with 38 U.S.C.A. §§ 5103A, 5104, and 7105(d), the RO sent the Veteran an SOC that contained, in pertinent part, the criteria for establishing entitlement to a higher rating for this disability and a discussion of the reasons and bases for not assigning a higher rating. See 38 U.S.C.A. § 7105(d)(1). Therefore, VA complied with the procedural statutory requirements of 38 U.S.C.A. §§ 5104(b) and 7105(d), as well as the regulatory requirements in 38 C.F.R. § 3.103(b). See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) and VAOPGCPREC 8-2003 (Dec. 22, 2003). VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's VA records and identified private treatment records have been obtained and associated with the record. The Veteran was also provided with VA examinations which, collectively, are adequate as the record was reviewed, the examiner reviewed the pertinent history, examined the Veteran provided findings in sufficient detail, and provided rationale. The Veteran's claim was in fact remanded for another examination and opinion which were conducted. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran was specifically examined to assess and then reassess the severity of this disability in question. See Caffrey v. Brown, 6 Vet. App. 377 (1994); Olsen v. Principi, 3 Vet. App. 480, 482 (1992); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); and Allday v. Brown, 7 Vet. App. 517, 526 (1995). The records satisfy 38 C.F.R. § 3.326. Finally, the Veteran testified at a Board hearing. The hearing was adequate as the Veterans Law Judge who conducted the hearing explained the issue and identified possible sources of evidence that may have been overlooked. 38 C.F.R. 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). In summary, the Board finds that it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence should be submitted to substantiate the claim. Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran). Rating Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Before proceeding with its analysis of the Veteran's claim, the Board finds that some discussion of Fenderson v. West, 12 Vet. App 119 (1999) is warranted. In that case, the Court emphasized the distinction between a new claim for an increased evaluation of a service-connected disability and a case (such as this one) in which the veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been recognized as service-connected. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim-a practice known as "staged rating." See also Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, the only period for consideration is February 28, 2006 to October 10, 2013. The regulations for mental disorders are found in 38 C.F.R. §§ 4.125-4.130. The Board notes that psychiatric disabilities evaluated under Diagnostic Code 9411 are rated according to the General Rating Formula for Mental Disorders. The rating criteria provides a 10 percent rating for occupational and social impairment due to mild or transient symptoms which decreases work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. A 30 percent rating is provided for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal, due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is provided for 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. A 70 percent rating 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 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. The Board further notes that a GAF rating 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. 1994). The Board notes that an examiner's classification of the level of psychiatric impairment, by a GAF score, is to be considered but is not determinative of the percentage rating to be assigned. VAOPGCPREC 10-95. GAF scores ranging between 81 and 90 reflect absent or minimal symptoms (e.g., mild anxiety before an exam), good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns (e.g., an occasional argument with family members). GAF scores ranging between 71 and 80 reflect that if symptoms are present they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument; no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). GAF scores ranging between 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect more 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). Scores ranging 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). See 38 C.F.R. § 4.130. Scores ranging from 31 to 40 reflect 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; child frequently beats up other children, is defiant at home, and is failing at school). A score from 21 to 30 is indicative of behavior which is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or inability to function in almost all areas. A score of 11 to 20 denotes some danger of hurting one's self or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement) or occasionally fails to maintain minimal personal hygiene (e.g., smears feces) or gross impairment in communication (e. g., largely incoherent or mute). A GAF score of 1 to 10 is assigned when the person is in persistent danger of severely hurting self or others (recurrent violence) or there is persistent inability to maintain minimal personal hygiene or serious suicidal acts with clear expectation of death. See 38 C.F.R. § 4.130. VA has rated the Veteran's PTSD as 50 percent disabling February 28, 2006 to February 5, 2012. The Veteran meets the criteria for a 70 percent rating during that time period. In an October 2006 statement, the Veteran's wife reported that he would yell and flail his arms and legs at night while he was sleeping. In April 2007, August 2007, and January 2008, the Veteran denied suicidal and aggressive ideation or intent. He reported no psychosis, but indicated that he had inner turmoil. He had irritability, startle reaction, flashbacks, intrusive memories, memory problems and trouble concentrating. His GAF was 52, indicating moderate symptoms. In January 2008, subsequently in 2008, and then in December 2009, it was noted that the PTSD was moderately severe. In December 2009, it was also noted that the Veteran experienced nightmares several times per week and flashbacks several times per month. He also experienced startle reaction and hypervigilance. In April and June 2010, an examiner noted that the Veteran's symptoms, coupled with his age, impacted his ability to regularly distract himself from intrusive memories of his wartime experiences, which resulted in vivid memories intruding more and more into his everyday life. The physician noted that the PTSD symptomatology was chronic, ongoing, moderately severe, and continued to have a significant negative impact on his ability to cope with everyday life events. The Veteran described having problems concentrating, flashbacks, nightmares, intrusive memories, and that he also avoided war themed television shows, large crowds and rowdy kids due to extreme discomfort. The Veteran was evaluated thereafter in October 2010. It was noted that his PTSD had a significant negative impact on his everyday life. The examiner felt that he was unable to distract himself from memories of his traumatic experiences and these memories were intruding more and more into his everyday life. It was noted that he would need medication continuously for the rest of his life for his PTSD. It was further noted that he was at a low risk for suicide. In December 2010, the Veteran was afforded a VA examination. At that time, it was noted that he had been happily married for 20 years to second wife. He had no children of his own, but had good relationships with his step-children with his second wife. He reported that he was a member of military organizations and frequently attended their meetings. It was helpful to him to have good friends and people to talk to. He liked getting out of the house. News of Afghanistan and Iraq was bringing thoughts of war to the Veteran. The Veteran mentioned that he still enjoyed reading books and magazines. He reported that he would drink approximately 2 beers per day. Mental status examination revealed no impairment of thought process or communication. No delusions or hallucinations. The Veteran was very sharp cognitively and made appropriate eye contact. He was cooperative throughout the interview. There were no suicidal or homicidal thoughts, ideations plans, or intent. He was able to maintain minimal personal hygiene and his activities of daily living. He was oriented in all spheres. His long term memory compared to age peers was good, but short-term memory was not as good. He did not have obsessive or ritualistic behavior that interfered with routine activities. His rate and flow of speech were within normal limits. The Veteran denied having panic attacks. He related that some days he was very depressed, but overall his depression was a 6 out of 10 with 10 being worse. He related that his anxiety was at a level of 5. He did not have impaired impulse control. He did have sleep impairment including nightmares that caused him to thrash about roll around. He met the criteria for PTSD. He was noted to have a mild level of PTSD with a GAF of 56. Thereafter, the Veteran continued to receive VA psychiatric treatment. On February 6, 2012, the Veteran again complained that he was jumpy and that he could not be around large crowds or rowdy kids without extreme discomfort. The physician opined that the Veteran's PTSD symptoms were moderately severe, having a significant negative impact in his ability to cope with everyday life events, and that given his chronic, ongoing nature of his symptoms, he should qualify for an increased rating over 50 percent. The examiner stated that the Veteran's advancing age and infirmity impacted his ability to regularly distract himself from intrusive memories, which in turn resulted in vivid memories which were intruding more and more into his everyday life. However, as the Court noted in its 2017 decision, the examiner's assignment of a quantitative rating was flawed because there was no rating assigned with which the author could endorse or disagree in the treatment notes prior to February 2012. In September 2015, a VA examiner indicated that a review of the record does not indicate that the Veteran suffered "social and occupational impairment in most areas." In fact, the examiner noted that the Veteran denied any occupational problems while employed and the mild social impairments he noted do not appear to be clinically significant given his ability to socialize fairly regularly. The examiner stated that he considered the examination reports and statements made by the Veteran's VA geriatric neuropsychiatrist in VA outpatient treatment records dated February 2012, June 2012, October 2012, and October 2013. The examiner opined that the Veteran did not meet the criteria for a rating higher than 50 percent for his PTSD, prior to October 10, 2013. Resolving doubt in the Veteran's favor, the Board finds the Veteran consistently manifested symptoms which more nearly approximately the 70 percent rating rather than the 50 percent rating from February 28, 2006 to February 5, 2012. This comports with the Court's finding that "the records contains evidence demonstrating that his disability was equally severe before and after the date of February 6, 2012," with that date being the date upon which VA increased his rating to 70 percent. That being noted, a total 100 percent rating is not warranted since, during the time period in question, frequency, severity, and duration of the PTSD symptoms affecting occupational and social impairment were not total in nature. The Veteran remained able to maintain social contacts. Also, there were no psychotic symptoms or cognitive impairment other than the already noted memory deficits. He did not have gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting himself or others; intermittent inability to perform activities of daily living; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name; or other equally disabling symptoms. Finally, the post-mortem opinion the Appellant submitted, through counsel, did not support a 100 percent evaluation for the 6-year period under consideration. ORDER A 70 percent rating is granted from February 28, 2006 to February 5, 2012 for PTSD. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs