Citation Nr: 0104153 Decision Date: 02/09/01 Archive Date: 02/15/01 DOCKET NO. 99-22 017A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to an increased rating for post-traumatic stress disorder (PTSD), currently rated 50 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. D. Parker, Counsel INTRODUCTION The veteran served on active duty from May 1949 to August 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in August 1999 by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which denied a rating in excess of 30 percent for PTSD. An October 1999 rating decision during the appeal increased the rating for PTSD to 50 percent. As the 50 percent evaluation is less than the maximum available under the applicable diagnostic criteria, the veteran's claim remains viable on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). FINDING OF FACT The veteran's service-connected PTSD is primarily manifested by occupational and social impairment with deficiencies in most areas, including work, family relations, judgment, thinking, and mood; it is not productive of total occupational and social impairment. CONCLUSION OF LAW The criteria for a 70 percent rating for PTSD have been met. 38 U.S.C.A. § 1155 (West 1991); Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000); 38 C.F.R. §§ 4.1-4.14, 4.130, Diagnostic Code 9411 (2000). REASONS AND BASES FOR FINDING AND CONCLUSION The record shows that that service connection for PTSD, with a 30 percent rating, was established effective from September 1993. The veteran filed a claim for an increased rating for PTSD in January 1999. An October 1999 rating decision during the current appeal increased the rating for PTSD to 50 percent. The veteran contends that at least a 70 percent disability rating is warranted for his service-connected PTSD because of increased difficulty with short term memory, increased nervousness, nightmares and sleep impairment, and anger, and because he was assigned a Global Assessment of Functioning (GAF) score of 40. The Board is satisfied that all relevant facts have been properly developed, and that no further assistance to the veteran is required in order to comply with VA's duty to assist. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000). The veteran was afforded a thorough VA mental disorders examination in March 1999, which the Board finds to be adequate for rating purposes. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (2000). The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Under Diagnostic Code 9411, a 50 percent rating is for consideration where 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted where there is 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; intermittently illogical, obscure, or irrelevant speech; 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 inability to establish and maintain effective relationships. Finally, a 100 percent rating is applicable where there is 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; and memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130. The Board notes that in the August 1999 rating decision on appeal the RO considered whether a higher rating for PTSD was warranted under both the schedular rating criteria in effect prior to November 7, 1996, and the revised rating criteria which became effective November 7, 1996. However, because the veteran filed his claim for increased compensation for PTSD in January 1999, only the revised criteria in effect since November 7, 1996 should have been applied. The Board finds that the veteran has not been prejudiced, however, because the RO rated the veteran's PTSD under the appropriate (revised) schedular criteria, although the RO gave additional consideration to rating under the previous criteria, and, in the rating decision and statement of the case, the RO included the correct rating criteria. In an October 1999 rating decision (granting a 50 percent rating), the RO correctly applied only the revised criteria. Additionally, neither the veteran nor his representative has presented argument or evidence indicating any reliance on the old criteria; in an October 2000 brief on appeal, the veteran's representative specifically and correctly presented argument for a 70 percent rating under the rating criteria for PTSD (mental disorders) in effect from November 7, 1996. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The more recent evidence in this case includes VA outpatient treatment records dated from May 1998 to October 1999, which indicate that the veteran was on medication (Tegretol), was anxious, showed some depressive symptoms, and was participating in group psychotherapy sessions. In January 1999, the veteran reported poor sleeping and nightmares, and increasing difficulty remembering. Mental status examination revealed an affect which teared easily about the war. In June 1999, the veteran reported his memory was good at times and bad at times, and he had flashbacks from the war and problems sleeping. In July 1999, the veteran denied memory problems, but reported flashbacks, nightmares, poor sleep, some depression but fair control with medications. The impression was mild cognitive impairment. Later in July 1999, the veteran had memory complaints. A March 1999 VA examination recorded the veteran's subjective complaints of bad dreams, nightmares 4 to 5 times per week, sleep disturbance, flashbacks, exaggerated startle response, obsessive thoughts about those who died in Korea, unclear thought process, short attention span and difficulty concentrating, poor communication with others, irritation, infrequent auditory hallucinations, short-term memory impairment, that he stayed alone almost all of the time to avoid others, panic attacks, and motivation disorder. Examination revealed marked anxiety, more than depression. The examiner noted that the veteran was undergoing monthly psychotherapy group and was on psychotropic medication, which the veteran reported were effective 50 percent overall with his PTSD symptoms. The VA examiner concluded that the veteran had "a severe case of combat induced PTSD that is further complicated by his chronic panic disorder with agoraphobia." The diagnoses were chronic combat-induced PTSD, panic disorder, and agoraphobia. The examiner assigned a GAF score of 40. After a thorough review of the evidence of record, the Board finds that a 70 percent rating for the veteran's service- connected PTSD is warranted, as the evidence reflects that PTSD symptomatology more nearly approximates the criteria for a 70 percent rating. 38 C.F.R. § 4.7. The evidence reflects that the veteran's PTSD is currently manifested by occupational and social impairment with deficiencies in most areas, including work, family relations, judgment, thinking, and mood, due to such symptoms as: obsessional rituals which interfere with routine activities; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. The veteran's PTSD complications of panic disorder with agoraphobia are, likewise, contemplated by the criteria for a 70 percent rating of near continuous panic affecting the ability to function independently, appropriately, and effectively, and the inability to establish and maintain effective relationships. The Board has considered that in March 1999 the veteran was assigned a GAF score of 40 as a result of the VA examination. The GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994). A GAF score of 31 to 40 is defined by the DSM-IV as some impairment in reality testing or communication, or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. In assessing this GAF score, the Board notes that the veteran's GAF score of 40 is at the high end of the 31 to 40 range. In this veteran's case, the Board finds that the overall "major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood" reflected by a 40 GAF score most nearly approximates the schedular rating criteria for a 70 percent rating of "deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood." The VA examiner's March 1999 characterization of the veteran's PTSD as "severe" is consistent with a 70 percent rating for such "major impairment in several areas." The evidence does not reflect that the veteran's PTSD is manifested by the additional 70 percent rating criteria of suicidal ideation, intermittently illogical, obscure, or irrelevant speech, impaired impulse control (such as unprovoked irritability with periods of violence), spatial disorientation, or neglect of personal appearance and hygiene. As the veteran's representative accurately points out, 38 C.F.R. § 4.21 (2000) indicates that it is not expected that all of the listed findings for a certain rating will be shown, especially in a case such as this one in which the rating criteria more fully describes the grades of psychiatric disability. However, the absence of specific findings for a 70 percent rating is to be considered with regard to whether the next higher, 100 percent, rating is warranted, at least to the extent the 100 percent criteria correlates with such findings. The Board finds that the preponderance of the evidence is against a rating in excess of 70 percent because the veteran's PTSD is not manifested by the criteria for a 100 percent rating, including 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; and memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130. The evidence demonstrates that the veteran did briefly experience auditory hallucinations, but this has not been persistent and has not manifested as gross impairment in thought processes or communication. While the veteran has at times complained of memory loss (though at other times denied memory loss), the evidence shows some cognitive impairment but does not show evidence of loss of memory regarding closest relatives, own occupation, or own name. Impairment of short and long-term memory is otherwise specifically contemplated by even a 50 percent rating. 38 C.F.R. § 4.130. The Board also notes the veteran's assertion that he is unable to work due to his PTSD. With regard to this contention regarding total occupational impairment, the record reflects that the veteran has been awarded a total disability rating based on individual unemployability due to service-connected disabilities. Those multiple service- connected disabilities, however, included the physical disabilities of residuals of a gunshot wound of the left thigh, rated 40 percent disabling, degenerative joint disease of the left knee, rated 20 percent disabling, which the veteran wrote "got too painful to work" and prevented him from standing. To warrant a schedular 100 percent rating, the evidence must show that the veteran's PTSD alone is productive of total occupational and social impairment, due to specified psychiatric symptomatology. As indicated above, the evidence does not show that the veteran's PTSD is manifested by any of the specific symptomatology associated with a 100 percent schedular rating. While the March 1999 VA examination report concluded that the veteran had severe PTSD, there is no medical opinion of record to support an assertion that PTSD alone is productive of total occupational and social impairment. The veteran's social activities include attending church, visiting flea markets, having a "girlfriend" for 20 years, having some visitation in the home, including at least one of his children, and going to small restaurants and stores. By the veteran's own reporting, psychotropic medication and group psychotherapy has provided about 50 percent relief of his PTSD symptoms. For these reasons, the Board finds that the schedular criteria for an increased rating to 70 percent for PTSD, but not higher than 70 percent, have been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. ORDER A 70 percent rating for service-connected PTSD is granted, subject to the law and regulations governing the payment of VA monetary benefits. R. F. WILLIAMS Member, Board of Veterans' Appeals