Citation Nr: 0210646 Decision Date: 08/28/02 Archive Date: 09/05/02 DOCKET NO. 00-18 249 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an evaluation in excess of 30 percent for the service connected post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jeffrey A. Pisaro, Counsel INTRODUCTION The veteran had active service from May 1968 to May 1970. This appeal arises from a September 1999 rating decision of the Detroit, Michigan Regional Office (RO), which granted service connection for PTSD and assigned a 30 percent evaluation, effective from the August 6, 1998 date of claim. In regard to the instant claim for a higher evaluation for the service-connected PTSD, the United States Court of Appeals for Veterans Claims (Court) has held that, unlike in claims for increased ratings, "staged ratings" or separate ratings for separate periods of time based on the facts found may be assigned following an initial grant of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). In this case, as the September 1999 rating action was the initial grant of service connection for PTSD, the Board will consider whether staged ratings should be assigned for the veteran's service-connected PTSD from August 6, 1998, the effective date assigned by the RO. In this way, the Court's holding in Fenderson will be complied with in the disposition of the veteran's appeal. The issue of entitlement to a total disability rating based on individual unemployability due to service connected disability was raised on the April 2002 informal hearing presentation; however, as this issue has not been developed or certified on appeal, and as it is not inextricably intertwined with the issue currently on appeal, it is referred to the RO for appropriate consideration. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. From August 6, 1998, the veteran's PTSD has been manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; disturbance of motivation and mood; panic attacks; difficulty in understanding complex commands; some impairment of memory and difficulty in establishing and maintaining effective work and social relationships. 3. From August 6, 1998, the veteran's PTSD has not been manifested by such symptoms as suicidal ideation or obsessional rituals which interfere with his routine activities; his speech has not been intermittently illogical, obscure or irrelevant; he does not suffer from near- continuous panic or depression which affects his ability to function independently, appropriately and effectively; he suffers from impaired impulse control, he does not suffer from spatial disorientation; and he shows some, but not extreme neglect his personal appearance or hygiene. CONCLUSION OF LAW From August 6, 1998, the criteria for the assignment of a 50 percent evaluation for the veteran's PTSD have been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.7 Diagnostic Code 9411 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA In November 2000 the Veterans Claims Assistance Act of 2000 (VCAA) became law. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West Supp. 2001)). The VCAA applies to all pending claims for VA benefits and provides, among other things, that VA shall make reasonable efforts to notify a claimant of relevant evidence necessary to substantiate the claimant's claim for a benefit under a law administered by VA. The VCAA also requires VA to assist a claimant in obtaining such evidence. See 38 U.S.C.A. §§ 5103, 5103A (West Supp. 2001). As set forth below, the RO's actions throughout the course of this appeal have satisfied the requirements under the VCAA. First, VA has a duty under the VCAA to notify the veteran and his representative of any information and evidence needed to substantiate and complete a claim. The veteran was informed in the September 1999 rating decision of the evidence needed to substantiate his claim. He was provided an opportunity to submit such evidence. Moreover, the RO notified the veteran of all regulations relating to his claim and informed him of the reasons for which it had denied his claim in the January 2000 statement of the case and the February 2001 supplemental statement of the case. Moreover, the veteran was informed of the ramifications of the VCCA of 2000 in a letter from the RO in April 2001. The Board finds that the information provided to the veteran specifically satisfies the requirements of 38 U.S.C.A. § 5103 (West Supp. 2001) in that the veteran was clearly notified of the evidence necessary to substantiate his claim for a higher rating. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. Second, VA has a duty to assist the veteran in obtaining evidence necessary to substantiate his claims. All available medical records have been obtained to include treatment records from the veteran's treating psychologist. The veteran has been afforded several VA examinations and he provided testimony at September 1999 and October 2000 personal hearings at the RO. In short, VA has fulfilled the duty to assist by aiding the veteran in obtaining all medical evidence that relates to the claims at issue. The Board finds that VA has done everything reasonably possible to assist the veteran and that no further action is necessary to meet the requirements of the VCAA and the applicable regulatory changes published to implement that statute. 66 Fed. Reg. 45630-32 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. § 3.159). As such, there has been no prejudice to the veteran that would require a remand; the veteran's procedural rights have not been abridged, and the Board will proceed with appellate review. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). Factual background On VA psychiatric examination in September 1998, it was reported that the veteran had been living with his significant other for 6 years. He had previously been married from 1974 to 1988 and had two children. He stated that he had a good relationship with his children. He had no friends. The veteran had worked in insurance for 12 to 15 years, but left that business 1 and a half years ago. Currently, he worked at Circuit City and was able to get along with co-workers. He had not missed any time from work. The veteran had 2 years of college. He reported that he might get depressed for a minute or two, but he denied any current or past history of suicidal thoughts. He denied having any problems with concentration, decision making or his memory. He was impatient or irritable when he was in crowds, traffic jams or grocery store lines. It was noted that the veteran was casually dressed. He was nervous during the interview. Thought processes were logical and sequential. He denied any homicidal or suicidal ideation. Mood was euthymic and affect was inexpressive. The veteran was alert and oriented. Memory and concentration were intact. Insight was between fair to poor. Judgment, at best, was variable. The examiner decided that the veteran did not meet the criteria for a diagnosis of PTSD. A Global Assessment of Functioning (GAF) score of 60 was assigned. A September 1998 statement from the veteran's mother indicates that she had noticed a big change in the veteran after he was in the service. He had become irritable, nervous, short tempered and was unable to stand noises. A statement from Elaine Tripi, Ph.D., indicates that the veteran was seen twice a month in individual counseling. The veteran continued to try to work although he was not successful in earning large sums of money due to his symptomatology interfering with his ability to get along with co-workers, supervisors and the public. He complained of sleep disturbance, nightmares and intrusive thoughts. A treatment notation shows that the veteran had been having severe vocational difficulty in that he had been unable to stay with an employer and establish a retirement. He currently was working part time with Circuit City since February 1999 as a salesman. He reportedly had had 8 jobs in the last 12 months. He intermittently suffered from depression which significantly impacted on his ability to function. A GAF score of 49 was assigned. On VA psychiatric examination in April 1999, it was noted that the veteran had just started working at Sears. He had also moonlighted part time doing security work. He reported having no problem doing security work because he was alone, but he also wanted to work in sales. His fear and anxieties interfered with his ability to work in sales. The veteran had never been hospitalized for psychiatric disability and he was not on medications. He reported getting upset at work and being unable to relate to co-workers and customers. On examination, the veteran was clean shaven and quite casually dressed. His shirt seemed somewhat dirty and his hair was not combed. There was no evidence of a speech defect or deficit. He denied having suicidal ideation. He described some depression, crying spells (once a month) and irregular sleep. There was no evidence of psychotic thought process. He was able to demonstrate abstract thought process as well as giving meanings to things or proverbs. He denied having any outbursts of anger but he described being irritable and having an exaggerated startle response. The diagnosis was PTSD and a GAF score of 60 was assigned. A September 1999 statement from Dr. Tripi indicates that she continued to see the veteran on a biweekly basis. It was opined that the veteran suffered from moderately severe PTSD The veteran testified in September 1999 that he was not on any mediation for PTSD; that he was working 30 hours a week as that was all that his employer would schedule him for; that he was working as many hours as his employer would allow; that he had difficulty concentrating and being focused at work; that he suffered from nightmares once a week and from daily flashbacks; that he felt like hurting people at times; that he suffered from exaggerated startle response; that he often felt depressed and tired; and that he suffered from panic attacks. Treatment notes from Dr. Tripi include a May 1999 notation which shows that the veteran had gone over his estimated quota for sales at Sears. He had put in a bid on a house. He had returned from a trip to visit to his mother on her birthday. This was the first time that the veteran and his significant other had spent any time with his family. Later in May, it was noted that the veteran was set to close on a house that week. It was noted that he was making progress being positive. The veteran testified in October 2000 that he was working 30 hours a week; that he had some difficulty with people, especially customers; that he tended to stay to himself; that he would be angry a lot; that he had some trouble with his memory; that he had difficulty concentrating and had an exaggerated startle response; that he keep a gun at home; and that he worked 30 hours a week because the salespeople who had been there longer got the extra day of work. An October 2000 statement from Dr. Tripi indicates that the veteran continued to work. Much counseling time had been spent working on the veteran's problems dealing with co- workers, supervisors and the public. He tended to lose his temper quickly. Symptoms included anger, irritability, nervousness, depression, guilt, loneliness and emptiness. A GAF score of 45 was assigned. Analysis The veteran's claim for a higher rating arose following the assignment of initial disability rating. On an original claim, the veteran will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and such a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). In Fenderson v. West, 12 Vet App 119 (1999), the Court held that the rule from Francisco v. Brown, 7 Vet. App. 55, 58 (1994) ("Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance."), is not applicable to the assignment of an initial rating for a disability following an initial award of service connection for that disability. Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. As this case involves a rating assigned in connection with the original grant of service connection for PTSD, the Board will follow the mandates of the Fenderson case in adjudicating this claim. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 3.321(a) and Part 4. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.7 provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. Service connection for PTSD has been established with a 30 percent evaluation assigned from August 6, 1998. It is the veteran's contention that a higher evaluation is warranted for PTSD which had worsened in severity. As the instant claim was filed in August 1998, only the new rating criteria are for application. The "new" regulations (effective November 1996) pertaining to rating psychiatric disabilities are found in 38 C.F.R. § 4.130, Codes 9201-9440 (2001) and are set forth in pertinent part below. General Rating Formula for Mental Disorders: 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. 100 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. 70 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. 50 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)......30 Though not determinative, the Global Assessment of Function (GAF) scale provides guidance and illustrates the veteran's "psychological, social, and occupational functioning on a hypothetical continuum of mental health illness." See 38 C.F.R. § 4.125 (2001); Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994). A 31-40 score indicates "some impairment in reality testing or communication . . . OR major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood . . . ." A 41-50 score indicates "serious symptoms . . . OR any serious impairment in social, occupational, or school functioning . . . ." Finally, a 51-60 score indicates "moderate symptoms . . . OR moderate difficulty in social, occupational, or school functioning . . . ." Id. During the pendency of this claim, the veteran has been afforded two VA psychiatric examinations. In September 1998 and April 1999, GAF scores of 60 were assigned. The veteran's treating psychologist, has assigned GAF scores of 49 in February 1999 and 45 in October 2000. The scores of 45 and 49 reflect an individual on the GAF scale who is unable to keep a job. The evidence of record does not support such a determination. From the spring of 1999 to the present, the veteran has been employed by Circuit City and then Sears as a salesman. He has also worked some during this time on the side in the security field and he has emphasized that he had not had any problem working in the security field. The veteran has testified that he currently worked 30 hours a week for Sears. He further indicated that the only reason that he did not work 40 hours a week was due to the fact that Sears only allowed the more senior salespeople to work the extra day. The record is replete with notations showing that the veteran has difficulty dealing with co-workers, supervisors and customers. This evidence is in line with a GAF score of 60 and denotes an individual who has conflicts with co-workers. In general, the veteran lives with his long time significant other. They have recently purchased a house together. They also had successfully visited the veteran's mother together and the veteran has indicated that he enjoys contact with his grown children. It is significant to note that the veteran has accomplished the above while never having to be hospitalized psychiatrically or even taking any psychotropic medication. The medical records show that the veteran's PTSD has been manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect, disturbance of motivation and mood, panic attacks, difficulty in understanding complex commands and some impairment of memory along with difficulty in establishing and maintaining effective work and social relationships. Accordingly, the Board finds that the evidence supports the assignment of a 50 percent evaluation from the original date of claim for PTSD on August 6, 1998. On the other hand, the veteran has neither alleged nor does the record show that he has ever suffered from suicidal ideation. There is no evidence that the veteran exhibits any obsessional rituals or that he has any obsessive behavior which interfered with his routine activities such as working. In fact, he has indicated that he had not lost any time from work. There is no evidence that the veteran's speech was intermittently illogical, obscure, or irrelevant. To the contrary, his speech has been relevant and logical during examinations. There is no evidence of near-continuous panic or depression which affects the veteran's ability to function independently, appropriately and effectively. The veteran has stated that he gets angry but he has never demonstrated periods of violence. The veteran has shown, some limited neglect of personal appearance or hygiene as his hair has not always been combed and reference has been made to a dirty shirt. In view of the above, the Board finds that the veteran does not meet the criteria for the assignment of a 70 percent evaluation for PTSD. Most of the criteria necessary for the assignment of a 70 percent evaluation remained missing at the time of the most recent VA examinations. His symptoms are best characterized by the 50 percent rating. In fact, throughout the pendency of this claim there has never been a basis for the assignment of an evaluation in excess of or less than 50 percent. Thus, the award of a staged rated under Fenderson, supra, is not for application in this case. The potential application of various provisions of Title 38 of the Code of Federal Regulations must be considered. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). This includes the provisions of 38 C.F.R. § 3.321(b)(1) (2001). The Board finds that, in this case, the disability picture is not so exceptional or unusual as to warrant a referral for an evaluation on an extraschedular basis. In fact, the veteran has never been hospitalized for his PTSD. Moreover, while symptoms bother the veteran at work, he has been able to maintain employment as a salesman. There is nothing in the record to suggest that the veteran's service connected PTSD causes problems not contemplated by the pertinent rating criteria and the currently assigned 50 percent evaluation. The Board therefore will not refer this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Entitlement to the assignment of a 50 percent rating for the service connected PTSD is granted, subject to the law and regulations governing the award of monetary benefits. F. JUDGE FLOWERS Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.