Citation Nr: 0315559 Decision Date: 07/11/03 Archive Date: 07/17/03 DOCKET NO. 00-04 992 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi THE ISSUE Entitlement to a rating higher than 50 percent for post- traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Panayotis Lambrakopoulos, Counsel INTRODUCTION The veteran served on active duty from July 1964 to July 1966. This matter comes before the Board of Veterans' Appeals (Board) from a September 1999 RO decision that granted service connection and a 30 percent rating for PTSD; the veteran appealed for a higher rating. An April 2000 RO decision assigned a higher rating of 50 percent for PTSD; the veteran continues to appeal for an even higher rating. FINDINGS OF FACT Since September 21, 1998 (effective date of service connection), the veteran's service-connected PTSD has been productive of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to various symptoms. CONCLUSION OF LAW Continuously since the effective date of service connection, PTSD has been 70 percent disabling. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual background The veteran served on active duty in the Army from July 1964 to July 1966. This included service in Vietnam, during which time he performed duties as an infantryman and engaged in combat. Records show that the veteran has not worked since sustaining injuries in a vehicle accident in 1995, and he has been deemed disabled by the Social Security Administration (SSA) for disability benefits purposes due to back and other injuries sustained at that time. From 1998 to the present, the veteran has been treated by the VA for psychiatric and physical ailments. In June 1998, he sought VA psychiatric treatment for depression, and regular psychiatric treatment was thereafter received. On September 21, 1998, the RO received the veteran's claim for service connection for PTSD. On VA examination in February 1999, mood and affect were mildly anxious. He had no delusions, hallucinations, or homicidal or suicidal thoughts. He was oriented; memory was good. Judgment and insight were good. The examiner found that the veteran described some symptoms suggestive of PTSD and alcohol abuse, but psychological testing did not support a diagnosis of PTSD. The diagnosis was anxiety disorder not otherwise specified, alcohol abuse and dependence, with a GAF scale score of 65. VA outpatient records note that in March 1999 the veteran denied current suicidal ideation. He reported having nightmares every other day. He was depressed, and his GAF scale score was 60. He indicated in May 1999 that his symptoms intensified when he became physically disabled. His GAF scale score in July 1999 was 50. On VA PTSD examination in August 1999, the veteran reported that recurring Vietnam-related nightmares bothered him the most, resulting in sleep problems. He stated that his VA PTSD group therapy would help for several hours. He was taking several medications. He did not socialize or have any significant romantic relationship or friendship. On observation, he appeared anxious. Thoughts reportedly were often tangential and not always clear. Contact with reality was adequate. He was in dirty clothes and was very disheveled, and it was commented that this was an odd presentation for combat veterans diagnosed with PTSD. He reported having frequent symptoms of reexperiencing such as recurrent nightmares and daily intrusive thoughts. He said that since his accident in 1995, he thought about Vietnam almost daily. He reported sadness and crying, as well as numbing and distance from others. He preferred to be isolated and had difficulty getting along with other people. He also reported significant symptoms of increased arousal, nightmares, agitation, suspiciousness. Except for sometimes hearing footsteps of enemy soldiers, he denied hallucinations, and it was said this was also unusual for combat-related PTSD. He also had depression, feelings of hopelessness, crying spells. He did not meet the criteria for alcohol dependence or abuse. Tests showed average intelligence, severe depression, hopelessness, lack of pleasure, feeling of guilt, self-punishment, restlessness, agitation, and chronic fatigue. Responses on some testing were consistent with a PTSD diagnosis, although responses on other testing may have been due to frank psychosis, chronic and severe emotional distress or exaggeration. However, due to consistency of responses, it was as likely as not that that his responses reflected chronic and severe emotional distress. The diagnosis was PTSD and major depressive disorder without psychotic features, and the current GAF scale score was 49. The examiner summarized that it was as likely as not that the veteran's unemployment contributed to his PTSD and depression symptoms; he was now depressed because he could not work and he was distressed by reexperiencing symptoms associated with events in Vietnam. It was not possible to provide separate GAF scores for PTSD and depression since the two disorders were interrelated and probably exaggerated and worsened by his inability to work. In a September 1999 decision, the RO granted service connection and a 30 percent rating for PTSD, effective from when the claim was received on September 21, 1998. The RO also granted the veteran a permanent and total disability rating for non-service-connected pension purposes, and this was based on the combined effects of non-service-connected physical problems (including back and cardiovascular disorders) and the service-connected PTSD. In an April 2000 decision, the RO assigned a higher rating of 50 percent for PTSD, also effective from when the claim was received on September 21, 1998. Ongoing VA medical records note the veteran has received continuing treatment for psychiatric and physical ailments. His GAF scale score was 55 in February 2000. The GAF scale score was 40 to 50 in August 2000. In December 2001, he reported that he was positive with progress. At times, he reported doing well and was stable. In April 2002, the veteran reported occasional passive suicidal and homicidal thoughts, but no plan; he felt that a car accident may have been suicidal. The veteran testified at a May 2002 hearing before the RO that he was attending weekly therapy sessions for PTSD. He described having nightmares almost nightly as well as daily panic attacks, memory and concentration problems, and suicidal and homicidal thoughts. He noted he was getting SSA disability benefits because of a back disorder from an accident. On VA PTSD examination in May 2002, the veteran reported that he had not worked since being injured in a 1995 accident. He noted that he was divorced and living alone. He said he talked frequently with his sister. He reported that a few friends would visit him on occasions, but he generally had poor social relationships. He said he did not do any housework. He complained of occasional insomnia. He reported a history of homicidal and suicidal thoughts, but none recent. On examination, he was oriented; eye contact was poor; speech was relaxed and soft; interaction was appropriate. Insight and judgment were poor. He had thought impairment. There was no evidence of homicidal or suicidal ideation. Mood was depressed at times; affect was somber. He denied hallucinations. Recent and remote memory was fair. The diagnosis was anxiety disorder not otherwise specified and a history of alcohol abuse and dependence. The GAF scale score was 65 currently and in the past year. The examiner also noted that the veteran described some symptoms associated with PTSD and anxiety. On VA PTSD examination in July 2002, his mood was significantly depressed, and he reported suicidal ideation, with one attempt at suicide by running his car into an embankment. Affect was restricted and shallow, with limited range of expression. Mental activity was somewhat slowed. There were no delusions or hallucinations, although he reported numerous nightly difficulties (nightmares, seeing shadowy figures) that were quite distressful. He also reported rather vivid flashbacks and being rather irritable. It was related that he had intrusive thoughts, was hypervigilant, and startled readily. Memory was generally intact. He had some difficulty with concentration, which would affect his memory. Intelligence was average; orientation was normal; insight was slightly developed; judgment was fair. The diagnosis was chronic PTSD. His current GAF scale score was 50, and the highest score in the past year had been 65. The examiner stated that the principal diagnosis was PTSD. Ongoing VA medical records note the veteran received treatment for physical and psychiatric problems. A VA clinical social worker wrote in September 2002 that the veteran was seen regularly for psychotherapy at the VA clinic and a Vet Center, and it was noted that his GAF scale score had been 50 several months earlier. A Vet Center therapist wrote in October 2002 that he had been treating the veteran every week and that the veteran reported problems in managing PTSD symptoms. The veteran had been having increased Vietnam War-related nightmares almost every night that affected his sleep; he also had hyperarousal, hypervigilance, intrusive thoughts, occasional flashbacks during waking hours, isolation from almost all contact outside group therapy sessions. The therapist stated that efforts to manage symptoms had been unsuccessful, and he concluded that the veteran had one of the more severe cases of PTSD. Outpatient treatment records show that by late 2002, the veteran was sleeping better due to new medication. In December 2002, he was in no acute distress, but he related not doing very well, with sleep disturbances, war-related disturbing dreams and nightmares, daily depression, poor appetite, and impaired recent memory. He was not too active and lived alone. He had fleeting thoughts of hurting himself, but not others and without plan or intent. He was suspicious but not delusional. On examination, judgment and insight were intact. II. Analysis Through discussions in correspondence, RO rating decisions, the statement of the case, and the supplemental statement of the case, the VA has informed the veteran of the evidence necessary to substantiate his claim for a rating higher than 50 percent for PTSD. He has been informed of his and the VA's respective responsibilities for providing evidence. Pertinent records and examinations have been obtained. The notice and duty to assist provisions of the law are satisfied. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; Quartuccio v. Principi, 16 Vet. App. 183 (2002). A 50 percent rating has been assigned for PTSD since September 21, 1998, the effective date of service connection. As this is an initial rating case, on the granting of service connection, different percentage ratings for the disability may be assigned for different periods of time since the effective date of service connection, based on the facts found (i.e., "staged ratings"). Fenderson v. West, 12 Vet. App. 119 (1999). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Under the rating criteria, a 50 percent rating is assigned for a mental disorder (including PTSD) 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. A 70 percent rating is assigned when the psychiatric condition produces 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 work-like setting); inability to establish and maintain effective relationships. A 100 percent rating is assigned when there is total occupational or 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 name. 38 C.F.R. § 4.130, Diagnostic Code 9411 (PTSD). The veteran has been participating in weekly therapy and counseling sessions for PTSD since 1998. He is considered disabled by the SSA for disability benefits purposes due to a back injury sustained in a vehicle accident accident. He has also been found to be permanently and totally disabled for VA non-service-connected pension purposes, based on the combined effects of non-service-connected physical problems (including back and cardiovascular disorders) and the service-connected PTSD. The effects of the non-service-connected conditions may not be considered in support of the claim for a higher rating for service-connected PTSD. 38 C.F.R. § 4.14. 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 (4th ed.) (DSM-IV); Carpenter v. Brown, 8 Vet. App. 240 (1995). The veteran has received GAF scores ranging from 40 to 65 during the course of this appeal, with a GAF of 50 at the last VA compensation examination in 2002. This covers a broad range of estimated psychiatric impairment as set forth in DSM-IV. For example, under DSM-IV, a GAF score of 41 to 50 represents 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). An examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered but is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. See 38 C.F.R. § 4.126(a); VAOPGCPREC 10-95. The medical records since 1998 show the veteran has such psychiatric symptoms as flashbacks, a sleep disturbance, and episodic suicidal ideation. Records show he takes psychiatric medication to help control symptoms, and he receives rather intensive weekly psychotherapy. A therapist wrote in 2002 that the veteran had one of the more severe cases of PTSD. The Board notes that while the veteran only has some of the symptoms listed for the next higher rating of 70 percent for PTSD, the various psychiatric symptoms listed in the percentage categories of the rating schedule are only typical symptoms or examples of symptoms found in the level of disability for each percentage bracket, and they are not all-inclusive symptoms for each percentage bracket. Mauerhan v. Principi, 16 Vet.App. 436 (2002). Based on the totality of the evidence, there is a reasonable doubt that the veteran's PTSD more nearly approximates the criteria for the next higher rating of 70 percent, rather than the criteria for the current rating of 50 percent. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.7. Resolving doubt in the veteran's favor, the Board finds that PTSD is manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to various symptoms. Consequently, a higher rating of 70 percent for PTSD is warranted. Moreover, the Board finds this level of PTSD impairment has persisted since service connection became effective, and thus different staged ratings are not warranted. Fenderson, supra. In the judgment of the Board, there are insufficient symptoms and related impairment from service-connected PTSD to satisfy the 100 percent rating criteria for such condition. As noted, while the veteran is overall totally disabled, this is partly due to non-service-connected physical ailments. Total occupational and social impairment due exclusively to service-connected PTSD is not shown. Thus a rating greater than 70 percent for PTSD is not in order. ORDER A higher rating of 70 percent for PTSD is granted. ____________________________________________ L.W. TOBIN Veterans Law Judge, 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.