Citation Nr: 0733104 Decision Date: 10/22/07 Archive Date: 11/02/07 DOCKET NO. 05-18 330 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to a disability rating in excess of 50 percent for service-connected post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant, Spouse ATTORNEY FOR THE BOARD J. Meawad, Associate Counsel INTRODUCTION The veteran served on active duty from February 1963 to February 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, that denied the above claim. In August 2007, the veteran was afforded a personal hearing before the undersigned. A transcript of the hearing is of record. FINDING OF FACT The veteran's PTSD is not manifested by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. CONCLUSION OF LAW The schedular criteria for an assignment of a disability evaluation in excess of 50 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Codes 9411, 9440 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to notify and assist VA has a duty to notify claimants for VA benefits of information necessary to submit to complete and support a claim and to assist claimants in the development of evidence. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). In this case, VA's duties have been fulfilled to the extent possible. Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim, (2) that VA will seek to provide, and (3) that the claimant is expected to provide. In what can be considered a fourth element of the requisite notice, VA must "also request that the claimant provide any evidence in the claimant's possession that pertains to the claim." 38 C.F.R. § 3.159(b)(1) (2007); see 38 U.S.C.A. § 5103A(g) (West 2002). VA satisfied its duty to notify by means of a letter from the RO to the veteran in July 2004. The veteran was told of the requirements to successfully establish an increased rating, advised of his and VA's respective duties, and asked to submit information and/or evidence pertaining to the claim to the RO. The timing and content of this letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2007). The record shows that the veteran was receiving Social Security benefits; however, during the August 2007 personal hearing, he stated that he was awarded Social Security benefits based on his age. All identified, pertinent evidence, including the veteran's service medical records and post-service treatment records, has been obtained and associated with the claims file. There is no indication of any relevant records that the RO failed to obtain. Assistance shall also include providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2007). The veteran underwent a VA examination in September 2004. The duty to notify and assist having been met by the RO to the extent possible, the Board turns to the analysis of the veteran's claim on the merits. II. Increased rating Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to evaluate the disability from the point of view of the veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any doubt regarding the extent of the disability in the veteran's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. §§ 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The veteran's service-connected PTSD is currently rated as 50 percent disabling pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411 (2007). Anxiety disorders, which include PTSD, are rated under the criteria set forth in Diagnostic Code 9440. Under this criteria, a 100 percent rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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. A 70 percent rating is warranted when 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; 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 50 percent evaluation is warranted when occupational and social impairment is found 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. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. The symptoms recited in the criteria in the rating schedule for evaluating mental disorders are "not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. A Global Assessment of Functioning (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). A GAF of 41 to 50 is defined as serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF of 51 to 60 is defined as 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). A GAF of 61 to 70 is defined as 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, has some meaningful interpersonal relationships. It should also be noted that use of terminology such as "moderate" by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. In August 2003, the veteran was awarded service connection for PTSD, effective from January 30, 2003. He was assigned a 50 percent disability rating. In June 2004, he requested an increased rating, stating that his condition had worsened. The record shows that in 1995, the veteran underwent a middle cerebral aneurysm (MCA) clipping at an outside hospital. VA treatment records show that on September 16, 2003 the veteran was pleasant and joking. The examiner had to re- direct him frequently, and he looked to his spouse to answer many questions. The examiner noted that the veteran's cognitive deficit was presumably due to his cerebral aneurysm in 1995. On September 23, 2003, the veteran complained of anxiety under minor stress. He preferred to stay at home and in his basement. He liked quiet and to be alone. He stated that he used to be very prone to anger outburst, but had mellowed. He admitted to being able to still become very angry and tempted to strike out. He reported that his symptoms had lessened since he found religion and that he was very involved in his church. The veteran admitted to being verbally abusive to his wife in the past. He slept alone in his basement and had restless sleep. He denied suicidal or homicidal ideation, but admitted to symptoms of depression, crying for no reason, feeling sorrowful and sad, and tending to hibernate. He described his depression as a 6 on a scale of 1 to 10. The veteran further reported that he had few friends. On mental status examination, the veteran was alert and oriented times three, cooperative, and reasonable. His grooming was appropriate and his speech normal. Language was intact and his mood was euthymic. Affect was congruent with mood. Thought processes were normal and coherent. There was no unusual thought content or suicidal or violent ideation. Insight and judgment were good. The examiner diagnosed chronic PTSD and dysthymia and assigned a GAF score of 55. VA treatment records dated in November 2003 show that the veteran complained that he continued to have dreams and felt more angry. He found himself withdrawing and fearful. He was not homicidal or suicidal. The diagnosis was PTSD. The examiner assigned a Global Assessment Functioning (GAF) score of 55. The veteran's strengths were listed as intelligence and motivations, and his limitations as social isolation and mental impairment. The veteran underwent another MCA clipping in December 2003 at the University of Colorado Hospital for an incidental unruptured aneurysm of the left MCA. He was admitted to a VA rehabilitation unit in December 2003. In May 2004, the veteran underwent a traumatic brain injury evaluation following discharge from the VA rehabilitation unit in January 2004. At that time, he complained of having significant symptoms related to depression, anxiety, and PTSD, which included feeling hopeless, anxious, worthless and increased suspiciousness of others. He denied having suicidal intent or nightmares. He was involved with church and stated that his relationship with God was a comfort to him. Behavioral observations revealed that the veteran was adequately groomed and he was punctual to the examination. His speech was quite tangential, significant disinhibition was noted and he made several inappropriate sexual comments/jokes during the evaluation and was highly distractible. Results from testing showed severe executive dysfunction. Memory, both immediate and delayed, was found to be impaired. Scores (on psychological testing) showed that recognition was better than recall, suggesting that the veteran's difficulty with memory was evidence of frontal lobe impairment. Attention was found to be in the borderline impairment range. The veteran was also found to suffer from symptoms related to depression and PTSD. It was noted that his acquired cognitive deficits interfered with coping strategies used to mediate psychiatric symptoms and it may be difficult to differentiate between symptoms related to poor initiation versus those related to depression. In September 2004, the veteran was afforded a VA examination. The claims file was reviewed. The veteran had been unemployed for the previous 10 years at that time. He was able to go shopping on his own, but would get lost in an unfamiliar setting. He was able to perform the activities of daily living without difficulty and did not need psychiatric treatment. He was alone during the day and would read the bible and watch a movie in the basement until his wife came home. He would also play with his grandchildren and talk to his wife and daughter. He was able to sleep well with medication. He did have crying spells and some suicidal thoughts after leaving the hospital, but did not have any at the time of the examination. He was occasionally irritable, but did not suffer from rages. He worried that his family would get rid of him and that he was a burden to them. He was active in his church and was an honorary member of the choir. He did not belong to any clubs or organizations, but he liked to talk to friends on the phone and visit with them. He stated that he was more afraid than he used to be and felt more vulnerable, but this did not seem to be connected to any memory of inservice stressors. At times he did not dress himself appropriately and his grandchildren helped him change. He had left sided ignoral. A mini-mental status examination showed that the veteran spoke in a goal directed manner, but could get off topic without too much difficulty. Some of his speech was slurred and difficult to understand, but was normal in rate and volume. He affects were fully ranged and appropriate to content. Cause and affect thinking was maintained and the veteran used language abstractly, but had difficulty with word retrieval. He had no suicidal or homicidal ideations. Formal testing revealed that the veteran could estimate the passage of time during the interview and was oriented to time, place, and person. Recent and remote memory were grossly intact and judgment seemed adequate to the situation. The examiner stated that the veteran's PTSD symptoms were not much in evidence at that time, although they could be expected to get worse as a result of his effectual dysregulation caused by his frontal lobed damage. He was diagnosed as having PTSD; depression, secondary to PTSD; and dementia, secondary to MCA bleed. He was assigned a GAF score of 62 for his PTSD, 56 for his depression, and 40 for his dementia. The examiner opined that the veteran's PTSD symptoms mostly had to do with his social isolation and irritability. His difficulty with employment was caused by his dementia and he was employable based on his PTSD symptoms, which were not too different from when he was evaluated in July 2003. In February 2005, the veteran complained of memory problems and barely controlled rage. The diagnosis was PTSD, with a GAF scale score of 45. In April 2005, he was treated for complaints of memory loss and disorganization. He stated that the second surgery for removal of a cerebral aneurysm was followed by an onset of multiple impairments, including short term memory loss, disorganization, confusion, depression and sexual dysfunction. Mental status examination revealed that the veteran was oriented to time, place and person. He had difficulty with serial calculations and word recall. He had marked difficulty reproducing interlocking pentagons, producing a clock face with hands at ten after eleven, and drawing 3 dimensional objects. The veteran was diagnosed as having visuospatial impairment and short term memory impairment following surgery to clip MCA aneurysm in 2003 resulting in marked disorganization and confusion. In August 2005, the veteran was again treated for memory impairment and confusion. His symptoms were the same with improved mini-mental state examination. The examiner stated that the veteran did not have signs of dementia and his memory impairment and confusion seemed to be due to his depression. A treatment record from January 2006 again showed that the veteran denied suicidal or homicidal ideation. The examiner diagnosed PTSD, depression, and cognitive disorder with a GAF of 55. This was assigned by the same examiner (W.C.Y.) that assigned the GAF score of 45 in February 2005. In February 2006, the veteran was alert and in good spirits, with normal speech. In September 2006, he said that he had been depressed at times and had a lot of anxiety in wanting to teach bible studies. The same VA examiner assigned a GAF score of 50 in September and October 2006. In light of the foregoing, the Board finds that the preponderance of the evidence is against entitlement to a rating in excess of 50 percent for PTSD. The veteran has suffered from two aneurysms, for which he is not service connected. The September 2004 VA examination assessed his disabilities separately. The veteran's GAF scores have varied over time. In September 2004, he was assigned a GAF score of 62 for PTSD, which indicates mild symptoms. In January 2006, he was assigned an overall GAF score of 55, which shows moderate symptoms. In February 2005 and in September and October 2006, he was assigned GAF scores of 45 and 50, for serious symptoms. There is conflicting evidence as to whether the veteran's memory impairment and confusion are related his PTSD, as opposed to his aneurysms. For the purpose of this decision, the Board will assume that they are related to PTSD. The veteran's PTSD is clearly manifested by depression and anxiety; however, these have not been shown to be near continuous such that they affect his ability to function independently. For example, in September 2004 it was noted that he was able to perform the activities of daily living without difficulty, was alone during the day and would read the bible and watch a movie in the basement until his wife came home, and would play with his grandchildren and talk to his wife and daughter. He was also active in his church and was an honorary member of the choir. The veteran's speech has most recently been described as normal, and he has consistently denied suicidal ideation and has been described as adequately groomed. There is no indication of any obsessional rituals. In September 2004, he reported that he was occasionally irritable, but did not suffer from rages. He complained of barely controlled rage in February 2005, but there was no mention of impaired impulse control or unprovoked irritability with periods of violence. Although rage was described as "barely" controlled, it was, nonetheless, controlled. In September 2004, the veteran affects were fully ranged and appropriate to content; cause and affect thinking was maintained; he was oriented to time, place, and person; and judgment seemed adequate to the situation. He reportedly had some marital problems in the past; however, he was able to establish and maintain good relationships with his family, church members, and friends. He did exhibit the desire to be isolated at times, but the record shows that this did not affect his relationships. Accordingly, he is able to establish and maintain effective relationships. The examiner stated that the veteran's PTSD symptoms mostly had to do with his social isolation and irritability. In addition, his difficulty with employment was found to be caused by his dementia, which was secondary to his MCA bleed, and he was employable based on his PTSD symptoms. While the Board is aware that the symptoms listed in the rating criteria need not all be present in order to justify a given rating, in this case, the preponderance of the evidence shows an absence of nearly all of the symptoms found in the criteria for a 70 percent rating. Again, all evidence of record indicates that the veteran does not have suicidal ideation, his speech is normal rather than illogical obscure or irrelevant, he does not have near-continuous panic or depression such that it affects his ability to function independently, his appearance and hygiene has been good, and he was never found to suffer from obsessional rituals. There is also an absence of any other symptoms, similar in type, degree, or effects. The veteran has been shown to have normal affect, orientation, and judgment. For the reasons stated above, the veteran's claim for an increased rating for his PTSD must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule as required by law and VA regulation. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102 (2007). ORDER Entitlement to a disability rating in excess of 50 percent for service-connected PTSD is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs