Citation Nr: 0825432 Decision Date: 07/30/08 Archive Date: 08/06/08 DOCKET NO. 06-27 443 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE What evaluation is warranted for post traumatic stress disorder from March 31, 2005? ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The veteran had active service from December 1973 to April 1974, and September 1990 to August 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decisions of the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA) which granted service connection for post traumatic stress disorder (PTSD) and assigned a 30 percent evaluation effective from March 31, 2005. Subsequently, by rating action in July 2006 the evaluation assigned for post traumatic stress disorder was increased to 50 percent, effective from March 31, 2005. The United States Court of Appeals for Veterans Claims has indicated that a distinction must be made between a veteran's dissatisfaction with the initial rating assigned following a grant of service connection (so-called "original ratings") and dissatisfaction with determinations on later-filed claims for increased ratings. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Inasmuch as the issue of what evaluation is warranted for post traumatic stress disorder was essentially placed in appellate status by a notice of disagreement expressing dissatisfaction with an original rating, the Fenderson doctrine applies. The record raises the issue of entitlement to an increased rating for a left knee disorder. This issue, however, is not currently developed or certified for appellate review. Accordingly, this matter is referred to the RO for appropriate consideration. FINDING OF FACT Since March 31, 2005 the veteran's post traumatic stress disorder has been manifested by occupational and social impairment with deficiencies in most areas, but not by total occupational and social impairment. CONCLUSION OF LAW Since March 31, 2005, the veteran has met the criteria for a 70 percent rating for post traumatic stress disorder, but not higher. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107(West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Board begins by noting that as service connection, an initial rating, and an effective date have been assigned the notice requirements of 38 U.S.C.A. § 5103(a), have been met. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The decision of the United States Court of Appeals for Veterans Claims in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), spoke only to cases of entitlement to an increased rating. Because there is a distinction between initial rating claims and increased rating claims, Vazquez- Flores is not for application with respect to initial rating claims as notice requirements are met when the underlying claim for service connection is substantiated. Consequently, there is no need to discuss whether VA met the Vazquez-Flores standard. The Board further finds that VA has fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. The claimant was provided the opportunity to present pertinent evidence. In sum, there is no evidence of any VA error in assisting the appellant that reasonably affects the fairness of this adjudication. Criteria Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes (Codes). 38 C.F.R. § 4.27. In cases where the original rating assigned is appealed, consideration must be given to whether the veteran deserves a higher rating at any point during the pendency of the claim. Fenderson. Regulations require that where there is a question as to which of two evaluations is to 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. It is the Board's responsibility to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same. Evans v. West, 12 Vet. App. 22, 30 (1998). In so doing, the Board may accept one medical opinion and reject others. Id. At the same time, the Board cannot make its own independent medical determinations, and it must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Colvin v. Derwinski, 1 Vet. App. 171 (1991). Thus, the Board must determine the weight to be accorded the various items of evidence in this case based on the quality of the evidence and not necessarily on its quantity or source. Under 38 C.F.R. § 4.130, Diagnostic Code 9411, a 50 percent rating is warranted for post traumatic stress disorder 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; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted 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; obsessed 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. Id. A 100 percent rating is warranted 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; memory loss for names of close relatives, own occupation or own name. Id. The American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, 46 (4th ed. 1994) (DSM-IV), states that a global assessment of functioning score of between 21 to 30 are 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 global assessment of functioning score of between 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 global assessment of functioning score of between 41 and 50 reflects the presence of "serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friend, unable to keep a job)" and/or "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; . . .)." A global assessment of functioning score of between 51 and 60 indicates that the veteran has "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 global assessment of functioning score 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." Background In April 2005 the Vet Center referred the veteran to Muthiah K. Sabanayagam, M.D., for a post traumatic stress disorder evaluation. It was noted that the veteran had been going to the Vet Center more frequently with various complaints. He reported nightmares of mortars and grenades destroying buildings and barracks. The veteran reported no prior psychiatric history, and no family history of mental disorders. He was employed full time, married and had three adult children. He reported that he did not abuse any substances. The veteran stated that he had been stationed in Saudi Arabia in 1990. One night he was ordered to set up light sets for a barracks that had been hit. He stated that the whole barracks had been attacked and 27 soldiers died. There were bodies everywhere in bits and pieces. He was shivering and trembling while setting up the lights. He came back in tears and had not been able to forget the incident. He reported suicidal thoughts for many years but never attempted to harm himself. He had no homicidal ideations. On mental status examination, the veteran presented as clean with no abnormal involuntary movements. He was cooperative and tried to provide information but had great difficulty explaining his symptoms. He reportedly was irritable and did not want to be around other people. Speech was fairly good. Thought process was somewhat slow and appeared concrete. He understood the need for help but was not able to explain his symptoms. The examiner noted that he was in severe distress from sleep disturbance, dreams, nightmares, irritability, some emotional numbing, and social isolation. There was no evidence of suicidal or homicidal ideation. The diagnosis was severe post traumatic stress disorder. A global assessment of functioning score of 28 was assigned. The veteran was advised to go to the VA hospital for further evaluation of his post traumatic stress disorder. An August 2005 VA fee based examination notes the veteran served in a supply unit during the Gulf War and helped out after a Scud missile killed at least 28 soldiers. He placed soldiers in body bags, and reported recurrent memories concerning that event. . He also saw bodies alongside the roads and constant oil well fires. He felt in grave danger during the entire time he served in the Persian Gulf. The veteran denied a history of alcohol or drug abuse, and he was not suicidal or homicidal. The veteran did report difficulty sleeping, war related dreams, irritability, daily intrusive memories, and difficulty controlling his anger. The examiner opined that the veteran met the criteria for PTSD based on his reported stressors. The diagnosis was post traumatic stress disorder and a global assessment of functioning score of 35 was assigned. In a November 2005 letter from Dr. Sabanayagam, he noted that the veteran was still under his care for severe chronic PTSD. He was medicated with Geodon and Seroquel. The examiner noted the veteran had significant problems at work which needed to be considered in his service connection claim. An August 2006 psychiatric evaluation from Dr. Sabanayagam, noted that since his initial evaluation of the veteran in April 2005, he had seen him seven additional times. The veteran was having increased problems at work. He has had several supervisory conferences and did not get long well with coworkers. He was sullen and presented with a flattened affect. His voice was more monotonous, and he did not make progressive productive conversation. He was impatient, and experiencing increased symptoms of anxiety bordering on panic at times. His sleep problems continued as did his nightmares. His memory was gradually deteriorating. His judgment was impaired and his memory was fading. The diagnoses were severe post traumatic stress disorder; and severe mixed bipolar disorder with psychotic features. A GAF of 28 was assigned. His prognosis was noted to be extremely poor. He showed very minimal improvement with treatment. In contrast, an August 2006 VA Medical Center clinical evaluation noted that the veteran was being seen by Dr. Sabanayagam and wished to receive medication through VA. He reported that he currently was a non drinker and non smoker. He indicated that 20 years ago he had an 8 year history of alcohol abuse and drank a 5th of alcohol a day. He also abused marihuana. The veteran had been married for 35 years, was currently employed, and owned his own home. He endorsed cognitive function deficits of poor concentration and forgetfulness. He also described frequent nervousness and anxiety. Mental status examination revealed that the veteran was neat, appropriately dressed, and had good hygiene. No abnormal psychomotor movements were noted. His speech was normal, but his mood was anxious and irritable. His affect was congruent to mood. He denied suicidal or homicidal ideations or intentions, as well as visual and auditory hallucinations. He was alert and oriented. Insight and judgment were good. The diagnosis was chronic post traumatic stress disorder. A global assessment of functioning score of 55 was assigned. A September 2006 VA Medical Center clinical evaluation was similar and a global assessment of functioning score of 55 was again assigned. A December 2006 VA Medical Center clinical evaluation noted that the veteran was neatly and appropriately dressed with adequate hygiene. Eye contact was good. He still had nightmares and flashbacks of the Gulf War. He reported being hypervigilant, but he was not depressed. He denied suicidal or homicidal ideations or intentions, and visual and auditory hallucinations. His insight and judgment were fair. The diagnosis was chronic post traumatic stress disorder. A global assessment of functioning score of 60 was assigned. A November 2007 VA fee based examination report noted complaints of difficulty sleeping, a positive startle reaction, hypervigilence, and being very suspicious. He reportedly was very short tempered, and he isolated himself at work. He described feeling anxious on a daily basis, and having occasional panic attacks. Mental status examination revealed that he was alert and oriented, and that his appearance and hygiene were good. His behavior was appropriate. Affect and mood were anxious. Speech was normal. He denied suicidal or homicidal ideations or intentions. He denied visual and auditory hallucinations or obsessive rituals. His memory and judgment were intact. The diagnosis was chronic post traumatic stress disorder. A global assessment of functioning score of 35 was assigned. Analysis The Board has reviewed all the evidence in the veteran's claims file, to include his written contentions, medical records, and VA examination reports. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claim file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Based on the foregoing, the Board finds that after resolving reasonable doubt in the veteran's favor that the evidence warrants the assignment of a 70 percent rating since March 31, 2005, but the evidence also preponderates against the assignment of a total rating at any time during the appellate term. In this respect, the Board notes that while many of the specific symptoms listed in the criteria for a 70 percent rating have not been identified in this case, the United States Court of Appeals for Veterans Claims has held that the specified factors listed for each incremental rating are examples, rather than requirements for the rating, and that all symptoms of a claimant's condition that affect the level of occupational and social impairment must be considered. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Here, the veteran regularly presented with low global assessment of functioning scores. Further, he consistently reports problems with sleeping, hypervigilence, occasional panic attacks, and difficulty in conversation. At times the veteran has reported suicidal ideation. Finally, post traumatic stress disorder has been found to be responsible for cognitive deficits, nervousness, anxiety, and poor concentration. Hence, while global assessment of functioning scores of 55 and 60 were at times reported during the appellate term, on balance, the evidence is in equipoise as to the assignment of a 70 percent rating since March 31, 2005. The evidence, however, preponderates against finding that the veteran's post traumatic stress disorder warranted a 100 percent rating at any time during the appellate term. In this respect the veteran worked throughout the term, and there are no signs that his post traumatic stress disorder was at any time manifested by a gross impairment in thought processes or communication. Likewise there are no signs of persistent delusions or hallucinations, grossly inappropriate behavior, he is not disoriented, and he is not in persistent danger of hurting self or others. Hence, a 100 percent rating for post traumatic stress disorder is not in order for any period of the appellate term. In reaching this decision the Board considered the doctrine of reasonable doubt, however, except to the extent indicated the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER A 70 percent evaluation for post traumatic stress disorder since March 31, 2005 is granted subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs