Citation Nr: 0900877 Decision Date: 01/08/09 Archive Date: 01/14/09 DOCKET NO. 06-39 075 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida ISSUE Entitlement to an initial disability rating in excess of 30 percent for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. Childers, Associate Counsel INTRODUCTION The veteran is a World War II combat veteran with active military service from May 1943 to March 1946. Military honors include the award of a European African Middle Eastern Service Medal with 3 Bronze Stars and a World War II Victory Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted service connection for PTSD with an evaluation of 30 percent effective July 27, 2005. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2008). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Prior to November 2007 the veteran's PTSD was productive of no more than occasional decrease in work efficiency with intermittent periods of inability to perform occupational tasks. 2. Since November 6, 2007, the veteran's PTSD has been productive of occupational and social impairment with reduced reliability and productivity. 3. Symptoms such as obsessional rituals; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting ability to function independently, appropriately and effectively; spatial disorientation; gross impairment of thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self and others; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; intermittent inability to perform acts of daily living; and disorientation and memory loss have not been shown at any time during the appeal period. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 30 percent for PTSD prior to November 6, 2007, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2007). 2. The criteria for an initial disability rating of 50 percent, but no more, for PTSD beginning November 6, 2007, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In a rating decision dated in April 2006 the veteran was granted service connection for PTSD with an evaluation of 30 percent effective July 27, 2005. The veteran has appealed for a higher disability rating. Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C.A. § 1155. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. Since the veteran takes issue with the initial rating assigned when service connection was granted, the Board must evaluate the relevant evidence since the effective date of the award; it may assign separate ratings for separate periods of time based on facts found, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). When evaluating a mental disorder, consideration shall be given to the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The evaluation will be based on all the evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of examination. It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.2. In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the veteran's claim is to be considered. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Global assessment of functioning (GAF) scores, which reflect the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health, are also useful indicators of the severity of a mental disorder. See Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV). Although the GAF score does not fit neatly into the rating criteria, the GAF score is evidence and will be considered. Carpenter v. Brown, 8 Vet. App. 240 (1995). 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 it 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; VAOPGCPREC 10-95 (Mar. 31, 1995). Global assessment of functioning (GAF) scores, which reflect the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health, are also useful indicators of the severity of a mental disorder. See Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV). GAF scores ranging between 61 to 70 reflect 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 indicate that the individual is functioning pretty well, and has some meaningful interpersonal relationships. Scores between 51 to 60 are indicative of 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). GAF scores between 41 to 50 reflect 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). Scores between 31 to 40 range indicate 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). Under the provisions of 38 C.F.R. § 4.130, a 30 percent evaluation is warranted for 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, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, DC 9411. A 50 percent rating is warranted 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; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted for occupational and social impairment with deficiencies in most areas, including work, school, family relationships, 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 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); and inability to establish and maintain effective relationships. Id. The highest rating of 100 percent evaluation is not warranted unless 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 closes relatives, own occupation, or own name. Id. Use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The evidence includes VA PTSD treatment records dating from August 2005 to March 2008. Treatment providers in August 2005 describe the veteran as alert and oriented, with recent and remote memory within normal limits. Concentration and attention were adequate. Speech was logical and goal directed, and there was no evidence of a cognitive disorder, but the veteran did admit to frequent nightmares and difficulty staying asleep; bouts of depression; and suicidal ideation. He also complained of low energy level, but providers attributed this to a physical health disorder. Diagnoses were mild chronic PTSD and depressive disorder, not otherwise specified. Treatment records dated in September 2005 described the veteran as "mild manner[ed] and gentile, very friendly." The veteran denied any delusions or hallucinations, but did admit to nightmares and panic attacks. Insight, judgment, concentration, attention, and memory were good. GAF scores in September 2005 ranged from 55 to 63. Treatment records dated in October 2005 described the veteran as "okay but with considerable instances of anxiety." The veteran denied any delusions or hallucinations, but did admit to nightmares and panic attacks. Insight, judgment, concentration, attention, and memory were good. He was not in acute distress, and was not suicidal or homicidal. GAF was 60. Diagnoses were PTSD, chronic, moderate; panic disorder; and depressive disorder. Treatment records in December 2005 document the veteran's complaints of nightmares and memories of the dead in Buchenwald concentration camp Mood was anxious and the veteran was a bit jittery. The veteran denied any delusions or hallucinations, but did admit to nightmares and panic attacks. Insight, judgment, concentration, attention, and memory were good. He was not in acute distress, and was not suicidal or homicidal. GAF scores ranged from 54 to 55. Diagnosis was PTSD, chronic, moderate. In January 2006 the veteran was accorded a compensation and pension (C&P) PTSD examination. During the examination he complained of difficulty sleeping; reported "very frequent" nightmares about dead people; and said that his wife often had to grab him during the night because he was striking out so much in his sleep. He further reported an exaggerated startle response, and said that he become very jumpy with loud unexpected noises. He reported feeling very anxious and shaky a great deal of the time, and admitted to hypervigilance. He also admitted to some suicidal ideation, but said that he thinks of his family and prays when he gets these feelings. He also reported that his wife had noted some irritability. On the other hand, he described a good social support network, and said that that he tries to stay as active as possible. He reported that he enjoys playing music; fishing; and making cast nets. Mental status examination found the veteran to be "very pleasant and cooperative,' and the veteran maintained eye contact throughout the session. He was alert and oriented times four, and there was no evidence of gross memory loss or impairment. Speech was linear and coherent, and of normal rate and volume. Thought content and process were within normal limits, and there was no evidence of delusions or hallucinations. However, the examiner noted that while the veteran smiled appropriately at times he also became tearful when he discussed his experiences. Mood was dysphoric and affect full and reactive. Although he admitted to suicidal ideation he denied any current plan or intent, and denied any homicidal ideation. No inappropriate behavior was noted. Diagnosis was "post-traumatic stress disorder, chronic." The examiner added that the veteran was "alert and oriented and does not demonstrate any significant impairment in judgment." GAF was 55. Treatment records dated in February 2006 advise that the veteran as "polite and conversational and conversation was relevant." The veteran reported continuing to suffer with intrusive recollections, and to experiencing frequent nightmares. He also described feelings of guilt. Mood was depressed, sad, and guilty, but he was not suicidal or homicidal. GAF scores ranged from 54 to 55. Treatment records dated in March 2006 describe the veteran's mood as fair with dysphoric affect He was frequently tearful and quite regretful of wartime action. Speech was logical and goal directed. Over-riding presentation was one of sadness and remorse. The veteran reported continuing to suffer with intrusive recollections, and to experiencing frequent nightmares. He also described feelings of guilt. Mood was depressed, sad, and guilty, but he was not suicidal or homicidal. GAF was 54. Diagnosis was PTSD, chronic, moderate. Treatment records dated in April 2006 advise that the veteran was alert and oriented; conversational; and conversation was relevant He continued to report intrusive recollections, and to experience frequent nightmares. Mood and affect were depressed, but he reported that he was not suicidal or homicidal. GAF scores ranged from 51 to 54. Diagnosis was PTSD, chronic, moderate. Group therapy records dating from May 2006 to August 2006 describe the veteran as alert and oriented, and was an active and cooperative participant. GAF scores ranged from 51 to 53. Individual counseling in June 2006 found the veteran to be alert and oriented; conversational; ambulatory, slightly depressed, and anxious, with no evidence of psychopathology. GAF was 58. Treatment records dated in September 2006 describe the veteran as alert, oriented, and ambulatory. He continued to report flashbacks of dead bodies. Mood was somewhat depressed and a bit anxious, but he denied any suicidal ideation. Speech was fluent, and insight and judgment were adequate. Treatment providers also noted that there were no cognitive deficits or distortions. GAF was 53. Treatment records dated in March 2007 document the veteran as reporting that he was "doing much better because he has less dreams and the nightmares are much less upsetting than they used to." The treatment provider noted that apparently talking in group therapy had helped the veteran deal with this problem. Although the veteran did report "some fleeting suicidal ideas," he said that he did not have much problem dismissing them. Mental examination found him to be alert, oriented, and ambulatory. Mood was somewhat depressed and anxious, but he denied any suicidal ideation at the time. Speech was clear and coherent, and thinking was logical. GAF was 53. Treatment records dated in November 2007 document the veteran as reporting "crazy thoughts" of suicide after an argument with his wife. Treatment provider observed that he was "extremely anxious and tense," and noted that his voice was trembling. GAF was 47. Diagnosis was "post-traumatic stress disorder (severe)." Treatment records dated in March 2008 describe the veteran as sad, but he maintained that all of those crazy thoughts of suicide were past. Mental examination found him to be alert, oriented, and ambulatory. Mood was euthymic but a bit depressed, and showed some mild psychomotor retardation. Speech was clear and coherent. No cognitive deficits or distortion were detected. GAF was 49. Analysis Evidence prior to November 2007 of at most mild to moderate impairment due to such symptoms as nightmares, chronic sleep impairment, depressed mood, suicidal ideation without intent and anxiety, and as reflected by GAF scores of 51 or higher, belies a rating in excess of 30 percent. See 38 C.F.R. § 4.130, Diagnostic Code 9413; see also DSM IV. However, the evidence in November 2007 is indicative of occupational and social impairment with reduced reliability and productivity, as reflected by the increased symptomatology, which was reflected by the assigned GAF scores of 49 and 47. Accordingly, based on the competent evidence of record, and according the veteran every reasonable doubt, the Board finds that the criteria for a rating of 50 percent are met beginning November 6, 2007; the earliest date of supportive psychiatric evidence. 38 C.F.R. §§ 3.102, 4.2, 4.130, Diagnostic Code 9411; Fenderson, 12 Vet. App. 119, 126. However, there is no report of the kinds of symptoms (such as obsessional rituals; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting ability to function independently, appropriately and effectively; spatial disorientation; gross impairment in thought processes or communication; neglect of personal appearance and hygiene; inability to perform activities of daily living; difficulty in adapting to stressful circumstances; inability to establish and maintain effective relationships; disorientation to time or place; or memory loss for names of closes relatives, own occupation, or own name) that would warrant a rating of 70 percent or more. Indeed, treatment providers in February 2008 describe the veteran as alert and oriented, with clear, coherent speech and no detectible cognitive deficits or distortions. The criteria for a rating in excess of 50 percent are thus not met. 38 C.F.R. §§ 3.102, 4.2, 4.130, Diagnostic Code 9411. The Board notes that the veteran has been diagnosed as having psychiatric conditions in addition to the service-connected PTSD. As the symptoms attributable to other psychiatric conditions have not been disassociated from his PTSD, the Board considered all psychiatric symptoms in reaching the above conclusions. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Reasonable doubt has been considered and accorded in the assignment of the increased rating of 50 percent beginning November 6, 2007. 38 C.F.R. § 3.102. The assignment of an extra-schedular rating was considered in this matter; however, the veteran's PTSD has not resulted in marked interference with his earning capacity or necessitated frequent periods of hospitalization at any time during the appeal period. In fact, the veteran is well past retirement age, and there is no suggestion that he was seeking employment during the appeal period. There is also no report of any hospitalization secondary to his PTSD disability. Referral by the RO to the Director of VA's Compensation and Pension Service, under 38 C.F.R. § 3.321, is thus not warranted. See Bagwell v. Brown, 9 Vet. App. 337 (1996). The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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. VCAA notice should be provided to the claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). Notice which informs the veteran of how VA determines disability ratings and effective dates should also be provided. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) In this case the veteran's request for an increased rating stems from the initial grant of service connection. Courts have held that once service connection is granted the claim is substantiated; additional notice is not required; and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Moreover, since the appeal concerns an initial rating, notice in accordance with Vazquez is not warranted. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Regarding the duty to assist, service treatment records have been associated with the claims file. VA treatment records have also been obtained and associated with the claims file. In addition, the veteran has been accorded a C&P examination; the report of which is of record. The Board is thus satisfied that VA has sufficiently discharged its duty in this matter. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER An initial disability rating in excess of 30 percent prior to November 6, 2007, is denied. An initial disability rating of 50 percent for PTSD beginning November 6, 2007, is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs