Citation Nr: 0913577 Decision Date: 04/10/09 Archive Date: 04/21/09 DOCKET NO. 05-32 706 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to an initial evaluation, in excess of 50 percent, for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD Carolyn Wiggins, Counsel INTRODUCTION The veteran served on active duty from November 1968 to May 1970. This appeal arises from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in No. Little Rock, Arkansas which granted service connection for PTSD and assigned a 50 percent rating, effective December 2004. The Veteran's claim was remanded by the Board of Veterans' Appeals (Board) for additional development in July 2007. The development ordered has been completed. Stegall v. West, 11 Vet. App. 268 (1998). Because by this decision the Veteran will meet the schedular criteria for a total rating based on unemployability (TDIU), and he is not employed, a claim for TDIU benefits should be inferred. That matter is referred to the RO for appropriate action. FINDING OF FACT There is a balance of evidence on whether the Veteran's service-connected PTSD produces occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW With the resolution of reasonable doubt in the Veteran's favor, the criteria for an initial rating of 70 percent for PTSD have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a complete, or substantially complete, application for benefits, VA is required to notify the claimant of any information, and any 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). The 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; (3) that the claimant is expected to provide; in accordance with 38 C.F.R. § 3.159(b)(1). See Sanders v. Nicholson, 487 F. 3d. 881 (Fed. Cir. 2007). The notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Since this was initially a claim for service connection, which was granted, and the appeal concerns the downstream disability evaluation element of the grant, 38 U.S.C.A. § 5103(a) notice is no longer required because the purpose that the notice is intended to serve has been fulfilled. The record reflects that the available evidence relevant to this appeal has been obtained, and the veteran was examined for VA purposes in connection with the appeal. Relevant Laws and Regulations Disability evaluations, in general, are intended to compensate for the average impairment of earning capacity resulting from service-connected disability. They are primarily determined by comparing objective clinical findings with the criteria set forth in the rating schedule. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The veteran's PTSD is rated under Diagnostic Code 9411. Under this code, a 50 percent rating is to be assigned for 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. 38 C.F.R. § 4.130, Diagnostic Code 6411 (2007). A 70 percent rating requires 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. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2007). A 100 percent rating requires 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. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2007). Factual Background and Analysis In April 2004, the Veteran told his primary care provider at VA he had been having nightmares about Vietnam. The Veteran was referred from VA primary care clinic for a mental health evaluation. In June 2004, he was seen and PTSD was diagnosed. A Global Assessment of Functioning (GAF) score of 60 was assigned. The Veteran reported his symptoms as including feeling depressed for days at a time. He dreamed about Vietnam and thought of it frequently. He was hypervigilant and frequently irritable. He slept poorly. He generally did not want to be around other people. November 2004 VA records reveal the Veteran was very depressed at times. He was well groomed, alert and oriented. His speech was of normal rate and volume. The examiner observed he was depressed and his affect was dysphoric. A GAF of 55 was assigned. A mental status examination was conducted in conjunction with the Veteran's claim for Social Security Disability benefits. In January 2005, the Veteran told the examiner he had worked for the National Cemetery System for seven years as a grave digger. He had received early retirement because of his physical health and his emotional lability, i.e. anger. Prior to that he had worked for VA as a Pharmacy Technician. He quit that job because he did not like people and began not to trust them. The Veteran reported a sense of depression manifested by fatigue, lack of initiative and anhedonia. He had difficulty entering and maintaining sleep wake cycle. His appetite was decreased. He had occasional thoughts of suicide, but no specific plan. He had vivid dreams and intrusive memories about what had happened when he was in Vietnam. They involved those in his unit, being killed. Watching movies involving the Vietnam War would trigger them. He had panic attacks, manifested by rapid heart beat, hypervigilance and perspiration. The examiner noted the Veteran had difficulty attending and concentrating during the examination. He had significant memory dysfunction. February 2005 VA records indicate the Veteran had quit his job. He was afraid he would hit someone. He was doing odd jobs for friends and said he was enjoying himself. He planned to seek employment again soon. He was sleeping better, but still having nightmares. He was well groomed, alert and oriented. His speech was normal. A GAF of 55 was assigned. In June 2005, the Veteran told the VA examiner he had retired from National Cemetery in January, but was staying busy on his farm. He had come to treatment because of his nightmares. A GAF score of 71 was assigned. Social Security records include a Mental Residual Functioning Capacity Assessment. The examiner stated that the Veteran was able to perform work where interpersonal contact was incidental to work performed, e.g. assembly work, complexity of task was learned and performed by rote, with few variables, little judgment, and supervision required was simple direct and concrete. His functional limitations based on his psychiatric symptoms were mild to moderate. March 2006 VA records noted a little depression and the Veteran had problems with sleep. His anxiety was higher at times, but he attributed that to his back pain. A GAF of 50- 55 was assigned. June 2006 VA treatment records note the Veteran was taking Trazodone and Citalopram. He had run out of his medications and been more irritable without it. He recently had a significant flashback of a combat situation while burning brush. A GAF of 50 to 55 was assigned. In August 2006, the Veteran reported smelling flesh burning, when he started burning bushes, which reminded him of Vietnam. He had nightmares. September 2006 VA records indicate the Veteran's sleep had improved with increased medication. He had no further flashbacks. An October 2006 Neuropsychological Evaluation indicated the Veteran appeared acutely anxious, tense and depressed, with mental confusion, sleep disturbance and problematic anger. He had short term memory loss. The Veteran reported increased symptoms of depression, particularly irritability in December 2006. His sleep had not significantly improved with the increase in Trazodone. He still often woke up during the night. He still had nightmares and intrusive memories, but no flashbacks of the severity he had mentioned during his previous visit. His relationship with his wife had improved. In March 2007, the Veteran reported little change in his depression. He often went out in the woods with his horses or donkeys when he was depressed. He slept longer with the recent increase in Trazodone. His affect was brighter. A GAF of 50-55 was assigned. VA records in June 2007 indicate the Veteran dreamed often but was not having frightening nightmares. His spouse reported he often wanted solitude or private time, but would talk to his old Marine buddies on the telephone at length. The Veteran said that was one of the few times he felt he could express how he felt. His affect was dysphoric, but appropriate. He appeared fatigued. A GAF of 50-55 was assigned. A VA psychiatric examination was conducted in October 2008. The Veteran said he did not feel he could work due to poor concentration and irritability. The Veteran lived with his wife. He was comfortable with other veterans and went to DAV and VFW events. At home he did yard work and worked around the house. He also took care of their horses. He liked being busy. He was appropriately groomed and his hygiene was good. His speech was good and he was able to express himself. His affect was euphoric, although he reported persistent depression and anxiety, it was not indicated as near continuous affecting his ability to function independently, appropriately and effectively. He was oriented and his thinking was logical. He was preoccupied by events in Vietnam. His relationships with others were fair. But he tended to limit himself to associating with Veterans. His judgment was diminished by anger, leading to outbursts and some destructiveness. His PTSD symptoms included intrusive memories, nightmares and distress when exposed to stimuli that reminded him of Vietnam. He was detached from others, had trouble sleeping, and had angry outbursts. He had daily problems that were chronic. In the examiner's opinion if the Veteran were working his ability to work would be impaired by his PTSD because of its effect on his concentration, social comfort, cooperation, frustration tolerance, flexibility, and conflict resolution skills. A GAF score of 48 was assigned due to his social activities which he limited to veterans, conflicts with others, and low tolerance for normal social situations. In assessing whether the Veteran's symptoms of PTSD meet the criteria for a higher rating, the Board compared the symptoms listed as demonstrating impairment consistent with a 70 percent rating. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2008). The Veteran has admitted to thinking of suicide, but having no specific plan. There is no evidence of any obsessional rituals. His speech is not illogical, but has been reported has normal. The Veteran has consistently complained of depression and has described panic attacks with increased heart beat, but not near continuous and affecting his ability to function independently, appropriately and effectively. He retired from his last job because he was irritable and feared losing his temper and hitting someone, and has reported difficulty dealing with anger and irritability, but there are no actual records of any violence or legal difficulties based on inability to control himself. VA treatment providers all noted the Veteran was oriented in all spheres. The Veteran's spouse has reported the Veteran had been negligent as to his grooming and hygiene, but VA treatment records all note the Veteran was well groomed and his hygiene was good. Spatial disorientation is likewise not shown. The Veteran had difficulty dealing with the frustrations and adapting to working at VA, but he has been able to sustain his marriage of more than thirty years and socializes with other veterans. As such an inability to establish and maintain effective relationships is not shown. Thus, the Veteran demonstrates almost none of the examples in the rating schedule given to show the criteria for a 70 percent rating. Nevertheless, the presence of all, most, or even some, of the enumerated symptoms in the rating schedule for a given evaluation is not required to award a particular percentage rating. If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by symptoms listed in the diagnostic code, the appropriate, equivalent rating will assigned. In this case, the record shows that after encountering the Veteran, those providing his medical care or evaluating him have assigned GAF scores from 71 to 48. A GAF is a global assessment of functioning scale reflecting psychological, social and occupational functioning on a hypothetical continuum of mental health-illness. A 55 to 60 indicates moderate difficulty in social and occupational functioning. A GAF of 41 to 50 is defined as serious symptoms, such as suicidal ideation, severe obsessional rituals, frequent shoplifting or any serious impairment in social, occupational or school functioning, such as having no friends or an inability to keep a job. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); Richard v. Brown, 9 Vet. App. 266 (1996) (citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (4th ed.), p. 32. Most of the GAF scores assigned have been in the 50 to 55 range, although the lowest, 48, was assigned most recently. This range is indicative of symptoms considered productive of moderate to serious impairment, which appears most consistent with impairment described by 50 and 70 percent evaluations in VA's rating schedule. When there is a question as to which of two evaluations should be applied, the regulations provide that the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7 (2008). Here, resolving any doubt in the Veteran's favor, the Board concludes the Veteran's symptoms are productive of occupational and social impairment with deficiencies in most areas. Therefore, the criteria for a 70 percent evaluation are met. In Fenderson v. West, 12 Vet. App. 119 (1999), it was held that 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. In this case, there is not basis for assigned staged ratings. ORDER An initial rating for 70 percent for PTSD is granted, subject to regulations governing the award of monetary benefits. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs