Citation Nr: 0918536 Decision Date: 05/18/09 Archive Date: 05/26/09 DOCKET NO. 07-07 138 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to an increased rating in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Vavrina, Counsel INTRODUCTION The Veteran served on active duty from April 1967 to April 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision in which the RO denied the Veteran's claim for an increased rating in excess of 30 percent for PTSD. The Veteran's claim for increased rating for PTSD was received in June 9, 2004. In February 2009, the Veteran testified at a videoconference hearing at the RO before the undersigned Acting Veterans Law Judge in Washington, DC; a copy of the transcript is associated with the record. At that hearing, the Veteran submitted additional VA medical records, along with a waiver of RO consideration. The Board accepts this evidence for inclusion in the record. See 38 C.F.R. § 20.1304 (2008). FINDINGS OF FACT 1. The Veteran's claim for increased rating for PTSD was received in June 9, 2004. 2. During the increased rating period from June 1, 2004, the competent evidence of record shows the Veteran's PTSD was manifested by social isolation and avoidance; intrusive memories, flashbacks and nightmares; hypervigilance; hyperstartle response; irritability; anxiety and depression; sleep difficulties; mild memory loss; some impaired concentration, and some difficulty in maintaining social relationships. 3. At no time during the increased rating period has PTSD evidenced delusions, hallucinations, suicidal or homicidal ideations, near-continuous panic or depression affecting the ability to function independently, spatial disorientation, neglect of personal appearance and hygiene, disorientation to time or place, or impairment in thought processes or communication, resulting in social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for a 50 percent rating for PTSD, for the period from June 1, 2004, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.130, Diagnostic Code 9411 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2008). During his personal hearing testimony, the Veteran indicated that the assignment of a 50 percent rating for PTSD would constitute a full grant of his increased rating claim on appeal. Given the Board's favorable disposition of the claim in granting a 50 percent rating for PTSD for the entire period of claim, the Board finds that all notification and development actions needed to fairly adjudicate this claim have been accomplished. II. Background By a September 1998 rating decision, service connection for PTSD was granted, and an initial 10 percent rating was assigned, effective February 6, 1998, based on private medical records showing treatment with Prozac for depressive symptoms, and a March 1998 VA PTSD examination, reflecting sleep problems, irritability, hyperstartle response to loud noise, detachment and estrangement from others, reticent to speak and unease when describing war experiences, depressed mood, restricted affect, and only fair attention and concentration. In an April 2002 rating decision, a 30 percent rating was assigned for PTSD under Diagnostic Code 9411, effective from February 12, 2001. This increased rating was based on continuing private treatment with Prozac for depressive symptoms and VA medical records, showing both group and individual therapy for PTSD for such symptoms as sleep problems, flashbacks, irritability, constricted affect, anxious mood, stressed marital relations, hyperstartle response, and tendency to isolate due to trust and safety issues, with Global Assessment of Functioning (GAF) scores ranging from 59 to 62. Trazodone was prescribed in addition to Prozac. A February 2002 VA PTSD examination report reflected that the Veteran continued to have nightmares and flashbacks of Vietnam, which worsened when he started going to his PTSD group. Otherwise, he tended to avoid thoughts and feelings related to Vietnam. He reported a foreshortened future and occasional problems concentrating. He had an exaggerated startle response to loud noises and helicopters; he was hyperviligant at times. The examiner assigned a GAF score of 60. Lay statements from the Veteran and his immediate family members portrayed the Veteran as moody and irritable with unpredictable bursts of anger and aggression and difficulty relating to his family. The Veteran's claim for increased rating for PTSD was received in June 9, 2004. In a June 2004 statement, T. B. T., PhD, a private psychologist, indicated that he had met with the Veteran on three different occasions in April and May of 2004 for the purpose of evaluating his emotional state. The Veteran reported experiencing nightmares, cold sweats, fear of loud noises, and social isolation, and having a low tolerance for frustration that often resulted in a destructive rage. He was chronically, clinically depressed, at times to the point of experiencing suicidal ideations that at one point resulted in a near attempt. His appetite was chronically disturbed. The Veteran described feelings of alienation and anxiety. His short-term memory was also impaired. He found it difficult to be around others in any type of social setting and, when under stress, he might exhibit grossly inappropriate behavior, including poor judgment, for example rage and, at times, violent behavior. The Veteran also experienced a significant amount of survivor's guilt about the loss of many comrades while serving in Vietnam. He was taking Prozac and Trazodone. This psychologist indicated that the Veteran was essentially unemployable due to his physical (blindness) and emotional difficulties. The diagnostic impression was PTSD with severe depressive disorder. He was assigned a current GAF of 35. VA medical records show that, during an initial psychiatric assessment at the Fayetteville VA Medical Center in June 2004, the Veteran stated that he was doing fairly well on medications-Prozac and Trazodone-they helped him to be less snappy and sleep better. He reported that he still had avoidance, infrequent flashbacks and nightmares, felt amotivated and less ambitious, and felt intermittently depressed. The Veteran remained guarded and sat with his face facing away from the wall. He mistrusted others and only confided with a few friends who had been in Vietnam. The Veteran had survivor's guilt and felt uncomfortable in crowds and with noises. He denied periods of persistent super happiness or irritability, delusions, hallucinations, or unpredictable anxiety attacks. On examination, he was alert and oriented. The veteran was cooperative with guardedness and had no involuntary movements. His speech was clear and coherent. His affect was congruent and restricted; his mood was euthymic to mildly dysphoric. Concentration/abstract thinking, insight, recall and memory were fair. Judgment was not impaired. He was assigned a GAF score of 57. When seen in August 2004, the Veteran reported that he was not doing that well, had occasional nightmares and flashbacks, and felt depressed. The Veteran reported decreased motivation; energy was fair. He stayed mostly at home. On examination, he was alert and oriented to place, person and time. His mood was depressed; his affect constricted. He denied hallucinations, paranoid, suicidal or homicidal ideations. No thought disorder was noted. The Veteran exhibited good impulse control and judgment and had insight. Wellbutrin was added. In April 2005, the Veteran was reportedly doing well as his mood had improved significantly with the addition of Wellbutrin. He stated that he was feeling better and that his energy had improved significantly. The Veteran still reported occasional nightmares and flashbacks. On examination, he was alert and oriented to place, person and time. His mood and affect were euthymic. He denied hallucinations, paranoid, suicidal or homicidal ideations. No thought disorder was noted. The Veteran exhibited good impulse control and judgment and had insight. He was assigned a GAF score of 65. When seen in August 2005, the Veteran was reportedly doing well. He did not lose his temper anymore and slept and ate well. The Veteran denied feeling depressed, suicidal or homicidal. He still reported occasional nightmares. On examination, the Veteran was alert, oriented, verbal and coherent. He was friendly and cooperative. He was not anxious and did not look depressed. During a December 2005 VA PTSD examination, the Veteran reported that he did not have activities and had only one friend, a person that he served with in Vietnam. He was taking Prozac, Wellbutrin, and Trazodone, indicating an increase and added medications since his last VA examination. The Veteran believed that his PTSD had worsened since his previous evaluation, noting that he was having more intense nightmares and flashbacks with constant triggering due to gunfire and helicopters flying over because of his proximity to Ft. Bragg. He was able to sleep about seven hours a night. The Veteran had daily problems with rage but had been able to control it since taking Wellbutrin. Prior to that, he was losing his temper regularly causing problems with his wife and family. The Veteran reported that October to January every year was a very bad time for him because of anniversary dates. He felt depressed a good bit of the time and felt like he was more withdrawn. The Veteran was having panic attacks about once a month. He denied psychotic symptoms and suicidal or homicidal ideation or intent since being on Wellbutrin, which was added during the previous year. On examination, the Veteran was alert and well oriented. He was casually dressed with good grooming and personal hygiene. The Veteran was alert and cooperative. His eye contact and motor activity were normal. His behavior was appropriate with no disruption in speech, thought or communication processes noted. His mood was dysphoric with full affect. The diagnoses were PTSD and depressive disorder NOS (not otherwise specified) secondary to PTSD. He was assigned a GAF score of 59. At a February 2006 VA follow-up, the Veteran reportedly was doing fairly well; however, he stated that he had stopped taking Wellbutrin two weeks earlier because he had kidney stones. He still had nightmares and flashbacks. On examination, the Veteran was alert and oriented to place, person and time. His mood was withdrawn; his affect was constricted. He denied hallucinations, paranoid, suicidal or homicidal ideations. No thought disorder was noted. The Veteran exhibited good impulse control and judgment and had insight. The psychiatrist noted that the Veteran was in need of continued mental health services to maintain stabilization and prevent any further deterioration and/or relapses. He was assigned a GAF score of 45. In June 2006, the Veteran was reportedly doing fairly well. He was still depressed; sleep was okay. He still was having nightmares and flashbacks and wanted to go back on Wellbutrin since it helped his depression. On examination, the Veteran was alert and oriented to place, person and time. His mood was withdrawn; his affect was constricted. He denied hallucinations, paranoid, suicidal or homicidal ideations. No thought disorder was noted. The Veteran exhibited good impulse control and judgment and had insight. He was assigned a GAF score of 48. When seen in September 2006, the Veteran was reportedly doing fairly well. He stated that he slept six to seven hours a night, but he still was having nightmares and flashbacks that had not changed in a couple of years. The Veteran reported that the medications helped with his depression and anger and that he was able to sleep better. He denied feeling depressed, spending time around the house, golfing and fishing. On examination, the Veteran was alert and oriented to place, person and time. His mood was withdrawn; his affect was congruent with the mood. He denied hallucinations, paranoid, suicidal or homicidal ideations. No thought disorder was noted. The Veteran exhibited good impulse control and judgment and had insight. He was assigned a GAF score of 50. In December 2006, the Veteran was reportedly doing fairly well. He stated that he slept about seven hours a night, but he still was having nightmares and flashbacks. The Veteran indicated that this time of the year was bad as he had been in combat at this time. On examination, the Veteran was alert and oriented to place, person and time. His mood was withdrawn; his affect was constricted. He denied hallucinations, paranoid, suicidal or homicidal ideations. No thought disorder was noted. The Veteran exhibited good impulse control and judgment and had insight. He was assigned a GAF score of 45. When seen in February 2007, the Veteran reportedly was having problems with his anger. He stated that he got angry with his son before Christmas and he was going to become aggressive but his wife prevented him, adding that he was getting more and more angered. The Veteran stated that he slept seven to eight hours a night with Trazodone, but he still was having nightmares and flashbacks. He felt depressed without manic symptoms. Examination findings were basically the same as those in December 2006. In March 2007, the Veteran reportedly was not sleeping well, only about three hours a night. He had some nightmares and flashbacks. He denied feeling depressed, but stated that he felt tired because he was not resting at night. Examination findings were basically the same as those in December 2006 and in February 2007. A March 2007 individual progress reflected that the Veteran's PTSD was severe. When seen in June 2007, the Veteran was reportedly doing fairly well. He stated that he had been somewhat depressed recently for no reason. He slept up to six hours a night and still had flashbacks but not nightmares. Examination findings were basically the same as those in December 2006 and in February 2007. He was assigned a GAF score of 45. In October 2007, the Veteran was reportedly doing fairly well. He stated that he slept up to seven hours a night and had occasional nightmares and flashbacks. He denied feeling depressed. Examination findings were basically the same as those in June 2007, including a GAF score of 45. In February 2008, the Veteran was reportedly doing fairly well. He stated that he slept up to six hours a night and still had nightmares and occasional flashbacks. He denied feeling depressed. Examination findings were basically the same as those in March 2007. When seen in May 2008, the Veteran was reportedly doing fairly well. He stated that he slept up to six hours a night and still had nightmares and flashbacks. He denied feeling depressed. Examination findings were basically the same as those in March 2007. He was assigned a GAF score of 41. The Veteran's subjective complaints and objective examination findings were similar to those reported in February and May 2008, when seen in August and October 2008 and in February 2009. During the February 2009 Board personal hearing, the Veteran testified that he had nightmares a couple of times a week; that he took pills in the morning to get through the day; and that he took pills at night to make him sleep so he could get some rest. He reported that there was constant conflict between him and his son, they just did not get along. The Veteran admitted to losing his temper very easily. He stated that he had no friends and kept to himself. He indicated that if he did not take his Wellbutrin, he would not get any sleep and that he would just lie there and, every hour and a half to two hours, he would walk from window to window. Every time he heard a helicopter, he would have a panic attack, he would start to tremble and it would just bring back memories. The Veteran testified that he had short-term memory problems and that loud noises scared him. He could not stand crowds; he would get nervous, tremble and panic. The Veteran reported having flashbacks once or twice a month triggered by gunfire and helicopters. He indicated that he was not motivated and that he no longer went fishing or golfing. He admitted to getting depressed and that, when he was angry, he threw things and had hit his wife on occasion and got into fistfights with his son. The Veteran socialized only a little bit with one of the guys he served with in Vietnam. When asked, the Veteran indicated at the personal hearing that a 50 percent rating would fully satisfy his increased rating claim. III. Increased Rating for PTSD Analysis Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2008). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1 (2008); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is or primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings." See Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Board notes that psychiatric disabilities other than eating disorders are actually rated pursuant to the criteria of a General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. Under the General Rating Formula for Mental Disorders, a 30 percent rating is warranted when there is 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, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned 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. A 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 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. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. When it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). Psychiatric examinations frequently include assignment of a GAF score. According to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) (adopted by VA at 38 C.F.R. §§ 4.125 and 4.126 (2008)), a GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." There is no question that the GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See, e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). The evidence as described above reveals GAF scores ranging between 41 and 65. GAF scores ranging from 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 the person functions well, and has some meaningful interpersonal relationships. A GAF score of 51-60 reflects 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 peer or coworkers). The Board notes that a GAF score of 41-50 denotes 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). However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). The Board has considered the evidence of record in light of the criteria noted above, and, resolving all reasonable doubt in favor of the Veteran, the Board finds that, for the period of increased rating claim from June 1, 2004, the PTSD and related depression more nearly approximate the criteria for a 50 percent disability rating under Diagnostic Code 9411. In this case, the Veteran's claim for increased rating for PTSD was received in June 9, 2004; however, the private psychologist's June 1, 2004 letter demonstrates that entitlement to a 50 percent disability rating arose as of June 1, 2004. For the period from June 1, 2004, the Veteran's PTSD has been primarily characterized by social isolation and avoidance; intrusive memories, flashbacks and nightmares; hypervigilance; hyperstartle response, irritability; anxiety and depression; insomnia; mild memory loss; some difficulty concentrating; and some difficulty in maintaining relationships. These PTSD symptoms have been productive of social impairment, marked by difficulty in establishing and maintaining effective social relationships both within and outside of his immediate family, that are contemplated by a 50 percent disability rating under Diagnostic Code 9411. 38 C.F.R. § 4.130. The Board further finds that at no time during the increased rating appeal period have the Veteran's symptoms more nearly approximated those of a 70 percent rating under Diagnostic Code 9411. The competent evidence does not reflect that the Veteran has such symptoms as 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; spatial disorientation; neglect of personal appearance and hygiene; gross impairment in thought processes or communication; persistent delusions or hallucinations; persistent danger of hurting self or others; intermittent inability to perform activities of daily living; or disorientation to time or place. 38 C.F.R. § 4.130. The record suggests that the Veteran's PTSD has caused social impairment with deficiencies in the areas of social relationships and mood, but not his judgment, thinking, insight, or personal hygiene. With regard to the weight to assign various GAF scores that have been assigned, the GAF scores must be interpreted "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." 38 C.F.R. § 4.2. The veteran's actual psychiatric symptomatology manifested by his PTSD is encompassed by the 50 percent disability rating criteria. The Board finds that the specific symptomatology reflected by the reported symptoms and clinical findings outweigh the general characterization of disability as reflected by the assignment of GAF scores. Moreover, the Veteran explicitly indicated that an increased rating of 50 percent would fully satisfy the increased rating claim on appeal. For these reasons, the Board finds that the requirements for a 70 percent rating have not been met for any period of increased rating claim. IV. Other Considerations Also considered by the Board is whether the Veteran's PTSD warrants referral for extraschedular consideration. The above determination is based on application of pertinent provisions of the VA's Schedule for Rating Disabilities. There is no showing that the Veteran's PTSD reflects so exceptional or unusual a disability picture as to warrant the assignment of an evaluation higher than the 50 percent rating already assigned on an extraschedular basis. See 38 C.F.R. § 3.321(b)(1). There is no indication that this disability results in marked interference with employment (i.e., beyond that contemplated in the assigned evaluation) for the period under consideration. Here, the Veteran has been unemployed due to blindness in the right eye. Moreover, his PTSD has not been shown to warrant any period of hospitalization, or to otherwise render impractical the application of the regular schedular standards. In the absence of evidence of such factors, the Board is not required to remand the claim to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER A rating of 50 percent for PTSD, for the rating period from June 1, 2004, is granted. ____________________________________________ J. Parker Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs