Citation Nr: 1039147 Decision Date: 10/19/10 Archive Date: 10/22/10 DOCKET NO. 07-30 980 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to a rating in excess of 50 percent for a variously diagnosed psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Adjutant General's Office, Pennsylvania WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from April 1966 to January 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision by the Philadelphia, Pennsylvania Department of Veterans Affairs (VA) Regional Office (RO). In January 2010, a Travel Board hearing was held before the undersigned; a transcript of the hearing is associated with the claims file. The matter was previously before the Board in March 2010 when it was remanded for additional development. FINDINGS OF FACT 1. Prior to May 4, 2010, the Veteran's psychiatric disability was not shown to have been manifested by symptoms productive of occupational and social impairment, with deficiencies in most areas. 2. From May 4, 2010, the Veteran's psychiatric disability is shown to have been manifested by symptoms productive of occupational and social impairment with deficiencies in most areas; psychiatric symptoms productive of total occupational and social impairment are not shown. CONCLUSION OF LAW The Veteran's psychiatric disability warrants "staged" ratings of 50 percent prior to May 4, 2010, and 70 percent from that date. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.21, 4.126, 4.130, Diagnostic Code (Code) 9411 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. In a claim for increase, the VCAA requirement is generic notice, that is, notice of the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The appellant was advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). A December 2006 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. He has had ample opportunity to respond/supplement the record, and has not alleged that notice in this case was less than adequate. The Veteran's pertinent postservice treatment records and Social Security Administration (SSA) records have been secured. The RO arranged for VA examinations in January 2007, July 2008, and May 2010. On review of the examination reports, the Board finds that the examinations produced sufficient information to address the matter at hand, and were adequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. B. Factual Background The Veteran's claim seeking an increased rating for his psychiatric disability was received in November 2006. Prior records from the SSA show that he suffered a work-related injury in November 2001 and was receiving SSA benefits for a primary diagnosis of coronary artery disease, and a secondary diagnosis of status post herniated disc radiculopathy; SSA records also reveal an Axis I diagnosis of panic disorder without agoraphobia. VA outpatient treatment records include a December 2005 report noting the Veteran's complaint that he has noticed more anxiety when around people. He reported that he mostly stayed at home to care for his elderly father. He denied suicidal or homicidal ideation. He was adequately dressed and groomed. On mental status examination, his mood and affect were overall neutral, appropriate to content; insight, judgment, and impulse control were adequate. His Global Assessment of Functioning (GAF) score was 60. In February 2006, his chief complaints were hyperarousal, reliving, avoidance/numbing, depression, and panic attacks. His GAF score was 50. In July 2006, the Veteran reported that he continues to avoid people in general, and that sleep continues to be a problem. He indicated that his son comes to see him quite often, and that he interacts with his "girlfriend" on a regular basis. He was adequately dressed and groomed; he denied suicidal or homicidal ideation. On mental status examination, his affect was restricted in range; insight, judgment, and impulse control were adequate. His GAF score was 60. On January 2007 VA examination, the Veteran reported that he is isolated and withdrawn from others (because it feels safer), is mistrustful of others, avoids crowded places, is easily provoked and aggravated by others, and struggles to control his temper (e.g., he suffers from road rage). He further reported that he has one son, with whom he has a good relationship, and that he has a relationship with his son's mother raising their son (although they do not live together). He denied social contacts other than with his elderly father (for whom he cared), and indicated that he was unable to do things outside of the home because of his ailing father and his own tendency to be isolated (he used to hunt and fish); he watched television in the evenings. On mental status examination, the Veteran was clean and appropriately dressed. His psychomotor activity and speech were unremarkable (i.e., normal). His affect was constricted and his mood was depressed. He was able to do serial 7's and spell a word forward and backward. He was oriented to person, time, and place. His thought process and thought content were unremarkable; he denied delusions or hallucinations. His obsessive/ritualistic behavior consisted of locking doors at night. He reported that he had two to four hours of sleep per night despite the use of sleeping pills. He related that he experienced panic attacks, waking up at night with nightmares and flashbacks to Vietnam. The examiner noted that the Veteran had no problem with activities of daily living. His immediate memory was normal, recent memory was mildly impaired, and remote memory was moderately impaired. He denied homicidal or suicidal ideation. He reported difficulty concentrating, hypervigilance, and an exaggerated startle response. It was noted that he had recurrent and distressing recollections of the (stressor) event during service, including images, thoughts, perceptions, and dreams, and took effort to avoid thoughts, feelings, or conversations associated with the event. It was also noted that he had markedly diminished interest or participation in significant activities, had feelings of detachment/estrangement from others, and had a restricted range of affect (e.g., was unable to have loving feelings). The examiner noted the Veteran's symptoms occurred on a daily basis, and that the Veteran retired in 2000 due to age or duration of work/employment. His GAF score was 55. January 2007 to June 2008 VA outpatient treatment records show that in January 2007 the Veteran complained of increased nightmares, panic attacks, and disruptive sleep from watching television about a Vietnam veterans' reunion. He also reported that he had become more avoidant of people and rarely drove (he indicated his son's mother took him most places). He could not tolerate having someone around all of the time, and therefore did not marry his son's mother. On mental status examination, his affect was dysphoric, and he was more anxious and more uptight. His insight and judgment were adequate, but his impulse control had been limited. His GAF score was 55. In April 2007, he reported continued irritability, anxiousness when leaving his home and ongoing avoidance. He related that his relationship with his son's mother was not that good, and that his relationship with his son was worse than before (the son did not interact with him anymore). His GAF score was 55. In August 2007, he reported increased sleep difficulties, particularly nightmares (related to service in Vietnam). In September 2007, the Veteran reported he was very tense, easily irritated, impatient, and hyperaroused, and that his sleeping difficulties continued. On mental status examination, his affect was somewhat restricted, and he seemed somewhat tense and dysphoric. His GAF score was 55. In December 2007, the Veteran complained that sleep continued to be an issue, and expressed that he wished he could spend more time with his son. His GAF score was 55-60. In February 2008, it was noted that the Veteran had daily intrusive recollections of Vietnam, some of which were emotionally distressing. His hyperarousal symptoms were severe despite his taking prescribed medication. It was noted that his sleep was impaired, he was chronically irritable, he had thoughts of wanting to harm others, his concentration is poor, and he was hypervigilant around people, leading to social avoidance and isolation. Unexpected loud noises induce an exaggerated startle response. He experienced avoidance/numbing symptoms. In March 2008, a GAF score of 50 was assigned. In April 2008, the Veteran denied feelings of despair, hopelessness, helplessness, or suicidal or homicidal ideation. On mental status examination, he was goal- directed and spontaneous, he maintained good eye contact, and his speech was relevant and coherent and of normal rate and tone. His thoughts were organized and coherent, and the content was appropriate. His affect was restricted. His memory was good, and his insight and judgment were fair. In June 2008, he complained of panic attacks and nightmares. His GAF score was 45 to 50. On July 2008 VA examination, the Veteran reported a severely limited interaction with the outside world (due to his responsibilities as full-time caretaker for his father), and reported he had lost interest in most activities that he enjoyed in the past. He was clean and casually dressed. On mental status examination, his psychomotor activity was tense, and his speech was impoverished. His affect was constricted and his mood was anxious and depressed. He was unable to perform serial 7's or spell a word forward and backward. He was intact to person, time, and place. He denied hallucinations or delusions, and suicidal or homicidal ideation. He described awakening to nightmares and panic attacks, lasting up to two hours, that required him to walk outside his home. His impulse control was good. It was noted that there were no problems with activities of daily living. His immediate, recent, and remote memories were all found to be mildly impaired. He experienced recurrent and intrusive distressing recollections of the (stressor) event during service, including images, thoughts, or perceptions, and recurrent dreams of the event. He tried to avoid thoughts, feelings, or conversations related to the trauma of his service in Vietnam, and tried to avoid activities, places, or people that arouse recollections of the trauma. He has markedly diminished interest or participation in significant activities, a feeling of detachment/estrangement from others, a restricted range of affect (e.g., unable to having loving feelings), and a sense of a foreshortened future (he did not expect to have a career, marriage, children, or normal life span). His persistent symptoms of increased arousal include difficulty falling or staying asleep, irritability or outbursts of anger, difficulty concentrating, hypervigilance, and exaggerated startle response. His psychiatric disability symptoms were found to be mild to moderate, occurring daily and constantly. VA outpatient treatment records from August 2008 to April 2010 show that in August 2008 the Veteran complained of difficulty with forgetfulness and short-term memory problems for the past three to four months. He indicated his sleep had been somewhat better (due to medication). On mental status examination, his affect was restricted, and his insight, judgment, and impulse control were adequate. He was not psychotic, suicidal or homicidal. His GAF score was 55. In November 2008, the Veteran complained of being chronically irritable. On mental status examination, his thoughts were coherent, organized and reality- based. It was noted that he tended to worry and ruminate over problems. His speech was relevant, normally placed, and goal- directed. His mood was anxious/irritable with episodic panic, even at home; his affect was spontaneous on examination. He denied suicidal or homicidal ideation. In November 2009, he reported that he took medication prior to any social activity. On mental status examination, his speech was clear and to the point, and his thought processes were goal-directed. His mood was "okay," and his affect was anxious. He was oriented times three. He denied suicidal or homicidal thoughts. In March 2010, he complained that his sleep continued to be a problem (he awoke a couple hours after going to sleep, and sometimes was unable to go back to sleep). He reported that he was overwhelmed with his life (in part, at least, due to the care and supervision required for his father). He reported panic attacks, mostly at night, happening about three times a month, usually lasting about fifteen minutes. On mental status examination, his psychomotor activity was within normal limits. His speech was clear and to the point, and his thought process was goal-directed. His affect was anxious. It was noted that he worried about a lot of things; he denied suicidal or homicidal ideation. He was oriented times three and his insight and judgment were adequate. In April 2010, it was noted that his sleep medication was ineffective. At the January 2010 Travel Board hearing, the Veteran testified that his prescriptions had been increased. He reported that because of his nervousness he had to take medication whenever he went somewhere he had to interact with others. His relationship with his son's mother was sometimes good, although usually not good. He denied interest in any outside activities. On May 2010 VA examination (pursuant to the Board's March 2010 remand), it was noted that the Veteran was once engaged to the mother of his son but due to impulsivity and uncontrollable anger, had physically harmed her. He was not close to his son, and while he still had contacts with the son's mother, the relationship was no longer romantic. It was also noted that the Veteran had an older brother, but that they were not close. He has no friends. He has problems getting close to people, and does not trust others easily. He devoted most of his time to taking care of his elderly father, performing errands, cooking, and cleaning; he has not hunted or fished since 1998. He complained that his anxiety has gotten worse in the past five years in spite of psychotropic medications and psychotherapy. He reported severe sleep disturbance; he was always guarded and hypervigilant. He also has recurrent thoughts and flashbacks of Vietnam, more often at night, further increasing his sleep disturbance. He angered easily including having road rage while driving, with thoughts of harming others. He also had depression, which varied in intensity from mild to moderate. He denied ever being hopeless or suicidal. He denied hallucinatory symptoms. Objective evaluation revealed the Veteran had good personal hygiene. His mood was moderately to severely nervous, mildly disgusted, and mildly irritable; his affect was mood congruent. He endorsed nightmares, flashbacks, intrusive thoughts about Vietnam, and panic attacks. Survivor's guilt triggered some element of his depression. He did not have auditory or visual hallucinations, or delusional thinking. His speech was coherent and relevant, but rapid in rate and rhythm. He has no suicidal or homicidal thoughts. His long-term memory was intact; his three minute recall was two out of three, indicative of some impairment in short-term memory. His judgment and insight were fair. The examiner noted that he found increased severity of symptoms related to the Veteran's psychiatric disability. The Veteran has a severe degree of arousal symptoms shown by severe sleep disturbance, hypervigilance, and feeling guarded, with suspiciousness and paranoid tendencies, and multiple episodes of nightmares and flashbacks leading to panic attacks. He also has depressive symptoms, likely guilt issues, over Vietnam. He had moderate-to-severe functional impairment. He was estranged from his brother, had little relationship with his son, and had no friends of his own. His GAF score was 45. C. Legal Criteria and Analysis Disability ratings are based on average impairment in earning capacity resulting from a particular disability, and are determined by comparing symptoms shown with criteria in VA's Schedule for Rating Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations apply, 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. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. Under 38 C.F.R. § 4.130, Code 9411 (for PTSD under the General Rating Formula for Mental Disorders (General Formula)), a 70 percent rating is warranted when the evidence shows 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 work like setting); and inability to establish and maintain effective relationships. A 100 percent rating is warranted when the evidence shows 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 close relatives, own occupation, or own name. Id. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). 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. Id. However, 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 on the basis of social impairment. 38 C.F.R. § 4.126(b). The GAF score 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). A score of 41 to 50 is assigned where there are "[s]erious 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)." DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM-IV) 47 (4th ed. 1994). A score of 51 to 60 is appropriate where there are "[m]oderate 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)." Id. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In a claim for an increased rating, "staged" ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). As explained in detail below, the Board has found that "staged" ratings are appropriate in this case. Prior to May 4, 2010 During this period, the Veteran's psychiatric disability picture most nearly approximated the criteria for the 50 percent rating that was assigned. The psychiatric disability was manifested by depressed mood, occasional panic attacks, irritability, some paranoia, restricted and dysphoric affect, anxiety, flashbacks, recurrent thoughts about Vietnam, some hypervigilance, exaggerated startle response, some impairment of recent and remote memory, difficulty concentrating, and chronic sleep impairment with nightmares. However, symptoms of psychiatric disability consistent with (or of equivalent severity) the criteria for a 70 percent rating are not shown, and the symptoms demonstrated are not shown to have been productive of occupational and social impairment with deficiencies in most areas. There is no evidence of suicidal or homicidal ideation, obsessional rituals that interfere with routine activities (as the only obsessive ritual discussed was checking to make sure the locks were locked), speech intermittently illogical, obscure, or irrelevant, near-continuous panic or depression, spatial disorientation, or neglect of personal appearance and hygiene. While there is evidence of some social impairment during this time period, as reflected by social isolation and a lack of friends, he has maintained relations (albeit strained at times) with his son and the son's mother. Notably, he has a good relationship with his elderly father (and his care of the father of itself reflects a high level of functioning). The Board also notes that both the January 2007 VA examiner (who assigned a GAF score of 55, reflecting moderate symptoms or moderate impairment in social and/or occupational functioning), and the July 2008 VA examiner found that the Veteran had no problem with activities of daily living (contraindicating deficiencies in most areas) for the Veteran, and that the July 2008 examiner specifically found the Veteran's psychiatric symptoms to be only mild to moderate. In March 2008, the Veteran was assigned a GAF score of 50, and in June 2008, he was assigned a GAF score of 45 to 50; such scores reflect that his psychiatric disability was considered manifested by serious symptoms or serious impairment in social and/or occupational functioning. However, the characterizations were an anomaly when compared against the treatment records that follow immediately thereafter (and assigned GAF scores of 55) and the July 2008 examination that found his symptoms were mild to moderate (i.e., reflective of a GAF score greater than 50 and as high as 70). See 38 C.F.R. § 4.126. Notably, symptoms reflective of occupational and social impairment with deficiencies in most areas were not alleged or noted. As was previously noted, throughout this period the Veteran's activities of daily living were noted to be unimpaired. It was noted that he had retired based on age/longevity. The symptoms of the Veteran's psychiatric disability during this time period are not shown to have been more than or to have been productive of more than moderate impairment in social and/or occupational functioning. Consequently, the preponderance of the evidence is against a rating in excess of 50 percent prior to May 4, 2010. From May 4, 2010 The Board finds from May 4, 2010, the date of a VA examination, the evidence reasonably supports the assignment of a 70 percent (but no higher) rating for the Veteran's service-connected psychiatric disability. The psychiatric disability picture has been characterized by a severely nervous and irritable mood, depression, anxiety, low self-esteem, obsessive rumination on military events, nightmares, flashbacks, hypervigilance, exaggerated startle response, decreased energy, difficulty concentrating, social isolation, avoidance behavior, and some memory loss, severe sleep impairment, and difficulty in establishing and maintaining effective social relationships. Such symptoms were reported on May 4, 2010 VA examination. The examiner noted that the symptoms of the Veteran's psychiatric disability were increasing in severity, with severe arousal symptoms (as indicated by severe sleep disturbance, hypervigilance, and feeling guarded, suspiciousness and paranoid tendencies). The examiner also noted many episodes of nightmares and flashbacks of such intensity that they induced panic attacks as related to recall of the past in Vietnam. The examiner found the Veteran had moderate-to-severe functional impairment, and had very little relationship with his son, and no friends of his own. Accordingly, from May 4, 2010, the schedular criteria for a 70 percent rating are reasonably shown to be met. The Board has also considered whether a still higher (100 percent) schedular rating is warranted. Although the Veteran's psychiatric disability has caused some social isolation, and the evidence shows that he has difficulty establishing and maintaining relationships, he maintains a caring/responsible relationship with his father and (somewhat more limited) relations with his son and the son's mother. His everyday living activities are unimpaired, and he exhibits highly responsible behavior in tending to his father. His reasoning and judgment are considered fair. Total occupational and social impairment due to his psychiatric disability symptoms is simply not shown, and a schedular 100 percent rating is not warranted. The Board has also considered whether referral for consideration of an extraschedular rating is indicated. Inasmuch as all symptoms of the Veteran's psychiatric disability (and the associated functional impairment described) are fully encompassed by the schedular criteria for a 70 percent rating, the schedular criteria are not shown to be inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). Consequently, referral for extraschedular consideration is not warranted. Finally, as the Veteran retired as a laborer based on age/longevity, and SSA records indicate that he suffered a work-related injury and received SSA benefits for non-service connected disabilities (coronary artery disease and disc disease), and has not alleged unemployability due to his service-connected psychiatric disability, the matter of entitlement to a total rating based on individual unemployability due to service connected disability is not raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER For the period prior to May 4, 2010 a rating in excess of 50 percent for the Veteran's service connected psychiatric disability is denied; for the period beginning on such date, a staged increased rating of 70 percent is granted, subject to the regulations governing payment of monetary awards. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs