Citation Nr: 0213184 Decision Date: 09/30/02 Archive Date: 10/03/02 DOCKET NO. 00-24 116 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to an increased rating for post-traumatic stress disorder (PTSD), currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. M. Daley, Counsel INTRODUCTION The veteran had active service from August 1967 to March 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2000 rating decision of the Boston, Massachusetts, Department of Veterans Affairs (VA) Regional Office (RO), which increased the rating assigned for PTSD from 10 percent to 30 percent, effective March 10, 2000. Although that increase represented a grant of benefits, the United States Court of Appeals for Veterans Claims (Court) has held that a "decision awarding a higher rating, but less than the maximum available benefit...does not...abrogate the pending appeal...." AB v. Brown, 6 Vet. App. 35, 38 (1993). The veteran has indicated his intent to continue to pursue an increased rating for PTSD, arguing that a 70 percent rating is warranted. FINDINGS OF FACT 1. All information and evidence necessary for an equitable disposition of the issue decided herein have been obtained. 2. PTSD is manifested by near-continuous anxiety and depression causing severe impairment and resulting in deficiencies in most areas of daily living. CONCLUSION OF LAW The criteria for a 70 percent schedular evaluation, and no more, for PTSD have been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) During the pendency of the veteran's appeal, the VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law. In addition, regulations implementing the VCAA (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West Supp. 2001)), were published at 66 Fed. Reg. 45,620, 45,630-32 (August 29, 2001) (to be codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326). For the purposes of this decision, the Board will assume that the VCAA and the implementing regulations, to include the notice and duty to assist provisions, are applicable to the veteran's claim. The Act and the implementing regulations essentially eliminate the requirement that a claimant submit evidence of a well-grounded claim, and provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The VCAA and the implementing regulations were in effect when the RO most recently considered the veteran's claim. The record reflects that the veteran has been notified of the law and regulations governing the evaluation of mental disorders, the evidence considered by the RO and the reasons for its determinations. In addition the RO has afforded the veteran appropriate examinations. The Board here notes that in multiple statements of record (see June 10, 2002 Statement of Accredited Representative in Appealed Case; VA Form 9 received November 27, 2000; and, Representative's letters dated September 27, 2000, and November 22, 2000) the veteran and his representative have specifically limited the continuing appeal to a 70 percent rating assignment. See AB v. Brown, 6 Vet. App. at 39. The Board has found the evidence and information currently of record to be sufficient to substantiate the veteran's claim for an increased evaluation of 70 percent. Accordingly, no additional evidence or information is needed to substantiate the veteran's claim. Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (2001). The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (2001). Where there is a question as to which of two evaluations shall be applied, 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. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2001). 38 C.F.R. § 4.130, Diagnostic Code 9411 provides for the assignment of a 30 percent disability rating for PTSD 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, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent evaluation is warranted 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 or abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood; suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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; inability to establish and maintain effective relationships. A 100 percent evaluation is warranted where there is evidence of total occupational and social impairment due to 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; disorientation to time or place; memory loss for names of close relatives, own occupation or own name. The Global Assessment of Functioning (GAF) is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health- illness." [citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (4th ed.), p.32.] GAF scores ranging between 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect 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). Scores ranging from 41 to 50 reflect 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). See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). Factual Background In accordance with 38 C.F.R. §§ 4.1, 4.2 (2001) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to this disability. In this regard the Board notes that where entitlement to compensation has already been established and an increase in the disability is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The veteran presented for a VA mental disorders examination in April 2000. At that time he reported he was working as a college professor in rehabilitation counseling. He reported that he had undergone shoulder replacement earlier that year as a result of disability from an in-service shrapnel wound, and that he was having flashbacks to the time of his injury in Vietnam. He reported that each time he has physical therapy he comes home extremely depressed and anxious. He reported he was divorced from his former spouse. He indicated he was in another relationship with a woman who complained of the veteran's passivity, dependence and neediness. The veteran reported having a good relationship with his two daughters. He reported having strong anxiety reactions and also indicated that sudden noises provoked fairly dramatic startle reactions. He reported extreme depression, relieved by thinking about his work. During the interview the veteran reported reliving his in-service trauma because of his recent shoulder surgery; the examiner noted that such trauma and the current situation were related in an intense emotional manner. The examiner noted an altered ego state as the veteran discussed his trauma and military experience, and also that the veteran's affect was of an anxious, depressed individual who isolates his affect rather than become angry. The examiner also noted that the veteran was subject to major mood variations; the veteran reported that he contains and controls himself at all times. During the examination the veteran's motor activity was agitated and restless. He was fully oriented and without evidence of a thought disorder, psychosis or abnormal behavior. The veteran reported sleeplessness and numbness. He indicated he was under control with his rage. The examiner commented that the veteran's rage was covert hostility and could easily be manifested in an intense psychiatric interview. The conclusion was that the veteran's PTSD was severe. The assigned GAF was 50. In September 2000, the veteran appeared for follow-up treatment. A progress note reflects the veteran had had shoulder surgery two weeks earlier and was only getting four or five hours of sleep per night due to pain and anxiety. The veteran reported continued anxiety, racing thoughts and anger, and also indicated he was sad about relationship and work issues. He indicated he would sometimes feel as if he had no affect and expressed anxiety about medical recommendations that he leave his career. During evaluation the veteran was noted to be depressed, anxious, tearful and numb, with an intensification of symptoms. The assigned GAF was 42. The staff psychiatrist commented that the veteran's condition was more complicated than previously and that the veteran was experiencing limitations in function in work and relationships due to depression, numbness, re-experiencing feelings related to combat injury, sleeping poorly, anxiety, and racing thoughts. A VA mental hygiene progress note dated December 8, 2000, shows a GAF of 45. The veteran reported feeling anxious and depressed due to medical problems. He was depressed and anxious, and his eyes were teary at times during the evaluation. On December 13, 2000, a GAF of 40 was assigned. A progress note dated later in December 2000 includes a therapist's notation that the veteran's shoulder problems had exacerbated his PTSD and caused the veteran much physical and emotional distress, reminding him of experiences in hospitals in service when he was wounded. The veteran reported having more frequent flashbacks about Vietnam, as well as sleep problems. Analysis The Board notes that the medical evidence during the appeal period is consistent in describing the veteran's PTSD manifestations as severe, with a GAF of 50 or less during such time period. Furthermore, competent medical professionals have noted that the veteran's PTSD symptoms have resulted in impairment in both social and occupational arenas. The medical records note deficiencies in many areas, specifically citing to the veteran's dramatic mood changes and near-continuous anxiety and depression affecting his ability to continue to effectively function. The competent medical evidence also notes that although the veteran reports being in control of his anger, such is merely covert and could easily be manifested. The recent VA examination report, as well as the progress notes cited herein above, clearly document increasing PTSD symptomatology at this time. Such are consistent in showing the veteran to be reliving the events in Vietnam and to be having an increased difficulty adapting to stressful circumstances. Such also show that he has difficulty maintaining effective relationships by reason of isolationist tendencies, depression and anxiety. Although the veteran does not manifest each of the symptoms warranting a 70 percent evaluation, the medical evidence and his own symptom reports adequately establish that the veteran's PTSD symptoms of near-continuous anxiety and depression, with manifestations such as sleep disruption and increased flashbacks, are resulting in deficiencies in most areas of daily living. The Board finds such symptoms more nearly approximate the 70 percent criteria under 38 C.F.R. § 4.130, Diagnostic Code 9411. The veteran does not contend that a 100 percent rating is warranted for PTSD. Nor does the evidence show that PTSD is manifested by total occupational and social impairment due to 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; disorientation to time or place; memory loss for names of close relatives, own occupation or own name. Rather, the veteran, at present, maintains his employment and some relationship with his daughters, and is consistently shown to be fully oriented and appropriate in his behavior and presentation. As such, a rating increase to more than 70 percent is not warranted. ORDER A 70 percent evaluation for PTSD, and no more, is granted, subject to the criteria governing the payment of monetary awards. Shane A. Durkin Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.