Citation Nr: 0727443 Decision Date: 08/31/07 Archive Date: 09/11/07 DOCKET NO. 06-08 161 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to an initial evaluation in excess of 50 percent for post-traumatic stress disorder (PTSD). WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Vella Camilleri, Associate Counsel INTRODUCTION The veteran served on active duty from November 1987 to May 1992. This matter is now before the Board of Veterans' Appeals (Board) pursuant to a July 2004 rating decision by the Newark, New Jersey, Regional Office (RO) of the Department of Veterans Affairs (VA). Appeal to the Board was perfected. FINDING OF FACT The veteran's PTSD is shown to cause occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking or mood, but does not cause total occupational and social impairment. CONCLUSION OF LAW The criteria for the assignment of a 70 percent rating for PTSD have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2006). Separate rating codes identify various disabilities. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. See generally 38 C.F.R. §§ 4.1, 4.2 (2006). Consideration must also be given to whether a "staged" rating - that is, ratings at different levels for periods of time - is appropriate, as this appeal involves the initial rating assigned for service-connected PTSD. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The record, however, does not support the assignment of different percentage ratings during the period in question beyond the 100 percent rating assigned between September 8, 2005 and October 31, 2005 under 38 C.F.R. § 4.29 on the basis of hospitalization. See November 2005 rating decision. The veteran underwent a Mental Health and Behavioral Science Services (MH&BS) initial assessment at the East Orange, New Jersey, VA Medical Center (VAMC) in May 2003, at which time he indicated he was on the substance abuse unit at the VAMC, denied a history of suicidality, reported a history of domestic violence, and indicated that he was married in 1992 and separated in 1994. The evidence of record confirms that the veteran completed an inpatient Substance Abuse and Treatment Program (SATP) between April 17, 2003 and May 8, 2003 at the East Orange VAMC. See December 2003 MH&BS discharge note. The evidence also indicates that the veteran attended psychotherapy group sessions at the East Orange VAMC on several occasions and received treatment at the Newark Vet Center. A VA compensation and pension (C&P) initial evaluation for PTSD examination was conducted in March 2004. The veteran reported having nightmares and bad dreams, and being hypervigilant and startled at loud noises, on and off for the past ten years. He also indicated having occasional panic attacks characterized by shortness of breath, anxiety, dizziness and a tingling sensation, which were mild to moderate symptoms in nature. At the time of the examination, the veteran was working as a probation officer. He reported being separated from his spouse due to his symptoms and indicated that he had not spoken to his two children for some time. The veteran indicated that he isolates himself and reported that the only people he is in touch with are some colleagues at work. Mental status examination revealed that the veteran was dressed casually and was cooperative with depressed mood, blunted affect, and normal speech. There were no perceptual problems and thought processes and content were normal. The veteran denied suicidal or homicidal ideation, was oriented to person, place and time, and had fair insight, judgment and impulse control. A Global Assessment of Functioning (GAF) score of 50 was assigned; the VA examiner reported that the veteran's symptoms were moderate and that he is somewhat isolative. The veteran was admitted to Trinitas Hospital on July 23, 2004 after a neighbor/friend called the police due to their belief that the veteran was going to harm himself. At the time of his admission, the veteran indicated that he consented to go to the hospital for treatment when the police came because he had been drinking and was anxious, not sleeping, and was having nightmares and flashbacks. He also reported that he had stopped taking his antidepressant medication. The veteran was noted to be actively suicidal and wanted to end it all, reporting that he had closed his eyes and walked into traffic two days prior at 2:00 am. See psychiatric evaluations and other records from Trinitas Hospital. A psychiatric discharge summary reported that the veteran was admitted with a diagnosis of PTSD, generalized anxiety disorder, alcohol abuse, alcohol withdrawal and depression, not otherwise specified, and a GAF score of 20. From the beginning of his admission, the veteran was noted to be withdrawn and anxious and unable to cope with his situation. He was started on medication and showed steady improvement to the point of being discharged. Mental status examination at the time of his discharge revealed that he was fairly groomed and cooperative with clear, coherent and goal- oriented conversation, intact thought processing and content, and intact psychomotor activities. The veteran's mood was euthymic with a mood congruent affect, he denied suicidal or homicidal ideation, he was fully alert and oriented time three with intact cognitive functioning, and his insight, judgment and impulse control were good. He was discharged on July 27, 2004 with a diagnosis of PTSD and alcohol abuse and a GAF score of 70. A VA C&P review examination for PTSD was conducted in September 2005, at which time the veteran was at the PTSD unit at the Lyons, New Jersey, VAMC. The veteran reported he was getting some group therapy and denied a history of suicide behavior or violence. He indicated he had nightmares and flashbacks, hypervigilance, and easy startle reflex about two to three times per week. The veteran also indicated he had depression, road rage, and sporadic panic attacks. He reported only getting four hours of sleep per night. The examiner noted that the symptoms described by the veteran seemed to be moderately severe in nature; he did not report any remissions. The veteran indicated that he was currently suspended from his work as a probation officer because of his aggressive behavior towards clients, and he reported that he had been given warnings and suspensions in the past. The veteran stated that he had recently gotten divorced after 12 years of marriage and reported that his wife left him because of his alcoholism and abusive nature. He had not seen his two children in the last two years, was living by himself, was estranged from his own family, and reported that he did not have any friends. Mental status examination revealed that the veteran was dressed casually and was cooperative with depressed mood and blunted affect. No appreciable problems were noted and his speech and thought process and content were normal. There was no suicidal or homicidal ideation, the veteran was oriented to person, place and time, and insight, judgment and impulse control were fair. A GAF score of 40 was assigned and the examiner indicated that the veteran had fairly moderately severe symptoms, had problems at work, and was isolative. The examiner also noted that the veteran's psychiatric problems did prevent him from getting employment. The veteran was admitted to the New Jersey Health Psychosocial Residential Rehabilitation Treatment Program (NJH-PRRTP) on September 8, 2005 (the PTSD unit at the Lyons VAMC he referred to during his September 2005 VA examination). A discharge summary indicates that at the time of screening, the veteran reported insomnia, anxiety, anger, dyscontrol, nightmares, flashbacks and intrusive thoughts. He also reported a history of domestic violence and of noncompliance with outpatient PTSD and psychiatric treatment, but denied a history of suicide attempt. A mental status examination revealed that the veteran was calm and cooperative. Eye contact and reliability were good, speech was relevant and coherent with normal rate, rhythm and volume, and thought process was linear. There were no psychomotor abnormalities noted, the veteran denied depressive cognitions such as suicidal and homicidal ideation, and also denied delusions, obsessions and phobias. His cognition was grossly intact and his insight and judgment were fair to poor. During the course of his treatment, the veteran participated in group, individual and recreational therapy and was found stable for discharge after 45 days of treatment. A discharge diagnosis of chronic PTSD was made and a GAF score of 47 was assigned. The veteran's ex-wife and father have each provided two statements in support of the veteran's claim. In pertinent part, the veteran's father reported in a January 2006 letter that the veteran returned from active service a very changed man and that he and his wife began to fear the veteran, ultimately telling him he could not live in their home during the times when his wife kicked him out. The veteran's father indicated that despite the treatment he has received, the veteran still has episodes of depression, nightmares and panic attacks, has problems at work and is very lonely. In a June 2007 letter, the veteran's father reported that the veteran has become more remote from family and hardly visits, even during holidays. His cousins have shunned him, his two sisters fear him, his ex-wife seems to hate him, and he is continuously angry, moody and very depressed. The veteran's father reported that he and his wife take food to the veteran and occasionally clean the basement apartment where he lives. The veteran's father also reported that the veteran does not leave his apartment at all during some weeks, does not own a telephone, and on several occasions, has had to borrow clean clothes from his father. The veteran's father indicates that the veteran is a heartbreak to his mother. In a January 2006 letter, the veteran's ex-wife wrote that after returning from service, the veteran became very angry, abusive, and isolated himself from everyone. He also began drinking more. She reported that she left him in 1994 and that they were separated for ten years before divorcing. She indicated that she has been in contact with him because they have two children. In a June 2007 letter, the veteran's ex- wife reported that she received a call from the veteran in March 2006 telling her that he was being suspended from work. She indicated that this concerned her because his income is her only source of income. She reported that she took the bus to see him shortly thereafter and found that he had not showered in several days, that his apartment was dark and dirty, and that there was no food in the refrigerator. A June 2007 statement from K.D. indicates that he met the veteran around October 2001 while he was homeless. K.D. offered the veteran a place to stay in his home, where the veteran stayed for about two and one-half years. K.D. indicated that the veteran went on binges, attempted suicide on occasion, and would shut down or isolate himself whenever K.D. tried to talk to him about things that were bothering the veteran. The veteran presented testimony in support of his claim for increased rating in June 2007. He described constant panic attacks, deep depression, hours lacking sleep and severe nightmares. The veteran reported that he has been outcast by his family, disliked by friends and even feared by close ones. He indicated that he is always on the brink of job termination with absolutely no chance of achieving a higher position, has endless financial problems, and has been near eviction a couple of times. The veteran reported that he has been suspended from work on three occasions and has received psychiatric and detox treatment at Trinitas Hospital. He also reported that he relocated to Oklahoma in March 2006 during a suspension from work. The veteran indicated that he was still working as a probation officer but reported that he is no longer a probation officer to felons due to his instability. Instead, he is a probation officer in the child support unit and acts as a case worker. The veteran denied receiving any treatment for his PTSD since May 2006. The evidence of record supports the assignment of a 70 percent rating, but no higher, for PTSD. The record reflects several references to suicidal ideation, although these references have not been consistent. See e.g., August 2005 MH&BS screening note; June 2007 letter from K.D.; July 2004 records from Trinitas Hospital. The evidence also indicates that the veteran has suffered from recurrent and intrusive distressing recollections of the traumatic event (nightmares and flashbacks), impaired impulse control (history of domestic violence) and depression and occasional panic attacks. He has also had various work-related problems (several written reprimands; 50 day suspension; change of duties), has neglected his personal appearance, hygiene and living environment (father has had to lend him clean clothes; parents bring food and occasionally clean apartment; ex-wife found veteran had not showered for days; apartment dark and dirty with no food in fridge), and he has displayed an inability to establish and maintain effective relationships (separated after two years of marriage and ultimately divorced; wife has contact with him because of their two children; has not seen children for some time; lives by himself; no friends; hardly visits family; shunned by cousins; feared by sisters). In addition, although the veteran's GAF scores have fluctuated between 20 and 70, the most recent score of 47 was assigned following the veteran's admission to the PRRTP program. This score represents serious symptoms or any serious impairment in social, occupational or school functioning. See Diagnostic and Statistical Manual of Mental Disorders, 4th Edition, Washington, D.C., American Psychiatric Association (1994) (DSM-IV). The Board finds that as the veteran exhibits both occupational and social impairment, with deficiencies in work, family relations and mood, his symptoms more nearly approximate the criteria for a 70 percent evaluation. The evidence does not support a finding that the veteran's PTSD produces total occupational and social impairment to warrant a 100 percent rating for service-connected PTSD. See 38 C.F.R. § 4.7 (2006). The veteran testified that he is still employed as a probation officer, and there is no evidence he exhibits symptoms such 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; or memory loss for names of close relatives, own occupation, or own name. 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. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2006). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, 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 & Supp. 2005); 38 C.F.R. § 3.159(b) (2006); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper 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. Proper notice must also ask the claimant to provide any evidence in his or her possession that pertains to the claim. Notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Prior to the issuance of the rating decision that is the subject of this appeal, the veteran was informed of the necessary evidence to substantiate a claim for service connection; that the RO would assist him in obtaining additional information and evidence; and of the responsibilities on both his part and VA's in developing the claims. See May 2003 letter. He was later informed of the need to send any evidence in his possession that pertains to the claim in a November 2005 statement of the case (SOC). The Board acknowledges that the veteran was not provided notice of what evidence was necessary to support a claim for increased rating prior to the initiation of his appeal. The veteran's disagreement with the initial rating, however, stems from a NOD, which is subject to section 7105 procedures. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (2004). The Board is bound to follow this precedent opinion. 38 U.S.C.A. § 7104(c) (West 2002). As such, VA fulfilled its notification duties. Quartuccio, 16 Vet. App. At 187. The veteran was also given notice of the appropriate disability rating and effective date of any grant of service connection in a March 2006 letter. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2006). This duty has also been met, as the veteran's private and VA medical records were obtained and he was given several appropriate VA examinations in connection with his claim. The record does not suggest the existence of additional, pertinent evidence that has not been obtained. For the reasons set forth above, the Board finds that no further notification or assistance is necessary, and deciding the appeal is not prejudicial to the veteran. ORDER Entitlement to a 70 percent disability rating for PTSD is granted. ____________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs