Citation Nr: 0809822 Decision Date: 03/25/08 Archive Date: 04/09/08 DOCKET NO. 06-14 277A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to a rating in excess of 30 percent for post- traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESSES AT HEARING ON APPEAL The veteran and his spouse ATTORNEY FOR THE BOARD Jennifer Margulies, Associate Counsel INTRODUCTION The veteran served on active duty from June 1962 to June 1964, September 1969 to August 1971 and September 1972 to June 1973. He served in Vietnam from December 1971 to July 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which denied entitlement to an increased rating for PTSD. In January 2008, the veteran's representative noted that the veteran had filed an application for dependent's benefits and that no action had been taken with regard to that matter. A request for referral for RO consideration was presented. As such, the matter is referred to the RO for any action deemed appropriate. During the pendency of the appeal, the veteran requested a hearing before a member of the Board. A hearing before the undersigned was held in January 2008 and a copy of the hearing transcript is of record. FINDING OF FACT The service-connected PTSD is manifested by suicidal ideations, obsessive rituals, flashbacks, memory loss, excessive anger, grossly inappropriate behavior and an inability to maintain employment. CONCLUSION OF LAW The criteria for a 100 percent evaluation for PTSD have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Pertinent Law and Regulations Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2007). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2007). Where entitlement to compensation has already been established and an increased disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). The United States Court of Appeals for Veterans Claims (Court) has held that unlike in claims for increased ratings, "staged ratings" or separate ratings for separate periods of time may be assigned based on the facts found following the initial grant of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). Under the General Rating Formula for Mental Disorders, a 30 percent rating is warranted for PTSD where the disorder is manifested by occupational and social impairment with an 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, and recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is warranted 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 when there is 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); inability to establish and maintain effective relationships. A 100 percent rating is assigned when there is total occupational or 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). The psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. See Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV); Carpenter v. Brown, 8 Vet. App. 240 (1995). An examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. See 38 C.F.R. § 4.126; VAOPGCPREC 10-95 (Mar. 1995); 60 Fed. Reg. 43186 (1995). Under DSM-IV, GAF scores of 71 to 80 denotes that if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument) no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). Scores from 61 to 70 are indicative of 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, with some meaningful interpersonal relationships. Scores from 51 to 60 generally reflect some 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 from 41 to 50 reflect serious symptoms (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). A GAF score in the 31 to 40 range indicates impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). See Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2007). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2007). II. Analysis A review of the competent evidence of record demonstrates that the veteran's symptoms merit a 100 percent evaluation. As the veteran's psychiatric history has been extensive, the Board has attempted to highlight the relevant symptomatology which entitle him to a 100 percent evaluation for his PTSD. By history, VA treatment reports dated in 2001 show continuous treatment for severe PTSD. VA medical reports show continued treatment for PTSD in 2005. The reports also show that the veteran was hospitalized from May 9 to 25 for PTSD. The medical reports overall show that the veteran reported problems with sleeping, and having negative thoughts, nightmares and episodes of incessant counting, despite the medications he was taking. The veteran avoided places or activities that reminded him of war and his interest in significant activities was diminished. The veteran reported increased problems with PTSD and depression, which lead to problems running his school. The records document the veteran having a panic attack and hyperventilating in early May. He reported intrusive thoughts, memories and flashbacks. He also reported having compulsive thinking. The veteran reported a history of cannabis use, alcohol abuse and benzodiazepine dependency. The treatment records also document a history of suicide attempts, one occurring around the end of March 2005. The assigned GAF score was 35, although at the end of May 2005 the GAF score was 65 and the veteran was discharged from hospitalization. Treatment records from June 2005 show that the veteran was tolerating his medications but still had severe symptoms of PTSD. In addition to the foregoing, the veteran's treating clinical psychologist, Dr. L.L., stated that she has been treating the veteran since January 2005. In an August 2005 letter, she stated that the veteran had significant symptoms of clinical depression, anxiety, depersonalization, nightmares, flashbacks and periodic hallucinations. He also experienced periods of suicidality. She noted that the veteran's symptoms were severe and that the veteran's symptoms have been debilitating for years. His disorder also significantly affected his spouse and his teaching career. In an August 2005 medical report from E.L., Ph.D., the diagnosis was PTSD. The physician noted that the veteran's GAF scale score was 35. The veteran was unable to perform activities of daily living and went long period without being self-motivated. He was also unable to work for more than 10 hours. E.L. also noted that the veteran was unable to establish and maintain effective work relationships because he had a low tolerance for frustration and was easily angered. He was also isolated. It was noted that the veteran had no difficulty understanding commands and appeared to pose no threat of persistent danger or injury to himself or others. In a letter dated June 2007, Dr. L.L. stated, "His current level of functioning continues to cause significant concern as he continues to experience transient suicidal ideation, flashbacks, and has recently developed debilitating anxiety/panic attacks. He is unable to work full time, and is limited in his employment capacity. (The veteran's resume shows significant gaps in his employment.) The veteran has recently experienced significant lapses in memory, which have caused some confusion, and led to the inability to function as expected in his daily life." The doctor also noted that the veteran's PTSD symptoms are chronic and severe, even with the appropriate psychotropic medications. Dr. L.L. gave the veteran a GAF score of 38, once again reflecting very serious symptoms. In a letter dated October 2007, Dr. L.L. reported transient suicidal ideation, debilitating anxiety and panic attacks, causing significant and steady deterioration in his ability to function. Dr. L.L. also mentioned the veteran's continuous lapses in memory, which has had a harmful effect on his overall mental health stability. She gave the veteran a GAF score of 30, reflecting very serious symptoms and major impairment in many areas. The veteran also shows evidence of social impairment. The veteran has been married three times and is experiencing problems with his current wife. At his hearing before the undersigned, both the veteran and his wife testified that he becomes physically abusive. His wife also submitted several letters stating that the veteran's mood changes constantly and he hits and insults her for no reason, and then apologizes and begs for forgiveness. She also notes that the veteran has contemplated suicide many times. The veteran added that he isolates himself from others as well. The Board finds that the criteria for the assignment of a 100 percent rating under Diagnostic Code 9411 for PTSD have been met. As discussed above, a 100 percent rating is assigned when there is total occupational or 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). As discussed above, the veteran has a history of intrusive thoughts, hallucinations, memory loss, anxiety, depression, and grossly inappropriate behavior. He is unable to maintain a job and exhibits social impairment as he remains isolated and has difficult interactions with his wife. He has tried to commit suicide on several occasions and has shown disorientation as to time and place. His GAF scores, aside from the one score of 65 in 2005, have consistently ranged in the 30's. A GAF score in the 31 to 40 range indicates impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). See DSM-IV 4th ed. Based on the veteran's testimony presented in January 1998, the VA medical reports, and the private medical opinions submitted on the veteran's behalf, a 100 percent disability evaluation is warranted. The appeal is granted. See 38 C.F.R. § 4.130, Diagnostic Code 9411. III. Duty to Notify and Assist In view of the favorable decision in this case, a detailed discussion addressing whether the mandates of the Veterans Claims Assistance Act of 2000 (VCAA) compliance is not warranted. To the extent necessary, VA has fulfilled its duty to notify and to assist the veteran in the development of his claim. See Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007)). In view of the Board's favorable decision to increase the veteran's service connected PTSD to 100 percent disabling, no prejudice will result to the veteran by the Board's consideration of this appeal. Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993). ORDER Entitlement to an increased rating to 100 percent for PTSD is granted, subject to the regulations pertinent to the disbursement of monetary funds. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs