Citation Nr: 0809967 Decision Date: 03/26/08 Archive Date: 04/09/08 DOCKET NO. 05-27 527 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE What evaluation is warranted from January 25, 2001 for post- traumatic stress disorder (PTSD), currently rated as 30 percent disabling? REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The veteran served on active duty from March 1968 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office in Boston, Massachusetts which granted entitlement to service connection for the veteran's PTSD, and assigned a 30 percent disability rating, effective January 25, 2001. The United States Court of Appeals for Veterans Claims (Court) has indicated that a distinction must be made between a veteran's dissatisfaction with the initial rating assigned following a grant of service connection (so-called "original ratings") and dissatisfaction with determinations on later- filed claims for increased ratings. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Inasmuch as the issue was placed in appellate status by a notice of disagreement expressing dissatisfaction with an original rating, the Fenderson doctrine applies. FINDING OF FACT Since January 25, 2001, the veteran's PTSD has been manifested by not more than occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW Since January 25, 2001, the veteran has met the criteria for a 50 percent rating for PTSD. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 and Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the veteran in March 2003 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant and notice of what part VA will attempt to obtain. The Federal Circuit and the CAVC have held that once service connection is granted, the claim is substantiated and additional VCAA notice is not required. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, VCAA notice requirements are satisfied in the matter of an initial rating claim flowing downstream from the appeal of a rating decision granting service connection. The Court in Vazquez-Flores v. Peake, No. 05-0355 (Vet. App. Jan. 30, 2008), spoke only to cases of entitlement to an increased rating. Because there is a distinction between initial rating claims and increased rating claims, Vazquez- Flores is not for application with respect to initial rating claims as notice requirements are met when the underlying claim for service connection is substantiated. Consequently, there is no need to discuss whether VA met the increased duty to notify standard as enunciated in Vazquez-Flores in claims of entitlement to a higher initial rating nor is there a need to remand initial rating claims for remedial notice pursuant to Vazquez-Flores. VA has fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. VA informed the claimant of the need to submit all pertinent evidence in his possession, and provided adequate notice of how disability ratings and effective dates are assigned. While the appellant may not have received full notice prior to the initial decision, after notice was provided the claimant was afforded a meaningful opportunity to participate in the adjudication of the claim, and the claim was readjudicated. The claimant was provided the opportunity to present pertinent evidence. In sum, there is no evidence of any VA error in notifying or assisting the appellant that reasonably affects the fairness of this adjudication. Criteria The veteran contends that his PTSD has been manifested by symptomatology that warrants the assignment of a higher evaluation. The Board agrees, in part, with the appellant. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2007). In cases where the original rating assigned is appealed, consideration must be given to whether the veteran deserves a higher rating at any point during the pendency of the claims. Fenderson. Regulations require that where there is a question as to which of two evaluations is to 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. It is the Board's responsibility to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same. Evans v. West, 12 Vet. App. 22, 30 (1998). In so doing, the Board may accept one medical opinion and reject others. Id. At the same time, the Board cannot make its own independent medical determinations, and it must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Colvin v. Derwinski, 1 Vet. App. 171 (1991). Thus, the Board must determine the weight to be accorded the various items of evidence in this case based on the quality of the evidence and not necessarily on its quantity or source. The RO granted service connection for PTSD and rated it under 38 C.F.R. § 4.130, Diagnostic Code 9411, as 30 percent disabling, effective January 25, 2001. Diagnostic Code 9411 provides that a 30 percent rating is assigned 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 rating 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; impaired abstract thinking; disturbance of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted if PTSD causes 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 worklike setting); inability to establish and maintain effective relationships. Id. Analysis With the above criteria in mind, the Board notes that the record since January 25, 2001 includes extensive VA Medical Center psychiatric treatment records from May 1994 to January 2001, and March 2001 to October 2002. A December 2001 letter noting that the physician had met with the veteran on two occasions and believed his level of disability was 100 percent. (The Board notes that the letter then erroneously notes that the veteran's primary job in Vietnam was driving a truck.). He added that, ".. in many ways, his history, his stories, and his symptoms are indeed those of a combat veteran. He had to drive into areas, where he would come under fire." He further noted the veteran was getting some benefits from pharmacology but was still unable to focus enough to maintain a job; A January 2002 letter from the same VA Medical Center physician noted that he saw the veteran in December 2001. At that time he was having problems with irritability, flashback backs and other PTSD problems. A subsequent letter dated in June 2002 from the same VA Medical Center physician who wrote the December 2001 and January 2002 letters. He noted that there had been confusion with his recollection of the veteran's description of his duties in Vietnam. The veteran explained that he was actually involved in propaganda work. When he came under rocket fire and other problems he was not actually driving a truck. The examiner noted that he possibly mistook the veteran's story for that of another veteran. A May 2002 letter was received from a VA Medical Center nurse which recounted several of the veteran's alleged stressor incidents. An April 2003 VA fee based psychiatric examination record notes a complete review of the veteran's medical records. He reported being stationed in Saigon working in a printing plant for psychological operations and printed paper leaflets. He stated that he was an eyewitness t "major war catastrophes." He began drinking heavily for about three years after returning from Viet Nam. He reported four psychiatric hospitalizations for depression and wanting to die. He was married prior to Vietnam and remained married. He presently worked in a supermarket. In the 1980s he was encouraged to go to the VA Medical Center for treatment. He was still under follow-up treatment through the VA clinic. He receiving amitriptyline and olanzapine. He was encouraged by his VA counselors to seek service connection for PTSD. He complained of intrusive memories, nightmares, insomnia, dysphonic mood, hyper vigilance, and a startle response. Mental status examination revealed that the veteran was alert and oriented x 3. He had no major speech disorder. His thought process was coherent. He was a rather sad individual with a constricted affect. Mood was anxious and depressed. Neither suicidal nor homicidal ideations were reported. His intelligence and memory were normal. The diagnostic impression was chronic PTSD, with avoidant personality features. A global assessment of functioning score (GAF) of 60 was assigned. The examiner noted that in assigning this score it was noted that the veteran was able to work full time, drive, have good hygiene, and he was able to do activities of daily living. A March 2007 VA examination notes the veteran's claims file and medical records were reviewed. He reported nightmares every other night. In his nightmares he did not know if he was in Vietnam or not. He reported experiencing rocket attacks and hearing children screaming. He underwent several psychiatric hospitalizations prior to being treated at VA. He drank considerably until 1973 when he stopped drinking. He reported hyper vigilance, startle response, and memory loss. He was currently treated with aripiprazole and amitripyline. There was no major remission of his PTSD symptomatology. He worked as a grocery clerk. He went out to dinner with his wife who kept him involved in activities. Otherwise he would remain withdrawn. He was capable of performing activities of daily living, although he tended to get confused and became anxious in new situations. On mental status examination, the veteran presented as a rather sad individual. He experienced a high level of anxiety and irritability, inner psychic agitation, rage, and emotional liability. When he was depressed he heard voices. He denied current suicidal and homicidal ideation. His intelligence was average. Rate and flow of speech was slow. Judgment was fair with no evidence of major thought disorder although he can become disorganized and confused. He endorsed major sleep disturbance, nightmares, irritability, numbness, rages, and startle response. The diagnostic impression was chronic PTSD. A GAF score of 51 was assigned. The examiner opined: This ....veteran had an extreme amount of difficulty following his return from Vietnam. He was hospitalized in many local hospitals for depression, suicidal ideation, inner psychic agitation. He was diagnosed with posttraumatic stress disorder and has made a satisfactory recovery from severe mental illness. He worked as a printer and as a salesman and now he is working as a grocery clerk in Shaw's. His marital support system with his wife has kept him from more serious decompensating behavior. The American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, 46 (4th ed. 1994) (DSM-IV) states that a GAF score of between 41 and 50 reflects the presence of "serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friend, unable to keep a job)" and/or "some 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; . . .)." A GAF score of between 51 and 60 indicates that the veteran has "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)." The Board finds that for the period from January 25, 2001, the evidence supports a finding that PTSD caused occupational and social impairment with reduced reliability and productivity. In this respect, during this term the veteran was continuously employed full time as a grocery clerk. He had remained married since before his service in Vietnam to his current wife. The veteran however has required continuous medication for his condition. In addition his GAF rating has remained within the range of 51 to 60 indicating a moderate to moderately severe condition. In this respect, the April 2003 and March 2007 VA examinations revealed evidence of near continuous depression. There was no evidence that PTSD caused the appellant to neglect his personal appearance or hygiene. Moreover, the examiner showed that while the veteran was sad and depressed. At neither examination was he suicidal or homicidal, and his intelligence and memory was found to be within normal limits. The veteran was employed fulltime, he remained married, and was capable of doing the activities of daily living although he did have poor socialization skills. Accordingly, while a 70 percent evaluation is not in order in the absence of suicidal ideation; obsessional rituals; illogical, obscure, or irrelevant speech; near-continuous panic or depression; impaired impulse control; spatial disorientation; neglect of personal appearance and hygiene; after resolving reasonable doubt in the veteran's favor, the Board finds that since January 25, 2001, the level of disability more nearly approximates the criteria for a 50 percent evaluation. ORDER For the period since January 25, 2001, a 50 percent disability rating for PTSD is warranted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs