Citation Nr: 0810053 Decision Date: 03/26/08 Archive Date: 04/09/08 DOCKET NO. 04-04 179 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to an initial rating in excess of 70 percent for post-traumatic stress disorder (PTSD), for the period from March 15, 2000 to October 31, 2002. REPRESENTATION Appellant represented by: Francis M. Jackson, Attorney WITNESSES AT HEARING ON APPEAL Appellant and S.A. ATTORNEY FOR THE BOARD D. J. Drucker, Counsel INTRODUCTION The veteran had active military service from May 1969 to May 1971. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. The veteran appealed the RO's April 2000 rating decision that granted his claim for service connection for PTSD and awarded a 70 percent disability rating, effective from March 15, 2000. Subsequently, a June 2000 rating decision granted the veteran's claim for a total rating based upon individual unemployability due to service-connected disabilities, effective from March 15, 2000. Then, in an August 2003 rating decision, the RO awarded a 100 percent disability rating for the veteran's service-connected PTSD, effective from November 1, 2002. As such, the Board believes that the issue as now characterized on the decision title page represents the current status of the veteran's claim. In September 2004, the veteran testified at a hearing at the RO before another Veterans Law Judge (hereinafter referred to as a Board hearing). At that time, and following a pre- hearing conference, it was determined that the only issue then before the Board on which the veteran would testify was the matter of whether a timely substantive appeal had been filed to perfect an appeal of the April 2002 rating decision that found no clear and unmistakable error (CUE) in a July 1990 rating decision that denied service connection for PTSD. However, a more thorough and subsequent review of the claims files revealed that, in his February 2003 substantive appeal, the veteran expressly indicated that he wished to testify at a Board hearing regarding his claim for an initial rating in excess of 70 percent for PTSD, for the period from March 15, 2000, through October 31, 2002 although, on another form submitted at that time, he requested to testify at a personal hearing at the RO and did so in May 2003. A transcript of that hearing is of record. The veteran's request for a Board hearing was addressed in the Board's June 2006 remand. In a July 2006 letter, the RO advised the veteran that, on September 1, 2006, he was scheduled for a Board hearing at the RO, conducted via video conference. A copy of the letter was sent to the veteran's attorney. However, in a letter dated August 31, 2006, the veteran's attorney said the veteran was ill and unable to attend the hearing and requested that the hearing be rescheduled. In October 2006, the Board remanded the veteran's claim to the RO to comply with his request to testify at a rescheduled video conference hearing. The veteran was rescheduled for a video conference hearing in February 2008. However, in a February 2008 letter, the veteran's attorney advised the RO that the veteran's health problems precluded him from attending the scheduled hearing and did not request that the hearing be rescheduled. As such, the Board believes that all due process requirements were met with regard to the veteran's hearing request. FINDING OF FACT The evidence is in approximate balance as to whether the probative medical evidence of record supports a finding that, for the period from March 15, 2000 to October 31, 2002, the veteran's service-connected PTSD, effectively resulted in total social and occupational impairment that precluded him from securing or following substantially gainful employment and was manifested by such symptoms as social isolation, combat-related nightmares and sleep difficulty, hypervigilance, a considerable startle response, angry outbursts, poor concentration and adaptation to stress, and difficulty maintaining personal hygiene, that, for all intents and purposes, rendered him unable to work with or for others. CONCLUSION OF LAW Resolving reasonable doubt in the appellant's favor, for the period from March 15, 2000 to October 31, 2002, the schedular criteria for an initial rating of 100 percent for the veteran's service-connected PTSD are met. 38 U.S.C.A. §§ 1155, 5103-5103A, 5107 (West 2002 & Supp. 2007): 38 C.F.R. §§ 3.102, 3.159, 4.130, Diagnostic Code (DC) 9411 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) substantially amended the provisions of Chapter 51 of Title 38 of the United States Code, concerning the notice and assistance to be afforded to claimants in substantiating their claims. VCAA § 3(a), 114 Stat. 2096, 2096-97 (2000) (now codified as amended at 38 U.S.C.A. § 5103 (West 2002 & Supp. 2007)). In view of the favorable disposition of this appeal, discussed below, we find that VA has satisfied its duty to assist the veteran in apprising him as to the evidence needed, and in obtaining evidence pertaining to his claim, under the VCAA. Thus, while the record indicates that the veteran apparently receives Social Security Administration (SSA) disability benefits, any failure to obtain these records is rendered moot. Also, during the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (hereinafter referred to as "the Court") issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom Hartman v. Nicholson, 483 F.3d 1311 (Fed Cir. 2007), that held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) applied to all five elements of a service connection claim. Id. Given the Board's decision, that grants the benefits sought, there can be no possibility of prejudice to the veteran. As set forth herein, no additional notice or development is indicated in the veteran's claim. It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance in the 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. 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2007); 38 C.F.R. § 3.102 (2007). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court held that a veteran need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. II. Factual Background The veteran seeks a rating in excess of 70 percent for his service-connected PTSD for the period from March 15, 2000 to October 31, 2002. As noted above, in an April 2000 rating decision, the RO granted the veteran's claim for service connection for PTSD and awarded a 70 percent disability rating, effective from March 15, 2000 that, in August 2003, was increased to a 100 percent disability rating, effective from November 1, 2002. As noted a total rating based on individual unemployability was effective from March 2000. The pertinent medical evidence of record includes a November 1999 Vet Center client intake assessment. The record reflects that the veteran said he had a history of hearing voices and seeing visions ever since serving in Vietnam and had combat-related nightmares about twice a week. He reported last working in 1975 and received SSA disability benefits. It was noted that the veteran was open and cooperative with eye contact described as "ok". He was oriented and gave a history of hospitalizations for delusions, hallucinations, and psychosis. He denied any history of suicide but did think about it, with no current plan or intent. Schizophrenia with paranoia and PTSD were diagnosed. According to December 1999 and January 2000 private medical records, and a May 2001 letter, signed by a nurse practitioner and physician, the veteran was seen for psychiatric evaluation in December 1999 that was apparently performed by the nurse practitioner. According to the medical record, the veteran reported depression, auditory and visual hallucinations, sleep difficulty and periods of panic that started in 1975. He attributed his symtoms to his combat-related experiences. His history of multiple VA hospitalizations for what he was told was paranoid schizophrenia was noted. After discharge from service, the veteran said that he worked at a lobster pound, went into the lobster business, and also worked in a metal shop. He had the same girlfriend since 1992 and they lived together for approximately four years. They attended church, visited friends, and shopped. His hobbies included hunting, fishing, and Beano. The veteran said he spent most of his days sleeping, although it was unclear if that was a side effect of his medication or part of his symptomatology. He received SSA benefits. On examination, the veteran was casually dressed in jeans and a flannel shirt, and wore a baseball hat during most of the session. He was alert, oriented, and cooperative. His speech and thoughts were goal-directed. There was no evidence of abnormal perception or delusions. He denied experiencing auditory hallucinations and had no experience with these for over a week. The veteran had not seen a vision or had visual hallucinations for several years. His psychomotor behavior was goal-directed and there was no evidence of ticks, tremors, or posturing. He reported medication side effects including protruding tongue, intermittent tremor, and trigger fingers, bilaterally, that were not observed on current examination. As to his perceptual abnormalities, it was noted that the veteran had both self-deprecating and command hallucinations. Further, results of a mini- mental examination indicated that the veteran's orientation, recall, and current memory were intact and his remote memory was largely intact. Insight was good and judgment was intact. He was able to live independently and had not had a psychiatric hospitalization in over ten years. He was compliant with treatment and was in a satisfying and stable relationship. The Axis I diagnoses were paranoid schizophrenia by history and PTSD. A score of 40 to 45 was assigned on the Global Assessment of Functioning (GAF) scale. The January 2000 addendum to the December 1999 psychiatric evaluation indicates that the veteran often felt detached or isolated from others and experienced angry outbursts and irritability, poor concentration, and an increase in startle response. He continued to have sleep difficulty and nightmares, agoraphobia, and depression. The veteran reported that he was able to manage an increase in symptoms after his December 1999 evaluation. He said that during the last few months, he experienced an increase in nightmares, for which he used a radio during sleep to decrease the intensity and frequency of the nightmares. He reported mild depression, denied being suicidal, and denied auditory hallucinations. Objectively, the veteran was alert and oriented and his mood was mildly depressed. His affect was full range and he was cooperative. There was no evidence of abnormal perceptions or delusions. The assessment was PTSD and paranoid schizophrenia. The May 2001 letter is to the effect that the veteran's PTSD symtoms started in 1975. It was noted that, after his 1971 discharge from service, the veteran was only able to work approximately three or four years on a part-time basis as his symtoms interfered with his ability to function effectively in work, social, or interpersonal relationships. With his March 2000 claim, the veteran submitted signed statements from his sister and girlfriend that describe his sleep difficulty, combat-related nightmares, and flashbacks. In April 2000, the veteran underwent VA examination. According to the examination report, he complained of having combat-related nightmares four to five times a week since his return from Vietnam. The veteran felt depressed and nervous and heard voices with whom he argued. He had difficulty focusing and his prescribed medication affected his ability to sleep at night. The veteran's history of several prior VA psychiatric hospitalizations was noted and that his treatment included psychotherapy and prescribed anti-psychotic medications. He received SSA disability benefits for many years and essentially did not work after military service. He never married but lived with a girlfriend for the past eight years. On examination, the veteran was a disheveled individual who arrived on time for his appointment. He was accompanied by his girlfriend. He had difficulty with concentration, admitted to auditory hallucinations, and also had paranoid delusions. He functioned at a psychotic level. His behavior was often inappropriate in that he secluded himself. The veteran denied suicidal or homicidal thoughts, ideas, plans, or intents. His personal hygiene was limited. He was oriented, and he had decreased recent memory. There were no obsessions or compulsions but his hands shook and sweated, and he had poor eye contact. The veteran had a decrease in executive function. He seemed autistic and had associative disturbances and ambivalence. He did not report panic attacks but his mood was depressed and he seemed hypervigilant. He described nightmares and poor sleep at night and looked overtired. It was noted that the veteran avoided thoughts or feelings associated with his combat- related trauma and tried to avoid activities that reminded him of it. He had a sense of estrangement from others, had sleep difficulty, angry outbursts, hypervigilance, and an exaggerated startle response. The Axis I diagnosis was PTSD and a GAF score of 40 was assigned that noted major impairments of judgment, thinking and mood. In terms of "RFC" (residual functional capacity), the VA examiner said that the veteran's activities of daily life indicated that he needed to be encouraged to take a shower and do household chores. The VA examiner said that the veteran concentrated poorly, adapted poorly to stress, and had a severely impaired industrial capacity and this was true of his social function and that the veteran tended to be suspicious, paranoid, and withdrawn. The veteran was considered competent to manage his own benefits. During his May 2003 personal hearing at the RO, the veteran testified that he had paranoid schizophrenia that had its ups and downs and was not constantly disabling, but his PTSD continued. Sometimes he was uncomfortable in public and did not do well with strangers. He sometimes did not do well with others telling him what to do. The veteran said that he had not worked since 1975, apparently initially due to his paranoid schizophrenia. He said he had a seafood business and evidently sold fish from a truck. In 1975, the veteran had a nervous breakdown and was unable to work. He said his prescribed medication prevented him for awaking in a timely fashion and his nightmares prevented him from sleeping that affected his ability to work. He denied having any talents and said he liked to go deer hunting. His treating VA psychiatrist said he could not work. His fiancé, S.A., testified that the veteran had a lot of combat-related nightmares and flashbacks. III. Legal Analysis The present appeal involves the veteran's claim that the severity of his service-connected PTSD warrants a higher disability rating. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The Board here notes that this is a situation where the veteran has expressed continuous disagreement with the initial rating assignment. The Court has addressed the distinction between a veteran's dissatisfaction with the initial rating assigned following a grant of entitlement to compensation, and a later claim for an increased rating. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Court noted that the rule from Francisco v. Brown, 7 Vet. App. 55, 58 (1994), as to the primary importance of the present level of disability, is not necessarily applicable to the assignment of an initial rating following an original award of service connection for that disability. Rather, the Court held that, at the time of an initial rating, separate ratings could be assigned for separate periods of time based upon the facts found - a practice known as assigning "staged" ratings. The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Under the current schedular criteria, DC 9411 (for PTSD), is evaluated under the general rating formula used to rate psychiatric disabilities other than eating disorders. 38 C.F.R. § 4.130 (2007). A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, 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); and the inability to establish and maintain effective relationships. Id. Finally, a 100 percent rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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. Id. GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health - illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (quoting from the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV). A GAF score of 31 to 40 denotes behavior considerably influenced by delusions or hallucinations or serious impairment in communications or judgment or an inability to function in almost all areas. Id. A GAF score of 41 to 50 denotes serious symptoms, or any serious impairment in social, occupational, or school functioning. Id. These scores have been recognized by the Court as an indicator of mental health on a hypothetical continuum of mental health-illness. Carpenter v. Brown, 8 Vet. App. at 242. When it is not possible to separate the effects of a non- service-connected condition from those of a service-connected disorder, reasonable doubt should be resolved in the claimant's favor with regard to the question of whether certain signs and symptoms can be attributed to the service- connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998); see also 38 C.F.R. § 3.102. Giving the veteran the benefit of the doubt, and after considering all of the objective medical evidence of record, it is the judgment of the Board that, for the period from March 15, 2000 to October 31, 2002, the schedular criteria for a 100 percent rating are met, as the veteran's PTSD has effectively resulted in total occupational and social impairment. The Board finds that the medical evidence shows the veteran is unemployable due to the disability at issue. See Mittleider v. West, supra. In fact, in April 2000, the VA examiner said the veteran functioned at a psychotic level with behavior that was often inappropriate and seemed autistic, had severely impaired industrial capacity, with major impairments in judgment, thinking and mood, and required encouragement to shower and perform household chores. This examiner said that the veteran felt estranged from others, experienced sleep difficulty and angry outbursts plus hypervigilance, and an exaggerated startle response with severely impaired social function due to the veteran's tendency to be suspicious, paranoid, and withdrawn. As well, the December 1999 and January 2000 private records show that the veteran was bothered by repetitive consistent nightmares and increase in startle response, ongoing depression, angry outbursts and irritability, poor concentration, and possible agoraphobia. In view of the foregoing, the Board concludes that the evidence is at least in relative equipoise as to the level of psychiatric disability, and as to whether it is reasonable to conclude that the disability picture is comparable to a 100 percent evaluation. Overall, the evidence shows that there is a question as to which of the two evaluations should apply, 70 percent or 100 percent, since the current level of disability arguably, but not clearly, approximates the criteria for a 100 percent evaluation. Thus, the Board concludes, with favorable resolution of reasonable doubt, that a 100 percent rating under DC 9411 is warranted, under the regulations currently in effect. 38 C.F.R. § 4.7. It is significant, however, that the veteran's PTSD symptomatology did not precisely mirror the symptoms illustrative of a 100 percent evaluation under DC 9411. For example, for the period in question, there is little or no evidence in the record of gross of impairment in communication; gross inappropriate behavior; persistent danger of hurting self or others; disorientation to time or place; memory loss for names of close relatives, own occupation or own name. However, it is apparent that the veteran's symptoms, especially his sleep difficulty, hyper arousal, irritability, anxiety, social isolation, inappropriate behavior, and depression, have essentially totally impaired his social and occupational functioning by severely reducing his reliability and productivity. In these circumstances, therefore, the Board finds that a 100 percent evaluation is warranted for the service-connected PTSD. See 38 C.F.R. § 4.21 (not all cases will show all findings specified in the rating criteria, but the rating must in all cases be coordinated with actual functional impairment). The April 2000 VA examiner assigned a GAF score of 40, denoting behavior considerably influenced by delusions or hallucinations or serious impairment in communications or judgment or an inability to function in almost all areas. The December 1999 private psychiatric evaluation assigned a GAF score that ranged from 40-45, that also denoted serious impairment in communications or judgment or an inability to function in almost all areas. See Carpenter v. Brown, supra. Further, the veteran's PTSD symptomatology has included angry outbursts, hypervigilance, considerable startle response, panic attacks, social isolation, and recurrent combat-related nightmares and intrusive recollections of service- related events. In reaching this decision, the Board recognizes that the veteran's capability to work was at times attributed to non- service-connected disorders, including paranoid schizophrenia. Nevertheless, the record also establishes that he has been treated for many years for chronic, debilitating symptoms nondissociable from the service- connected PTSD, which included nightmares and sleep difficulty, considerable startle response, social isolation, hypervigilance, and difficulty managing anger that, for all intents and purposes, precluded him from gainful employment. See e.g., Mauerhan v. Principi, supra (factors listed in the rating formula are examples of conditions that warrant a particular rating and are used to help differentiate between the different evaluation levels.). From the objective and competent medical evidence of record, it is not unreasonable to conclude that, for the period from March 15, 2000 to October 31, 2002, the veteran's service-connected PTSD essentially rendered him unable to work with or for others. Resolving reasonable doubt in the veteran's favor, and without ascribing error to the action by the RO, the Board concludes that, for the period from March 15, 2000 to October 31, 2002, the criteria for the assignment of an initial 100 percent rating for PTSD have been satisfied. In view of the above, the Board finds that the application of the benefit-of-the-doubt doctrine contemplated by 38 U.S.C.A. § 5107(b) is appropriate in this case. As stated, the level of disability, when the benefit of the doubt is given to the veteran, is approximately commensurate with the 100 percent rating under DC 9411. Finally we note that, in view of the holding in Fenderson, supra, the Board has considered whether the veteran is entitled to a "staged" rating for his service-connected PTSD, as the Court indicated can be done in this type of case. Based upon the record, we find that at no time since the veteran filed his original claim for service connection has the disability on appeal been more disabling than as currently rated under the present decision of the Board., ORDER An initial rating of 100 percent for PTSD for the period from March 15, 2000 to October 31, 2002, is granted, subject to the rules and regulations governing the award of monetary benefits. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs