Citation Nr: 0810854 Decision Date: 04/02/08 Archive Date: 04/14/08 DOCKET NO. 05-27 995 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an evaluation in excess of 30 percent for Post Traumatic Stress Disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. C. Dale, Associate Counsel INTRODUCTION The veteran had active duty service from July 1964 to July 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The veteran was afforded a February 2008 Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. FINDING OF FACT The veteran's PTSD symptoms are manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as: panic attacks more than once a week; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. CONCLUSION OF LAW The criteria for an evaluation of 50 percent for PTSD have been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.125- 4.130, Diagnostic Code 9411 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2005). The Board has considered this legislation, but finds that, given the favorable action taken below, no discussion of the VCAA at this point is required. Analysis The veteran was service connected for PTSD in a September 2001 RO decision, and he was assigned a 30 percent rating. The veteran contends his PTSD symptoms have increased in severity to warrant a rating in excess of 30 percent. After careful consideration of the claim, the Board finds that after resolving the benefit of the doubt in favor of the veteran, the evidence reflects that the veteran is entitled to a 50 percent rating. Disability evaluations are determined by the application of a schedule of ratings which is based upon an average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. §§ 3.102, 4.3, 4.7. In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the appellant, as well as the entire history of the veteran's disability in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two disability 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 the evaluation of service-connected disabilities the entire recorded history, including medical and industrial history, is considered so that a report of a rating examination, and the evidence as a whole, may yield a current rating which accurately reflects all elements of disability, including the effects on ordinary activity. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.41. While the veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Court recently held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The veteran's PTSD was evaluated under Diagnostic Code 9411. Regulations pertaining to the criteria for evaluating psychiatric disorders, including PTSD, provide for a 30 percent disability rating 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, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is for assignment 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; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. A 70 percent evaluation will be assigned where 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); and the inability to establish and maintain effective relationships. Id. In evaluating psychiatric disabilities, the Board has adopted the Diagnostic and Statistical Manual of Mental Disorders, 4th ed., American Psychiatric Association (DMS-IV). That manual includes a Global Assessment of Functioning (GAF) scale reflecting psychological, social and occupational functioning on a hypothetical continuum of mental illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DSM- IV). A score of 41-50 indicates 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). A score of 51-60 indicates 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 peer or coworkers). A score of 61 to 70 indicates some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning, but generally functioning pretty well with some meaningful interpersonal relationships. See Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Washington, DC, American Psychiatric Association, 1994. The veteran has received treatment for PTSD since 1995. The veteran underwent an April 2005 VA examination. At the examination, the veteran reported that anxiety, irritability, restlessness, and distractibility interfered with his work and marital life. Despite describing himself as a loner, the examiner noted that the veteran reported to stay involved with old friends, church, and kickboxing classes. The examiner diagnosed the veteran with mild to moderate PTSD and assigned GAF score of 60. In an October 2005 addendum, the VA examiner reported that no amendment was required of earlier findings. VA treatment records, dated April 2006, show that the veteran reported an increase in depression and anxiety symptoms. Treatment notes from June 2006 and November 2006 reflect that the veteran's mood was fair and that he denied depressive symptoms. Lastly, in a treatment note, dated February 2007, the examiner noted that the veteran's affect was good and that he denied most depressive symptoms. However, the veteran reported nightmares frequenting about once a month and panic attacks occurring weekly. Overall, the examiner assessed the veteran as doing well. The veteran underwent a February 2007 VA examination. At the examination, the veteran reported that he has weekly nightmares and anxiety attacks. The examiner noted that, despite having some trouble with social relationships, the veteran's mental condition did not prevent him from engaging in normal activities of daily living. The examiner diagnosed the veteran with PTSD and assigned a GAF score of 60, and commented that the veteran's PTSD symptoms have remained the same since his April 2005 VA examination. There are also several lay statements commenting on the veteran's mental condition. In an April 2006 letter, the veteran's daughter stated that the veteran was homeless and that his depression and anger have increased to an extent where he needed an increase in his medication. Most recently, there are January and February 2008 lay statements. In a January 2008 note, T.B. commented that the veteran's mood swings increased in severity over the past six months, causing him to miss work on multiple occasions. T.F. wrote in a January 2008 letter that the veteran's personality has become erratic and that in several instances the veteran had to leave work from what he described as panic attacks triggered by planes flying overhead. He also reported that he was very careful to ensure that the veteran worked alone. Lastly, the veteran's friend, M.D. noted that the veteran had many mood swings over the past year to year and a half. At the February 2008 Travel Board hearing, the veteran testified that his depression recently increased and interfered more with his job. He also testified that he tried to minimize any social interaction as a result of his mental conditions. After resolving the benefit of the doubt in favor of the veteran, the Board finds that the medical and lay evidence warrants a 50 percent rating for PTSD symptoms under 38 C.F.R. § 4.130. At the most recent VA examination in February 2007 the examiner found that despite trouble with social relationships and panic attacks, the veteran was capable of engaging in the normal activities of daily living. Lay statements submitted on behalf of the veteran note that there is an increase in severity of the veteran's mental condition and that his mental condition is more frequently interfering with his occupations. Although VA treatment records from 2006 and February 2007 show that the veteran's depressive symptoms had moderated and that he was functional, lay statements by the veteran and his employer reflect that the veteran's PTSD symptoms have worsened over the past year. Specifically, the veteran's employer recounted that on multiple recent occasions the veteran had to stop work immediately due to his mental condition. Also, he noted that he had to be careful to ensure that the veteran worked alone due to his mental state. That the veteran was forced to leave his workplace in August 2007 suggests occupational impairment with reduced reliability and productivity due to panic attacks. See 38 C.F.R. § 4.130, DC 9411. The employer also reported that incidents like this have repeatedly occurred in recent times. At the February 2008 Travel Board hearing, the veteran stated that he sought isolation. For instance, the veteran noted that he only went grocery shopping late at night to avoid people and that he would become upset by the social interaction involved in going to the gas station. ORDER An evaluation of 50 percent for PTSD is granted. To this extent, the claim is allowed. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs