Citation Nr: 0811469 Decision Date: 04/07/08 Archive Date: 04/23/08 DOCKET NO. 04-11 358 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to a rating in excess of 30 percent for post- traumatic stress disorder (PTSD) from February 20, 2002, to October 24, 2007. 3. Entitlement to a rating in excess of 50 percent for PTSD from October 25, 2007. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The veteran served on active duty from January 1951 to October 1952. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In a January 2008 rating decision VA increased the rating assigned for disability due to PTSD to 50 percent, effective October 25, 2007. The 30 percent rating was in effect from April 19, 1999. The United States Court of Appeals for Veterans Claims (Court) has held that a "decision awarding a higher rating, but less than the maximum available benefit...does not...abrogate the pending appeal...." AB v. Brown, 6 Vet. App. 35, 38 (1993). In April 2007, a Veterans Law Judge from the Board granted the veteran's motion to advance the case on the Board's docket. The appeal was remanded by the Board in May 2007 so that additional development of the evidence could be conducted. The record raises the issue of entitlement to service connection for a benign essential tremor secondary to post traumatic stress disorder. This issue, however, is not currently developed or certified for appellate review. Accordingly, this matter is referred to the RO for appropriate consideration. FINDINGS OF FACT 1. For the period from February 20, 2002, to October 24, 2007, the preponderance of the probative evidence shows that the veteran's PTSD was not manifested by 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; impaired abstract thinking; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 2. From October 25, 2007, the preponderance of the probative evidence shows that the veteran's PTSD has not been manifested by 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; intermittently illogical, obscure, or irrelevant speech; 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. CONCLUSIONS OF LAW 1. From February 20, 2002, to October 24, 2007, a rating in excess of 30 percent for the veteran's PTSD was not warranted. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 4.2, 4.7, 4.10, 4.130, Diagnostic Code (Code) 9411 (2007). 2. From October 25, 2007, a rating in excess of 50 percent for the veteran's PTSD is not warranted. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.2, 4.7, 4.10, 4.130, Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters 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 September 2003 correspondence and a December 2003 statement of the case 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 statement of the case informed the veteran of the specific rating criteria which would provide a basis for an increased rating. 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. The September 2003 correspondence and the statement of the case both essentially informed the claimant of the need to submit all pertinent evidence in his possession. The claim was subsequently readjudicated in a January 2008 supplemental statement of the case. The supplemental statement of the case also provided adequate notice of how 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 claims. 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. Factual Background The veteran essentially contends that the severity of his PTSD symptoms warrant the assignment of a higher rating. See March 2008 Written Brief Presentation. The report of a September 1999 VA PTSD examination shows that the veteran worked part-time, and volunteered at his local church. He complained of nervousness and irritability. Mental status examination showed the veteran to be casually dressed and appropriately groomed. He seemed anxious, but not depressed. He denied hallucinations, and no evidence of delusions was present. The veteran was oriented to time, person, and place. PTSD was diagnosed, and a Global Assessment of Functioning (GAF) score of 62 was provided. The examiner added that veteran exhibited mild to moderate symptoms of PTSD, and that he had some meaningful interpersonal relationships. The veteran did, however, suffer from subjective stress, intrusive thoughts, sleep problems, and certain avoidant behaviors. The RO granted service connection for PTSD in February 2000. A 30 percent rating, effective from April 19, 1999, was assigned. The veteran was notified of this decision in February 2000 but did not appeal. An August 2001 letter from a private neurologist indicated that the veteran suffered from benign essential tremor. The letter also noted that this diagnosed disorder was worsened by the veteran's PTSD and "beta agonist use." (sic) The veteran indicated that he was not interested in receiving PTSD counseling. A May 2002 VA outpatient nursing note shows that screening for depression was negative. In May 2003, the veteran was afforded a VA PTSD examination. The veteran's claims folder was not available for review. Mental status examination showed the veteran to be in no emotional distress. Hygiene was fair. Eye contact was good; his speech was elevated in amount and rate, but normal in volume. The examiner commented hat the veteran was essentially oriented. The veteran complained of problems with memory. His judgment to a hypothetical was poor. The veteran reportedly slept five hours a night. A full affect was demonstrated, and thoughts were not obviously slowed. He denied suicidal and homicidal thoughts. The veteran did state that he occasionally heard soldiers voices at night. He complained of occasional nightmares. Some impairment was revealed on memory testing. The veteran informed the examiner that he was irritable towards his wife in the morning, and complained of some intrusive thoughts during the day. He added that he had startle reactions to hunters and planes. PTSD was diagnosed and a GAF score of 60 was provided. The examiner opined that the veteran had some impairment in social interactions. The examiner added that the level of PTSD disability was mild to moderate. The examiner, though he did not review the veteran's claims file, opined that the PTSD had increased in severity since his earlier evaluation in which the award of 30 percent was made. The increase was noted to be attributable in part to current events and in part to the veteran's declining activity level. A November 2003 letter from the above-mentioned private neurologist shows that, as before, an essential tremor disorder was diagnosed. Mental status testing showed that veteran was alert and oriented times three. Judgment and insight were appropriate, and no impairment of short term memory was observed. On October 25, 2007, the veteran was afforded a VA PTSD examination. The veteran's claims file was available to the examining psychologist for review. The veteran reported that his PTSD symptoms included twice weekly nightmares, sleep problems, daily intrusive thoughts, avoidance of crowds, and irritability. The veteran also depressed feelings of isolation from others, and complained of flashbacks when he heard an airplane. He was also noted to be hypervigilent with an exaggerated startle response to loud noises. The veteran told the examiner that while he had experienced both suicidal and homicidal ideations in the past he never made a plan or attempted to harm himself. No prior history treatment was noted. The veteran indicated that he had retired in 1990. Mental status examination showed the veteran to be appropriately dressed and groomed. His speech was clear, coherent, and goal directed. He was alert and oriented to time, place, and person. His thought process was described as linear with no delusional content. No evidence current suicidal or homicidal ideation was shown. Insight and judgment were both described as being appropriately developed. Intelligence was normal. No evidence of any thought or perceptual disturbance was observed. Affect was flat, and mood was dysphoric. PTSD was diagnosed, and a GAF score of 50 was supplied. The examiner noted that the veteran was currently experiencing a mild to moderate level of impairment in social and occupational functioning. Laws and Regulations Disability ratings are based upon the average impairment of earning capacity as determined by a Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate rating codes identify the various disabilities. Id. An evaluation of the level of disability present also includes consideration of the veteran's ability to engage in ordinary activities, including employment, and the effect of symptoms on the functional abilities. 38 C.F.R. § 4.10. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. 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). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 38 C.F.R. § 4.130, Diagnostic Code (Code) 9411, a 30 percent rating is warranted, for 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). 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. A 70 percent rating is warranted for 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; intermittently illogical, obscure, or irrelevant speech; 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 Global Assessment of Functioning (GAF) rating is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994) (DSM-IV). Analysis After considering all of the evidence of record, including particularly the above-referenced VA PTSD examination reports dated in September 1999, May 2003, and October 25, 2007, the Board finds that the veteran's PTSD did not warrant a rating in excess of 30 percent at any time from February 20, 2002, to October 24, 2007, nor is a rating in excess of 50 percent warranted from October 25, 2007. In this regard, between February 20, 2002, and October 24, 2007, the medical evidence of record fails to demonstrate that the criteria set out in 38 C.F.R. § 4.130 (Code 9411), and necessary for the assignment of a 50 percent (or higher) rating, had been met. Review of the September 1999 VA PTSD examination report reveals that the examiner did not find that the veteran suffered from any of the symptoms necessary for the assignment of a 50 percent rating. See Code 9411. Further, a GAF score of 62 was provided in September 1999. A GAF score of from 61 to 70 reflects 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. See DSM- IV. Also, the May 2003 PTSD examination acknowledged that some impairment of memory and judgment was present. Still, the examiner, who did not have an opportunity to review the claims file, did not find that the veteran suffered from various symptoms necessary for the assignment of a 50 percent rating, such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impaired abstract thinking; and disturbance of motivation and mood. The Board also observes that a GAF score of 60 was provided. A GAF score of from 51 to 60 generally reflects moderate symptoms, e.g., flat affect and circumstantial speech, occasional panic attacks or moderate difficulty in social, occupational, or school functioning. See DSM-IV. Accordingly, a rating in excess of 30 percent is not warranted for the PTSD for the period from February 20, 2002, through October 24, 2007. The Board also finds that a rating in excess of 50 percent is not warranted for PTSD at any point since October 25, 2007. On review of the findings set out as part of the October 25, 2007 VA examination, the Board finds that while the veteran complained of a history of suicidal and homicidal ideation in the past, there was no current evidence of suicidal or homicidal ideation. The mental status examination findings also failed to show the presence of most of the other PTSD symptoms necessary for the assignment of a 70 percent rating such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control; spatial disorientation; neglect of personal appearance and hygiene; and difficulty in adapting to stressful circumstances. It is significant that the veteran informed the examiner on October 25, 2007, that he had not been afforded previous psychiatric treatment for his PTSD. While a GAF score of 50 was provided by the examiner, the examiner also described the veteran's PTSD to constitute a mild to moderate level of impairment in social and occupational functioning. These two findings, in the opinion of the Board seem contradictory. To this, a GAF score of 41 to 50 reflects 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. Again, the examiner in October 2007, after reviewing the veteran's claims folder, described the degree of social and occupational impairment mild to moderate. This degree of disability does not meet the criteria for a rating in excess of 50 percent. It does not appear that the veteran has been afforded treatment for his PTSD subsequent to the VA's October 25, 2007, examination. The veteran has not stated, nor do the medical records indicate, that he has had any subsequent treatment for PTSD. Without medical evidence documenting more severe symptoms of PTSD disability, no more than a 50 percent rating is warranted for PTSD from October 25, 2007. In reaching these decisions, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claims, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A rating in excess of 30 percent for PTSD from February 20, 2002, to October 24, 2007, is denied. A rating in excess of 50 percent for PTSD from October 25, 2007, is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs