Citation Nr: 0811728 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 07-15 024 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to an initial disability rating greater than 50 percent for service-connected post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The veteran served on active duty from July 1965 to July 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), located in North Little Rock, Arkansas, which, in pertinent part, granted service connection for PTSD and assigned a 30 percent disability rating, effective as of July 22, 2005. The veteran expressed disagreement with the assigned disability rating and perfected a substantive appeal. During the pendency of this appeal, by rating action dated in March 2007, the RO determined that the veteran's service- connected PTSD warranted a disability rating of 50 percent, effective as of July 22, 2005. Applicable law provides that absent a waiver, a claimant seeking a disability rating greater than assigned will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and that a claim remains in controversy where less than the maximum available benefits are awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). The veteran has not withdrawn the appeal as to the issue of a disability rating greater than the 50 percent rating assigned; therefore, the issue of higher initial disability rating remains in appellate status. In a Statement In Support Of Claim (VA Form 21-4138) dated in May 2007, the veteran raised the issue of entitlement to a special monthly pension based on the need for regular aid and attendance of another person or by reason of being housebound. The RO apparently has not yet issued a rating decision on that claim; therefore, this matter is referred to the RO for appropriate action. In December 2007, the veteran testified at a personal hearing over which the undersigned Acting Veterans Law Judge presided while at the RO (Travel Board hearing). A transcript of the hearing has been associated with the veteran's claims file. In light of the Board's decision herein to grant an initial disability rating of 70 percent for the entire period in initial rating claim, the remaining issue is entitlement to an initial disability rating greater than 70 percent for the service-connected PTSD. The remaining issue is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDING OF FACT The veteran's service-connected PTSD has for the entire period of initial rating claim manifested occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for an initial disability rating of 70 percent for service-connected PTSD have been met for the entire period of claim. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.21, 4.130, Diagnostic Code 9411 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Notify and Assist VA has specified duties to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The Board has considered whether further development and notice under the Veterans Claims Assistance Act of 2000 or other law should be undertaken. In the decision below, the Board grants the veteran's claim of a higher initial disability rating of 70 percent for the service-connected PTSD for the entire period of initial rating claim. Given the results favorable to the veteran with regard to the grant of initial disability rating up to 70 percent for the entire period of initial rating claim, further development under the VCAA is not required to this extent. (Further duties that apply to the remaining aspect of the initial rating on appeal, entitlement to an initial disability rating in excess of 70 percent for service-connected PTSD, are addressed below in the REMAND portion of this decision.) Initial Disability Rating for PTSD Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to evaluate the disability from the point of view of the veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2007). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). There is a distinction between an appeal of an original or initial rating and a claim for an increased rating, and this distinction is important with regard to determining the evidence that can be used to decide whether the original rating on appeal was erroneous. Fenderson v. West, 12 Vet. App. 119, 126 (1999). For example, the rule articulated in Francisco v. Brown, 7 Vet. App. 55, 58 (1994) - that the present level of the veteran's disability is the primary concern in a claim for an increased rating and that past medical reports should not be given precedence over current medical findings - does not apply to the assignment of an initial rating for a disability when service connection is awarded for that disability. Fenderson, 12 Vet. App. at 126. Instead, where a veteran appeals the initial rating assigned for a disability, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson, 12 Vet. App. at 126. If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. In the present case, the RO has initially rated the veteran's service-connected PTSD as 50 percent disabling pursuant to the criteria set forth in Diagnostic Code 9411. A 50 percent disability rating is warranted when occupational and social impairment is found 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 rating is warranted 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 worklike setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. 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. 38 C.F.R. § 4.130. 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 (4th ed.1994). A GAF of 31 to 40 is defined as exhibiting some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or any 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). A GAF of 41 to 50 is defined as serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF of 51 to 60 is defined as 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 evidence in this case includes VA outpatient treatment records dated from June 2004 to May 2006 that show that the veteran was treated intermittently for symptoms associated with his PTSD. In August 2004 and September 2004, the veteran was assigned a GAF score of 51. A VA mental health examination report dated in January 2005 shows that the veteran reported being treated for symptoms associated with PTSD since August 2004. He described taking medications for his symptoms. His spouse, who was present during the evaluation, reported that the veteran had exhibited severe hypervigilance, avoidance, anger control problems, increased startle response, sleep disturbance with nightmares, depression, and irritability. The diagnosis was chronic PTSD and chronic major depressive disorder, in early partial remission. A GAF of 55 was assigned. In July 2007, the veteran and his spouse testified at a personal hearing over which a hearing office of the RO presided. During the hearing, the veteran reported that he did not function well around others, and that he would become easily angered and frustrated. He described getting into altercations when he had been employed as a landscaper. His spouse reiterated the veteran's statements adding that she had to increasingly take care of most of the veteran's business as a result of his symptoms. She described that they could no longer eat out with friends as the veteran would lose his temper and cause a scene. She added that the veteran's son would no longer visit, and that the veteran would not take any telephone calls. The veteran also described night sweats and panic attacks at night which would occur several time each week. VA outpatient treatment records dated from September 2006 to June 2007 show continued intermittent treatment for symptoms associated with PTSD. The veteran was shown to have a mild dementia syndrome with prominent emotional conflicts typical of a primary dementia. Additionally, his chronic PTSD, brain trauma from pituitary surgery, and aortic valve replacement, were all said to have contributed to his current dementia with frontal lobe symptoms of impulsiveness, disinhibition, and irritability. His GAF scores ranged from 40 to 41. A VA examination report dated in March 2007 shows that the veteran reported continued symptoms associated with PTSD, to include nightmares, intrusive thoughts of war, difficulty sleeping, and social isolation. Physical examination revealed anxious mood and depression. Affect was appropriate to subject or context; thought processes were logical and tight; there was no loosening of associations nor confusion; and there were no hallucinations or delusions. There was some cognitive difficulty and some reported suicidal ideation without intent. The diagnosis was chronic PTSD. The examiner added that the veteran's symptoms were moderate to severe and had persisted for years. A GAF of 45 was assigned. During the December 2007 Travel Board hearing, the veteran and his spouse reiterated symptoms as previously described during the July 2007 RO hearing. The described symptoms which included continued anger management, anxiety, depression, and nightmares. As indicated above, the veteran was initially assigned a 50 percent disability rating for his service-connected PTSD under 38 C.F.R. § 4.130, Diagnostic Code 9411. After a review of the evidence, the Board finds that overall the veteran's disability picture more nearly approximates the criteria for a 70 percent disability rating. See 38 C.F.R. §§ 4.7, 4.21. The evidence supports a finding that the veteran's service-connected PTSD has for the entire period of initial rating claim manifested symptomatology that more nearly approximates occupational and social impairment with deficiencies in most areas, as required for a 70 percent disability rating under Diagnostic Code 9411. The evidence of record shows that the veteran experiences significant social impairment due to depression, social isolation, nightmares, anxiety, chronic sleep problems, and suicidal ideations. The evidence of record shows that the veteran has not worked for a number of years. He avoids contact with others, has difficulty with anxiety, anger management, depression, and has reported suicidal ideations. Although the VA outpatient treatment records from August 2004 to January 2005 showed GAF scores of 51 and 55, which is indicative of moderate symptoms or moderate difficulty in social and occupational functioning, the competent medical evidence of record dated thereafter has demonstrated GAF codes which ranged from 40 to 45, which is indicative of serious symptoms and serious impairment in social and occupational functioning. Moreover, the examiner in March 2007 indicated that the veteran's moderate to severe symptoms had persisted for years. Accordingly, the Board finds that overall disability picture most closely approximates the criteria for a 70 percent disability rating, but not greater. As noted above, this is an initial rating case, and consideration has been given to "staged ratings" since service connection was made effective (i.e., different percentage ratings for different periods of time). Fenderson, 12 Vet. App. at 119. However, there appears to be no identifiable period of time since the effective date of service connection, during which the PTSD symptomatology warranted a staged rating. ORDER An initial disability rating of 70 percent for service- connected PTSD, for the entire period of initial rating claim, is granted. REMAND In a letter from the U.S. Social Security Administration (SSA) dated in April 2007, it was indicated that the veteran was receiving disability compensation benefits as a result of a pituitary gland disorder and an anxiety related disorder. A review of the evidence of record shows that the complete medical and administrative records related to the veteran's SSA disability compensation benefits claim have not been obtained. These records are potentially important to his claim, in that they may provide a basis for a disability rating greater than the 70 percent initial rating established hereinabove. On remand, the RO should make arrangements to obtain these SSA records. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Accordingly, the remaining issue of entitlement to a higher initial disability rating than 70 percent is REMANDED for the following action: 1. The RO/AMC shall obtain the administrative and medical records relating to the veteran's SSA disability compensation benefits claim, and associate them with his claims file. 2. The RO/AMC will then readjudicate the veteran's the remaining claim of entitlement to a higher initial disability rating than 70 percent for service-connected PTSD. If the benefit sought on appeal remains denied, the veteran and his representative should be provided with a Supplemental Statement of the Case, and should be afforded an appropriate period of time for response. Thereafter, the case is to be returned to the Board, following applicable appellate procedure. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of this remand is to obtain additional evidence. No inference should be drawn regarding the final disposition of this claim as a result of this action. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ J. Parker Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs