Citation Nr: 0812663 Decision Date: 04/16/08 Archive Date: 05/01/08 DOCKET NO. 03-11 531 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an initial rating higher than 30 percent for post-traumatic stress disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran, P.H., and M.B. ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Associate Counsel INTRODUCTION The veteran, who is the appellant, served on active duty from January 1968 to January 1970. This case is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in April 2002 of a Regional Office (RO) of the Department of Veterans Affairs (VA). In November 2004, the veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the veteran's file. In August 2005 and in July 2006, the case was remanded by the Board for further evidentiary development. As the requested development has been completed, no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. Prior to August 12, 2006, under the General Rating Formula for Mental Disorders, post -traumatic stress disorder was manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as or to the equivalent of such symptoms associated with the diagnosis of post-traumatic stress disorder under DSM-IV, but not listed under the General Rating Formula for Mental Disorders, 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; and difficulty in establishing and maintaining effective work and social relationships. 2. As of August 12, 2006, under the General Rating Formula for Mental Disorders, post -traumatic stress disorder is manifested by occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, and mood due to such symptoms as or to the equivalent of such symptoms associated with the diagnosis of post-traumatic stress disorder under DSM-IV, but not listed under the General Rating Formula for Mental Disorders, 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 CONCLUSIONS OF LAW 1. Prior to August 12, 2006, the criteria for an initial rating of 50 percent for post-traumatic stress disorder have been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2007); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2007). 2. As of August 12, 2006, the criteria for an initial rating of 70 percent for post-traumatic stress disorder have been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2007); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2007). Veterans Claims Assistance Act of 2000 (VCAA) The VCAA amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159. Duty to Notify Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Under 38 C.F.R. § 3.159, VA must request that the claimant provide any evidence in the claimant's possession that pertains to the claim. The VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a claim for increase, the VCAA notice requirements are the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Also, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the VA must provide at least general notice of that requirement to the claimant. Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre-adjudication, content-complying VCAA notice by letter, dated in October 2001, on the underlying claim of service connection for post-traumatic stress disorder. Where, as here, service connection has been granted and an initial rating has been assigned, the claim of service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. And once a claim for service connection has been substantiated, the filing of a notice of disagreement with the RO's decision, rating the disability, does not trigger additional 38 U.S.C.A. § 5103(a) notice. Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is no longer applicable in the claim for an initial higher rating for post-traumatic stress disorder. Dingess, 19 Vet. App. 473. Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim. In this case, the veteran was afforded VA examinations. As the veteran has not identified any additional evidence pertinent to his claim, not already of record, and as there are no additional records to obtain, the Board concludes that the duty-to-assist provisions of the VCAA have been complied with REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background The record shows that the veteran suffered multiple injuries in service. By a rating decision in July 1970, the RO granted service connection for organic brain syndrome with brain trauma, rated as 10 percent disabling, along with service connection for a burned left hip and shrapnel wounds to the axilla and left leg, rated as noncompensable. On VA examination for post-traumatic stress disorder in March 2002, the veteran complained of difficulty sleeping, memory problems, and irritability associated with a history of headaches. He complained of being depressed most of the time and having a short temper. The veteran denied hallucinations, paranoid ideation, or suicidal ideation. He indicated that he had become more isolative since his return from Vietnam. The examiner noted that the veteran's affect was anxious, tense and depressed. Insight, memory and judgment were described as good. The examiner observed that the veteran was cleanly dressed. The veteran related having two daughters. The veteran stated that he was not get along with his second wife. The veteran gave a history of multiple jobs since service discharge to include farming, logging, and several factory jobs, until three years earlier when he quit working because he was tired. The examiner diagnosed post- traumatic stress disorder and noted that the veteran's head injury had obscured a valid diagnosis of post-traumatic stress disorder. The examiner assigned a Global Assessment of Functioning (GAF) score of 45. VA records disclose that in June 2002 the veteran complained of nightmares of combat in Vietnam and difficulty sleeping. The veteran was described as neatly dressed and groomed. His mood was euthymic and his speech was slurred. Thought process was linear and goal-directed, insight and judgment were good. He denied delusions, hallucinations, suicidal or homicidal ideation. The assessment was organic affective syndrome. In December 2002, the veteran endorsed nightmares, flashbacks, and crying spells. His spontaneity was decreased and his mood and affect were blunted. The assessment was organic affective disorder and post-traumatic stress disorder. The GAF score was 55. In November 2004, the veteran indicated that he was being treated about once every two months for post-traumatic stress disorder. VA records show that in February 2005 the veteran complained of nightmares and flashbacks of Vietnam, along with crying spells. The veteran was described as casually dressed and groomed. His affect was blunted and his mood was dysthymic. He had decreased spontaneity and elaboration. Speech was unremarkable. His thought process was linear and goal oriented. Insight and judgment were fair. He was oriented except as to time. The assessment was organic affective disorder and post-traumatic stress disorder. The GAF score was 48. In May 2005, a GAF score of 49 was assigned. On VA examination in September 2005, the examiner indicated that she attempted to interview the veteran, but it was impossible because he was unable to communicate. On VA examination on August 12, 2006, the veteran was accompanied by his daughter. The examiner noted that the veteran had cognitive difficulties which made it impossible for him to complete the examination without the assistance of his daughter. It was noted that the veteran had no friends and that he been living with his daughter for a year. She described their relationship as good although they had problems due to his irritability and his being up at night. The veteran was alert, but he had problems with orientation. His mood was dysphoric and his affect was constricted. Insight was limited. The veteran's speech and thought process were slowed and he showed psychomotor retardation. There was no evidence of auditory hallucinations or delusions. The veteran endorsed nightmares, intrusive thoughts of Vietnam, fighting in his sleep, insomnia, flashbacks, startle response, depressed mood, low energy and motivation, and a history of suicide attempts. The examiner reported that the veteran exhibited considerable to severe symptoms of post-traumatic stress disorder and severe symptoms associated with his cognitive impairment. The examiner expressed the opinion that the veteran's social adaptability and interactions with others appeared to be moderately to considerably impaired due to post-traumatic stress disorder, and his ability to obtain and maintain employment were considerably to severely impaired due to post-traumatic stress disorder. The GAF score was 40. Rating Criteria A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Post-traumatic stress disorder is rated under Diagnostic Code 9411 under the General Rating Formula for Mental Disorders. The criteria for the next higher rating, 50 percent rating, are 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; and difficulty in establishing and maintaining effective work and social relationships. The criteria for a 70 percent are 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 work-like setting); and the inability to establish and maintain effective relationships. The criteria for a 100 percent disability rating, are total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance and minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The Global Assessment of Function (GAF) score reflects the psychological, social, and occupational functioning in a hypothetical continuum of mental health- illness. GAF scores ranging from 31 to 40 reflect major impairment in several areas, such as work, family relationships, judgment, thinking, and mood (e.g., avoids friends, neglects family, and is unable to work). GAF scores ranging from 41 to 50 reflect serious symptoms (e.g. suicidal ideation or severe obsessional rituals), or any other serious impairment in social or occupational functioning. A GAF score from 51 to 60 represents 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). Analysis Because of the potential for a separate rating for a separate period of time based on facts found, the Board will separately rate the veteran's post-traumatic stress disorder based on the VA examination in March 2002, and VA records more contemporaneous with the examination in March 2002 and the VA psychiatric examination in August 2006. VA Examination in March 2002 and Contemporaneous VA Records On VA examination in March 2002, the veteran related symptoms of depression, difficulty sleeping, memory problems, and irritability. The veteran denied hallucinations, paranoid ideation, or suicidal ideation. VA records prior to and after the examination, until February 2005, documented complaints of anxiety, depression, problems sleeping, nightmares of combat in Vietnam, and crying spells. The Global Assessment of Functioning scores were in the range of 45 to 55. A GAF score of 45 is in the range 41 to 50 indicative of 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 score in the range of 51 to 60 represents 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). Neither the number of symptoms, nor the type of symptoms, nor the GAF score controls in determining whether the criteria for a 50 percent have been met. It is the effect of the symptoms, rather that the presence of symptoms, pertaining to the criteria for a 50 percent rating, that 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; and difficulty in establishing and maintaining effective work and social relationships, that determines the rating. As for social impairment, the veteran indicated that he had become more isolated since his return from Vietnam. The veteran stated that he had two daughters and that he had been married twice. He gave a history of multiple jobs since service discharge. On VA examination and in the contemporaneous medical records, insight, memory and judgment were described as good to fair. The veteran was described as neatly dressed and groomed. Thought process was linear and goal-directed, insight and judgment were good. However, his affect was anxious, tense, blunted and depressed. His mood was described as euthymic and dysthimic, and on one occasion his speech was noted as slurred. The Board notes that, while many of the criteria listed in the rating schedule as being characteristic of a 50 percent rating are not apparent, the symptoms recited in the criteria in the rating schedule for evaluating mental disorders are "not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating." In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In summary, prior to August 12, 2006, the veteran's post- traumatic stress disorder was assigned GAF scores as low as 45, and he also complained of persistent and disabling symptoms, such as flashbacks, anxiety, depression, difficulty sleeping, memory problems, irritability, some isolation, suicidal and homicidal ideation attributed to his service- connected post-traumatic stress disorder. In view of the foregoing, the Board finds that prior to August 2006, the degree of disability resulting from the veteran's post- traumatic stress disorder more nearly approximates the criteria for a 50 percent scheduler evaluation, i.e., occupational and social impairment with reduced reliability and productivity. 38 C.F.R § 4.130, Diagnostic Code 9411. The evidence, however, does not support a rating of 70 percent prior to August 12, 2006, as there is no evidence of occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, mood, due to such symptoms as or the equivalent to such as, including symptoms associated with the diagnosis of post- traumatic stress disorder under DSM-IV, but not listed under the General Rating Formula for Mental Disorders, as 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. Although prior to August 12, 2006, the evidence clearly demonstrates that the veteran had considerable social and occupational impairment, his overall symptomatology does not equate or more nearly approximates the criteria for a 70 percent disability rating under Diagnostic Code 9411. VA Examination in August 2006 On VA examination on August 12, 2006, the examiner noted that the veteran was exhibiting considerable to severe symptoms of post-traumatic stress disorder and severe symptoms associated with his cognitive impairment. The examiner concluded that the veteran's disability was in the considerable to severe range for post-traumatic stress disorder. While the examiner discussed the degree of impairment attributable to the post-traumatic stress disorder and the degree of impairment caused by his cognitive difficulties, the examiner assigned a single GAF score of 40, and did not distinguish between symptoms attributable to post-traumatic stress disorder as opposed to the cognitive impairment. In view of the foregoing, the Board will consider all of the reported psychiatric symptoms as if they are a part of the veteran's service-connected post-traumatic stress disorder. The evidence shows that as of August 12, 2006, the veteran's symptoms included nightmares, intrusive thoughts of Vietnam, fighting in his sleep, inability to tolerate crowds or loud noises, insomnia, flashbacks, startle response, depressed mood, low energy and motivation, and a history of suicide attempts. Additionally, the examiner noted problems with concentration, constricted affect, and orientation as to time and place. The veteran's speech and thought process were slowed and he showed psychomotor retardation. His insight was limited. The VA examiner expressed the opinion that the veteran's social adaptability and interactions with others appeared to be moderately to considerably impaired due to post-traumatic stress disorder. The examiner noted that the veteran's ability to obtain and maintain employment was considerably to severely impaired due to post-traumatic stress disorder. The examiner assigned a GAF score of 40, indicative of serious symptoms. Consistent with the GAF scores, the veteran's post-traumatic stress disorder symptoms was described as considerable to severe. In light of he above, the veteran's post-traumatic stress disorder more nearly approximates the criteria for a 70 percent rating, that is, occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking, and mood. The evidence, however, does not support a rating of 100 percent as there is no evidence of gross impairment in thought processes, persistent delusions or hallucinations, persistent danger of hurting self or others, intermittent inability to perform activities of daily living or memory loss for names of close relatives, or of his own name. Although the evidence clearly demonstrates that as of August 12, 2006 the veteran has significant social and occupational impairment, his overall symptomatology does not equate or more nearly approximates the criteria for a 100 percent disability rating under Diagnostic Code 9411. ORDER An initial rating of 50 percent for the service-connected post-traumatic stress disorder is granted prior to August 12, 2006, and an initial rating of 70 percent rating is granted as of August 12, 2006, subject to the law and regulations governing the award of monetary benefits. _____________________________________________ George E. Guido Jr Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs