Citation Nr: 0813113 Decision Date: 04/21/08 Archive Date: 05/01/08 DOCKET NO. 07-25 282 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to an initial evaluation in excess of 50 percent for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The veteran had active service from April 1966 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2006 rating decision of the Boston, Massachusetts, regional office (RO) of the Department of Veterans Affairs (VA), which granted service connection for PTSD, evaluated as 50 percent disabling, effective September 16, 2005. The veteran appeared at a hearing before the undersigned at the RO in December 2007. A transcript of this hearing is contained in the claims folder. FINDING OF FACT The veteran's PTSD symptomatology is productive of occupational and social impairment with deficiencies in most areas, including work and family relations due to symptoms including sleep problems with nightmares and night sweats, panic attacks, increase startle response, angry outbursts, isolation and alienation without total social and occupational impairment. CONCLUSION OF LAW The criteria for an initial 70 percent evaluation for PTSD have been met; the criteria for an initial 100 percent evaluation for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.21, 4.130 Code 9411 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). This appeal arises from disagreement with the initial evaluations following the grant of service connection. The courts have held that once service connection is granted the claim is substantiated, additional VCAA notice is not required; and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA has also complied with its VCAA duties to assist the veteran with the development of his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(b). The veteran was afforded an examination with regard to the claim on appeal, and all pertinent evidence has been obtained. There is no indication that there are any pertinent outstanding medical records that must be obtained, and the Board may proceed with its review of the veteran's appeal. Increased Evaluation The evaluation of service-connected disabilities is based on the average impairment of earning capacity they produce, as determined by considering current symptomatology in the light of appropriate rating criteria. 38 U.S.C.A. § 1155. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In addition, the entire history of the veteran's disability is also considered. Consideration must be given to the ability of the veteran to function under the ordinary conditions of daily life. 38 C.F.R. § 4.10. If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2007). The Board notes that this issue involves the veteran's dissatisfaction with the initial rating for his disability assigned following the grant of service connection. The Court has found that there is a distinction between a veteran's disagreement with the initial rating assigned following a grant of service connection, and the claim for an increased rating for a disability in which entitlement to service connection has previously been established. In instances in which the veteran disagrees with the initial rating, the entire evidentiary record from the time of the veteran's claim for service connection to the present is of importance in determining the proper evaluation of disability, and staged ratings are to be considered in order to reflect the changing level of severity of a disability during this period. Fenderson v. West, 12 Vet. App. 119 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). The veteran's PTSD is evaluated under the General Rating Formula for Mental Disorders. A 50 percent evaluation 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, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Code 9411. A 70 percent evaluation is merited 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, speech that is 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 an inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Code 9411. The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). Under this formula, a 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as gross impairment in thought process 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 of minimal personal hygiene), disorientation to time or place, or memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130, Code 9411. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet App 436, 442-3 (2002). On the other hand, if the evidence shows that the veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Mauerhan v. Principi, at 443. The Court of Appeals for the Federal Circuit has embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). Ultimately in Mauerhan the Court upheld the Board's decision noting that the Board had considered all of the veteran's psychiatric symptoms, whether listed in the rating criteria or not, and had assigned a rating based on the level of occupational and social impairment. Mauerhan v. Principi, at 444. Applying this analysis to the criteria for the 100 percent rating, it follows that the veteran would be entitled to that rating if PTSD caused total occupational and social impairment, regardless of whether he had some, all, or none of the symptoms listed in the rating formula, and regardless of whether his symptoms were listed or not. The evidence includes the report of a VA psychiatric examination conducted in March 2006. The claims folder was reviewed by the examiner. The veteran reported a long history of working in electronics. He had been forced to leave a job due to diverticulitis about one year ago, but he was now working again, and reported no major difficulty in regard to his PTSD symptoms and work. The veteran was in the 28th year of his second marriage and denied any discord. The veteran said that for a past number of years he had been waking up with night sweats. He had difficulty sleeping and would sometimes wake up screaming. The veteran said that he socially isolated and did not feel comfortable unless he had an activity. He described an intense startle response. The examiner stated that the veteran's PTSD symptoms caused mild impairment of daily functioning. On mental status examination, the veteran was dressed appropriately, and was cooperative and friendly. His speech was normal, and he was oriented. The memory function was somewhat constricted, as was his affect. The veteran's motor functions were tense, and his judgment was fair. There was no evidence of any thought disorders, delusions, disorganized thinking or hallucinations. The veteran did not acknowledge any rage reactions, and he denied homicidal and suicidal ideation. The veteran tried to avoid all thoughts and feelings related to traumatic events during service. He had feelings of detachment and a high level of emotional numbness. The diagnosis was PTSD. The examiner assigned a score of 66 on the Global Assessment of Functioning (GAF) scale, which was described as mild. A May 2006 letter from a licensed psychologist at the National Center for the Study of PTSD at the Boston, VA Medical Center (VAMC) states that he had been treating the veteran since 2003. The veteran's symptoms included nightmares, flashbacks, and intrusive thoughts about his Vietnam experiences. He had unprovoked outbursts of anger which interfered with his employment. The veteran also experienced panic attacks and long periods of depression in which he obsessed about those who had been killed. He had a sense of a foreshortened future and felt alienated from most people. The examiner opined that the veteran was totally socially disabled and severely vocationally disabled. The diagnosis was PTSD with depressive features, and the GAF score was 40. A January 2007 letter from the Boston Vet Center reports that the veteran has difficulty with trusting and engaging people, and preferred to withdraw and isolate. This resulted in few close friendships both socially and at work. He presents as tense, emotionally avoidant, unable to make eye contact, and a somewhat flattened affect. The veteran also had marked sleep disturbance with night sweats and frequent waking from nightmares. He reported sleeping less than four hours a night, and experienced irritability, anger, concentration problems, and other symptoms of hyperarousal. The veteran had lost four jobs in 2006. At the December 2007 hearing, the veteran testified that he believed his Vietnam experiences had contributed to the failure of his first marriage. He had a good relationship with his current wife, although she would sometimes wake him when he began to relive his experiences. He also had a good relationship with his children, but could only be around his family for a few hours at a time, especially during the holidays. The veteran described his problems at work, and said that the only reason he currently had a job was because his wife had made the arrangement for him. See Transcript. The Board finds that the veteran's symptomatology meets the criteria for an initial 70 percent evaluation for his PTSD. The veteran has sleep difficulties that affect him throughout the day. He also experiences social isolation, outbursts of anger that interfere with his employment, panic attacks, depression, and alienation. The VA psychologist who has been treating the veteran since 2003 estimates his score on the GAF as 40 in the May 2006 letter. In contrast, the March 2006 VA examiner assigned a GAF of 66. Although there is no treating physician rule in the evaluation of veteran's claims, White v. Principi, 243 F.3d 1378, 1380-81 (Fed.Cir.2001); the Board must still assess the probative value of evidence. The Board observes that the May 2006 examiner assigned the GAF of 40 based on years of evaluation of the veteran, while the March 2006 examiner based his GAF estimate of 66 on a single examination and a review of the claims folder. The May 2006 opinion is also consistent with the January 2007 report from the Vet. Center. The VA examiner did not have access to the opinions of the treatment providers. Therefore, the Board finds that the GAF of 40 assigned by the May 2006 examiner is of greater value than the one assigned by the March 2006 examiner. GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). A GAF score of 31 to 40 signifies some impairment in reality testing or communication, or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., where a depressed man avoids friends, neglects family, and is not able to work). Ibid. The Board finds that this equates to occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking or mood, which warrants a 70 percent evaluation. The Board has considered entitlement to an evaluation in excess of 70 percent but this is not supported by the evidence. The evidence does not demonstrate that the veteran has total occupational and social impairment. Although the May 2006 examiner states that the veteran has total social disability and severe vocational disability, the veteran is currently employed, and he has testified that he has good relationships with his wife and children. There is no evidence of delusions, hallucinations, grossly inappropriate behavior, disorientation, or inability to perform activities of daily living. Therefore, entitlement to a 100 percent evaluation is not warranted. The schedular criteria will generally be deemed adequate to rate a disability. 38 C.F.R. § 3.321(b) (2007). In exceptional cases an extraschedular evaluation can be provided in the interest of justice. The governing norm in such a case is that the case presents such an unusual or exceptional disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impracical the application of regular schedular standards. The 70 percent rating is intended to compensate for considerable time loss for work and contemplates serious impairment. Marked interference with employment, beyond that contemplated by a 70 percent rating, has not been shown and the veteran's disability has not required any periods of hospitalization since the effective date of service connection. ORDER Entitlement to an initial 70 percent evaluation for PTSD is granted, effective September 16, 2005. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs