Citation Nr: 0813471 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 05-18 078 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial evaluation for post-traumatic stress disorder (PTSD) in excess of 50 percent. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Robert L. Grant, Associate Counsel INTRODUCTION The veteran had active service from March 1972 to March 1974 and from September 1974 to July 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2004 decision of the VA Regional Office (RO) in Waco, Texas, which granted service connection for PTSD and assigned a 50 percent disability evaluation. FINDINGS OF FACT The veteran's PTSD does not manifest as 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. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 50 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.125- 4.130, Diagnostic Code 9411 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before addressing the merits of the veteran's claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007). The notification obligation in this case was accomplished by way of letters from the RO to the veteran dated in June 2003 and September 2007. The RO provided the requisite notification regarding the disability evaluation or the effective date that could be assigned in September 2007. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The RO also provided assistance to the veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The veteran and his representative have been kept informed of the RO's actions in this case by way of the Statement of the Case, and been informed of the evidence considered, the pertinent laws and regulations and a rationale for the decision reached in the claim. The veteran and his representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Therefore, the Board finds that the duty to notify and duty to assist have been satisfied and will proceed to the merits of the veteran's appeal. A VA psychiatric examination was conducted in January of 2003. At that time the veteran reported intrusive thoughts, nightmares two to three times a month, and avoidance behavior. The veteran stated he had few friends and was detached from others. The examiner noted a restricted range of affect and anhedonia. Also noted were symptoms of increased arousal, sleep disturbances, irritability, outbursts of anger, and impulsive behavior. In terms of employment, the veteran stated he had worked very intermittently for the past three years, due to PTSD, alcoholism, and emphysema. The examiner reported that the veteran displayed good hygiene, with no impairment of thought processes or communication. Speech was coherent, and thinking was logical with no hallucinations or delusions. The veteran stated that he had suicidal thoughts in the past, but none recently. Short and long term memory was said to be within normal limits. No obsessive or ritualistic behavior was noted, nor were panic attacks, and affect was not excessively anxious. The examiner offered the opinion that the veteran's global assessment of function (GAF) score was 58, and that the extent of the veteran's disability in terms of occupational and social impairment was considered to be 20 to 30 percent due to PTSD, 50 percent due to emphysema, and 20 percent due to alcohol abuse. An additional VA psychiatric examination was conducted in December 2005. The veteran's medical history noted that the veteran was largely socially isolated and has not worked since 2002, primarily due to emphysema. Symptoms at that time included nightmare and intrusive memories, avoidance behavior, and heightened arousal. The examiner noted that the veteran's mood was neutral and affect blunted, with some depression. The veteran reported some suicidal rumination but denied intent. The veteran stated he was able to take pleasure in some things and denied helplessness or hopelessness, but reported some paranoid thinking. Thought processes were said to be logical, but some impairment in both recent and remote recall was noted. The veteran's GAF score at that time was said to be 58. In September 2007 a VA psychiatric examination was conducted and it was noted that the veteran had not been hospitalized for psychiatric problems and currently was not taking medication. The veteran's symptoms included intrusive thoughts, nightmares, flashbacks, isolation, avoidance behavior, hypervigilance, poor concentration, disturbed sleep, and increased startle reflex. The veteran stated that he awakens from a light sleep and has to check outside for noises. Once inside the house he has checking rituals regarding his locks and windows. The veteran remained unemployed and reported occasional suicidal thoughts but no history of attempts. The veteran's GAF score was said to be 50. The examiner noted that the veteran's PTSD symptomatology resulted in deficiency in the veteran's ability to work. A hearing was held before the undersigned in March 2008. The veteran stated that his PTSD had gotten worse, and described times when he could not sleep and he walks around his house to make sure all his doors and windows are locked. The veteran also testified to intrusive thoughts about Vietnam. The veteran testified that he was not taking medications but was attending group therapy. Under questioning, the veteran stated that he doesn't work because of emphysema, and that he has a hard time with stairs or walking long distances. The veteran reported that he had problems with both short and long term memory. Also reported were avoidance behaviors, trouble with relationships, and inability to keep a job for very long. The veteran essentially contends that the current evaluation assigned for his PTSD disability does not accurately reflect the severity of that disability. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian life. Generally, the degree of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity to the several grades of disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate Diagnostic Codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Board is also required to consider whether the veteran may be entitled to a staged rating. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). PTSD is rated under the "General Rating Formula for Mental Disorders," Diagnostic Code 9411. 38 C.F.R. § 4.130. A 70 percent evaluation is assigned 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 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. The symptoms listed in VA's general rating formula for 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. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. See Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV); Carpenter v. Brown, 8 Vet. App. 240 (1995). An examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. See 38 C.F.R. § 4.126; VAOPGCPREC 10-95 (Mar. 1995); 60 Fed. Reg. 43186 (1995). Under DSM-IV, GAF scores of 51 to 60 generally reflect some 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). Scores from 41 to 50 reflect 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). See Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV). Based upon a review of the above the Board concludes that the evidence in this matter does not support an evaluation in excess of 50 percent for PTSD. Although the veteran clearly demonstrates some occupational and social impairment, the evidence in this matter does not demonstrate that the veteran's PTSD manifests to the degree that would warrant a 70 percent or higher rating. Specifically, although the veteran has reported some suicidal ideation, isolation, and deficiencies relationships, those symptoms do not appear to interfere with routine activities to the extent that a higher rating would be warranted. The evidence in this matter does not appear to demonstrate intermittently illogical, obscure, or irrelevant speech, or near-continuous panic or depression affecting the ability to function independently, appropriately and effectively. The record does not demonstrate significant impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; or neglect of personal appearance and hygiene. As such, an evaluation in excess of 50 percent in not warranted. ORDER An initial evaluation in excess of 50 percent for PTSD is denied. ____________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs