Citation Nr: 0813827 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 03-32 185A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to a rating in excess of 50 percent prior to October 18, 2006, and a rating in excess of 70 percent from October 18, 2006, for post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD Motrya Mac, Associate Counsel INTRODUCTION The appellant is a veteran who had active duty service from August 1966 to November 1968. This case is before the Board of Veterans' Appeals (Board) on appeal from a January 2003 rating decision by the Pittsburgh, Pennsylvania Regional Office (RO) of the Department of Veterans Affairs (VA), that granted service connection for PTSD and a 30 percent rating, effective June 27, 2002. In October 2004, the veteran testified before the undersigned Acting Veterans Law Judge, and a transcript is of record. This case was before the Board in June 2006 when it was remanded for additional development. A November 2006 rating decision increased the veteran's PTSD rating 50 percent effective June 27, 2002. In April 2007, the Board again remanded the case for additional development. An August 2007 rating decision increased the veteran's PTSD rating to 70 percent effective October 18, 2006. FINDINGS OF FACT 1. Prior to October 16, 2006, the veteran's PTSD was manifested by no more than occupational and social impairment with reduced reliability and productivity, to include symptoms of flattened affect, disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships; occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, was not been shown. 2. From October 16, 2006, the veteran's PTSD has been manifested by suicidal ideation, near-continuous depression affecting the ability to function independently, appropriately and effectively, neglect of personal appearance and hygiene and inability to establish and maintain effective relationships; total occupational or 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, disorientation to time or place, memory loss for names of close relatives, own occupation, or own name has not been shown. CONCLUSIONS OF LAW 1. A rating in excess of 50 percent for the period prior to October 18, 2006, for PTSD is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 4.7, 4.21, 4.126, 4.130, Diagnostic Code (Code) 9411 (2007). 2. A rating in excess of 70 percent from October 18, 2006, for PTSD is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 4.7, 4.21, 4.126, 4.130, Code 9411 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the claim decided herein. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his or her possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). As the rating decision on appeal granted service connection, and assigned a disability rating and an effective date for the award, statutory notice had served its purpose, and its application was no longer required. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Regardless, a July 2006 letter explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, the evidence he was responsible for providing, and advised him to submit any evidence or information he had that might support his claim. An October 2003 statement of the case (SOC) provided the veteran with notice of the criteria for rating PTSD. In an April 2007 letter, the veteran was given notice regarding ratings and effective dates of awards, see Dingess/Hartman, supra. He has had ample opportunity to respond/supplement the record. The case was readjudicated in an September 2007 supplemental SOC. Neither the veteran nor his representative alleges that notice has been less than adequate. Regarding VA's duty to assist, the veteran's pertinent treatment records have been secured. He has not identified any records of VA or private evaluations or treatment for PTSD that are outstanding. The veteran was afforded a VA examination in 2002, 2006 and 2007. Thus, VA's duty to assist is also met. Factual Background The veteran submitted a claim for service connection for PTSD that was received on June 27, 2002. On a VA psycho-social evaluation in July 2002, the examiner noted that during all interviews the veteran was oriented to time, place and person. He was able to demonstrate abstract reasoning and recent and short term memory appeared to be intact. The veteran indicated he had been working for his current employer since 1972; however, due to his temper and poor interaction with fellow employees he had missed periods of work. The veteran reported that since he returned from service in Vietnam, he had experienced depression, survival guilt and poor sleep. He reported that after a DUI conviction in 1996, he stopped drinking; as a result, he lost several friendships. The diagnosis was PTSD. On evaluation in August 2002, the veteran appeared reliable, his speech was coherent and relevant, affect was mixed. He reported that he was married and enjoyed riding motorcycles. The veteran complained of irritability and social withdrawal. His Global Assessment of Function (GAF) score was 55-60. The examiner commented the veteran was paranoid, angry, depressed, anxious and resentful. OCD, homicidal ideation and suicidal ideation were not present. The clinical impression included PTSD, adjustment disorder with mixed disturbance of emotions and conduct, dysthymic disorder, and personality disorder. On VA examination in December 2002, the veteran reported having nightmares about Vietnam, being socially isolated, being easily startled, having mood swings and difficulty concentrating. He reported his marriage was reasonably good. His mental status examination showed he was oriented times three and in good contact with routine aspects of reality. The veteran's conversation was relevant, coherent, goal- directed and organized. The veteran's affect was under responsive and sluggish, but not flattened. His mood appeared to be depressed; his memory appeared to be intact. There were no noted impairments in insight or judgment. The diagnosis was PTSD, moderately severe, with a GAF score of 50 to 55. Lay statements received in January 2003 from the veteran's relatives and counselor indicate that since he returned from Vietnam he had been irritable, anxious and withdrawn. In a March 2004 statement, the examiner who conducted the August 2002 evaluation indicated the veteran's psychiatric symptoms (from various disorders, including PTSD, adjustment disorder, dysthymic disorder and major depression) had worsened and assigned a GAF score of 50-55. The examiner noted the veteran had impaired communication, inappropriate behavior and memory loss. He showed deficiencies in work, family relations, judgment and mood. His children avoided him. He was affected by suicidal ideations, compulsive rituals, impaired impulse control, neglect of personal appearance and hygiene. Additionally he exhibited flattened affect, circumstantial and circumlocutory speech, difficulty in understanding complex commands, impairment of short and long-term memory, disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships. During his Board hearing in October 2004, the veteran testified that he worked night shifts, however he did not have a problem getting along with his co-workers. He also testified that, to try to relax, he went on motorcycle rides. Records from the Social Security Administration (SSA) show that the veteran had been rated as disabled, with anxiety related disorders noted as his primary disability and acute myocardial infarction noted as his secondary disability, effective December 2005. In the veteran's application for SSA disability benefits, he reported that he son had died in November 2005, an event which "triggered a lot of other problems." The veteran also reported that he last worked in December 2005, when he became too tired and worn out from his disabilities (including psychiatric problems and heart problems). Records relied upon by SSA include a March 2006 private PTSD evaluation and a May 2006 Functional Capacity Assessment. On evaluation in March 2006, the examiner noted the veteran's appearance was disheveled, his mood was seriously depressed, concentration was poor, orientation was normal, memory and judgment were primarily marginal, insight was marginal to poor, hygiene was poor and the veteran was socially withdrawn. No hallucinations or inappropriate behavior was reported. The veteran was oriented in all spheres. The examiner concluded the veteran could not likely sustain employment. The examiner commented the veteran had marked limitations in interacting with the public, co- workers, responding appropriately to work pressures, and was moderately limited in making judgments on simple work-related decisions. The evaluation in May 2006 overall showed the veteran's understanding and memory was moderately limited, sustained concentration and persistence was markedly limited, social interaction to interact with the general public, coworkers and peers was moderately limited. The examiner commented that stress exacerbated the veteran's symptoms, he was able to interact appropriately with the general public and exercised appropriate judgment in the workplace. The examiner concluded that the restrictions resulting from the impairment were such that the veteran would be unable to meet the basic mental demands of competitive work on a sustained basis. The examiner commented that the residual functional capacity assessment is consistent with the March 2006 opinion, however the treating source statements in the March 2006 report concerning the claimant's abilities in the areas of occupational, performance, personal and social adjustments were not consistent with all of the medical and non-medical evidence in the claims folder. On VA examination on October 18, 2006, the veteran reported depression, anxiety and sleep impairment. The veteran indicated that he worked until December 2005, at which time he became unable to stand his employment and was put on short-term disability. The veteran reported his marital relationship has been shaky and relations with his daughter and stepsons were neutral. The veteran noted he maintained monthly contact with one brother. His leisure pursuits consisted of yard work. The veteran affirmed having a depressed mood, experiencing insomnia and decreased ability to think, concentrate or make decisions. He denied visual or auditory hallucination, panic attacks and current homicidal ideation (although admitted to having past homicidal ideation and denied intent to act on harming anyone else). He admitted to having weekly suicidal ideation. On mental status examination, the examiner noted the veteran's grooming appeared to be unkempt (wore soiled clothing), he was oriented to person, place, time and situation, speech was normal, affect was appropriate, there was no thought disorder, judgment was impulsive and there were no signs or deficits of short or long term memory. There was evidence of impaired abstract thinking, there was no evidence of impairment in simple problem solving. The veteran denied engaging in any obsessive or ritualistic behaviors and denied having panic attacks. The veteran reported experiencing symptoms of hypervigilance and exaggerated startle response. The veteran has an overall GAF score of 50, of which 55 was attributable to PTSD and 45 was attributable to a major depressive disorder. The examiner noted the veteran was able to manage his financial situation. The examiner commented that the veteran's PTSD symptoms and depression limit the likelihood of the veteran being employable in the future. In an April 2007statement received from the veteran's spouse, she indicated the veteran increasingly has neglected his personal hygiene and his short term memory was bad. She indicated she was afraid to leave him by himself. On VA social and industrial survey exam dated in May 2007, the social worker noted the veteran was unkempt in appearance but was clean. His affect was depressed. He admitted to suicidal thinking and ideation but had no present plan or intent. There was no thought disorder, the veteran denied visual or auditory hallucinations and was oriented to time, person and place. His memory was good, insight and judgment appeared to be intact. The veteran indicated he enjoyed yard work, he is a sports fan and wanted to try fishing. He also enjoyed spending time with his dog. In a letter, the veteran's wife indicated that the veteran's short-term memory was impaired; she was afraid to leave him alone. The examiner was of the opinion that the veteran could not manage his financial affairs. The examiner concluded that the veteran's PTSD makes it unlikely that he will ever succeed in the work force. This had been evidenced by many failed attempts in the past, due to tardiness, temper problems, drugs and alcohol. In a May 2007 opinion, the October 2006 VA examiner restated his findings from that time. He reiterated his opinion that the veteran's PTSD warranted a GAF score 55, which represented "moderate difficulties in social, occupational and/or school functioning." Legal 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. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, 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. Where (as here) the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). PTSD is rated under the General Rating Formula for Mental Disorders. The criteria for a 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 rating, are: 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 work-like setting); inability to establish and maintain effective relationships. The criteria for a 100 percent rating are total occupational or 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 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, Code 9411. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126(b). It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The GAF scale 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. GAF scores ranging from 51 to 60 reflect 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). GAF scores ranging from 61 to 70 reflect 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, with some meaningful interpersonal relationships. When assessing the degree of impairment resulting from a service-connected disability, the "use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation . . . [is] to be avoided." 38 C.F.R. § 4.14. Nevertheless, "when it is not possible to separate the effects of the [service- connected disability and the nonservice-connected disability], VA regulations at 38 C.F.R. § 3.102, which require that reasonable doubt on any issue be resolved in the appellant's favor, clearly dictate that such signs and symptoms be attributed to the service-connected condition." 61 Fed. Reg. 52695, 52698 (Oct. 8, 1996); see also Mittleider v. West, 11 Vet. App. 181, 182 (1998). To the extent possible, the Board will consider only that degree of disability resulting from the veteran's service-connected PTSD. Analysis A Rating in Excess of 50 Percent Prior to October 18, 2006 A close review of the record reveals no distinct period during which the criteria for the next higher (70 percent) rating were met. See Fenderson, supra. The evidence shows that for the period prior to October 18, 2006, the veteran's PTSD was characterized by flattened affect, disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships. The evidence does not show occupational impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. There is no evidence of suicidal ideation, near-continuous panic affecting the ability to function, obsessional rituals which interfere with routine activities, speech intermittently illogical, obscure, or irrelevant, spatial disorientation, neglect of personal appearance and hygiene, or an inability to establish and maintain effective relationships. The evidence does show the veteran was depressed throughout the period at issue; however, it does not show that this depression affected his ability to function independently, appropriately and effectively. During the period at issue, the veteran was able to maintain basic activities of daily living. He worked until December 2005. In August 2002 and October 2004, he reported that he enjoyed spending time riding his motorcycle. Although some neglect of personal appearance was noted on a couple of occasions, he was still able to function independently, appropriately and effectively. The veteran's symptoms of PTSD were more characteristic of those contemplated by the criteria for the currently assigned 50 percent rating, in that they showed a flattened affect and disturbances of motivation and mood. Moreover, although the veteran had difficulty establishing and maintaining effective relationships, he was not unable to maintain and establish these relationships. He remained married throughout the period at issue, and on VA examination in December 2002, the veteran reported that his marriage as reasonably good. During the October 2004 hearing before the Board, the veteran stated that he did not have a problem getting along with his co-workers. For the period prior to October 18, 2006, the evidence did not show that the veteran's PTSD was productive of obsessional rituals which interfere with routine activities, intermittently illogical, obscure, or irrelevant speech, or impaired impulse control (such as unprovoked irritability with periods of violence). Specifically, on evaluation in August 2002, OCD, homicidal ideation and suicidal ideation were not present. On examination in March 2006, the veteran exhibited no inappropriate behavior. The GAF scores reported during the period range from 50 to 60. These more nearly approximate less than serious symptoms or less than serious social and industrial impairment, and are not consistent with a rating in excess of 50 percent. In conclusion, for the entire period prior to October 18, 2006, the veteran's overall disability picture most nearly approximated the criteria for the current 50 percent rating. The preponderance of the evidence is against a higher, 70 percent, rating, and the benefit of the doubt rule does not apply. A Rating in Excess of 70 percent from October 18, 2006 A close review of the record reveals no distinct period during which the criteria for the next higher (100 percent) rating were met. See Fenderson, supra. The evidence shows that for the period from October 18, 2006, the veteran's disability picture most nearly approximates his current 70 percent rating. The medical evidence of record shows PTSD has been manifested by symptoms of suicidal ideation, near- continuous depression affecting the ability to function independently, appropriately and effectively, neglect of personal appearance and hygiene and inability to establish and maintain effective relationships. The record does not reflect gross impairment in thought process or communication or persistent delusions or hallucinations. On VA examination in October 2006, the veteran denied visual or auditory hallucinations. On mental status examination, speech was normal, affect was appropriate, there was no thought disorder. Although there was evidence of impaired abstract thinking, there was no evidence of impairment in simple problem solving. On examination in May 2007, there was no thought disorder. The veteran denied visual or auditory hallucinations and was oriented to time, person and place. Insight and judgment appeared to be intact. The symptoms noted throughout the period at issue do not reflect gross impairment in thought process or communication, or persistent delusions or hallucinations. The record also does not show evidence of grossly inappropriate behavior. On October 2006 VA examination, the veteran's speech was normal and his affect was appropriate. The veteran denied engaging in any obsessive or ritualistic behaviors. The evidence of record from October 2006 does not show any evidence of grossly inappropriate behavior. The record does not show any evidence that the veteran might harm another person. On October 2006 VA examination, he denied current homicidal ideation . He admitted to having weekly suicidal ideation. A May 2007 VA social and industrial survey exam notes that the veteran admitted to suicidal thinking and ideation but had no present plan or intent. Hence, while the evidence for the period from October 2006 shows suicidal ideation (which is contemplated by the currently assigned 70 percent rating), the entirety of the evidence of record does not show that he is a persistent danger to himself or others. On VA examination in October 2006, the examiner noted the veteran's grooming appeared to be unkempt (wore soiled clothing). On VA examination in May 2007, the social worker noted the veteran was unkempt in appearance but was clean. He reported to both the October 2006 and May 2007 VA examiners that did yard work. He has been noted on October 2006 and May 2007 VA examinations, as being oriented to person, place, and time. While the record does show some intermittent inability to perform minimal personal hygiene, it does not show any disorientation to person, time, or place. Both the veteran and his wife have described some short term memory loss; however, the record does not contain any evidence or indication that he has a memory loss for names of close relatives, own occupation, or own name. The GAF score (for PTSD alone) reported on examination in 2006 and 2007 was 55. This score, as explained by the examiners (as noted above) represents less than serious symptoms or less than serious social and industrial impairment, and is not consistent with a rating in excess of 70 percent. Hence, while the evidence shows the veteran's PTSD causes him to have occupational and social impairment with deficiencies in most areas, it does not show that it causes him total occupational and social impairment; the benefit of the doubt doctrine does not apply, and the claim for a rating in excess of 70 percent must be denied. ORDER A rating in excess of 50 percent prior to October 18, 2006, and a rating in excess of 70 percent from October 18, 2006, for PTSD is denied. ____________________________________________ K. R. FLETCHER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs