Citation Nr: 0814275 Decision Date: 04/30/08 Archive Date: 05/08/08 DOCKET NO. 03-21 891 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial evaluation in excess of 30 percent for post-traumatic stress disorder (PTSD) from June 6, 2001. 2. Entitlement to an initial evaluation in excess of 50 percent for PTSD from February 25, 2003. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christine C. Kung, Associate Counsel INTRODUCTION The veteran served on active duty from October 1969 to August 1971. The veteran served in combat and was awarded the Purple Heart. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a August 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio (RO) which granted service connection for PTSD and assigned a 30 percent evaluation effective June 6, 2001. The veteran submitted an October 2002 statement indicating that he was entitled to a higher rating for PTSD; the Board has liberally construed this statement as a timely notice of disagreement. In a subsequent May 2003 rating decision, after receiving new evidence, the RO granted a 50 percent evaluation for PTSD, effective February 25, 2003. The veteran testified at a video conference hearing before the undersigned Veterans Law Judge in October 2005; the hearing transcript has been associated with the claims file. The Board remanded the case to the RO for further development in January 2006. Development has been completed and the case is once again before the Board for review. FINDING OF FACT From to June 6, 2001 and from February 25, 2003, the veteran's PTSD has been shown to result in occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; reported panic attacks; impairment of long term memory; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. CONCLUSIONS OF LAW 1. From to June 6, 2001 to February 25, 2003, the criteria for a 50 percent evaluation for PTSD have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 4.1- 4.14, 4.125-4.130, Diagnostic Code 9411 (2007). 2. From February 25, 2003, the criteria for an evaluation in excess of 50 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 4.1- 4.14, 4.125-4.130, Diagnostic Code 9411 (2007). REASONS AND BASES FOR FINDING AND CONCLUSIONS A. Veterans Claims Assistance Act of 2000 (VCAA) The Board finds that VA has met all statutory and regulatory VCAA notice and duty to assist requirements. See 38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159 (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In November 2001, December 2002, and October 2004 letters, VA informed the veteran of the evidence necessary to substantiate his claim, evidence VA would reasonably seek to obtain, and information and evidence for which the veteran was responsible. VA also asked the veteran to provide any evidence that pertains to his claim. The VCAA notice requirements apply to all five elements of a service connection claim, including the degree of disability and the effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, VA did not provide the veteran with VCAA notice of the type of specific evidence necessary to establish a disability rating or effective date. Despite the inadequate timing of this notice, the Board finds no prejudice to the veteran in proceeding with the issuance of a final decision. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In that regard, the November 2001 letter addressed the veteran's original application for service connection. In August 2002, the RO awarded service connection for PTSD and assigned a 30 evaluation, effective June 6, 2001. Therefore, the November 2001 letter served its purpose in providing VCAA notice and its application is no longer required because the original claim has been "substantiated." See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The veteran's service medical records, VA and private treatment records, VA examinations, and a Board hearing transcript have been associated with the claims file. VA has provided the veteran with every opportunity to submit evidence and arguments in support of his claim, and to respond to VA notices. The veteran and his representative have not made the Board aware of any additional evidence that needs to be obtained prior to appellate review. The record is complete and the case is ready for review. B. Background and Evidence VA treatment records and VA examinations show that the veteran's PTSD results in symptoms of sleep disturbance, depression, anxiety, and social isolation. The veteran denied having suicidal or homicidal ideations and denied auditory and visual hallucinations during mental status examinations. The veteran has been treated at VA with psychotherapy and with medications. The veteran has also been seen at VA for polysubstance dependence. VA treatment records show that from June 2001 to September 2001, the veteran was admitted to a VA facility for rehabilitation. His diagnoses at that time included alcohol dependence, nicotine dependence, cannabis abuse, cocaine abuse, substance-induced sleep disorder, and mixed personality disorder. It was noted that during his period of admission, the veteran reported having auditory hallucinations. He had no prior discussion of any of these issues. Minnesota Multiphasic Personality Inventory (MMPI) testing results were consistent with malingering; thus his profile was deemed invalid. During a February 2002 VA examination, the veteran was dressed in soiled, torn clothing. He had a strong body odor. His manner was guarded and his speech was sparse. Psychiatric testing was completed. The veteran's scores on the Mississippi scale and the Beck Depression Inventory were extremely high. Because both these scores were so high, the examiner stated that the veteran may have exaggerated his symptoms. Examination of three administrations of the MMPI-2 indicated profiles of a person who was probably exaggerating his symptoms. Thus, the examiner opined that the veteran's test results were not a valid reflection of his symptom status. The veteran was diagnosed with PTSD, and had a GAF score of 50. It was noted that he had severe Axis IV symptoms of depression and PTSD. The veteran was admitted to the VA in May 2002 for addiction recovery. The psychiatrist noted that the veteran was last in treatment in September 2001. He had a GAF score of 50. Mental health center admission and discharge reports dated in June 2002 and August 2002 noted that the veteran was homeless, unemployable, and had limited social and familial supports. The veteran had a GAF score of 40. VA electronic progress notes were reviewed in conjunction with a February 2003 VA examination. During a mental status examination, the veteran was cooperative but was vague in his answers and had to repeatedly be encouraged to respond with more complete information. The veteran had difficulty remembering dates. He demonstrated no evidence of impaired cognition. His speech was normal and content was logical and relevant. There was no thought disorder. Affect was restricted. The examiner summarized the veteran's symptoms, which included detachment others, diminished interest in activities, memory lapses, disturbances of sleep, irritability, and difficulty concentrating, noting that these symptoms occurred with moderate to moderately severe intensity. The results of a MMPI-2 validity scale suggested possible exaggerative and over-reporting of symptoms, although the examiner noted that this particular validity pattern was associated with the presence of PTSD in individuals with combat trauma. The veteran's test scores were consistent with an individual with PTSD symptomatology, and his scores suggested a high degree of psychological turmoil including anxiety, worrisome preoccupations, physical complaints, depressed mood, problems with clarity of thinking and memory, a pessimistic outlook, and a tendency toward idiosyncratic ideas and associations. The examiner concluded that the veteran's self-report symptoms in combination with psychometric testing supported a diagnosis of PTSD of moderate to moderately severe intensity. The examiner stated that alcohol and substance abuse were secondary to PTSD. There was a suggestion of over endorsement of symptoms, yet this seemed to relate to the veteran's broad and over- inclusive interpretation of questions and was in line with his feelings of being overwhelmed in general by multiple emotional and physical distresses. The veteran's depressive mood prevented more active confrontation of issues and he appeared to retreat and capitulate and withdraw. The examiner assessed the veteran with a GAF score of 45 for impairments in mood, social relations, and occupational functioning. A February 2004 private treatment report from HCR Manor Care shows that the veteran was admitted for symptoms of depression and anxiety. VA treatment reports dated in 2004 reflect diagnoses of depression, not otherwise specified; PTSD; polysubstance dependence, including alcohol, cocaine, and cannabis; and personality disorder, not otherwise specified. The veteran had a GAF of 40. At the time of a March 2005 VA examination, the veteran was living alone and caring for himself. He described having panic attacks, sleep disturbance, and irritability. The examiner stated that the veteran's history, review of the medical records, and presentation on interview indicate that the veteran continued to suffer from PTSD which negatively affected his functioning in forming and maintaining relationships with others. The veteran had difficulty with managing anxiety symptoms. He was assessed with a GAF of 45. A May 2005 VA treatment report shows that the veteran's mother visited him three times a month, helping with laundry and preparing food. The veteran's hygiene was good. His affected was restricted and his mood was depressed. VA treatment notes dated from December 2005 to May 2007 show that the veteran was staying at his mother's house. He exhibited symptoms of depression, irritability, and panic attack-like features. Progress notes show that the veteran had poor hygiene and poor grooming. A March 2007 VA examiner reviewed the veteran's claims file. At the time the examination, the veteran was adequately groomed. He had a slow tempo in his speech and ambulation. He was a poor historian and tended to confuse dates. Thought processes were connected, coherent, and relevant. Long term memory tended to be somewhat impaired. The veteran's mood was depressed and his affect was consistent with the content of his speech. The veteran had never been married. He had two children in their 20s. He was employed at the Wade Park Medical Center from 1972 until 1995 when he retired on a medical retirement. Psychological testing was highly exaggerated. The examiner questioned the validity of the resulting profiles. The veteran's scores placed him at the most extreme level with regard to PTSD and the examiner stated that would contradict the fact that he was gainfully employed for over 20 years. Additionally, the validity scales of the MMPI were indicative of an over-reporting of symptoms, and the veteran's clinical profile could not be interpreted. The examiner stated, in conclusion, that there was no compelling evidence to indicate that PTSD had worsened since the veteran's last VA examination in March 2005. Clinical records indicated that the veteran's condition tended to wax and wane, and that his financial difficulties and problems with family members contributed to his level of distress. The veteran also abused cocaine and had a long history of depression, some of which was unrelated to PTSD. The veteran had numerous physical problems which contributed to his depression. The examiner stated that another reason for his conclusion that the veteran's condition had not worsened was the fact that his psychological testing was so highly exaggerated. The veteran produced scores on the Mississippi scale and on the MMPI-2 which suggested that he was disabled way beyond what he exhibited in a clinical interview and clearly beyond the level of functioning he displayed from 1972 until 1995. The examiner stated that there was no solid evidence to indicate that the veteran's condition had worsened. He stated that the veteran was unemployable because of his physical condition. The veteran was assessed with a GAF score of 50. C. Law and Analysis Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2007). If two 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 (2007). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2007). VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App 119 (1999). The CAVC has held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, No. 05-2424, 2007 WL 4098218 (U.S. Vet. App. Nov. 19, 2007). Because the RO issued a new rating decision in May 2003, granting an increased 50 percent evaluation effective February 25, 2003, the Board will evaluate the level of disability both from June 6, 2001 and from February 25, 2003. From June 6, 2001, the veteran was assigned a 30 percent evaluation for PTSD under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9411. A 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411 (2007). From February 25, 2003, the veteran was assigned a 50 percent rating for PTSD with major depressive disorder. A 50 percent rating is assigned 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. Id. A 70 percent disability rating 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 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 inability to establish and maintain effective relationships. Id. A 100 percent disability rating is assigned 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 of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, or for the veteran's own occupation or name. Id. In determining the level of impairment under 38 C.F.R. § 4.130, a rating specialist is not restricted to the symptoms provided under the diagnostic code, and should consider all symptoms which affect occupational and social impairment, including those identified in the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed. 1994) (hereinafter DSM-IV). See Mauerhan v. Principi, 16 Vet. App. 436 (2002). If the evidence demonstrates that a claimant suffers symptoms or effects that cause an occupational or social impairment equivalent to those listed in that diagnostic code, the appropriate, equivalent rating is assigned. Id. Within the DSM-IV, Global Assessment Functioning (GAF) scores ranging from 1 to 100, reflect "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); See also Richard v. Brown, 9 Vet. App. 266, 267 (1996). GAF codes from 71 to 80 reflect transient symptoms, if present, and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family arguments); resulting in no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind school work). DSM-IV at 46-47. GAF scores from 61 to 70 reflect some 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. Id. 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). Id. Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, inability to keep a job). Id. Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech which is at times illogical, obscure, or irrelevant) or major impairment in several areas such as work or school, family relations, judgment, thinking, or mood (e.g., a depressed patient who avoids friends, neglects family, and is unable to do work). Id. In applying the above criteria, the Board notes that when it is not possible to separate the effects of the service- connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service- connected disability. See 38 C.F.R. § 3.102 (2007); Mittleider v. West, 11 Vet. App. 181 (1998) citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so.) The Board finds that the veteran is entitled to a 50 percent evaluation for PTSD for the entire appeal period. From to June 6, 2001 and from February 25, 2003, the veteran's PTSD has been shown result in occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; reported panic attacks; impairment of long term memory; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (2007). VA treatment records and VA examinations show that the veteran has endorsed symptoms of depression. The veteran's affect was restricted during his mental status examinations. The veteran reported having panic attacks. February 2003 and March 2007 VA examinations noted that the veteran had problems with long term memory. The veteran was noted to be isolated or withdrawn during his examinations. A March 2005 VA examiner stated that the veteran's PTSD negatively affected his functioning in forming and maintaining relationships with others. VA treatment records and examinations show that the veteran lived alone, has stayed with various family members, and has been homeless at various points in time over the course of this appeal. Most recently, the veteran was staying with his mother. The medical evidence does not reflect other significant social relationships outside of his family. The majority of the veteran's GAF scores, as shown on his VA examination reports and in VA treatment records, range from 45 to 50. The veteran's GAF scores reflect serious symptoms or serious impairment in social or occupational functioning. VA treatment reports dated in 2002 and 2004 reflect a lower GAF score of 40 during periods of admission for addiction recovery. A GAF score of 40 reflects major impairment in several areas such as work, family relations, judgment, thinking, or mood. The Board finds, however, that the veteran's GAF scores, indicating serious symptoms or serious impairment in social or occupational functioning, are more consistent with the veteran's overall level of disability shown during the course of this appeal. The Board finds that the veteran's GAF scores are consistent with a 50 percent evaluation for PTSD during the entire appeal period. In this case, objective psychiatric testing completed during the veteran's VA examinations showed unusually high levels of impairment. The veteran's MMPI-2 results indicate that the veteran exaggerated his symptoms, and his psychiatric profiles were determined to be invalid. Although a February 2003 VA examiner indicated that the veteran's profile was not unusual for individuals with combat trauma; he concluded, based on his interview with the veteran in combination with psychometric testing, that his PTSD was moderate to moderately severe in intensity. The overall severity of the veteran's PTSD, as shown by the veteran's GAF scores during his VA examinations still indicate serious symptoms or serious impairment due to PTSD. According to CAVC, "the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches." Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993). VA examiners have concluded, based on objective psychiatric testing, that the veteran's psychiatric profiles were invalid because of probable exaggeration of symptoms. Thus, the Board finds that the veteran's self-reported symptomatology is not the best indicator of the severity of his PTSD. However, because VA examiners have considered the invalidity of the veteran's psychiatric testing profile in making their conclusions, the Board finds that the VA examinations are probative of the severity of the veteran's PTSD. The Board notes that the veteran has been shown to exhibit some symptomatology as described for a 70 percent evaluation for PTSD. The veteran is shown to have intermittent neglect of personal appearance and hygiene and appears to have difficulty in adapting to stressful circumstances. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (2007). The Board finds, however, that the veteran's symptomatology and overall disability picture more closely resembles the criteria described for a 50 percent rating for PTSD. The veteran is not shown to have occupational and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood as required for a 70 percent evaluation. Id. Although the veteran has exhibited symptoms of panic or depression, it is not shown to affect his ability to function independently, appropriately, and effectively. Although the veteran was noted to be isolated and withdrawn, he is not shown by evidence of record to have an inability to establish and maintain effective relationships. The veteran is not shown to have other symptoms described for a 70 percent evaluation such as suicidal ideation; obsessional rituals which interfere with routine activities; speech that is intermittently illogical, obscure, or irrelevant; impaired impulse control; and spatial disorientation. Id. The veteran has not been shown to exhibit symptoms due to PTSD such 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; disorientation to time or place; and memory loss for names of close relatives, or for the veteran's own occupation or name, to warrant a 100 percent evaluation for PTSD. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (2007). The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, the veteran's PTSD has not been shown to cause interference with employment beyond that contemplated by the Schedule for Rating Disabilities, has not necessitated frequent periods of hospitalization, and has not otherwise rendered impractical the application of the regular schedular standards utilized to evaluate the severity of the disability. The veteran is shown by the record also to be disabled due to his physical disabilities, and not due to service-connected PTSD alone. Thus, the Board finds that the requirements for referral for an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). C. Conclusion The Board concludes that the evidence supports a 50 percent rating for PTSD for the entire appeal period. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant a higher evaluation. ORDER From to June 6, 2001 to February 25, 2003, a 50 percent rating, but no more, is granted for PTSD subject to the law and regulations governing the payment of monetary benefits. From February 25, 2003, an initial evaluation in excess of 50 percent for PTSD is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs