Citation Nr: 0814574 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 06-04 923 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to a higher initial evaluation for post-traumatic stress disorder (PTSD), evaluated as 50 percent disabling from November 11, 2004, and as 70 percent disabling from August 1, 2007. ATTORNEY FOR THE BOARD A. Cryan, Associate Counsel INTRODUCTION The RO reported that the veteran served on active duty from November 1962 to August 1967 and from December 1967 to December 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico, which granted service connection for PTSD and assigned an evaluation of 50 percent effective November 11, 2004. By way of a September 2007 rating decision, the veteran's disability evaluation was increased to 70 percent effective August 1, 2007. The Board notes that the veteran expressed disagreement with a September 2005 denial of service connection for a skin disorder in January 2006. He submitted a statement received at the RO in September 2006 wherein he requested that no further action be taken with regard to the skin disability claim. The veteran requested a video conference hearing before a Board member in December 2005 when he submitted his substantive appeal as to the increased rating claim for PTSD. Inexplicably the veteran was scheduled for a hearing before a Decision Review Officer (DRO) in September 2006. The RO construed the veteran's September 2006 statement withdrawing the skin disability issue as a request to cancel the DRO hearing. The veteran submitted a statement (submitted on a VA Form 9) received at the RO in November 2006 in which he indicated that he did not cancel any hearing regarding the increased rating claim for PTSD and he said he was informed by several RO employees that the DRO hearing was scheduled only for the skin issue which he withdrew. He once again indicated that he desired a video conference hearing before a Board member. The veteran was notified in January 2008 that he was scheduled for a video conference hearing in February 2008. The veteran failed to report for the hearing. Accordingly, the veteran's request for a hearing is treated as withdrawn and the Board will adjudicate the claim based on the evidence of record. 38 C.F.R. § 20.704(d) (2007). FINDINGS OF FACT 1. For the period from November 11, 2004, to August 1, 2007, the veteran's PTSD was manifested by occupational and social impairment productive of no more than reduced reliability and productivity due to symptoms such as impaired judgment, disturbances of motivation and mood, and difficulty establishing and maintaining effective relationships. 2. For the period since August 1, 2007, the manifestations of the veteran's PTSD more closely approximates that of total occupational and social impairment. CONCLUSIONS OF LAW 1. For the period from November 11, 2004, to August 1, 2007, the criteria for a rating in excess of 50 percent for the veteran's PTSD have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.130, Diagnostic Code 9411 (2007). 2. For the period since August 1, 2007, the criteria for a 100 percent rating for the veteran's PTSD have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.130, Diagnostic Code 9411 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Preliminary Matters The Veterans Claims Assistance Act of 2000 (VCAA), Public Law No. 106-475, 114 Stat. 2096 (2000), substantially amended the provisions of chapter 51 of title 38 of the United States Code, concerning the notice and assistance to be afforded to claimants in substantiating their claims. VCAA § 3(a), 114 Stat. 2096, 2096-97 (2000) (now codified as amended at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007)). In addition, VA published regulations, which were created for the purpose of implementing many of the provisions of VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (now codified, in pertinent part, at 38 C.F.R. § 3.159 (2007)). The notice requirements of the VCAA require VA to notify the veteran of any evidence that is necessary to substantiate his claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that the notification requirements of VCAA have been satisfied in this case. In this regard, the Board notes an evidence development letter dated in December 2004, in which the RO advised the veteran of the evidence needed to substantiate his claim of service connection for PTSD. The veteran was also advised of his and VA's responsibilities under VCAA, to include what evidence should be provided by him and what evidence should be provided by VA. The veteran was further advised to inform the RO if there was any other evidence or information that he believes pertains to his claim. The veteran appealed the initial evaluation assigned for PTSD and he was subsequently informed, by way of a May 2006 letter, that the evidence must show that his service- connected PTSD had increased in severity. Additionally, the veteran was told of the criteria used to award disability ratings and the criteria for assigning an effective date by way of a March 2006 letter. See Dingess, supra. The Board further finds that the duty to assist requirements of VCAA have also been satisfied in this case. Specifically, the Board finds that all obtainable evidence identified by the veteran relative to the issue on appeal has been obtained and associated with the claims folder. In particular, the Board notes that the RO has obtained the veteran's treatment records, and records from the Social Security Administration. The RO also arranged for him to undergo several VA examinations during the period from 2005 to 2007. In short, the Board finds that VA has satisfied its duty to assist to the extent possible under the circumstances by obtaining evidence relevant to his claim. 38 U.S.C.A. §§ 5103 and 5103A. II. Factual Background The veteran was afforded a VA examination in March 2005. He reported combat-related nightmares five times per week, hypervigilance, increased startle response, and flashbacks triggered by planes and bright lights. He indicated that he has anxiety and depression, cries easily, and has anger problems and homicidal ideations. He denied suicidal ideations, panic attacks, or shaky spells. He said he primarily has verbal arguments and occasionally does not like crowds. He stated that he has one close friend and very little social life. He also reported short-term memory problems, concentration problems, and impairment of communication and thought processes. The veteran indicated that he was a police officer for eighteen years until he retired in 2003. He said he was fired once and quit once due to anger and his startle response. He reported that he had been married twice and divorced once. He has been married to his second wife for eleven years. He reported that he fishes and does chores around the house on a typical day. He is able to do his activities of daily living and maintain minimum hygiene. Mental status examination revealed that the veteran was nicely groomed, appropriate, and cooperative with the examiner. The examiner said the veteran's affect and mood were depressed and anxious. His speech was coherent and his thought process was linear. There was no evidence of a psychosis, no loosening of association, and no suicidal, homicidal, or paranoid ideations evident. The veteran was noted to be oriented in four spheres and his recent and remote memory and recall were good. His cognitive functions were grossly intact and his insight and judgment were fair to good. The examiner diagnosed the veteran with chronic PTSD and assigned a global assessment of functioning (GAF) score of 50. A March 2004 Social Security Administration (SSA) decision indicates that the veteran is in receipt of SSA disability benefits for a primary diagnosis of chronic ischemic heart disease and a secondary diagnosis of obesity. The medical records associated with the SSA decision include private treatment reports from Southwest Cardiovascular Center, Sierra Vista Hospital, and Memorial Medical Center and are unrelated to the issue on appeal. Private treatment reports from P. Feil, M.D., dated from May 2006 to November 2006 reveal that the veteran underwent a sleep study in May 2006 at which time he was noted to have had a typical night with recurrent dreams of Vietnam. Private treatment reports from D. Allan, M.D., C. Dow, M.D., and G. Leon, M.D., are unrelated to the issue on appeal. The veteran was afforded a VA examination in July 2006. He reported that he had been married to his second wife for twelve years and has two children with whom he has a fair to poor relationship. He said he has no close friends, no social life, and is a loner. He said those symptoms had worsened since his March 2005 VA examination. He indicated that his leisure activities include fishing. He denied a history of suicide attempts, violence, or assaultiveness. The examiner summarized the veteran's psychosocial functional status as depressed, anxious, and socially isolated. The examiner said the veteran had sleep problems. Mental status examination revealed that the veteran was clean and his speech, psychomotor activity, and thought process were unremarkable. He was cooperative and friendly toward the examiner. He was able to accomplish serial sevens and spell a word forward and backward. The examiner reported that the veteran was oriented in three spheres. He was noted to have paranoid ideations, no delusions, poor judgment and insight, and average intelligence. The veteran did not exhibit inappropriate behavior and he denied hallucinations, panic attacks, homicidal thoughts, suicidal thoughts, and episodes of violence. The examiner said he interpreted proverbs correctly and was able to maintain minimum personal hygiene and he had no problem with activities of daily living. His recent, remote, and immediate memory was noted to be poor. The veteran reported recurrent and distressing recollections of his stressors, recurrent distressing dreams of his stressors, intense psychological distress at exposure to cues that symbolize his stressors, efforts to avoid thoughts, feelings, or conversation associated with the trauma, efforts to avoid activities, places or people that arouse recollections of the trauma, inability to recall an important aspect of the trauma, markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from others, restricted range of affect, and sense of foreshortened future. He said he had difficulty falling and staying asleep, irritability and/or outbursts of anger, difficulty concentrating, hypervigilance, and exaggerated startle response. The examiner indicated that there was not total occupational and social impairment due to PTSD symptoms but that the veteran's PTSD signs and symptoms resulted in deficiencies of judgment, thinking, family relations, work and mood and there was reduced reliability and productivity due to PTSD symptoms. The examiner diagnosed the veteran with chronic PTSD and assigned a global assessment of functioning (GAF) score of 50. Associated with the claims file are VA outpatient treatment reports dated from April 2006 to April 2007 do not reveal any treatment for or complaints related to PTSD. The veteran was last afforded a VA examination in September 2007. The veteran reported increasing problems with his PTSD symptoms particularly in the last eight to ten months. He described his mood as depressed, irritable, and anxious. He said he felt that he controls his anger but later said his family avoids him because of mood problems. The veteran reported trouble sleeping with nightmares of combat trauma nightly and daily intrusive traumatic memories. He described an increased startle response when he is trying to relax and difficulty with motivation. He denied treatment for PTSD. He reported that he consumes up to eight alcoholic drinks on some nights to aid in sleeping. The veteran reported that he quit his job as a police officer in 2003. He said he left his job due to PTSD symptoms. He said he worked in law enforcement in Arizona and New Mexico and at his last job he had mood problems and issues where he could not account for hours of time. The veteran indicated that he had been married to his second wife for thirteen years and that there is considerable tension in the marriage. He stated that he has two adult children, three step-children, and fifteen grandchildren. He said he is rarely in contact with his own children or grandchildren but sees two of his wife's grandchildren a little more often. He said he is fairly inactive and isolated since he stopped working. The veteran indicated that he occasionally goes fishing but otherwise stays home. Mental status examination revealed that the veteran was unshaven and causally dressed. He avoided eye contact at times during the interview but other times had some limited eye contact during the interview. His affect was tense and anxious and briefly tearful at one point. The examiner said the veteran's thought process was generally clear and goal-directed but that he lost track of the conversation at times. He denied auditory or visual hallucinations but said he has occasional fleeting suicidal thoughts and passing thoughts of death but no plan or intent to harm himself. The veteran stated that he has had violent thoughts in the past but no recent violent thoughts and no plan or intent to harm others. He was oriented in three spheres. The examiner said the veteran was able to establish rapport during the interview. The examiner diagnosed the veteran with severe PTSD and recent alcohol abuse and assigned a GAF score of 35. The examiner concluded that the veteran has symptoms of re-experiencing, hyperarousal, and avoidance. He said the veteran's alcohol abuse was an effort to self-medicate. The examiner recommended that the veteran seek appropriate treatment for his symptoms. Finally, the examiner stated that the veteran's GAF score was based on his PTSD and he opined that the veteran has total occupational and social impairment due to his PTSD. III. Increased Evaluations for PTSD Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § Part 4. Separate diagnostic codes identify the various disabilities. The governing regulations provide that the higher of two evaluations will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. The veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. In Fenderson, the United States Court of Appeals for Veterans Claims (Court) also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal. The veteran's PTSD has been rated under Diagnostic Code (DC) 9411. The criteria of DC 9411 for each level of disability from 50 percent to 100 percent are as follows: 100 percent - Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions of 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. 70 percent - 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. 50 percent - 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; difficulty in establishing effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2007). The psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). In assessing the evidence of record, it is important to note that the GAF score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing Fourth Edition of the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM-IV), p. 32. A GAF score of 41-50 is defined as "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, unable to keep a job)." Ibid. A GAF score of 31-40 contemplates some impairment in reality testing or communication (e.g. speech 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. depressed man avoids friends, neglects family, and is unable to work). Ibid. The Board will initially address the period from November 11, 2004, to August 1, 2007. Having reviewed the complete record, the Board finds that the preponderance of the evidence is against granting an evaluation in excess of 50 under 38 C.F.R. § 4.130, DC 9411 at any time during the time period from November 11, 2004, to August 1, 2007. Regarding application of the 50 percent criteria, while the veteran exhibited some social impairment, there is no indication that the veteran had difficulty in establishing and maintaining social relationships. As noted above, during the examinations in March 2005 and July 2006, the veteran reported that he had been married to his second wife for eleven and twelve years, respectively, and he said he had one close friend. He said he has two children with whom he had a fair to poor relationship. There is no evidence that the veteran had stereotyped speech or difficulty in understanding complex commands. The March 2005 and July 2006 examinations of record reveal the veteran's insight and judgment were intact. As noted above, there was evidence of occupational impairment. The veteran indicated that he was a police officer for eighteen years until he retired in 2003. He said he was fired once and quit once due to anger and his startle response. However, the veteran was employed for eighteen years as a police officer. A March 2004 SSA decision indicates that the veteran is in receipt of SSA disability benefits for a primary diagnosis of chronic ischemic heart disease and a secondary diagnosis of obesity. The Board notes that the veteran's GAF score for the time period at issue was 50, indicative of serious symptoms. While a GAF score of 50 contemplates serious symptoms, GAF scores are not, in and of themselves, the dispositive element in rating a disability. The Board places more probative weight on the specific clinical findings noted on examination, which describe his symptoms in detail, and which do not demonstrate a degree of impairment consistent with more than a 50 percent rating prior to August 2007. Prior to that date, he was not shown to deficient in most areas, and his speech was not been illogical, obscure, or irrelevant. His grooming and hygiene were appropriate, and he was not shown to be totally unable to establish and maintain effective relationships. He also did not experienced near- continuous panic or depression affecting the ability to function independently, appropriately, and effectively. The kinds of problems he experiences are more akin to the criteria for a 50 percent rating. Consequently, a rating in excess of 50 percent is not warranted prior August 7, 2007. The Board has also considered whether a rating is warranted during that period based on criteria not specifically defined in the rating schedule; however, the evidence does not show an exceptional or unusual disability picture as would render impractical the application of the regular schedular rating standards. See 38 C.F.R. § 3.321 (2007). The Board finds that there is no showing that the veteran's service-connected PTSD has reflected so exceptional or so unusual a disability picture as to warrant the assignment of a higher evaluation on an extra-schedular basis. In this regard, the Board notes that this disability was not been shown to markedly interfere with employment (i.e., beyond that contemplated in the assigned rating), to warrant frequent periods of hospitalization, or to otherwise render impractical the application of the regular schedular standards. Hence, the criteria for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Therefore, given the lack of evidence showing unusual disability not contemplated by the rating schedule, the Board concludes that a remand to the RO for referral of this issue to the VA Central Office for consideration of an extraschedular evaluation is not warranted. The Board will next address the time period since August 1, 2007. In applying the evidence of record to the rating criteria the Board finds that the totality of the evidence, and resolving reasonable doubt in favor of the veteran, supports a conclusion that the veteran is 100 percent disabled as contemplated by the rating criteria for the time period since August 1, 2007. The only relevant medical evidence for the time period since August 1, 2007, consists of the September 2007 VA examination in which the examiner specifically opined that the veteran has total occupational and social impairment due to his severe PTSD. It was noted that the veteran had described increasing problems due to his PTSD, and he indicated that he felt that his family avoided him. He described problems with relationships, including considerable tension with his wife of thirteen years and rarely being in touch with his children. The examiner concluded that the veteran has symptoms of re-experiencing, hyperarousal, and avoidance. He said the veteran's alcohol abuse was an effort to self-medicate. It was noted that the veteran lived in isolation and spent most of his time at home. The examiner assigned a GAF score of 35, which is indicative of major impairment. The examiner explained that he assigned this GAF score due to the veteran's severe symptoms and his major impairment in several areas. With reasonable doubt resolved in the veteran's favor, the Board finds that a 100 percent rating can be said to be reflective of the veteran's disability from August 1, 2007. The Board notes that the RO established an effective date of August 1, 2007, for the grant of the 70 percent rating based on a statement from the veteran received at the RO on that date. The RO indicated that the veteran averred that his disability had worsened in his statement. While the Board concludes that the veteran did not actually indicate that his disability had worsened at that time and the only evidence indicative of a worsening of his PTSD symptoms came at the time of the September 2007 VA examination, because the RO established August 1, 2007, as the effective date, the Board will accept this date as the effective date of the increase. ORDER An evaluation for PTSD in excess of a 50 percent rating from November 11, 2004, to August 1, 2007, is denied. An evaluation for PTSD of 100 percent since August 1, 2007, is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs