Citation Nr: 0815097 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 06-13 887 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial disability rating in excess of 30 percent for service-connected post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD B.R. Mullins, Associate Counsel INTRODUCTION The veteran had active service from May 1969 to May 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision of the Department of Veterans Affairs Regional Office (RO) in Waco, Texas, granting service connection for PTSD at a 30 percent disability rating. FINDINGS OF FACT 1. The evidence of record demonstrates that from September 30, 2004 to May 16, 2005, the veteran's PTSD was manifested with frequent auditory hallucinations, frequent nightmares and an inability to sleep, depressed mood and loss of interest in activities, and an impairment of the veteran's ability to attend his occupation on a reliable basis. 2. The evidence of record demonstrates that since May 16, 2005, the veteran's PTSD has been manifested with depression (improving on medication), some loss of sleep, infrequent auditory hallucinations; and generally has not been associated with circumstantial, circumlocutory, or stereotyped speech, panic attacks more than once a week, difficulty in understanding complex commands, impairment of memory, impaired judgment, or impaired abstract thinking. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 50 percent for PTSD from September 30, 2004 to May 16, 2005 have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.27, 4.126, 4.130, Diagnostic Code 9411 (2007). 2. The criteria for an initial disability rating in excess of 30 percent for PTSD since May 16, 2005 have not been. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.27, 4.126, 4.130, Diagnostic Code 9411 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Proper notice from VA must inform the claimant of any information and medical or lay 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 her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The veteran's current claim arises from his disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore, appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA service records, and the veteran has submitted statements in support of his claim. The appellant was also afforded a VA compensation and pension examination in November 2005, and has been treated by the VA throughout the pendency of this claim. These records have been obtained. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Relevant Laws and Regulations At the outset, the Board notes that claims for increased ratings, to include initial ratings, require consideration of the entitlement to such ratings during the entire relevant time period involved, i.e., from the date the veteran files the claim which ultimately results in an appealed RO decision, and staged ratings are to be considered where warranted. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. Each disability must be viewed in relation to its history and there must be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1. The General Rating Formula for Mental Disorders, including PTSD, at 38 C.F.R. § 4.130 provides the following ratings for psychiatric disabilities: 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 behaviour, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events), a 30 percent rating. 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 and maintaining effective work and social relationships, a 50 percent rating. 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, a 70 percent rating. Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behaviour; 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, a 100 percent rating. 38 C.F.R. § 4.130. Global Assessment of Functioning (GAF) GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders, 32 (4th ed.1994). GAF scores ranging between 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, and has some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect more 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 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, unable to keep a job). Scores ranging from 31 to 40 reflect 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; child frequently beats up other children, is defiant at home, and is failing at school). See 38 C.F.R. § 4.130 [incorporating by reference the VA's adoption of the American Psychiatric Association: Diagnostic and Statistical Manual for Mental Disorders, (4th Ed. 1994) (DSM-IV), for rating purposes]. Analysis Service connection was established for PTSD in the currently appealed June 2005 rating decision. A 30 percent evaluation was assigned effective September 30, 2004, the date the veteran's claim was received. It is the veteran's contention that his PTSD is worse than the 30 percent disability rating assigned. The evidence supports this contention from September 30, 2004 until May 16, 2005, but does not support a disability rating in excess of 30 percent from May 16, 2005 forward. In an August 2004 VA mental health examination, the veteran was diagnosed with PTSD. The veteran described periodic auditory hallucinations, which he described as non- understandable mumbling, as well as nightmares and daytime ruminations about events he witnessed in Vietnam. The veteran was found to be easily engageable, without speech difficulties, to have coherent and goal oriented thoughts, and to have concentration and memory that was intact. His insight and judgment were also found to be good, and he had no suicidal or homicidal ideations. However, an August 2004 VA treatment note indicates that the veteran "sometimes feels like crashing the car when driving," but denies that he would ever actually harm himself. The veteran also has admitted to avoiding loud noises, keeping his back to the wall in public, and being mistrustful of others. The VA mental health examiner assigned a GAF of 35, which corresponds to some impairment in reality testing or communication or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. In September 2004, outpatient treatment records indicate that the veteran was diagnosed with PTSD depressive disorder with psychotic features. The examiner noted that the veteran reported no improvement with medication, still woke up throughout the night because he was hearing many voices he could not understand, and still had nightmares. The veteran also described having low energy levels with no desire to do anything. However, the veteran still continued to work a few days a week at his auto body shop during this time. VA treatment notes from October 2004, November 2004, and December 2004 indicate that the veteran was still suffering from auditory hallucinations during this time, with a frequency of twice per week and nightmares as often as 2 or 3 times per week. A diagnosis of moderate to severe depression also remained during this time period, with PTSD described as mild. In December 2004, the veteran stated nothing mattered, and described his mood, energy, and interest as low. It is not until a March 2005 VA psychological assessment that we have a record of the veteran's auditory hallucinations both decreasing in intensity and occurring "very seldom." In a May 16, 2005 VA psychological assessment, the psychologist assigned an improved GAF score of 60, which, as noted above, corresponds to moderate symptoms or moderate difficulty in social, occupational or school functioning. The veteran's PTSD was described by the psychologist as "stable on current [medication]." The veteran was described as coherent and goal directed, alert and oriented, his memory and concentration were intact, and his insight and judgment were good. The veteran's speech was normal as well. Finally, the psychologist noted that the veteran was still maintaining employment with an auto body shop that the veteran owned. It is noted, however, that since exposure to his trauma, the veteran has had difficulty maintaining romantic relationships, and has become angry and irritable. In a November 2005 VA compensation and pension examination, the veteran's PTSD appears to have further improved. His diagnosis after this examination was "very mild post- traumatic stress disorder." The examiner described the functional impairment of the veteran as "very minimal," noting that the veteran could function without any interruption to his daily routine. The veteran was described as well-oriented with good reasoning, having no psychomotor slowing or agitation. The veteran's verbal comprehension was good as well. The veteran did indicate problems with his short term memory and panic attacks, but the examiner noted that the veteran's report was quite vague and non-specific, and that the veteran demonstrated exaggerated responses to the Minnesota Multiphasic Personality Inventory (MMPI). The examiner concluded that the individual's PTSD had not worsened at all since the previous examination, but rather was stabilizing and improving. Likewise, in December 2005, a VA examiner noted that the veteran's PTSD was improving with the veteran's current medication. The examiner assigned a GAF score of 70 in the November 2005 examination, which corresponds to some mild symptoms or some difficulty in social, occupational or school functioning, but generally functioning pretty well, has some meaningful interpersonal relationships. Finally, there are records of outpatient treatment in March 2006. No psychomotor abnormalities were noted. His speech was described as normal for rate, volume, tone and rhythm. His thoughts were described as coherent and goal directed, and the veteran was not found to be delusional, suicidal or homicidal. The veteran was described as alert and oriented, with his memory and concentration intact. The veteran's insight and judgment were described as good. Panic attacks and social impairment were not noted by the examiner. The veteran's mood, however, was described as "down," which was attributed by the examiner to the veteran's current situation of moving from his home after closing his body shop in August 2005. Apparently no GAF score was assigned during this treatment. Since the veteran is currently rated at 30 percent disabled, the next available rating is 50 percent. As noted above, a 50 percent disability rating requires 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, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Looking to each of these requirements, the Board concludes that the veteran is entitled to a disability rating of 50 percent from September 30, 2004, the date of receipt of the veteran's original claim for benefits, through May 16, 2005, when a GAF score of 60 was assigned, it was apparent that the veteran's psychiatric condition had improved. The veteran is not entitled to a disability rating in excess of 30 percent for any time after May 16, 2005, and the effective date of an award can be no earlier than the date of receipt of the veteran's application for benefits. See 38 U.S.C.A. § 5110(a). As noted, 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 disability ratings. Fenderson, 12 Vet. App. 119 (1999). From September 30, 2004 to May 16, 2005, the veteran had been assigned a GAF score of 35, which indicates some impairment in reality testing or communication or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. The veteran also described frequent nightmares about his time in Vietnam, and reported auditory hallucinations. The veteran also reported the desire to crash his car. Finally, even though the veteran was able to maintain employment during this time, he stated that he only worked a few times a week because he did not feel like working. With these symptoms in mind, the veteran demonstrated impaired reliability in his occupation, with frequent panic attacks, qualifying him for a 50 percent disability rating. Despite the fact that the veteran was assigned a GAF score of 35 at this time, a disability rating of 70 percent is not warranted in this case since there is evidence that the veteran remained employed despite this assessment and was able to maintain a relationship with his children who lived with him. A 70 percent rating requires occupational impairment with deficiencies in most areas, and an inability to establish and maintain effective relationships. A 50 percent rating requires only occupational impairment with reduced reliability, and difficulty in maintaining work and social relationships. Since the evidence indicates that the veteran continued working and was able to retain ownership of his auto body shop until sometime in August 2005 when he apparently closed it due to his employees leaving, his impairment more closely approximates a reduction in reliability rather than an actual deficiency in his ability to work. Therefore, the criteria for a 70 percent disability rating for the period from September 30, 2004 to May 16, 2005 have not been met. As of May 16, 2005, the veteran was assigned a GAF score of 60. The examiner noted that the veteran's hallucinations had improved "quite a bit." The examiner also noted that the veteran was still employed, having remained employed since leaving the military. The veteran's PTSD appears to have continued to improve, with auditory hallucinations being described as "very rare" in September 2005, and a GAF score of 70 being assigned in November 2005. Therefore, the evidence indicates that with proper medication, the veteran's symptomatology more closely matches a 30 percent disability rating than a 50 percent rating. Since the preponderance of the evidence is against the claim for a disability rating in excess of 30 percent for the period after May 16, 2005, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The claim is granted in part and denied in part. ORDER An initial, staged, 50 percent rating for service-connected PTSD, from September 30, 2004 until May 16, 2005, is granted, subject to the laws and regulations governing effective dates of monetary compensation. A disability rating in excess of 30 percent for service- connected PTSD since May 16, 2005, is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs