Citation Nr: 1007666 Decision Date: 03/02/10 Archive Date: 03/11/10 DOCKET NO. 06-34 343A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an higher initial disability rating for posttraumatic stress disorder (PTSD), to include a rating in excess of 30 percent prior to December 12, 2006 and a rating in excess of 50 percent from December 12, 2006, forward. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S.K.C. Boyce INTRODUCTION The Veteran served on active duty from July 1967 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In this decision, the RO granted service connection for PTSD and assigned a 30 percent disability rating, effective as of July 25, 2003, the date of receipt of the Veteran's initial claim seeking entitlement to service connection for PTSD. In August 2008, the RO granted a 50 percent rating for PTSD, effective from December 12, 2006. FINDING OF FACT The Veteran's PTSD is manifested by total social and occupational impairment. CONCLUSION OF LAW The criteria for a 100 percent rating for the Veteran's PTSD have been met, effective from July 25, 2003. 38 U.S.C.A. §§ 1110, 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.10, 4.126, 4.130, Diagnostic Code (DC) 9411 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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 and Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). In view of the favorable disposition of this appeal, discussed below, VA has satisfied its duty to notify and assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertaining to his claim for an increased rating for PTSD. As set forth herein, no additional notice or development is indicated in the Veteran's claim. II. Higher Initial Rating Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 C.F.R. § 1155; 38 C.F.R. § 4.1. An evaluation of the level of disability present includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. § 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). In Fenderson v. West, 12 Vet. App. 119 (1999), the Court emphasized the distinction between a new claim for an increased evaluation of a service-connected disability and a case (such as this one) in which the Veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been recognized as service-connected. VA must assess the level 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 claim of the claim - a practice known a "staged rating." The Veteran bears the burden of presenting an supporting his claim for benefits. 38 U.S.C.A. § 5107(a). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id. In April 2005, the RO granted service connection for PTSD and assigned a 30 percent rating under DC 9411, effective from July 25, 2003. In a subsequent rating decision in August 2008, the RO assigned a 50 percent rating for PTSD, effective from December 12, 2006. The Veteran disagrees with these disability ratings and contends that an higher initial rating is warranted, to include a rating in excess of 30 percent prior to December 12, 2006, and a rating in excess of 50 percent from December 12, 2006, forward. The criteria for evaluating PTSD are found at 38 C.F.R. Part 4, DC 9411. A 30 percent evaluation is warranted where there is 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 and suspiciousness; weekly (or less often) panic attacks; chronic sleep impairment, and mild memory loss, such as forgetting names, directions, and recent events. A 50 percent evaluation is warranted when there is 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; disturbance of motivation and mood; and difficultly in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where there is 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); and inability to establish and maintain effective relationships. Id. A 100 percent evaluation requires 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, own occupation, or own name. Id. Symptoms listed in the VA's general rating formula for mental disorders serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, and are not intended to constitute an exhaustive list. Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). The nomenclature employed in the portion of VA's Schedule for Rating Disabilities (the Schedule) that addresses service- connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (also known as the DSM-IV). 38 C.F.R. § 4.130. The DSM-IV contains a Global Assessment of Functioning (GAF) scale, with scores ranging from zero to 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. Higher scores correspond to better functioning of the individual. GAF scores ranging between 61 and 70 are assigned when there are 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 when the individual is functioning pretty well and has some meaningful interpersonal relationships. GAF scores ranging between 51 and 60 are assigned when there are moderate symptoms such as flat affect and circumstantial speech, and 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 between 41 and 50 are assigned when there are 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). GAF scores ranging between 31 and 40 are assigned when there is 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). GAF scores ranging between 21 and 30 are assigned when behavior is considerably influenced by delusions or hallucinations, or there is serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation), or an inability to function in almost all areas (e.g., stays in bed all day; no job, home, or friends). American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th. ed., 1994). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). In addition, the evaluation must be 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. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The evidence of record, including the Veteran's VA treatment records; the VA examinations conducted in July 2004 and December 2006; the Veteran's statements; and the statements from his treating physician, dated June 2005, and psychiatrist, dated July 2005, indicates that a 100 percent rating is warranted for the Veteran's PTSD, effective from July 25, 2003. The Veteran's treatment records from April through September 2003 show that he experienced symptoms of severe depression, suicidal ideation, a restricted and/or constricted affect, irritability, difficultly concentrating, chronic insomnia, and social isolation. His treatment records also describe him as hypomanic at that time, and relate that he reported experiencing guilt, both appropriate and inappropriate. His speech was reported to be relevant, but consistently low and monotonous. In June 2003, the Veteran reported having lost his job and apartment in March 2003, and reiterated that he was unemployed at his September 2003 appointment. His thought processes were noted as coherent, with fair concentration. He was alert, oriented, and rational, with no delusions or hallucinations other than those reported to have occurred when he was using drugs. The Veteran was not overly psychotic, and his automatic judgment and insight were intact. The Veteran was provided with his first VA examination in July 2004. The claims folder was available and reviewed. The examiner determined that the Veteran had mild PTSD until his wife died in 1989 but generally had a poor work history that predated his wife's death. The examiner determined that the severity of his depression and anxiety made it difficult for him to be around other people and maintain steady employment. The Veteran reported that he preferred to be alone and was not close to anyone. He recalled that his daughter complained that he made little effort to socialize with her and her family even though he was living with them at the time of the examination. The examiner found that the Veteran was depressed and that his affect was somewhat flat. He reported experiencing emotional numbing and detachment from others, diminished concentration, and constant irritability. He also reported some suicidal ideation. However, the examiner also found that the Veteran was alert, fully oriented, and clean and neatly dressed. His thoughts were clear and linear and his speech was normal. The examiner provided diagnoses of severe and recurrent major depressive disorder and PTSD and assigned a GAF score of 35, explaining that the score reflected the degree to which the Veteran's depression impaired his social, psychosocial, and occupational functions. In June 2005, the Veteran's treating psychiatrist submitted a statement that the Veteran experienced trouble sleeping, isolation from others, and constant anxiety. He also asserted that the Veteran's depression was associated with his PTSD, and assigned a GAF score of 47, intended to indicate serious social and occupational impairment. Similarly, in July 2005, the Veteran's treating psychologist submitted a statement indicating that he had assigned a GAF score of 45. He also asserted that the Veteran's PTSD symptoms made it impossible for him to control his emotions such that he cannot work. The Veteran's treatment records from 2004 through 2006 show that he experienced symptoms of severe depression, anxiety, irritability, sleeplessness, hypervigilance, and social isolation. His speech was reported to be relevant, but consistently low and monotonous. In January 2004, the Veteran reported that was working for a temporary employment agency, and in June 2004 he also reported that he was working part-time. He also reported in January 2004 that he was living with his older brother, and that he had a close relationship with his daughter and attended church regularly with his aunt. However, in September 2004 and October 2004, the notes indicate that he was withdrawn and tended to socially isolate himself from other people. In July 2005, the Veteran discussed how his anger interfered with his ability to trust other people. He also reported having problems with memory and concentration in January 2005. No suicidal ideation was noted in 2004 or 2005. He was alert and talkative with normal speech, and demonstrated good insight and judgment. The notes also describe the Veteran as bright, calm, pleasant, clean, organized, and spontaneous. He also attended PTSD Case Management Group and the Trauma Recovery Program during this period. The Veteran had his second VA examination in December 2006. The claims folder was available and reviewed. The examiner noted at the outset that the Veteran had received ongoing treatment for PTSD and depression over the years, formerly at VAMC New Orleans, and then at the Baton Rouge VA clinic following Hurricane Katrina. The examiner also noted that the Veteran's condition had worsened since Hurricane Katrina, and that he had lost all memorabilia of his deceased wife and son during that storm. It was also noted that he had been living in a FEMA trailer since being dislocated by the storm. A the time of the examination, he was still spending time with his aunt, but was not able to see his children and grandchildren as often after the relocation and had no friends. The examiner noted that he was very isolated socially, and had trouble being in a trailer park because of his difficulty being around people. The examiner noted that the Veteran was depressed, with sleep impairment, memory impairment, and suicidal ideation. He also noted that there were no signs of unusual psychomotor activity, irregular speech, abnormal thought processes, delusions, inappropriate behavior, panic attacks, obsessive or ritualistic behavior, or problems with personal hygiene or daily living, and that the Veteran was cooperative and attentive with a normal affect, good insight and judgment, and average intelligence. In describing the Veteran's PTSD symptoms, the examiner noted that he had recurrent and intrusive distressing recollections of the stressful event, recurrent distressing dreams, instances of acting or feeling as if the event were recurring, and intense psychological distress and psychological reactivity at exposure to internal or external cues that symbolize or resemble the event. The Veteran demonstrated persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness by efforts to avoid thoughts, feelings, or conversations associated with the trauma, as well as activities, places or people that arouse recollections of the trauma. Furthermore, he was unable to recall important aspect of trauma. He also experienced a markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from others, a restricted range of affect, and a sense of a foreshortened future. He reported persistent symptoms of increased arousal, such as difficulty in falling or staying asleep, irritability or outbursts of anger, difficulty concentrating, hypervigilance, and an exaggerated startle response. The examiner determined that the Veteran's depression is secondary to his PTSD, and that the depression causes symptoms of constant feelings of sadness, hopelessness, low self-esteem, suicidal ideation, feelings of restlessness and agitation, trouble concentrating and making decisions, constant irritability, increased appetite, low energy, and fatigue. Lastly, the examiner noted that the Veteran has been unemployed for 2 to 5 years, that the Veteran attributed his inability to work to his PTSD and depression and that he is very socially isolated. He has no friends, and his anger affects his relationship with his family. His PTSD was categorized as frequent and severe, as well as chronic and unlikely to improve. The examiner noted that his condition had worsened over the past year and assigned a GAF score of 35. After considering all the evidence of record, the Board finds that the overall disability picture for the Veteran's PTSD most closely approximates a 100 percent rating, warranted where there is total occupational and social impairment. At both VA examinations, in July 2004 and December 2006, the VA examiner assigned a GAF score of 35, indicative of 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). While the Veteran appeared to have some brief, part-time employment in 2004, in July 2005 his treating psychologist submitted a statement indicating that he had assigned a GAF score of 45 and asserted that the Veteran's PTSD symptoms made it impossible for him to control his emotions such that he cannot work. Furthermore, throughout the evidence of record, the Veteran has demonstrated significant social impairment. He is socially isolated, has no friends, lives by himself, and has problems with anger that interferes with his ability to trust others. Therefore, the Veteran's disability picture most closely aligns with a 100 percent rating for service-connected PTSD, and as such, a 100 percent rating is granted, effective from July 25, 2003. ORDER Entitlement to a disability rating of 100 percent for service-connected PTSD is granted, effective from July 25, 2003, subject to the statutes and regulations governing the payment of monetary benefits. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs