Citation Nr: 1114489 Decision Date: 04/13/11 Archive Date: 04/21/11 DOCKET NO. 06-32 565 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Medical and Regional Office Center (RO) in Wichita, Kansas THE ISSUE Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD O. Lee, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1990 to July 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision of the RO in Wichita, Kansas, which in pertinent part granted service connection for PTSD and assigned a 50 percent disability rating. In July 2008, the Board increased the initial evaluation for PTSD to 70 percent. The Veteran then appealed to the U.S. Court of Appeals for Veterans Claims (Court). In a May 2010 memorandum decision, the Court vacated the July 2008 Board decision and remanded the matter to the Board for proceedings consistent with the memorandum decision. During the pendency of this appeal, the RO issued a rating decision in October 2009 granting a total disability rating based in individual unemployability (TDIU). The Board notes that additional benefits may be available in the event of a grant of a schedular 100 percent rating. The Board also notes that the reductions provisions differ between schedular and TDIU ratings, indicating that future treatment of the Veteran's rating may differ based on the outcome of the schedular determination. Thus, the grant of TDIU is not a complete grant of the benefits sought on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). FINDING OF FACT The Veteran's PTSD is manifested by the following: suicidal ideation, sleep impairment, nightmares, depression, hypervigilance, anger, irritability, avoidance of others, and neglect of personal appearance and hygiene, and is productive of total social and occupational impairment. CONCLUSION OF LAW The criteria for an initial evaluation of 100 percent for PTSD are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the appellant's claims folder, and has an obligation to provide reasons and bases supporting the decision. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. The Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2010). In this case, the Board is granting in full the benefit sought on appeal. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Kent v. Nicholson, 20 Vet. App. 1 (2006). II. Initial Rating The Veteran seeks a higher initial rating for his service-connected PTSD, currently evaluated as 50 percent disabling. For the reasons that follow, the Board finds that an initial rating of 100 percent is warranted. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Board reviews the veteran's entire history when making a disability determination. See 38 C.F.R. § 4.1. When the veteran has timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the veteran is entitled to "staged" ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's service-connected PTSD is evaluated as 50 percent disabling under Diagnostic Code 9411. The regulations establish a general rating formula for mental disorders. See 38 C.F.R. § 4.130 (2007). Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a claimant's disability that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). Under the provisions for rating psychiatric disorders, a 50 percent disability rating requires evidence of the following: 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. The criteria for a 70 percent rating are: Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting; inability to establish and maintain effective relationships.) Finally, the criteria for a 100 percent rating are: 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; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. Within the DSM-IV, Global Assessment Functioning (GAF) scores are 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). While not determinative, a GAF score is highly probative as it relates directly to the veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. See Massey v. Brown, 7 Vet. App. 204, 207 (1994). According to the GAF scale, a score of 51 to 60 represents 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). DSM-IV at 47. A score of 41 to 50 illustrates 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). Id. A score of 31 to 40 reflects 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). Id. After a careful review of the record and for reasons and bases expressed immediately below, the Board finds that the evidence supports a higher initial disability rating of 100 percent for the Veteran's service-connected PTSD. The record reflects that the Veteran has been receiving ongoing VA mental health treatment for his PTSD. VA treatment notes show that he has frequent nightmares. For example, at an April 2006 treatment session, the Veteran reported that the previous night he had nightmares that he started the Korean War. VA treatment notes also indicate the Veteran often has suicidal ideation and has attempted suicide on a few occasions to include overdosing on cocaine. The Veteran has had problems holding onto a job in the past, and in August 2005 he lost his job due to his inability to complete his work on time. He has been unemployed since. He was homeless for period of time in December 2005. At one point in December 2005, the Veteran was assigned a GAF score of 40. He was previously assigned a GAF score of 60 in April 2005. The Veteran has had problems with cocaine dependence. He was admitted to the VA Intensive Substance Abuse Treatment (ISAT) program in December 2005, but discharged a week later, just halfway into the program, for missing curfew. He did not complete any of his treatment goals during the time he was in ISAT. His ISAT progress notes are contained within his VA treatment records. A VA psychiatric examination was conducted in August 2005 to assess the current nature and severity of the Veteran's PTSD. The examiner diagnosed the Veteran with PTSD, noting features of bipolar disorder, and assigned him a GAF score of 50. The Veteran was found to be alert, oriented times 3, and cooperative. His speech was normal and clear, and his affect was labile, vacillating from flat to tearful to rage. The Veteran exhibited a depressed mood, anxiety, and nervousness. It was noted that he worries a lot, is overwhelmed by problems and pressures, has racing thoughts and has memory impairment in that he sometimes gets so overwhelmed that he forgets things. Concerning ability to maintain personal hygiene, the Veteran stated that he sometimes gets so depressed that he does not maintain personal hygiene; he indicated that, as of the VA examination, he had not showered in three days. The Veteran has sleep impairment, having difficulty falling or staying asleep, and experiences nightmares periodically. He also exhibits the following symptoms: hypervigilence, irritability or outbursts of anger, difficulty concentrating and paying attention, avoidance of reminders of trauma such as movies and discussions about the war, markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from others, and a sense of a foreshortened future. In terms of substance abuse, the Veteran has used cocaine and methamphetamines to prevent himself from sleeping and dreaming. He has attempted suicide in the past, by overdosing on sleeping pills and by shooting himself. At the examination, he was found to have okay impulse control in terms of anger and aggression, no obsessive or ritualistic behavior, no audio or visual hallucinations, and no history of panic attacks. In terms of occupational impairment, the August 2005 VA examination report noted that the Veteran has had numerous jobs since leaving the military. He has had difficulty keeping a job, and the longest he has stayed with one company is a year. He is frequently tardy or absent from work. The Veteran indicated at the VA examination that he had just lost his job the previous week because he did not get his job done in a timely manner. He also stated that he has difficulty being around other people, that he does not trust people, but that he cannot be alone. With respect to social impairment, the August 2005 VA examination report indicates the Veteran was once married but that the relationship ended due to his wife's infidelity. He expressed extreme hatred, anger, and homicidal ideation towards his ex-wife and her significant others. The Veteran has a son from this marriage and states that their relationship is good. The Veteran indicated that he was recently in a relationship for over 4 years with a woman named T. She has 5 children of her own, and the Veteran wants to be a part of their lives. T left him in October 2004 because she was tired of his lack of motivation and not being able to keep a job. She threw him out of the home, and when he took his tile saw to go to work, she charged him with stealing. The Veteran has a pending court date concerning this charge. He also stated that T recently lost her home and was staying with him for about a month. The Veteran indicated that aside from spending time with T and the children, he has no friends. He explained that he used to be an extrovert but now avoids socializing. The examiner noted that the Veteran appears to display significant emotional instability when it comes to relationships, and that he experiences suicidal ideation or homicidal ideation without intent or plan when he is emotionally hurt by someone. Taking into account all of the relevant evidence of record, the Board finds that there is sufficient evidence to establish that the Veteran's PTSD more nearly approximates the criteria for a 100 percent schedular rating. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (criteria for 100 percent rating). With respect to occupational impairment, the Veteran has been unemployed since he lost his last job in August 2005 and there is no indication that he is capable of working, given the severity of his PTSD symptomatology. The evidence also shows that the Veteran has severe social impairment, in light of the problems he has had in relationships with his ex-wife and T and the fact that he has no friends. In addition, the record reflects symptoms of suicidal ideation, to include a history of suicide attempts. Furthermore, the Veteran was assigned a GAF score of 50 at his August 2005 VA examination and a score of 40 at a subsequent VA treatment session in December 2005. Such scores reflect serious symptoms or serious impairment in social, occupational, or school functioning, and major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. See DSM-IV at 47. In sum, the evidence on file demonstrates total impairment due to PTSD. It is acknowledged that some of the Veteran's psychiatric symptomatology might be related to his substance abuse. However, as indicated in the August 2005 VA examination report, cocaine and methamphetamines were used by him in an attempt to avoid sleeping and experiencing nightmares. With due consideration of the benefit-of-the-doubt rule, the Board finds that the Veteran's service-connected PTSD is productive of total occupational and social impairment, without regard to any non-service connected psychiatric impairment. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (criteria for 100 percent rating). As such, the Board concludes that a higher initial rating of 100 percent is warranted. The benefit-of-the-doubt rule has been applied in arriving at this decision. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER An initial evaluation of 100 percent for PTSD is granted, subject to the laws and regulations controlling the award of monetary benefits. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs