Citation Nr: 1122349 Decision Date: 06/09/11 Archive Date: 06/20/11 DOCKET NO. 07-34 657 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial 50 percent rating for posttraumatic stress disorder (PTSD). 2. Entitlement to an initial evaluation in excess of 50 percent for PTSD. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas H. O'Shay, Counsel INTRODUCTION The Veteran had active military service from September 2003 to February 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified before the undersigned at a hearing held at the RO in July 2010. As will be discussed in the decision below, the Board finds that the Veteran is entitled, at a minimum, to a 50 percent evaluation for his PTSD, but that the record requires more development prior to determining whether a rating higher than 50 percent is warranted. Although generally it is preferable to remand an entire initial rating issue pending the necessary development, given that the evidence in this case clearly shows the Veteran's PTSD is at least 50 percent disabling, the Board finds that it is inappropriate to delay the award of a 50 percent evaluation. Consequently, the issue of entitlement to an initial rating in excess of 50 percent for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's PTSD is, at a minimum, productive of occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for a 50 percent evaluation for PTSD have been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.321(b), 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Under 38 U.S.C.A. §§ 5103 and 5103A (West 2002 & Supp. 2010), VA has certain duties to notify and assist the Veteran in his appeal; however, given the favorable actions taken hereinbelow, further discussion explaining how VA complied with those laws is unnecessary. The Board notes that the matter of whether the Veteran is entitled to an even higher initial rating for his PTSD for the entire period at issue is still pending, and is addressed in the remand portion of this action. In accordance with 38 C.F.R. §§ 4.1, 4.2 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the Veteran's service-connected PTSD. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (2010). The Board attempts to determine the extent to which the Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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 disability rating was not limited to that reflecting the then-current severity of the disorder. Further, in Fenderson, the 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 period. As noted in the Introduction, the Veteran's period of service ended in February 2007. Service connection for PTSD was granted in June 2007, with an assigned 30 percent evaluation effective February 17, 2007. This evaluation has remained in effect since that time. The RO rated the Veteran's PTSD under 38 C.F.R. § 4.130, Diagnostic Code 9411, which provides that a 30 percent rating 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, suspiciousness, panic attacks, chronic sleep impairment, and mild memory loss. A 50 percent evaluation is warranted 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, difficulty in establishing and maintaining effective work and social relationships. The Board points out that the psychiatric symptoms listed in the rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board initially notes that the Veteran has been diagnosed with a depressive disorder. Specifically, major depressive disorder. His clinicians have suggested that the depression is part and parcel of the PTSD. In any event, given the absence of a medical opinion distinguishing the manifestations of the service-connected PTSD from those of any other psychiatric disorder, in addressing the proper evaluation assignable for the PTSD, the Board will consider all of the Veteran's pertinent psychiatric symptoms as if they are a part of the Veteran's service-connected disability. See Mittleider v. West, 11 Vet. App 181 (1998). After reviewing the evidence of record, the Board concludes that the Veteran is entitled to a minimum 50 percent rating for PTSD for the entire initial rating period since February 17, 2007. The pertinent evidence includes service treatment records, VA treatment records covering the period from May 2007 to August 2007, the report of a May 2007 VA examination, and the Veteran's statements and testimony. The Veteran testified that he experiences panic attacks, and also difficulty in maintaining social relationships in that he is now divorcing his second wife, and has few, if any, friends. He also experiences some difficulty in establishing or maintaining effective work relationships, as he apparently was recently suspended from his job because of a vehicle accident he contends was caused by his difficulties in concentration. The service treatment records show he presented with a flat affect and with "shaky" speech; his symptoms included sleep problems and difficulty concentrating. The May 2007 VA examiner noted that the Veteran's psychiatric symptoms were continuous and disrupted functioning in all areas of life, and assigned a Global Assessment of Functioning (GAF) score of 60. The VA treatment records note that the Veteran's psychiatric symptoms increased after his medication was stopped, leading to complaints of depression, flashbacks, intrusive thoughts, and panic attacks; the treatment records show he was assigned a GAF score of 52. The medical records on file show that the Veteran's examining and treating clinicians have consistently assigned GAF scores ranging between 52 and 60. GAF scores ranging between 51 and 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). See generally, Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); Richard v. Brown, 9 Vet. App. 266 (1996) (citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (4th ed.), p. 32) (DSM-IV). The Veteran's GAF scores consequently are consistent with the type of impairment contemplated by a 50 percent evaluation. Moreover, his reported symptoms are clearly consistent with at least a 50 percent evaluation. He has evidenced a flat affect, panic attacks several times each week, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships, as is evident from his testimony and treatment records. The Board therefore finds that the disability picture for the Veteran's PTSD more nearly approximates the criteria for no less than a 50 percent evaluation for the entire initial rating period on appeal. ORDER Entitlement to a 50 percent initial evaluation for PTSD for the entire period involved in this appeal is granted. REMAND The Veteran contends that he is entitled to an initial rating of 70 percent for his PTSD. He argues, for example, that his panic attacks are persistent enough to be described as "continuous." He also has stated at times that he experiences suicidal ideation, although treatment reports on file are silent for any such complaints. At his hearing before the undersigned, the Veteran testified that his psychiatric symptoms had worsened in severity since the May 2007 VA examination. He explained that he experienced anger outbursts at work, for which he had been counseled, and that he was suspended over a vehicle accident he believes was caused by his decreased concentration. He also suggested that his current divorce is related to his PTSD symptoms. Based on the Veteran's testimony concerning the worsening of his symptoms since the last examination on file in May 2007, the Board finds that additional VA examination is necessary. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Accordingly, the case is REMANDED for the following actions: 1. Make arrangements for a VA psychiatric examination of the Veteran. Such examination should determine the extent of the Veteran's service-connected PTSD. The examiner should indicate with respect to each of the psychiatric symptoms identified under the schedular criteria for rating mental disorders whether such symptom is a symptom of the Veteran's service-connected PTSD. The examiner should also provide an opinion concerning the degree of social and industrial impairment resulting from the Veteran's service-connected PTSD, and a global assessment of functioning score with an explanation of the significance of the score assigned. The rationale for all opinions expressed should be explained. The claims file must be made available to and reviewed by the examiner. The examination report is to reflect that such a review of the claims file was made. 2. The RO should then readjudicate the issue of entitlement to an initial rating in excess of 50 percent for PTSD. The RO should also consider whether the case should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration. If the benefit sought on appeal is not granted in full the RO must issue a supplemental statement of the case, and provide the appellant and his representative an opportunity to respond. After the Veteran and his representative have been given an opportunity to respond to the supplemental statement of the case and the period for submission of additional information or evidence set forth in 38 U.S.C.A. § 5103(b) (West 2002) has expired, if applicable, the case should be returned to the Board for further appellate consideration, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified by the RO. The Veteran and his representative have the right to submit additional evidence and argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ K. MILLIKAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs