Citation Nr: 1126975 Decision Date: 07/20/11 Archive Date: 07/29/11 DOCKET NO. 06-14 150 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from July 1967 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio (RO). In that rating decision, the RO granted entitlement to service connection for PTSD and assigned a 30 percent evaluation, effective from May 23, 2005. During the pendency of this appeal, the RO has twice increased the rating from the initial effective date, and it is currently rated as 70 percent. It is also noted that during this period, the Veteran has also been awarded entitlement to a total disability rating due to individual unemployability (TDIU), in part, because of the severity of his PTSD symptomatology. As the grants during the pendency of this appeal do not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). In March 2011, the Veteran testified before the undersigned during a Board hearing at the RO. During the hearing, the undersigned identified the issues on appeal, and noted what pertinent evidence was outstanding and what evidence might assist in substantiating the claims. Additionally, the Veteran through his testimony, with the assistance of her representative, demonstrated actual knowledge of the elements necessary to substantiate the claims. See Bryant vs. Shinseki, 23 Vet. App. 488 (2010). A copy of the hearing transcript has been associated with the claims folder. After the March 2011 hearing, the Veteran submitted additional evidence in support of his claim for a higher evaluation for his PTSD disability. While no waiver of consideration by the agency of original jurisdiction (AOJ) accompanied this evidence, the Board finds that referral to the AOJ for consideration in the first instance is not warranted given the Board's favorable decision below. FINDING OF FACT The evidence demonstrates the Veteran's PTSD has been manifested by symptomatology that more closely approximates total occupational and social impairment. CONCLUSION OF LAW The criteria for a grant of 100 percent for PTSD have been approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.125-4.130, Diagnostic Code 9411 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION 1. VA's Duty 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Here, given the results favorable to the Veteran, further development under the VCAA or other law would not result in a more favorable result for the Veteran, or be of assistance to this inquiry. Hence, no further notice or 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). 2. Increased Evaluation The RO initially granted service connection for PTSD in an October 2005 rating decision. At that time, a 30 percent evaluation was assigned pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. The Veteran appealled, additional evidence was submitted and obtained, and the RO reevaluated the claim in a Statement of the Case (SOC) and Supplemental Statement of the Case (SSOCs). The RO continued the 30 percent evaluation. The Veteran again submitted additional lay and medical evidence and the RO reevaluated the claim and increased the evaluation to 50 percent in a November 2008 rating decision. After further reevaluation of the claim, the RO increased the evaluation to 70 percent in a June 2009 rating decision. The Veteran has perfected an appeal and he contends that the currently assigned 70 percent rating evaluation does not accurately reflect the severity of his disability. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.1. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. While the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Board notes that the Veteran is appealing the initial assignment of a disability rating, and as such, the severity of the disability is to be considered during the entire period from the initial assignment of the evaluation to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). The United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. As noted above, the Veteran's PTSD was evaluated under Diagnostic Code 9411. Regulations pertaining to the criteria for evaluating psychiatric disorders, including PTSD, provide for a 70 percent disability rating 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 work-like setting); and the inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 100 percent evaluation is warranted when there is 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. Id. In evaluating psychiatric disabilities, the Board has adopted the Diagnostic and Statistical Manual of Mental Disorders, 4th ed., American Psychiatric Association (DMS-IV). That manual includes a Global Assessment of Functioning (GAF) scale reflecting psychological, social and occupational functioning on a hypothetical continuum of mental illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996)(citing DSM-IV). A score of 41-50 indicates 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). A score of 51-60 indicates 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 peer or coworkers). See Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Washington, DC, American Psychiatric Association, 1994. In this case, the evidence for consideration includes VA outpatient treatment records and the reports of three VA examinations. Having carefully considered the claim in light of the record and the applicable law, the Board is of the opinion that the evidence is at an approximate balance for an increased evaluation of a 100 percent and the appeal will be allowed. The Veteran underwent the first VA psychiatric examination in July 2005. In that examination report, the examiner noted that the Veteran began seeking mental health treatment in 2005. The Veteran reported that he had been employed by the same company for 23 years as a salesman prior to its going out of business earlier in July 2005. He reported a good relationship with his brother and the Veteran has been married to his wife for over thirty years. He also reported a positive history of alcohol abuse. On mental status examination, the examiner observed that the Veteran was casually dressed and well groomed and he demonstrated good social skills. The Veteran had a logical and coherent thought process. He reported feelings of depression, but he denied any suicidal or homicidal thoughts. He also denied experiencing any hallucinations or delusions. The Veteran complained of sleep impairment, disturbing thoughts, increased arousal, and decreased concentration. The VA examiner diagnosed the Veteran with PTSD and assigned him a GAF scaled score of 65. In July 2006, the Veteran testified before a Decision Review Officer at the RO. The Veteran testified that he had difficulty getting out of bed and he experienced intrusive thoughts about Vietnam. The Veteran also reported symptoms of increased irritability and anger management problems, feelings of anxiety, and panic attacks. He stated that he was currently employed as a salesman, but his PTSD symptomatology interfered with his ability to work. The Veteran underwent his second VA examination in October 2006. The examination report shows that on examination, the Veteran was alert, oriented, and properly dressed, but his mood was depressed. There was no evidence of delusions, hallucinations, abnormal thought processes. He had impaired recall memory but his recent and remote memory was intact. The Veteran reported symptoms of sleep impairment, intrusive thoughts, and lack of energy. He reported an "okay" relationship with his wife. It was noted that diagnostic psychological testing revealed highly exaggerated responses and it raised questions as to the validity of the results. The examiner further noted that while an increase in the Veteran's symptomatology was expected as he continued to undergo treatment and counseling, the increased findings revealed during testing seemed an inaccurate representation. The examiner confirmed a diagnosis of PTSD and assigned a GAF scaled score of 61. A January 2007 VA medical statement from the Veteran's treating nurse specialist shows that the Veteran has consistently maintained a GAF scale scored within the moderate symptomatology range. It was noted that the Veteran's symptoms impacts his ability to work. While he has been able to maintain employment, he has a history of work-related issues involving job tardiness and problems accomplishing tasks. The Veteran was also found to have significant social impairment because of his difficulty in maintaining and establishing relationships. In the medical statement, the nurse specialist also stated that the October 2006 VA examiner's statement regarding the Veteran's exaggerated responses was misrepresentation of the Veteran's symptomatology and the statement called into question the bias of the examiner. A June 2007 VA treatment record shows that the Veteran was evaluated with a GAF scaled score of 50. In February 2008, the Veteran was afforded his third VA psychiatric examination. In that examination report, it was noted that the Veteran was being evaluated again because it was suggested that he had exaggerated his responses in the previous examination. The examiner noted that the Veteran denied any major changes in his medical conditions. He reported that he was currently unemployed and he had been fired from his last job because of his poor interaction with clients and his irritability. He also reported difficulty concentrating on the job. The examiner felt that the Veteran reported similar symptomatology as shown in the previous examination - irritability, isolation from others, intrusive thoughts, anger management problems, sleep impairment, and feelings of depression. On mental status examination, the Veteran was observed to be alert, oriented, cooperative, pleasant and appropriate. There was no evidence of psychosis, major mood disturbance, or suicidal or homicidal thoughts. The Veteran was assigned a GAF scaled score of 59. Subsequent VA outpatient treatment records show that the Veteran was evaluated with a GAF scaled score between 45 and 55. These treatment records also show that the Veteran reported having suicidal thoughts for the past few months, but no history of any suicide attempts in the past. It was also noted that the Veteran had poor hygiene and he made poor eye contact by keeping his eyes covered under a baseball cap. The record next contains four medical statements from the Veteran's treating medical providers. An October 2008 medical statement shows that the Veteran has social impairment and he avoids interaction with others by watching football games. He also watches football to avoid intrusive thoughts. It was also noted that the Veteran has been unable to maintain employment because he has difficulty trusting those in authority. The Veteran lacks motivation and energy, and he experiences symptoms of depression. An August 2009 medical statement notes the Veteran's symptoms have progressively intensified and his intrusive thoughts of Vietnam have interfered with his ability to work. The statement further shows that the Veteran continues to experience symptomatology related to his PTSD disability. It was noted that his symptoms have a significant impact on his capacity to work in careers that involve customer service or groups of people. He is considered unemployable. A February 2011 medical statement shows that the Veteran's mood remains significantly depressed, notes the Veteran remains emotionally detached from others, including his family, and he experiences "serious impairment in occupational and social functioning." In a March 2011 medical statement, the Veteran was evaluated with a GAF scaled score of 45. The Veteran testified before the undersigned in March 2011. During the hearing, the Veteran provided credible testimony about his inability to sustain employment because of his PTSD disability. He reported that he had been fired from his last position because of anger management problems with others and he was reprimanded four or five times. The Veteran stated that he had a good relationship with his wife, but he had poor relationships with his kids. He reported symptoms of nightmares, intrusive thoughts, anxiety, and suicidal and homicidal thoughts. The Veteran reported that he had poor personal hygiene and his wife had to remind him to look after himself. The Veteran also testified that he experienced some homicidal or suicidal ideation when aggravated or upset. After a thorough analysis of the record, the Board finds the evidence of record approximates the criteria for an increased evaluation of 100 percent. Although there is no evidence of gross impairment in thought processes, persistent delusions or hallucinations, disorientation, or memory loss, there is evidence that the Veteran's symptomatology totally impacts his occupation and social functioning. It also shows that he has anger management problems when dealing with others that have caused him to be reprimanded by his employer and to lose his job. The VA treatment records and the Veteran's testimony shows that he has an intermittent inability to perform activities of daily living, including maintenance of his personal hygiene and lack of motivation to perform tasks. In addition, nearly every record describes the Veteran's symptomatology as moderate or serious and has totally affected his ability to sustain employment and social relationships. The record clearly reflects that the Veteran has a poor relationship with his children and no friends. While he has been married for over thirty years to his wife, he only describes his relationship with his wife as "okay." Furthermore, the Veteran's GAF scaled scores have predominantly been in the range of 45-55, denoting moderate to severe symptoms that result in impairment in social occupational or school functioning. Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); (observing that GAF is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health- illness" under the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition.); see Richard v. Brown, 9 Vet. App. 266, 267 (1996). The Board notes here that the symptoms listed in VA's general rating formula for mental disorders is 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). In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant's service- connected mental condition that affect the level of occupational or social impairment. Id. at 443. Pursuant to 38 C.F.R. § 4.7, when a question arises as to which of two ratings apply under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. In this case, there is a question as to whether the Veteran's PTSD symptoms warrant a 70 or 100 percent rating under diagnostic code 9411. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the clinical signs and manifestations of the Veteran's symptoms more nearly approximate the criteria for a 100 percent schedular rating under diagnostic code 9411. Accordingly, a total schedular rating for PTSD is assigned for the entire rating period. ORDER An increased total disability evaluation, 100 percent, for PTSD is granted, subject to the laws and regulations governing monetary awards. ____________________________________________ H. SEESEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs