Citation Nr: 1133352 Decision Date: 09/09/11 Archive Date: 09/15/11 DOCKET NO. 08-05 649 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island THE ISSUE Entitlement to an evaluation in excess of 50 percent for the posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran served on active duty from January 1968 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision issued by the RO. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim have been accomplished. 2. The Veteran's service-connected PTSD symptoms are shown to be severe in nature and more nearly approximated by occupational and social impairment with deficiencies in most areas and inability to establish and maintain effective relationships. Total occupational and social impairment is not demonstrated. CONCLUSION OF LAW The criteria for the assignment of an evaluation of 70 percent, but no higher, for the service-connected PTSD have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.130 Diagnostic Code 9411 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (the Court) have been fulfilled by information provided to the Veteran in correspondence from the RO dated in January 2007. The letter notified the Veteran of VA's responsibilities in obtaining information to assist the Veteran in completing his claim and identified the Veteran's duties in obtaining information and evidence to substantiate his claim. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006), Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006). Effective May 30, 2008, 38 CFR 3.159 was revised to clarify that no duty to provide section 5103(a) notice arises "[u]pon receipt of a Notice of Disagreement" or when "as a matter of law, entitlement to the benefit claimed cannot be established."38 C.F.R. § 3.159 (b)(3). As the Veteran voiced disagreement with the assigned rating for the PTSD in a notice of disagreement, no further duty to inform the Veteran of the requirements of VCAA exists. The Veteran has been made aware of the information and evidence necessary to substantiate his claim and has been provided opportunities to submit such evidence. The RO has properly processed the appeal following the issuance of the required notice. Moreover, all pertinent development has been undertaken, examinations have been performed, and all available evidence has been obtained in this case. Thus, the content of the notice letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). No further action is necessary for compliance with the VCAA. The Court in Dingess/Hartman found that the VCAA notice requirements applied to all elements of a claim. Notice as to these matters was provided in the letter sent to the Veteran in January 2007. The notice requirements pertinent to the issue addressed in this decision have been met and all identified and authorized records relevant to the matter have been requested or obtained. Further attempts to obtain additional evidence would be futile. The Board finds the available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to move forward with the claim would not cause any prejudice to the appellant. Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Where entitlement to compensation has already been established, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. 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 ratings from the time the claim is file until VA makes a final decision. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall 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. See 38 C.F.R. § 4.7. It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Evaluation of disabilities based upon manifestations not resulting from service- connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses is prohibited. 38 C.F.R. § 4.14. General Rating Formula for Mental Disorders: Rating 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 100 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 70 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 50 38 C.F.R. § 4.130, Diagnostic Code 9411 (2010) The Court has held that 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); Richard v. Brown, 9 Vet. App. 266 (1996) (citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (4th ed.) (DSM-IV), p. 32). The nomenclature employed in the schedule is based upon the DSM- IV, which includes the GAF scale. See 38 C.F.R. § 4.130. Global Assessment of Functioning (GAF) Scale Consider psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. Do not include impairment in functioning due to physical (or environmental) limitations. 60 ?? 51 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). 50 ?? 41 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). Factual Background and Analysis In the appealed rating decision, the RO denied the Veteran's claim for a rating in excess of 50 percent for the service-connected PTSD. In a December 2006 VA psychiatry treatment record, the Veteran complained about recently being laid off and discovering that he was not hired for a maintenance position due to a record "not being appropriately sealed on his CORI." The examiner indicated that the symptoms and signs of the Veteran's PTSD continued to affect multiple areas of his functioning. Objectively, the Veteran was pleasant and cooperative and made good eye contact. His mood/affect was irritable/blunted with full range. His thought process was linear and goal-directed; speech was normal; insight and judgment were good; and, there was no evidence of suicidal/homicidal or assaultive ideation. The examiner assigned a GAF score of 42. During a February 2007 VA examination, the Veteran reported that he had not worked since August 2006. He felt depressed because he had been unable to obtain other employment since that time. He knew he was still qualified to work but felt discouraged because no one would give him a chance. However, he had started a part-time job, 15 hours per week, doing some cleaning. Since being laid off, he spent his time "hanging around." He cleaned his guns or went for walks in the woods by himself. When his grandsons were not in school he spent time with them; otherwise, when they were in school, he spent time alone in his garage or in the woods. He previously enjoyed playing paint ball but reported this was no longer fun He did not have any friends and did not like to socialize. He got along with his family and he and his wife lived in an apartment in a house owned by their son on a 2 acre lot. His wife was fully supportive and he had good relationships with his son, daughter and grandsons. He depended on his wife and children to keep him going. His reported primary stressor in the past year was loss of his job and inability to get a new job. He continued to meet the criteria for PTSD and reported that he had nightmares almost every night about his experiences in Vietnam. He also complained of a lot of intrusive thoughts about men he knew who died in Vietnam. Heavy rain and helicopters triggered these PTSD symptoms. Generally, the Veteran only discussed his Vietnam experiences in treatment sessions; however, he shared a few stories of his experiences with his family members. He tried watching war movies, such as Platoon but they triggered flashbacks. His wife like to watch the news, including stories about the current war but the news also triggered flashbacks so he would go hide in the garage for avoidance. He was able to feel love and affection, particularly with his grandson; however, in other situations he had difficulty feeling close to others. He reported that he was better able to manage his emotions when he was working; now he had too much time to think. He often detached and isolated himself from others by going for walks in the woods or going into his garage by himself. Although he complained of poor sleep related to waking from nightmares, he felt he had enough energy and was not tired. He was able to control his anger by thinking about his family and the consequences of his actions. Reportedly, he lost his temper regularly at work; he was warned but his job was never really threatened. The Veteran complained of a depressed mood most of the time but his appetite was adequate, his weight was stable and he denied any significant fatigue. He did feel hopeless about his current employment situation and felt frustrated that no one had given him a chance to work. He reported that he had occasional thoughts of suicide but remembers people in Vietnam who committed suicide and did not want to "go that way." Every 2-3 weeks he had an anxiety attack that lasted about one minute. He found relief in stopping what he was doing and bending over to "get blood to his head." Objectively, he was generally appropriate and cooperative. He had a depressed affect (consistent with his described mood) and was tearful at times but was also able to laugh and smile at other times. Speech was normal; thought process was logical; and, thought content was appropriate. There was no evidence of current delusional processes and the Veteran denied any audio or visual hallucinations. He occasionally had auditory flashbacks, hearing screams similar to screams he heard in Vietnam (this was generally triggered by a Vietnam reminder). He denied any current suicidal ideation but admitted that he had some suicidal thought without intent. He had a lot of anger about losing his job in 2002 and had thoughts of wanting to get revenge; however, thinking about his family kept him from acting on his angry thoughts and he had no intent on harming anyone. He had some difficulty with remote memory; otherwise, cognitive functioning was normal. He was assigned a GAF score of 52. The examiner noted that the Veteran found it difficult to manage his PTSD symptoms since losing his job and opined that being unemployed exacerbated the Veteran's PTSD and depression. The Veteran however was not unemployable and would benefit from returning to work. In a March 2007 VA psychiatry note, the examiner noted that the Veteran had been more avoidant due to having more re-experiencing phenomena and hyperarousal symptoms, particularly being triggered by Americans of Southeast Asian descent. The inability to obtain employment continued to affect the Veteran. The examiner indicated that the Veteran's signs and symptoms of PTSD had worsened during this time of unemployment and were affecting all areas of his functioning. Objective examination was wholly unchanged from the February 2007 VA examination report. The examiner assigned the Veteran a GAF score of 43. Complaints and findings of September 2007, January 2008, March 2008, September 2008, and April 2009 VA psychiatry treatment notes remained wholly unchanged from previously noted reports, namely, signs and symptoms of the Veteran's PTSD had worsened during this time of unemployment and were affecting all areas of his functioning. Assigned GAF scores ranged from 45 to 47. During the March 2009 VA examination, the Veteran's reported history and complaints as well as objective findings remained wholly unchanged from the previous examination report. The Veteran's diagnosed PTSD was confirmed and he was assigned a GAF score of 50, indicative of serious impairment in social and occupational functioning. The examiner concluded that the Veteran's PTSD had gotten worse based on a marked increase in social withdrawal. The examiner explained that the Veteran was employable; however, he got more anxious quicker and was now more quick-tempered and was unsure he could get along with others, especially co-workers. In previous employment, the Veteran worked on a mostly solitary basis and was considered capable of work as long as contact with co-workers was kept to a minimum. Given the evidence of record, the Board finds that the Veteran's service-connected PTSD is shown to be essentially productive of occupational and social impairment with deficiencies in most areas and inability to establish and maintain effective relationships. In this regard, the Board notes that medical evidence of record has consistently indicated that the signs and symptoms of the Veteran's PTSD had worsened during his period of unemployment, affecting all areas of his functioning. In the March 2009 VA examination report, the examiner concluded that the Veteran's PTSD had gotten worse based on a marked increase in social withdrawal. Further, the Veteran has consistently been assigned GAF scores that range from 42 to 52. In this regard, the Board is aware that GAF scores within the range of 41-50 are assigned for PTSD with serious symptoms. The Board is aware that the Veteran was assigned GAF scores of 52 in the February 2007 VA examination report, indicative of PTSD with moderate symptoms. However, the Board notes that in the examination report, the examiner also noted that the Veteran found it difficult to manage his PTSD symptoms since losing his job and concluded that being unemployed exacerbated the Veteran's PTSD and depression. A disability evaluation shall be assigned based on all the evidence of record that bears on occupation and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination, or solely on the basis of social impairment. See 38 C.F.R. §§ 4.126 (2010). Although the Veteran's GAF score must certainly be considered in the evaluation of the service-connected PTSD, it is not dispositive. In this case however, the Veteran's GAF scores have consistently been indicative of serious impairment, confirming the findings of worsening PTSD symptomatology. Given the entire medical record in concert, it is concluded that the Veteran's PTSD symptoms more likely approximate the higher rather than the lower rating. For these reasons, a 70 percent evaluation is warranted. 38 C.F.R. § 4.130 DC 9411. 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; or memory loss for the names of close relatives, own occupation, or own name is not demonstrated by the medical evidence of record. Thus, the Veteran does not warrant a higher evaluation. The facts of this case do not present such an extraordinary disability picture such that the Board is required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1), which concern the assignment of extra-schedular evaluations in "exceptional" cases. See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); Thun v. Peake, 22 Vet. App. 111, 115 (2008). ORDER An increased evaluation of 70 percent, but not higher, for the service-connected PTSD is granted, subject to the regulations controlling the disbursement of VA monetary benefits. ____________________________________________ MICHAEL MARTIN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs