Citation Nr: 1107263 Decision Date: 02/23/11 Archive Date: 03/04/11 DOCKET NO. 06-07 490 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD), prior to June 10, 2006, in excess of 50 percent for PTSD, from August 1, 2006 to May 6, 2008, and in excess of 70 percent, from May 7, 2008. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD LouElla Kuta, Counsel INTRODUCTION The Veteran served on active duty from November 1964 to April 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which granted service connection for PTSD and assigned an initial 50 percent rating, effective April 30, 2004. From June 11, 2006 to July 31, 2006, a temporary total rating (TTR) based on hospitalization, under the provisions of 38 C.F.R. § 4.29, was assigned. From August 1, 2006 to May 6, 2008, the Veteran was assigned a 50 percent disability rating. In a June 2009 rating decision, the RO assigned a 70 percent rating for PTSD, effective May 7, 2008. The Veteran was granted a total rating based on individual unemployability (TDIU) in a July 2009 rating decision, effective May 7, 2008. In December 2008, the Board remanded this matter for additional VA medical treatment records and a VA examination. This matter was again remanded by the Board, in September 2009, in order to secure copies of the Veteran's Social Security Administration disability records. FINDING OF FACT The Veteran's PTSD has been manifested by symptoms approximating total occupational and social impairment throughout the appellate period. CONCLUSION OF LAW The criteria for an initial rating of 100 percent for PTSD are met. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1- 4.7, 4.125, 4.126, 4.130, Diagnostic Code 9411 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010) redefined VA's duty to assist the claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). In light of the Board's favorable decision granting the Veteran a 100 percent rating for the entire the appellate period, the Board finds that all notification and development action needed to fairly adjudicate that claim has been accomplished. Rating Criteria 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 (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2010). If two 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 evaluation will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2010). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation 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. 38 C.F.R. § 4.126(a) (2010). When evaluating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411, which in turn incorporates criteria contained in the General Rating Formula for Mental Disorders. Under the General Rating Formula, a 50 percent rating is assigned 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 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. A 70 percent evaluation is warranted for PTSD if the Veteran exhibits: 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 actives; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. Id. 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. When it is not possible to separate the effects of the service- connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). The schedular criteria incorporate the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). 38 C.F.R. §§ 4.125, 4.130 (2010). Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score. According to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) (adopted by VA at 38 C.F.R. §§ 4.125 and 4.126 (2009)), a GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." There is no question that the GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See, e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). The evidence as described above reveals GAF scores ranging between 33 and 45. A GAF score of 31-40 indicates some impairment in reality testing or communications or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. A GAF score of 41-50 is assigned where 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). However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, the GAF score must be considered in light of the actual symptoms of the veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). On the other hand, if the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). The Merits of the Claim Background During a February 2004 VA psych supportive therapy session, the Veteran's affect was angry. When seen a month later, the Veteran was having trouble filling out his VA claim forms, partly because of his memory but also because he would become extremely upset when having to remember stressor events; he was generally very angry about the war and the loss of friends and felt that the war was the direct cause of his first divorce. He admitted to having violent thoughts for years. He was very anxious and depressed. The Veteran tended to avoid things which reminded him of Vietnam. He reported persistent arousal symptoms and reexperiencing Vietnam. In August 2004, the Veteran underwent a VA examination. The examiner noted the Veteran was alert, cooperative, and oriented. He was casually dressed and groomed with good hygiene. His affect varied throughout the interview and his speech was normal. He denied any auditory or visual hallucinations. No delusions were detected nor was there evidence of gross cognitive dysfunction, thought disorder, or psychosis. The Veteran stated that he did have suicidal ideations but would not act on these and he admitted to occasional homicidal ideations. The Veteran reported experiencing recurrent and intrusive thoughts about Vietnam, to include nightmares and flashbacks. He experienced sleep impairment, irritability, outbursts of anger, startle response, and hypervigilance. He reported depressive symptoms including sadness, hopelessness, low self esteem, restlessness, difficulty concentrating, and making decisions. The examiner diagnosed the Veteran with PTSD and major depressive disorder, recurrent with psychotic features, assigning a GAF score of 45. The examiner stated that his GAF score was based upon serious impairment in personal, social, and occupational functioning, noting that the Veteran had been married three times and had had severe problems with anger control throughout his marriages. Over the years, he was drinking and using drugs excessively in an attempt to cope with his psychiatric symptoms and to help him sleep. Additionally, the Veteran has few friends, largely because of his difficulties trusting people. As well there appears to have been significant impairment in occupational functioning as evidenced by the large numbers of jobs he had held over the years, and being fired from at least 20 jobs. The Veteran reported frequent confrontations with coworkers and supervisors, as well as trouble functioning, because of his substances abuse. The Veteran's GAF score was also based on serious PTSD and depression symptoms such as suicidal ideations, feelings of hopelessness, regular intrusive thoughts and nightmares, problems with anger, and periods of severe isolation. The examiner stated it was very likely the Veteran's depression was secondary to his PTSD. The Veteran reported that his symptoms had increased significantly in the past year and a half. A May 2005 VA primary care note reflects that the Veteran was an unemployed industrial bricklayer. At a February 2006 VA psych supportive therapy session, the Veteran stated that he had not been able to sustain employment due to his inability to get along with coworkers, reporting that he got angry and either walked away from a job or was fired. He was a bricklayer and indicated that he did not have difficulty getting a job, but could not keep one for any length of time. The Veteran reported being vigilant and mistrustful of people since returning from Vietnam. Anger had been a hugh problem for him and, as a result, he tended to try and avoid social contact as much as possible. He indicated that just about everything either angers him or depresses him. During a March 2006 VA psych supportive therapy session, the Veteran reported that he was not working; that he had lost many jobs due to his anger; that he cannot deal with stress; that he has difficulty following simple instructions; and that he cannot cope with authority. A May 2006 psych supportive therapy note reflects that the Veteran was not working, stating that he could not work due to both his anger and his deteriorating health. His wife reported the he was so unpredictable in his behavior, that he had moods and anger; and that she did not know where this was coming from. An August 2006 VA discharge summary reflects that the Veteran was admitted to the VA PTSD program from June 11, 2006 to July 31, 2006, and diagnosed with chronic PTSD and major depressive disorder, recurrent, severe, without psychotic features, and assigned a GAF score of 45. A November 2006 SSA psych evaluation reflects that the Veteran reported his PTSD symptoms caused flashbacks, increased arousal, and reexperiencing symptoms. He endorsed symptoms of paranoia and indicated that he had been hospitalized four times for PTSD- related symptoms. The Veteran endorsed homicidal ideation, without intent. He left his last position in March 2005 partially because of an interpersonal conflict with a coworker and stated that he had been fired on approximately 60 occasions for interpersonal conflict, violence, and psychological problems. The Veteran's PTSD and depressive symptoms were judged to be chronic in nature. The SSA psychologist noted that the Veteran's unstable work history suggested that he might not be a good candidate from employment at that time. Specifically, it was believed that he would have continued interpersonal conflict in the work environment and anger management problems. A December 2006 psychiatric review technique report reflects that the Veteran's response to VA outpatient management was not optimal so a 7-week inpatient program was completed in 2006 with marginal results. A former employer indicated that the Veteran had problems remaining on task and interacting with others over a 1-year period that resulted in termination. VA records repeatedly reflect the chronic nature of the Veteran's condition despite his apparent initial benefit from treatment. The nature of his disorder indicated that significant sustained improvement within the next year was unlikely. Onset of December 2005 appeared to be credible as severity of symptoms noted at admission in June 2006 could have been present up to six months prior. In a December 2006 VA psychiatric note, the Veteran reported that he still had recollections of his time in the military, and experienced arousal and avoidance behavior. The examiner noted the Veteran was alert, oriented, cooperative, and maintained fair eye contact. His affect was restricted, he reported his mood was "slightly better," his thought process was coherent, and he was not suicidal, homicidal, or overtly psychotic. His memory was grossly intact, judgment was good and insight was fair. The examiner diagnosed the Veteran with PTSD and major depressive disorder, and assigned a GAF score of 45. In a June 2007 VA psychiatric note, the Veteran reported that he was having "ups and downs." Besides his depression, he continued to have recollections of his time in the military, to include thoughts, dreams, and arousal and avoidance behaviors. The examiner noted the Veteran was alert, oriented, cooperative, and maintained fair eye contact. His affect was restricted and he described his mood as fair. His thought process was coherent and goal-directed, he was not suicidal, homicidal, or overtly psychotic. He had no hallucinations, delusions, rituals or obsessions. His memory was grossly intact, judgment was good and insight was fair to good. The examiner diagnosed the Veteran with PTSD and major depressive disorder, and assigned a GAF score of 40. In February and May 2008 VA psychiatric notes, the Veteran reported increased anxiety and anger. He reported more thoughts and dreams and increased arousal symptoms and avoidance behavior. He continued to have bouts of depression, yet was not suicidal or homicidal. He stated that hearing anything about veterans upset him; he specifically talked about his appeal regarding his disability. The examiner noted the Veteran was alert, oriented, cooperative, pleasant and maintained fair eye contact. His affect and mood was anxious, his speech was normal, his thought process was coherent, he was not suicidal or homicidal, he was not overtly psychotic, his memory was grossly intact, judgment was fair to good and insight was fair. The examiners diagnosed the Veteran with PTSD, major depressive disorder, and assigned GAF scores of 38-40. In January 2009, a VA staff psychiatrist stated the Veteran had not worked since March 2005 and opined it was more likely than not that he was unemployable due to his service-connected PTSD. It was also more likely than not that his recurrent major depression was secondary to his PTSD. The examiner stated these conditions resulted in serious impairment in his social and occupational functioning and he opined the Veteran was unemployable because of his service-connected condition and this was not expected to change even with treatment. In March 2009, the Veteran underwent a VA examination. The examiner noted the Veteran was alert and oriented. He showed concentration impairment in the session when he would lose sense of what he was saying. The examiner noted the Veteran had a full range of affect, which was constricted, serious, tense to fearful, and irritable. He reported experiencing auditory, visual, and olfactory hallucinations. The examiner opined the Veteran was not quite clinically delusional but very suspicious, and he projected ill intent on total strangers on the basis that he served in Vietnam. He denied any suicidal or homicidal ideation and had no impairment of thought process or communication. The examiner diagnosed the Veteran with PTSD, major depressive disorder, recurrent, severe, and assigned a GAF score of 33. The examiner stated the Veteran showed significant functional impairment in all aspects of his life, including his vocational limitations, mood, leisure time, and socialization activities. The examiner stated the Veteran was distorting his perception and processing of reality by filtering incoming information through his Vietnam experiences. The examiner reported that every topic brought up resulted in quickly being turned around to Vietnam and the anguish of Veterans who fought for this country. The examiner opined that solely on the basis of his PTSD, he was not capable of sustained competitive employment or schooling. In a July 2009 VA mental health record, the examiner noted the Veteran had recently been hospitalized due to depression and alcohol intoxication. The Veteran reported continued depression, flashbacks; however he denied delusions, hallucinations, or suicidal or homicidal ideations. The examiner noted the Veteran was alert, oriented, and cooperative; he maintained eye contact; and his speech was of normal rate, rhythm and tone. His affect was restricted and his mood he related to being upset regarding his hospital stay. The examiner diagnosed the Veteran with PTSD and major depressive disorder, and assigned a GAF score of 35. In a November 2009 VA mental health record, the examiner noted the Veteran appeared in no acute distress and related he was "doing alright." He still had episodes of depression, which were normally triggered by situational stressors. He reported fair concentration and a problem with his short term memory. The Veteran was not suicidal, homicidal, or overtly psychotic. He was alert and oriented; his affect was restricted; and his mood was fair. His speech was normal; his thought process was coherent; his memory was grossly intact; and his judgment and insight were fair. The examiner stated the Veteran was not depressed, but he still had anxiety, and most striking was his arousal symptoms, mainly his anger. The examiner diagnosed the Veteran with PTSD, major depressive disorder, and assigned a GAF score of 45. In March 2010, the Veteran underwent a VA examination. The Veteran reported that he was depressed more days than not for several hours at a time. He reported feelings of guilt, worthlessness, and uselessness. The Veteran had been married to his third wife for 14 years and reported that they got along fairly well. The Veteran reported that he and his wife had a few friends that they visited with from time to time and he indicated he had two "veteran buddies" he could speak to when his PTSD or depression symptoms increased. The Veteran reported two prior suicide attempts, but none recently, though he reported frequent suicidal ideation. He reported no recent assaultiveness, but stated that he was not afraid to hurt somebody and felt he could do so easily. The examiner stated the Veteran's general appearance was clean, his speech was slow, his attitude was cooperative, and his affect was constricted. His mood was anxious and depressed, thought process was unremarkable, thought content had paranoid ideation, and he denied hallucinations and delusions. The Veteran had no inappropriate behavior, no obsessive or ritualistic behavior, and no panic attacks. The Veteran had fair impulse control and reported frequent feelings of anger and aggression which he managed by avoiding interacting with unfamiliar others. His recent and remote memory was mildly impaired and his immediate memory was normal. The Veteran reported sleep difficulties, irritability or outbursts of anger, difficulty concentrating, hypervigilance, and an exaggerated startle response. He reported flashbacks, including hearing sounds from combat experiences, and seeing images of the jungle several times per week. He reported some dissociative episodes while driving, during which he forgot where he was or where he was going, he continued driving until he "c[a]me back." The Veteran reported that he had not worked for the past 2-5 years in part due to arthritis as well as increasing interpersonal difficulties on the job, to include cursing at a supervisor. The examiner diagnosed the Veteran with PTSD, major depressive disorder with psychotic features, and assigned a GAF score of 40. The examiner stated the Veteran's GAF score reflected the Veteran's severe symptoms of PTSD and depression and the impairment he resultingly experienced in multiple domains. The examiner stated there was total occupational and social impairment due to PTSD signs and symptoms. Analysis For the entire appellate period, SSA and VA examiners and treatment providers have noted the serious nature of the Veteran's PTSD disability, including extreme depression, anger, and the limited likelihood that he could maintain employment. The evidence shows that the Veteran has not worked since at least 2005 and he has generally been given GAF scores during the course of the entire appellate period as a whole that are indicative of an inability to work or function socially. During the appeal period the Veteran was given GAF's indicative of, and consistent with, severe disability, noting his serious PTSD symptoms, including extreme anger and depression. An August 2004 VA examiner stated there appeared to have been significant impairment in occupational functioning as evidenced by the large number of jobs held over the years, to include being fired from at least 20 jobs. An SSA examiner noted that he had held about 60 jobs since his return from Vietnam and believed that he would have continued interpersonal conflict in the work environment and anger management problems. A December 2006 SSA psychiatrist noted that the nature of the Veteran's disorder indicated that significant sustained improvement within the next year was unlikely. In January 2009, a VA examiner stated the Veteran had not worked since March 2005 and opined it was more likely than not that he was unemployable due to his service-connected PTSD. A July 2009 VA mental health record noted the Veteran was hospitalized due to depression and alcohol intoxication. A March 2010 VA examiner stated there was total occupational and social impairment due to PTSD signs and symptoms. Mental health professionals have assessed the Veteran's PTSD and associated depression as causing symptoms that would approximate total occupational and social impairment. The evidence is at least in equipoise that the Veteran has total occupational impairment and serious social impairment. This level of symptomatology approximates that contemplated by a 100 percent rating. Although his symptoms have worsened over time, it appears that the Veteran has had this level of disability throughout the period since the effective date of service connection. Given his inability to maintain sustained employment over the years, and his nearly total social impairment, and resolving reasonable doubt in the Veteran's favor, the Board finds that his PTSD disability most closely approximates the criteria for a 100 percent rating throughout the appeal period. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21 (2010). As such, the evidence is in favor of the grant of a 100 percent rating for the entire appellate period. 38 C.F.R. §§ 4.7, 4.21 (2010). This is the maximum rating provided under applicable laws and regulations. ORDER Entitlement to an initial rating of 100 percent for PTSD is granted. ____________________________________________ M. R. VAVRINA Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs