Citation Nr: 1237136 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 08-29 783A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an initial evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD) with depression, panic disorder without agoraphobia, and cognitive disorder. REPRESENTATION Appellant represented by: Katherine E. McClure, Esq. ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from October 1968 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which granted service connection for PTSD with an evaluation of 30 percent, effective December 5, 2007. The Veteran appealed from the initial assigned disability rating. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (when a veteran appeals the initial rating for a disability, VA must consider the propriety of a "staged" rating based on changes in the degree of severity of it since the effective date of service connection). Subsequently, jurisdiction transferred to the RO in Denver, Colorado. In a September 2008 rating decision, the RO evaluated the condition of panic disorder along with service-connected PTSD, and assigned a higher 70 percent evaluation from the December 5, 2007 effective date of service connection. Regardless of the increased rating awarded, the Veteran continued his appeal for the highest schedular rating, as permitted under VA law. See A.B. v. Brown, 6 Vet. App. 35, 39 (1993) (the claimant is presumed to be seeking the highest possible rating for a disability unless he or she expressly indicates otherwise) Previously, the Veteran was to attend a June 2012 Board videoconference hearing, but cancelled the hearing prior to its scheduled date. The Veteran has not requested a new hearing as well. Consequently, his hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(e) (2012). FINDING OF FACT Since the December 5, 2007 effective date of service connection, the Veteran's PTSD, with anxiety and cognitive disorders has involved total occupational and social impairment. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria are met for an initial evaluation of 100 percent for PTSD. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist the Claimant The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2012), prescribes several requirements as to VA's duty to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. Implementing regulations are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326 (2012). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must inform the claimant of any information and evidence (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will seek to provide on the claimant's behalf. A regulatory amendment effective for claims pending as of or filed after May 30, 2008 removed the requirement that VA specifically request the claimant to provide any evidence in his or her possession that pertains to the claim. 73 Fed. Reg. 23,353-56 (Apr. 30, 2008), later codified at 38 CFR 3.159(b)(1) (2012). As indicated below, the Board is granting the benefit sought on appeal of entitlement to the maximum schedular evaluation of 100 percent for service-connected psychiatric disability. Hence, even assuming, without deciding, that any error was committed as to implementation of the VCAA's duty to notify and assist provisions, such error was harmless in its application to adjudication of this matter, and need not be further discussed. See Bernard v. Brown, 4 Vet. App. 384 (1993). See also Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), affirmed, 499 F.3d 1317 (Fed. Cir. 2007). Background and Analysis Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. § 4.1 (2012). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Where the veteran appeals the rating initially assigned for the disability, after already having established service connection for it, VA must consider the propriety of a staged rating that is indicative of changes in the severity of the course of his disability over time. In Fenderson v. West, 12 Vet. App. 119 (1999), the Court recognized a distinction between a veteran's dissatisfaction with an initial rating assigned following a grant of service connection and a claim for an increased rating of a service-connected disorder. In the case of the assignment of an initial rating for a disability following an initial award of service connection for that disability (the circumstances of the present appeal), separate ratings can be assigned for separate periods of time based on the facts found - "staged" ratings. See Fenderson, supra, at 125-26. The VA rating schedule provides that psychiatric disorders other than eating disorders, including PTSD, are to be evaluated according to a General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Under that formula, a 70 percent rating may be assigned where 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; obsessed 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); inability to establish and maintain effective relationships. A 100 percent rating is warranted where 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. The symptoms and manifestations listed under the above rating formula are not requirements for a particular evaluation, but are examples providing guidance as to the type and degree of severity of these symptoms. Consideration also must be given to factors outside the rating criteria in determining the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The evidence dated from the December 5, 2007 effective date of service connection in this case begins with a March 2008 VA Compensation and Pension examination report for mental health evaluation. It was indicated that the Veteran attended individual therapy at a VA Vet Center. He stated that his treatment had been helpful to him in reducing his symptoms of PTSD. He reported experiencing nightmares four to five times per week, during which he would wake up agitated, in a cold sweat and anxious. He indicated he slept much better during the day. Regarding hypervigilance to his environment, the Veteran reported that he checked often to make sure his doors were locked, felt on guard when out in public, felt uncomfortable in crowds, watched people to make sure of what they were doing, while in a restaurant would sit with his back to the wall and watch the door, and would not go to sporting events because of the crowds. He reported having flashbacks, and intrusive thoughts of Vietnam two to four times per week. He stated that he became angry over little things, and that when he did he would yell and scream. Regarding avoidance symptoms, he reported that he avoided hearing about current events, and tried to avoid thinking about Vietnam by staying busy. He reported panic attacks occurring a few times per week, and put his general anxiety rating at 6-7 on a scale of 1 to 10. Common triggers for him were the sound of helicopters, the sound of a car backfiring, loud noises and fireworks. Regarding depression, he reported an experience of depression rating of about 7-8 on a scale of 1 to 10, and reported feelings of helplessness, hopelessness, sadness, worthlessness, low energy and low motivation. He stated he last felt suicidal a few days previously. Regarding hallucinations, he reported that he saw shadows moving out of the corner of his eyes, and sometimes heard a door opening and someone talking. He did appear to experience symptoms of dissociation. As to occupational history, he had worked in construction over the years, though his work had been interrupted some recently due to hospitalizations and receiving heart stents. He stated that over the years he was fired from different jobs a few times, and once threatened to beat up his boss. In his last job, he had several fights with crew members as well. Anger had been a significant problem for him at work over the years. A mental status examination was completed, on which the Veteran scored within the normal range of function. Throughout the interview, no evidence of a thought disorder was noted. He appeared to be putting forth good effort on the mental status exam. He was cooperative and related well with the examiner. The VA examiner further commented that the Veteran was able to maintain activities of daily living, including personal hygiene. He had not experienced significant trauma in the past year. There had not been remissions during the past year. His symptoms were continuous. He did not have problems with drug or alcohol abuse. There was inappropriate behavior, in that when he became angry he would yell and scream. He had threatened to beat up his boss in the past. His thought processes and communication were not impaired. His social functioning was impaired, in that he had difficulty managing his anger in his significant relationship. He socially isolated much of the time. His employment was impaired, in that over years he was fired from several jobs, had problems with authority, and once threatened to beat up his boss. He had several fights with crew members at his last job. Other than the diagnoses listed, no other mental conditions were found. The Veteran was deemed competent to handle VA funds. The diagnosis given was PTSD with depression; panic disorder, without agoraphobia, as likely as not related to PTSD. The GAF assigned was 61. As to severity of his condition, it was indicated that the Veteran's signs and symptoms resulted in deficiencies in the areas of work, school, family relations, judgment, thinking and mood. Examples included impaired impulse control such as threatening his boss at his last job, difficulty dealing with authority figures, several incidents of being fired from jobs, and fights with other construction crew members. He last felt suicidal a few days prior to the examination. He experienced panic attacks several times per week. He was considered to exhibit severe symptoms of PTSD, including nightmares, intrusive thoughts, avoidance and hypervigilance to his environment. He was very isolated socially, although married three years ago. He experienced chronic depression, and some soft symptoms of a thought disorder, which were most related to dissociation from his PTSD. It was noted that the Veteran's PTSD and depression symptoms required continuous medication. A VA Vet Center treatment summary report also from March 2008 indicates that the Veteran came in for benefits information, then admitted anger issues associated with PTSD. As to social functioning, it was observed that the Veteran's affect was very much flattened. He did not socialize. There was no communication with his neighbors. He talked to his younger brother in a different state, but had not talked to his three sisters and mother for over 30 years. He sometimes felt regret over events from Vietnam, and would isolate during these times, which could be attributed to panic attacks daily or several times a week. His panic feelings could last all day. He began tearing up during the conversation. He experienced night sweats. He also admitted to a fascination of cutting on himself, albeit not attempting, in order to inflict self-punishment. These thoughts had been going on for years. The Veteran admitted to verbal altercations with his wife weekly. These fights lasted for days. The Veteran claimed no friends, and no visits to or from anyone else. He used to carve wood as a hobby but stopped several years ago because of arthritis. No hobbies existed now, he just stayed at home and read. As to industrial functioning, the Veteran had been unemployed for 20 years straight, with an eight year period (1971-79) in the construction field. After the 20 year unemployment period, he did some remodeling until his first heart attack ended his job future. His employment record was spotty with quitting and/or firing going on all the time. There was a history of fighting, altercations and stressful working conditions because of the many out of town and out of state work sites and the time crunch to make the estimated completion time. It was observed that the Veteran participated in individual therapy at the Vet Center. The impression was PTSD, chronic. A Global Assessment of Functioning (GAF) score was assigned of 41. The lay statement provided by the Veteran's mother describes the Veteran's irritability and being prone to arguing. A letter from the Veteran's brother describes witnessing the Veteran's personality having changed after returning from Vietnam. It was indicated that they had worked together on several jobs in the 1970s and the Veteran had a tendency then to experience major outbursts of anger with relatively minimal provocation. A November 2008 VA Vet Center treatment statement (offered in support of a then pending claim for total disability rating based on individual unemployability due to service-connected disability (TDIU)) indicates that the Veteran had been in therapy since September 2007, and that he experienced nightmares, anger, depression, marital discord, and isolation with recurrent and intrusive memories of traumatic experiences as a combat veteran during the Vietnam War. The Veteran also had problems with disorganized thinking, poor concentration, sleep disturbance, tearfulness when cues to past experiences were raised, frequent flashbacks, hypervigilance and reduced productivity. The Veteran was now undergoing individual therapy with medication management by a psychiatrist in an effort to increase his interpersonal connections to reduce his isolation and avoidance. It had been determined that he was not capable of working an eight hour day / 40-hour work week or equivalent schedule. The Veteran's last employment was over two years ago, when he stopped work due to a heart condition. His PTSD symptoms caused him to be incapable of any sedentary employment and/or loosely supervised situations requiring little or no interaction with the public. The Veteran was compliant with his therapy and medications and he was not capable of returning to full time employment. He continued to experience marked restriction of activities of daily living as well as social functioning. The Veteran also provided an independent medical evaluation that month from Dr. J.S.H., having been referred by his attorney-representative in this case. In pertinent part, the Veteran then described psychological symptoms including being "edgy" if off of medications, and formerly having had an extreme temper. He related night sweats as constant thoughts regarding his experiences from Vietnam. He acknowledged that at times he thought about suicide. The overall medical assessment included reference to PTSD and depressive disorder. It was observed that manifestations of the Veteran's PTSD continued, and he noted thoughts about suicide as well as continuing ruminations or "constant thoughts." This condition did not appear to have improved. It was considered appropriate to continue the Veteran on antidepressant medications. In an accompanying document, the evaluating physician indicated with regard to PTSD that the diagnostic criteria for PTSD were met. Furthermore, it was indicated that the Veteran met the criteria for "total occupational and social impairment" due to the symptom of "persistent danger of hurting self or others" probably better characterized as suicidal ideation. (The Board notes that this directly corresponds to the most severe manner of evaluating a generalized psychiatric disorder under the VA rating schedule. However, the private physician then also checked off the designation for each of the remaining less severe categories for evaluating a psychiatric disorder under the rating schedule.) During a January 2009 VA examination, the Veteran reported experiencing nightmares two to three times per week. He stated that he continued to wake up with arms clenched across his chest. He reported intermittent flashbacks, and intrusive thoughts of Vietnam two to four times per week, and looked for places where snipers could hide. He described continued hypervigilance and avoidance symptoms, much as reported before, along with continued panic attacks. He reported depression with feelings of hopelessness, helplessness, sadness, worthlessness, low energy, and low motivation, about 5 on a scale of 1 to 10, but this was lower than it was previously. He stated he last felt suicidal a few days previously. Regarding hallucinations, he reported that he saw shadows moving out of the corner of his eyes, and saw objects moving across the floor. He did appear to experience symptoms of dissociation. On mental status evaluation, the Veteran scored in the normal range. Throughout the interview, there was no evidence of a thought disorder. He appeared to be putting forth good effort, and he was cooperative and related well with the examiner. It was further commented that the Veteran was able to maintain activities of daily living, including personal hygiene. His symptoms were continuous. There was no inappropriate behavior. His treatment at the Vet Center had been helpful in reducing symptoms of PTSD. Thought processes and communication were not impaired. Social functioning was impaired, with difficulty managing his anger in his significant relationship. He socially isolated much of the time. The diagnoses were PTSD with depression; panic disorder, without agoraphobia; and depressive disorder, not otherwise specified (NOS). The GAF score assigned was 51. It was further indicated that the Veteran exhibited severe symptoms of PTSD, including nightmares, intrusive thoughts, avoidance and hypervigilance to his environment. He was very isolated socially. He experienced chronic depression, which had worsened since his last exam, and some soft symptoms of a thought disorder, which were related to his PTSD. The VA examiner opined that due to the Veteran's PTSD, depression and panic disorder symptoms, he was unemployable at that time. An August 2010 evaluation addendum from the VA Vet Center indicates that the Veteran continued in therapy with that facility, and his PTSD levels had not changed much in two years, and in fact had deteriorated some with increased marital discord. His spouse had moved out earlier that year after a bitter argument over the Veteran's lethargic lifestyle, but she had since moved back in. The Veteran's memory was declining and he was worried about remembering simple things like relative's names. He described ongoing sleep problems. He admitted to losing his temper often, and sort of being in a fugue state, not remembering what transpired. It was the impression of the VA treatment providers that the Veteran could not resume gainful employment due to his state of anxiety, depression and anger. The assigned GAF remained 41. Upon VA examination again in January 2012, the overall diagnosis was confirmed as being PTSD; depressive disorder, NOS; cognitive disorder, NOS, with a GAF assigned of 52. As to the severity of the Veteran's condition (in accordance with the VA rating schedule), the VA examiner found occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment thinking and/or mood. As to psychological symptoms, the Veteran still had nightmares about being in Vietnam, but these were not as bad in recent years as they were many years ago. He might have nightmares a couple of times per week now. His anxiety level was at its baseline. He did not feel that he had recurring panic symptoms. Sometimes he got anxious if he felt disoriented or lost. The Veteran occasionally had word-finding difficulty. He avoided large, busy places. He tried to stay away from movies or television programs that had military themes. He felt depression was somewhat improved with a medication regimen. He did not feel depression on a daily basis, as depression tended to come and go. His energy level was fairly low, and this was chronic. His interest and motivation levels were low, and he attributed this to his lung disease. He denied any thoughts of suicide. He had no intent or plan to harm himself. He denied ever attempting to harm himself. Occasionally he did feel overwhelmed with things. He still felt that he was doing better now using Fluoxetine, especially regarding his irritability. He felt he was less hostile or impatient using that medication than in the past. He denied domestic violence. He did have a tendency to yell at his wife, and he believed this was improved with Prozac. He now might yell once every couple of months versus weekly. On mental status evaluation, the Veteran was cooperative, polite and soft-spoken. His mood was dysphoric and his affect reserved. He denied suicidal or homicidal ideation, intent or plan. He denied auditory or visual frank hallucinations; however, he did describe some peripheral illusions, sometimes thinking that he had seen a mouse run quickly along the carpet. He stated this was not new for him. Sometimes questions were repeated for his benefit due to poor concentration. He had some difficulty when drawing a clock and drew a blank when placing the hands on the clock. He missed points on object recall, number sequencing, clock drawing, and paragraph recall, and scored a 24/30 overall. The VA examiner listed as applicable symptoms depressed mood, anxiety, suspiciousness, panic attacks that occurred weekly or less often, chronic sleep impairment, mild memory loss, flattened affect, gross impairment in thought processes or communication, disturbances of motivation and mood, difficulty adapting to stressful circumstances including a work setting, and inability to establish and maintain effective relationships. The VA psychiatrist summarized that the Veteran had experienced some recent cognitive difficulties, and these were likely related to his PTSD and other Axis I and Axis III service-connected diagnoses and medications. The Veteran retained the cognitive and emotional capacity to perform tasks in a limited setting, but would do best in settings in which he had little or no contact with the public and loose supervision, secondary to his difficulties with PTSD. Having closely reviewed the record, and mindful of applying VA's doctrine of resolving reasonable doubt in favor of the claimant, the Board will award the maximum schedular evaluation of 100 percent for the Veteran's service-connected psychiatric disorder. In reaching this determination, the Board is cognizant of the fact that the Veteran has continuously demonstrated psychiatric signs and symptoms best approximated by a finding of total occupational and social impairment. See 38 C.F.R. § 4.130, Diagnostic Code 9411. The Board observes that nearly every mental health examiner who has evaluated the Veteran has deemed him unemployable by reason of his psychiatric disability. As to social functioning, the Veteran is consistently shown to experience social isolation. Whereas levels of social and occupational functioning are not literally contemplated under the rating criteria for a 100 percent evaluation at Diagnostic Code 9411, they are obviously relevant to determining the appropriate disability rating under applicable criteria, and must be duly considered. See Mauerhan, supra. Meanwhile, as to symptoms that are directly contemplated under Diagnostic Code 9411, the Veteran has been shown to have an ongoing course of intermittent hallucinations and delusions, along with intermittent suicidal thoughts, which a private mental health evaluator observed presented a potential danger to the Veteran's well-being. Though not every one of the symptoms denoted under Diagnostic Code 9411 for assignment of a 100 percent rating are presented, when resolving reasonable doubt in the Veteran's favor, there is sufficient indication of qualifying impairment that the criteria for a 100 percent schedular rating are effectively met. See 38 C.F.R. § 4.3. As the symptomatology in question has existed since at or near the effective date of service connection for psychiatric disability, the Board will therefore assign a 100 percent evaluation since December 5, 2007. ORDER A 100 percent initial evaluation for PTSD with depression, panic disorder without agoraphobia, and cognitive disorder is granted, effective December 5, 2007, subject to the law and regulations governing the payment of VA compensation benefits. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs