Citation Nr: 1301504 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 09-19 477 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a higher initial disability rating for service-connected posttraumatic stress disorder (PTSD), evaluated as 30 percent disabling prior to March 17, 2011. 2. Entitlement to a higher initial disability rating for service-connected PTSD, evaluated as 70 percent disabling since March 17, 2011. ATTORNEY FOR THE BOARD A. Barner, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1967 to August 1969. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) located in Winston-Salem, North Carolina, which awarded service connection for PTSD and assigned a 30 percent disability rating effective October 9, 2007. The Veteran perfected an appeal of the assigned rating. In July 2010, the Board remanded the claim for additional development, to include obtaining outstanding private mental health treatment records, and to afford the Veteran a new VA PTSD examination. Most recently, in February 2012 the Board remanded the claim in order to ensure compliance with its previous remand directives; specifically, to request the Veteran's private mental health treatment records. Private mental health treatment records have been associated with the claims folder, and the Veteran was afforded a VA examination in March 2011, with a July 2011 addendum report. Given the foregoing, the Board finds that VA has substantially complied with the Board's prior remands with regard to this appeal. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with Board's remand instructions). In October 2012, the Appeals Management Center (AMC) increased the Veteran's disability rating for PTSD to 70 percent effective March 17, 2011. As that grant did 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). FINDINGS OF FACT 1. The Veteran's service-connected PTSD is productive of anxiety, intrusive thoughts, depression, irritability, angry outbursts, auditory and visual hallucinations, social isolation, panic attacks, and passive suicidal ideation, and results in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood throughout the appeal period. 2. Manifestations of total occupational and social impairment are not shown. CONCLUSIONS OF LAW 1. With resolution of all reasonable doubt in favor of the Veteran, the criteria for an initial 70 percent rating prior to March 17, 2011, but no higher, for PTSD have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.21, 4.130, Diagnostic Code 9411 (2012). 2. The criteria for an initial rating in excess of 70 percent for service-connected PTSD, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.21, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met as to this issue. As service connection, an initial rating, and an effective date have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate this claim. The Veteran was afforded a VA examination as recently as March 2011, and the report contains sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disability on appeal, and is adequate for purposes of this appeal. He was provided the opportunity to present pertinent evidence and testimony before the Board. In sum, there is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Indeed, the Veteran has not suggested that such an error, prejudicial or otherwise, exists. The case is ready for adjudication on the instant matter. Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Diagnostic Code (DC), the higher rating is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). PTSD is rated under Diagnostic Code (DC) 9411, which provides for a 30 percent rating for occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted for PTSD where 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 rating is warranted 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; 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 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; and memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. In evaluating psychiatric disorders, the Board is mindful that the use of the term "such symptoms as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve only 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). The Global Assessment of Functioning (GAF) scale reflects psychological, social, and occupational functioning of a hypothetical continuum of mental health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). A GAF score of 31 to 40 is indicative of some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or any major impairment in several areas, such as work or school, family relations, judgment, thinking or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). GAF scores between 41 and 50 reflect 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). GAF scores between 51 and 60 reflect moderate symptoms, (that is, flat affect, circumstantial speech, occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (e.g., few friends, contacts with peers or co- workers). An examiner's classification of the level of psychiatric impairment, by words or by a score, is to be considered, but is not determinative of the percentage rating to be assigned. VAOPGCPREC 10-95. The Board must assess the credibility and weigh all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Initially, the Board observes that in April 2008 the Veteran was granted service connection for PTSD evaluated as 30 percent disabling effective October 9, 2007. An October 2012 decision subsequently increased the Veteran's PTSD rating evaluating it as 70 percent disabling since March 17, 2011. In January 2008 the Veteran described his symptoms as including frequent intrusive thoughts; nightmares occurring four to five times weekly; flashbacks; severe distress at exposure to triggers that reminded him of past trauma; avoidance of conversations about past service; anhedonia; estrangement; detachment from others; restricted affect; severe sleep disturbance; frequent irritability; angry outbursts; severe concentration and memory problems; hypervigilance; and, an exaggerated startle response. Specifically, he indicated that he rarely slept longer than four to five hours nightly, and that he awoke in a panic and sweat. He indicated that he experienced frequent nightmares regarding being shot at and witnessing his friend being killed. He reported that he experienced panic attacks when he was in a crowd. He denied having hobbies, indicating that he preferred to be alone rather than socialize with others. He indicated that he could not tolerate others standing behind him. He reported that his memory had increasingly worsened, giving examples of experiencing difficulty remembering that which he had just read, or frequently getting lost when driving. He indicated that his hypervigilance was such that several times a night he awoke to patrol his property. He reported experiencing frequent depressive symptoms, depressed mood and decreased energy. The Veteran indicated that he experienced crying spells daily, angered easily, felt helpless and at times suicidal. He indicated that he experienced auditory and visual hallucinations. For instance, he reported that he frequently heard his name being called, or cars driving up to his house, or noises in his house- but no one was ever there. In January 2008 the Veteran was afforded a VA psychological examination. He reported experiencing symptoms such as depression, anxiety, nightmares, diminished concentration, decreased interest and energy, sadness with crying, difficulty falling and staying asleep, nightmares several times weekly, and intrusive thoughts. He indicated that he avoided war movies and talking about his experiences, was easily startled, short-tempered, anxious and hypervigilant. He reported that he avoided large crowds. The Veteran denied experiencing panic attacks and suicide attempts. On examination the Veteran was alert, cooperative, and casually and appropriately dressed. He did not exhibit bizarre motor movements or tics. His mood was subdued, and affect appropriate. The Veteran reported experiencing nightmares and intrusive thoughts. He did not report experiencing homicidal or suicidal ideation or intent. There was no impairment of thought processes or communication. There were no delusions, hallucinations, ideas of reference or suspiciousness. The Veteran was oriented. His memory, remote and recent, appeared intact. His insight, judgment, and intellectual capacity appeared adequate. The examiner indicated that the Veteran experienced nightmares and intrusive thoughts; avoided reminders of the traumatic events; was less interested in socializing; felt distant and estranged from others; experienced sleep disturbance, poor concentration and anxiety; and, was easily startled. His symptoms interfered with social activities and caused distress. The Veteran reported that he could not be around people, felt uncomfortable, did not socialize, and was anxious and depressed. The examiner assessed the Veteran as having PTSD, and assigned a GAF score of 54. The examiner commented that the Veteran worked full time, although he reported missing a day or two monthly. He was anxious, short-tempered, sad, stayed to himself without close friends, did not go to church, had limited interests, and did not take medication. The Veteran was capable of managing his financial affairs. In March 2011 the Veteran was afforded another VA psychiatric examination. He reported that he had become distant from his wife and children. His wife described him as a cold person. The Veteran indicated that he had difficulty interacting, and that it took a lot of energy for him to do so. His wife reported that he had become anti-social. The Veteran reported that he did not have other social relationships. He reported that his only leisure pursuit was his garden, and that in the past several years he did not turn to gardening as in the past. The Veteran denied past suicide attempts or a history of violence or assaultiveness. The Veteran reported that he would drink Rum several nights in a row to relax and help him sleep, and then not drink for a week or so. The Veteran reported that he saw a private psychiatrist every few months, and was prescribed Zoloft, which he took only until he felt all right. The Veteran reported experiencing difficulty with sleep onset, remaining asleep for more than a few hours, and returning to sleep in a timely manner. He indicated that he experienced frightening, graphic nightmares of service three to four times weekly. The Veteran indicated that he felt tired and drained, but that he needed his job so he coped with his symptoms. The Veteran reported experiencing daily sadness and hopelessness. He indicated that he experienced flashbacks triggered by smells, and which reminded him of burning flesh. The Veteran indicated that he did not display emotion towards his family or anyone, and that he was perceived as cold and detached. The Veteran explained that he was without a social life outside of his family, and that his relationship with his wife and children had grown distant as he was too tired and anxious to interact with them. He reported that he was constantly on guard and did not trust others. The Veteran indicated that he worked as a life skills trainer at a rehabilitation facility for those with brain injuries. On examination the Veteran's appearance was casual, and the examiner commented that he looked significantly older than his chronological age. His psychomotor activity was considered significantly slowed, and there was little movement during the interview. His speech was slowed with significant pauses between questions and responses. The Veteran was cooperative with the examiner; however, his attitude was guarded, and he exhibited difficulty with eye contact. His affect was flat, withdrawn and depressed. His mood was low and hopeless. His attention was good, and he was oriented. His thought process appeared slowed in response to questions, but otherwise clear and logical. He did not experience delusions or hallucinations. His judgment was fair, his intelligence average. Regarding insight, although he understood the symptoms of PTSD and depression, he seemed at a loss related to his need for treatment. The Veteran denied homicidal or suicidal thoughts, and did not exhibit inappropriate behavior. He was considered able to maintain minimum personal hygiene. He reported, however that he didn't really perform household chores, sometimes let his grooming slip, avoided shopping or crowds, and did not travel or engage in sports or exercise. His remote memory was intact and his recent memory was good. The examiner assessed the Veteran as having a GAF score of 50. He was considered capable of handling his financial affairs. The examiner summarized the Veteran's symptomatology, indicating that he was significantly impacted by PTSD and depressive symptoms, had little social interaction outside of work, no social or leisure activities, and had become increasingly distant even from close family members. The Veteran experienced difficulty engaging in the interview, as exhibited by slowed speech and paused responses and difficulty expressing himself. The Veteran reported experiencing sleep disturbances several times weekly, leading to feeling exhausted. He experienced flashbacks, and reported feeling anxiety several times weekly. The Veteran reported that he felt hopeless. A July 2011 note indicated that the Veteran's claims folder had been received and reviewed as part of the examination and PTSD evaluation. Private treatment records from Psychological Consulting Services indicate that the Veteran was initially evaluated October 15, 2007, and that he had been in treatment since then. Clinical notes from January 2008 to January 2012 indicate that the Veteran's symptoms included low energy, nightmares, and disturbed sleep. He did not socialize with others. He thought about memories and losses from his experiences in Vietnam. The summary letter indicated that the Veteran continued to experience sleep disturbance and nightmares that were more frequent with time, more intrusive memories, and that he failed to socialize. The Veteran was assessed as having chronic, severe, PTSD, and assigned a GAF score of 38. The Board has carefully considered the Veteran's pleadings regarding his symptoms, which include experiences with panic attacks, irritability, nightmares, hallucinations and depression, and his assertion that he is entitled to a 70 or 100 percent rating. In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through the senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). He is not, however, competent to identify a specific level of disability for his condition, according to the appropriate diagnostic codes, or, to attribute specific symptoms to a disability. See Robinson v. Shinseki, 557 F.3d 1355 (2009). Such competent evidence concerning the nature and extent of the Veteran's disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and treatment records) directly address the criteria under which the disability is evaluated. After considering the totality of the record, the Board finds the evidence supports a 70 percent disability rating throughout the course of this appeal, and no higher for the Veteran's PTSD. The evidence demonstrates that the Veteran has significant impairment due to such symptoms as nightmares, anxiety, depression, difficulty sleeping, and hypervigilance. He has also competently and credibly reported that he experiences irritability, panic attacks, auditory and visual hallucinations, a worsened memory, and has at times felt suicidal. He reported familial difficulties, such as being increasingly distant from his wife and children. He has been assessed as having difficulties in thinking, familial and social relationships, and mood. Finally, he has been assigned GAF scores between 38 and 54, with the lower scores indicative of serious symptoms. Although the Veteran experienced some variation in PTSD symptomatology, his symptoms more nearly approximate those associated with a 70 percent rating. Though he does not meet all the criteria for a 70 percent rating, his symptomatology reflects many of the criteria. Thus, in an effort to properly rate this Veteran, the Board resolves all reasonable doubt in the Veteran's favor and finds that he is entitled to a 70 percent rating for his PTSD. With respect to whether the Veteran is entitled to a rating in excess of 70 percent for his PTSD, he has not demonstrated total occupational and social impairment due to such symptoms as impairment in thought processes or communication; persistent danger of hurting himself or others; disorientation, or memory loss. The VA examiners have consistently noted that the Veteran is oriented on examination. His personal appearance and hygiene have also been within normal limits. Moreover, although the Veteran has experienced suicidal ideation, his most recent VA examinations indicate that he has denied experiencing suicidal ideation, and there is no indication of intent from the record. The Veteran maintains a marriage. Although the Veteran has experienced auditory and visual hallucinations, his most recent examinations indicate there absence suggesting that they are not persistent. Although the Veteran has reported being short-tempered, the evidence does not indicate that he is a danger to others, rather he avoids others. The Veteran has not been considered incapable of handling his finances. Overall, the preponderance of the evidence is against a finding of total social or occupational impairment due to the Veteran's PTSD, as would warrant a 100 percent rating. Significantly, the Veteran has been shown to have been employed throughout the appeal period. The Board has considered whether to issue staged ratings, but finds them not appropriate under the circumstances. With regard to extraschedular consideration, the threshold determination is whether the disability picture presented in the record is adequately contemplated by the rating schedule. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the Veteran's symptomatology, to include nightmares, depression, hypervigilance, anger, hallucinations, and anxiety are adequately contemplated by the rating schedule for PTSD. Therefore, referral for assignment of an extra-schedular evaluation in this case is not in order. Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). Overall, the evidence is at least in balance as to whether an initial disability rating of 70 percent is warranted for the Veteran's PTSD; however, the preponderance of the evidence is against a rating in excess of 70 percent. The benefit-of-the-doubt doctrine has been appropriately applied. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). (CONTINUED ON NEXT PAGE) ORDER Entitlement to an initial 70 percent rating, but no higher since October 9, 2007, is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to an initial rating in excess of 70 percent since March 17, 2011, is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs