Citation Nr: 1306757 Decision Date: 02/27/13 Archive Date: 03/01/13 DOCKET NO. 07-32 770 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUE Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to February 16, 2007. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran served on active duty from July 1959 to February 1961. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming. In November 2012, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. FINDING OF FACT From February 7, 2002 through February 15, 2007, the Veteran's PTSD has been manifested by slurred speech, impaired sleep, obsessive thinking, irrational beliefs, flashbacks, low insight, impaired judgment, uncontrollable mood swings, and suicidal ideation, productive of total occupational impairment. CONCLUSION OF LAW The criteria for entitlement to an initial evaluation of 100 percent for PTSD for the rating period on appeal from February 7, 2002, have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION As a preliminary matter, the Board finds that VA has substantially satisfied the duties to notify and assist, as required by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In addition, the Board recognizes that, since the time of the Veteran's May 2007 notice of disagreement, the issue on appeal has been characterized as, "Entitlement to an effective date earlier than February 16, 2007, for the grant of a 100 percent rating for PTSD." However, the Veteran's May 2007 notice of disagreement was received within one year of notice of the December 2006 rating decision which granted entitlement to service connection for PTSD and assigned a 50 percent initial rating. His substantive appeal was received in September 2007, within the remainder of the one year period to appeal. As such, the Board finds that the issue on appeal is more accurately characterized as an issue of entitlement to an increased initial rating, as noted on the title page of this decision. As there can be no free-standing earlier effective date claim, to find that the Veteran's appeal stemmed from the April 2007 rating decision which granted a 100 percent rating would, by definition, find that the prior December 2006 rating decision was final, and the rating assigned therein could not be reconsidered. The Board further recognizes that, at the Veteran's November 2012 videoconference hearing, testimony was taken solely on the issue of entitlement to an earlier effective date for the grant of a 100 percent rating. However, to the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this appeal given the favorable nature of the Board's decision to grant the claim in full. As such, the Board will decide the appeal on the merits at this time. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. § 4.3. In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that he is entitled to a 100 percent rating for his service-connected PTSD as of February 7, 2002. By way of history, the December 2006 rating decision on appeal granted entitlement to service connection for PTSD and assigned a 50 percent initial disability rating effective February 7, 2002. In February 2007, approximately 3 months following the grant of entitlement to service connection, the RO scheduled the Veteran for a VA examination as part of its periodic reevaluation of his PTSD symptomatology. A VA PTSD examination was conducted on February 16, 2007, and an April 2007 rating decision assigned a 100 percent rating for the disability at issue, effective from February 16, 2007, based on the results of that examination. Thereafter, a rating decision in October 2007 granted a temporary 100 percent rating for PTSD under 38 C.F.R. § 4.29 for the period from February 13, 2002, through April 30, 2002, as a result of hospitalization for PTSD. PTSD is currently rated by applying the criteria in 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). The VA Schedule rating formula for mental disorders reads in pertinent part as follows: 100 percent rating (the maximum schedular 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. 70 percent: 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); inability to establish and maintain effective relationships. 50 percent: 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 effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). 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. Id. However, when evaluating the level of disability from a mental disorder, the rating agency 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). The Global Assessment of Functioning (GAF) scale reflects the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 32 (4th ed. 1994)). According to the pertinent sections of the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (1994) (DSM-IV), a GAF score of 71 to 80 indicates that if symptoms are present, they are transient and expectable reactions so psychosocial stressors and there is no more than slight impairment in social, occupational, or school functioning. A GAF score of 61 to 70 indicates some mild symptoms or some difficulty social occupational or school functioning but that an examinee is generally functioning pretty well, has some meaningful interpersonal relationships. A GAF score of 51 to 60 indicates the examinee has moderate symptoms or moderate difficulty in social, occupational, or school functioning. A GAF score of 41 to 50 indicates the examinee has serious symptoms or a serious impairment in social, occupational, or school functioning. A GAF score of 31 to 40 indicates that the examinee has some impairment in reality testing or communication such as speech is illogical, obscure, or irrelevant, or that the examinee has major impairment in several areas. See Quick Reference to the Diagnostic Criteria from DSM-IV, 46-47 (1994). At his November 2012 Board videoconference hearing, the Veteran indicated that he suffered an increase in his PTSD symptomatology during the period between late 2001 and early 2002. Specifically, he testified that his symptoms were aggravated following the September 11 terrorist attacks upon the United States in 2001. At the time, the Veteran was a truck driver and was required to drive in relatively close proximity to the destroyed World Trade Center complex in New York City. Additionally, the Veteran testified that his truck caught fire and burned while he was driving it sometime in late 2001 or early 2002, which further exacerbated his psychiatric symptomatology. The Veteran indicated that he has not worked since 2002, and that he suffers from blackouts, impaired sleep, flashbacks of his in-service stressors, a loss of vision when stressed out, and suicidal ideations. VA treatment records prior to February 7, 2002, revealed the presence of suicidal ideation as well as difficulty maintaining employment. An April 1988 hospital discharge summary indicated that the Veteran had been married four times and had difficulty holding a job for longer than 6 to 8 months. The summary also stated that the Veteran felt he was at risk to commit suicide and experienced intrusive thoughts about his gun, although he had no current suicidal plan. The Veteran also indicated that he had attempted suicide at one point in the past. A February 2002 VA hospital admission note indicated that the Veteran was severely depressed at the time of admission and almost in a panic state. The note confirmed that the Veteran had experienced increased problems with depression over the past few months, and was currently unemployed due to losing his truck in a fire. The Veteran further indicated that his relationship with his spouse was strained, and that their only source of income was her Social Security Administration (SSA) disability benefits. This hospitalization note corroborates the Veteran's hearing testimony that he experienced an increase in psychiatric symptomatology after his truck caught on fire in late 2001 or early 2002. At the time of his hospital discharge and admission into a Mental Health Rehabilitation PTSD program, he was assigned a GAF score of 40, indicative of some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or 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). An April 2002 treatment note indicated that the Veteran reported constant thoughts and visual memories of his in-service stressor, as well as thoughts and visual memories of a recent semi-truck accident where the tractor he was driving caught on fire and burned. This also corroborates the Veteran's hearing testimony that he experienced an increase in psychiatric symptomatology after his truck caught on fire in late 2001 or early 2002. An April 2003 Behavior Health Intake note indicated that the Veteran's semi-truck caught on fire in an automobile accident which triggered flashbacks and caused PTSD symptoms to return. The Veteran indicated that without refills of his medications, his anger and behavioral dysfunction became unbearable, causing his spouse to leave. The note indicated that the Veteran was presently separated from his spouse and told by state authorities not to return to his home because his spouse had notified them that he was volatile. The VA physician found that the Veteran's speech was slurred, his content of thought involved obsessive thinking, his perception involved irrational beliefs, his insight was low, his judgment was impaired, and he suffered from uncontrollable mood swings. The physician assigned him a GAF score of 45, indicative of serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A February 2006 VA Mental Health Management note assigned him a GAF score of 37, indicative of some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or 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). As mentioned above, the Veteran was afforded a VA PTSD examination in February 2007, at which time he was assigned a GAF score of 35, indicative of some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or 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). He was diagnosed as having chronic PTSD as well as recurrent and severe major depressive disorder. Upon examination, the Veteran's psychomotor activity was fatigued and intense, while his speech was slow and coherent. His mood was tearful, while his affect was constricted. His thought content consisted of suicidal ideation as well as a preoccupation with one or two topics, although he did not possess a suicidal plan. The Veteran also suffered from sleep impairment. Although there was a history of violence, to include incidents of bar room fights and domestic violence, none of these incidents were recent. The examiner elaborated that the Veteran's PTSD symptoms were severe, and that he had daily intrusive thoughts of his stressors. The examiner explained that the Veteran went through 6 wives and currently had no friends. The examiner opined that the Veteran's "depressive symptoms stem from PTSD and have been present since the accident." The prognosis for significant improvement was poor, and the examiner concluded that the Veteran was not employable on the basis of his PTSD and resulting depression alone. The Board notes that it was the report of this February 2007 VA PTSD examination that prompted the RO to increase the Veteran's PTSD evaluation to 100 percent effective February 16, 2007, the date of the examination. The RO rationalized that this date was appropriate because it was the first date that total occupational and social impairment was factually shown. However, based on the Veteran's credible testimony and a review of his ongoing PTSD treatment since filing his claim to reopen in February 2002, it appears that his symptoms were exacerbated to their current levels in early 2002 as a result of the accident in which his semi-truck caught on fire. As indicated above, the treatment records contain several references to the Veteran's PTSD symptomatology worsening as a result of the semi-truck accident. Although the Board acknowledges that the Veteran's GAF scores sporadically increased to as high as 65 during brief periods of remission between 2002 and 2007, for the most part his scores reflected an inability to work or having a major impairment with work. The Veteran has been unemployed since 2002 and has been married 6 times, with his most recent spouse having him removed from the home prior to 2007 due to his volatility. Moreover, the Veteran endorsed suicidal ideation since 2002, which is supported in many of his treatment records since that time. In giving the benefit of the doubt to the Veteran, and in considering the entire record, the Board finds that an evaluation of 100 percent is warranted from February 7, 2002. The Board acknowledges that the Veteran does not have some of the symptoms noted in the rating criteria which are examples of total occupational and social impairment; however, the criteria provide guidance as to the severity of symptoms contemplated for each rating in addition to permitting consideration of other symptoms particular to the Veteran, and are not mandatory criteria. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). ORDER Entitlement to a 100 percent rating for PTSD, from February 7, 2002, is granted. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs