Citation Nr: 1308032	
Decision Date: 03/11/13    Archive Date: 03/20/13

DOCKET NO.  11-26 815	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to an initial rating higher than 50 percent for post-traumatic stress disorder.


REPRESENTATION

Appellant represented by:	Military Order of the Purple Heart of the U.S.A.


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

C. Fetty, Counsel


INTRODUCTION

This appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a) (2) (West 2002); 38 C.F.R. § 20.900(c) (2012). 

The Veteran performed active military service from February 1966 to March 1969.  

This appeal to the Board of Veterans' Appeals (Board) is from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.  

The Veteran provided testimony at a videoconference hearing before the undersigned Veterans Law Judge in December 2011.  A transcript of the proceeding is of record.


FINDING OF FACT

PTSD has been productive throughout the initial-rating period by social and occupational impairment that more nearly approximates total than deficiencies in most areas.   


CONCLUSION OF LAW

The criteria for an initial 100 percent schedular rating for PTSD are met.  38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

As explained below, the evidence currently of record is sufficient to substantiate the Veteran's claim.  Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012) or 38 C.F.R. § 3.159 (2012).

Legal Criteria

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012).  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during active service and their residual conditions in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  

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) (2012).  

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) (2012).

Under the rating criteria for PTSD, a 50 percent rating is assigned for 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; 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 assigned for 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.

A 100 percent rating is assigned for 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 or 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 (2012).

In Mauerhan v. Principi, 16 Vet. App. 436 (2002), the U.S. Court of Appeals for Veterans Claims (Court) issued important guidance in applying psychiatric rating criteria.  The Court stated that the specified factors for each incremental rating were examples rather than requirements for a particular rating.  The Court stated that the analysis should not be limited solely to whether the claimant exhibited the symptoms listed in the rating scheme.  Consistent with the foregoing, the Court also found it appropriate for a rating specialist to consider factors outside the specific rating criteria in determining the level of occupational and social impairment.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

In addition, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3.

Factual Background and Analysis

In accordance with 38 C.F.R. §§ 4.1, 4.2 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability.  The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes.  

According to a March 2010 VA compensation examination report, anxiety interfered with the activities of daily living.  There were disturbances of motivation and mood and chronic sleep problems.  The Veteran needed psychotropic medication and supportive counseling.  A Global Assessment of Functioning (GAF) score of 65 was assigned.  

In October 2010, however, the Veteran's GAF score was 52 and his VA treating psychiatrist felt that PTSD was under poor control.  The Veteran reported twice-weekly panic attacks and contemplations of suicide.  His psychotropic medications were increased.  In December 2010, his GAF score remained 52.

In January 2011, GAF scores of 47 and 57 were assigned.  In February 2011, the GAF score was 47 again.  In April 2011, his thought content was noted to be dark and negative.  

A May 2011 VA PTSD compensation examination report reflects a GAF score of 43.  Panic attacks occurred more than once per week.  Judgment and memory were impaired.  The examiner felt that the secondary psychiatric diagnosis of major depressive disorder, severe, was related to PTSD.  Although the physician found the Veteran to be unemployable, it was colon cancer that had caused unemployability.  

In September 2011, the Veteran admitted to his VA treating psychiatrist that he had planned to kill his spouse and her lover, and/or commit suicide.  The police had come to his home to evict him.  The psychiatrist reported that there currently was no suicidal or homicidal ideation.  The GAF score was 50/65.  Psychotropic medication (sertraline) was increased. 

The medical evidence discussed above is persuasive, as it is based on accurate facts and supported by a rationale.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight); also see Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value). 

In December 2011, the Veteran testified at a videoconferencer hearing before the undersigned Veterans Law Judge that he recently armed himself with a ball bat and threatened a person.  He testified that he has been divorced three times.  He testified that he almost never left his home and until that day he had not been out for three to four weeks.  He testified that he isolated himself and that he avoided going into town.  He testified that he had not been into town for two months.  His representative argued for a 100 percent schedular rating. 

According to the DSM-IV, a GAF score of 41 to 50 is 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 GAF score of 51 to 60 is indicative of moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers); a GAF of 61 to 70 is indicative of mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships.

The Board has found the Veteran to be credible.  The Board has found the most persuasive medical evidence to be supportive of his contentions.  With resolution of reasonable doubt in the Veteran's favor, the Board concludes that the social and occupational impairment from the Veteran's service-connected psychiatric disability has more nearly approximated total than deficiencies in most areas throughout the period of the claim.  In this regard the Board notes that the evidence does not demonstrate distinct time periods during which the service-connected disability warranted less than a 100 percent rating.  Accordingly, the Veteran is entitled to a 100 percent rating throughout the period of the claim. 


ORDER

A 100 percent schedular rating for PTSD is granted throughout the initial rating period, subject to the criteria applicable to the payment of monetary benefits.



______________________________________________
Shane A. Durkin 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs