Citation Nr: 1316189 Decision Date: 05/16/13 Archive Date: 05/29/13 DOCKET NO. 11-24 445 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jebby Rasputnis, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from March 1950 to December 1957. His awards and decorations include the Combat Infantryman Badge. This matter was last before the Board of Veterans' Appeals (Board) in August 2012 on appeal from a November 2010 rating decision of the Fort Harrison, Montana Regional Office (RO) of the Department of Veterans Affairs (VA). In the November 2010 rating action, the RO denied entitlement to an initial disability rating in excess of 10 percent; the Veteran timely perfected an appeal. In June 2012, the Veteran testified before the undersigned Veterans Law Judge, sitting in Fort Harrison, Montana. A transcript of this proceeding has been associated with the claims file and reflects that the Veteran and his representative were familiar with the applicable rating criteria as well as the evidence needed to substantiate a claim for an increased rating. The transcript also reflects that the Veteran was afforded an extensive opportunity to present hearing testimony, evidence, and argument on the issue herein decided. See Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). In August 2012, the Board remanded the claim to the Agency of Original Jurisdiction (AOJ) for additional development. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's appeal. The evidence within the virtual file has been carefully reviewed by the Board. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a) (2) (West 2002). FINDINGS OF FACT 1. The Veteran has clearly expressed his intent to limit his appeal to entitlement to an initial 30 percent disability rating for his service-connected PTSD. 2. Resolving all doubt in his favor, the Veteran's PTSD is manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to such symptoms as depressed mood, anxiety, suspiciousness, chronic sleep impairment, and mild memory loss. CONCLUSION OF LAW The criteria for an initial 30 percent disability rating for PTSD are approximated. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION As the Board's decision to grant the Veteran an initial 30 percent disability rating for PTSD herein constitutes a complete grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. Specifically, when a claimant makes a "clearly expressed intent to limit the appeal to entitlement to a specific disability rating for the service connected condition," and the Board grants that rating, the rating satisfies the appeal such that the Board is not required to consider entitlement to all available ratings for the condition. AB v. Brown, 6 Vet. App. 35, 38 (1993). Here, the Veteran informed VA in a self-written statement submitted through his authorized representative in January 2011 with his notice of disagreement (NOD), that "30 % resolves this appeal in full." Further, his authorized representative characterized the matter at the June 2012 hearing as "the question of whether the Veteran meets the criteria for the next high evaluation, in this case, 30 percent." The Board finds that the Veteran has clearly expressed his intent to limit the appeal to entitlement to a 30 percent rating; the Board herein grants his appeal to that extent. I. Analysis Service connection for PTSD was established in an August 2010 rating action, at which time the RO assigned an initial 10 percent disability rating pursuant to 38 C.F.R. § 4.130, Diagnostic Code (Code) 9411, effective April 15, 2010. The Veteran has appealed the assignment of the initial 10 percent disability rating. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999). PTSD is evaluated under a general rating formula for mental disorders. See 38 C.F.R. § 4.130, DC 9411 (2012). A 10 percent disability rating requires occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. A 30 percent rating is warranted where there is an occupational and social impairment with occasional decrease 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, or mild memory loss (such as forgetting names, directions, recent events). The Global Assessment of Functioning is a scale reflecting psychological, social, and occupational functioning on 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). A GAF score of 41 to 50 is defined as denoting serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A score of 51 to 60 is defined as indicating 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 co-workers). A score of 61 to 70 is defined as indicating some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning but generally functioning pretty well, has some meaningful interpersonal relationships. See Carpenter v. Brown, 8 Vet. App. 240, 242- 244 (1995). As history, the Board notes that VA clinicians described the Veteran in January 1977 as having "social problems" as well as a passive-dependent personality disorder. At a March 1985 VA general health examination, the Veteran reported experiencing "some loss of memory" as well as "trouble concentrating." However, he did not file a claim for service connection for PTSD until April 2010. He was afforded an initial VA mental disorders examination in May 2010. The May 2010 examiner interviewed the Veteran and noted that he did not have any obvious cognitive difficulties and seemed credible in his account of his history and symptoms. Further, his grooming and hygiene were satisfactory and he was "alert and oriented." The Veteran denied having prior mental health treatment or psychiatric hospitalizations. The examiner stated that the Veteran described symptoms consistent with PTSD. Although the Veteran did not endorse any current nightmares, he reported experiencing them in the past and informed the examiner of chronic sleep disturbance - waking nightly at 3am, occasionally as the result of nightsweat. The Veteran reported being extremely jumpy and startling easy - to the extent that the sound of someone slapping a quarter onto a counter had caused him to duck for cover. He also informed the examiner that he was somewhat hypervigilant and "had trouble" being in crowds, but did enjoy coffee on a regular basis with a group of acquaintances. The examiner stated that his memory and attention appeared intact, but he had a reduced stress tolerance. Although his mood was generally calm, it was also occasionally anxious. The examiner opined that he was experiencing mild PTSD, noted that there were no symptoms that would lead to any other psychiatric diagnoses, and assigned a GAF of 65-70. The examiner further opined that his symptoms were transient or mild and would decrease his ability to perform occupational tasks only during periods of stress. The Veteran was noted to be "polite and courteous" throughout the examination. Although he was offered psychotherapy, he declined. VA treatment notes reflect that the Veteran received a telephone psychiatric evaluation in August 2010. He reported symptoms of hypervigilance, intrusive memories, impaired sleep with occasional nightmares, irritability, and flashbacks. The Veteran also noted feelings of depression as well as decreased energy and appetite. Over the phone, he seemed to have normal affect and to be able to organize his thoughts. Although he reported some suicidal thoughts, he denied any suicidal behavior or any intention toward suicidal behavior. Similarly, he stated that he had thought about hurting people, but "wouldn't do that." The VA social worker assigned a GAF of 61. The Veteran underwent VA psychiatric evaluation in September 2010. He again reported chronic sleep impairment and irritability. His hygiene was fair and his appearance was 'guarded.' The psychiatrist noted depression and self-reports of forgetfulness, seldomly remembering names, and some loss of long term memories. Although the Veteran denied anxiety, he endorsed hypervigilance and a startle response. The Veteran again expressed some fleeting thoughts of suicide, but no plans or intent. He was assigned a GAF of 55. In October 2010, G.Z., who identified himself as the Veteran's friend and employer, wrote to VA on his behalf. G.Z. described the Veteran as depressed, angry, and lacking trust in others. He also noted that the Veteran pauses when he talks, which, in G.Z.'s opinion, reflected that he was experiencing memory loss. G.Z. stated that he sees the Veteran "every day or two" at a bar he owns, and at which the Veteran occasionally works. The Veteran was afforded another VA examination in October 2010. The examiner noted that the claims file was not available for review. After interviewing the Veteran, the examiner opined that his symptoms were "about the same" as they were in May 2010. The examiner noted that the Veteran did not spontaneously complain of symptoms, but, upon questioning, reported that he only gets two to four hours of sleep a night, rarely experiences nightmares, and occasionally has intrusive thoughts of in-service trauma. The Veteran reported that he had to stop working at his friend's bar because it was too physically strenuous. His grooming and hygiene were again described as good and the examiner stated that he did not notice any disturbances of memory or logic. Although the Veteran did complain of some absentmindedness, the examiner stated that was not unusual given the Veteran's age. There was no evidence of delusions or hallucinations or thought disorder. The examiner described the Veteran as irritable and stated that, when he informed the Veteran that it would be difficult for the examination report to reflect a worsening of symptoms, the Veteran became "belligerent." The examiner observed that the Veteran seemed more focused on obtaining benefits than improving his PTSD symptoms. A GAF of 60 was recorded and the examiner opined again that the PTSD symptoms were transient and mild and did not require medication. However, the examiner opined that if the Veteran did return to work, there would be occupational and social impairment due to PTSD. The Veteran was afforded another VA examination in December 2011. The examiner noted, at the outset, a GAF of 60 and that the Veteran's PTSD symptoms occurred only occasionally and appeared mild in severity. The examiner also noted that no other mental disorders had been diagnosed. The Veteran informed the examiner of intrusive thoughts, hypervigilance, and exaggerated startle response. The examiner also observed anxiety and stated that the symptoms caused "clinically significant distress or impairment in social, occupational, or other important areas of functioning," but noted that the Veteran was not socially isolated as he still socialized with his coffee group on a regular basis. The examiner noted that the Veteran attributed his inability to work to his medical (non-mental) issues. Although stating that there had been no remission in any of the Veteran's symptoms, the examiner also noted that there had been no worsening. One day after the December 2011 VA examination, the Veteran was seen again for VA mental health treatment. The treating provider observed that the Veteran inquired about assistance in seeking additional service-connected benefits and described an "exaggerated sense of entitlement to VA benefits." After interview of the Veteran, the provider noted that his hygiene was fair, his mood was irritable, his affect was frustrated, he had "some difficulty with memory," and his insight and judgment were "fair to poor." There was no evidence of suicidal or homicidal ideation. The Veteran was assigned a GAF of 55. The treatment note reflects that the Veteran was again offered therapy as well as medication to treat his PTSD, but refused both. The Veteran reported for follow-up care in March 2012 and was referred to South Central Montana Regional Mental Health Center (SCMHC). He was seen at SCMHC later that month and reported the circumstance of his in-service trauma. Upon assessment, he was noted to have good hygiene and normal speech, but an intense and anxious affect and depressed mood. Although fully oriented, his recent and remote memory was assessed as fair since he has some problems with recall and forgets names. The Veteran admitted to some suicidal ideation, but no intent; he denied homicidal ideation and intent. The Veteran was assessed with a GAF of 52 and, when asked about medications, responded "I don't want to take meds." In April 2012, the December 2011 (and May 2010) examiner reviewed the Veteran's claims file and prepared an addendum opinion. The examiner opined that the Veteran's concentration, persistence, and pace were within normal limits 'when age is taken into consideration.' The examiner also stated that PTSD symptoms were not so severe as to prevent all types of employment. Although stating that review of the claims file indicated that the results of the previous VA examinations were accurate of the Veteran's PTSD symptom severity, the examiner also reported that opinions from treatment providers (rather than examiners) "appear to take into account the Veteran's psychological distress secondary to current life stressors (primarily financial limitations)." The examiner noted that "most of [the Veteran's] mental health contact has been for the purposes of evaluation for the purposes of obtaining VA benefits" and opined that, if only his service-connected PTSD was considered, a GAF of 60 accurately reflected his mental status. The Veteran was seen again at SCMHC in later April 2012 and May 2012. He was assigned a GAF of 52 at both treatment sessions. Although the treatment notes predominantly addressed his recollections of in-service trauma, the April 2012 note reflected that the Veteran reported he was "hanging in there" and, in May 2012, he reported loss of trust in others, nightmares, restless sleep, and vivid war memories. In June 2012, the Veteran testified before the below-signed Veterans Law Judge. He reported that he had "never been able to sleep very good" since service - experiencing once weekly nightmares and nightly disrupted sleep, - conducts perimeter checks at his home prior to going to bed, and does not socialize except for morning coffee at a local lodge. He attested that he maintains social contact to the "best of [his] ability," but only has three actual friends as the others have died. The Veteran again admitted having had suicidal thoughts, but denied any intent - he reported depression. Although the Veteran did not specifically endorse anxiety/panic attacks, he indicated that he avoids such symptoms by simply leaving any location when he feels uncomfortable. The Veteran also testified that he has memory loss, particularly as to the names of people he knows as well as for directions and information about current events. Based on the foregoing, the Board finds that the preponderance of the evidence supports the grant of 30 percent disability rating throughout the pendency of the appeal - the evidence shows PTSD symptoms such as depressed mood, anxiety, suspiciousness, chronic sleep impairment, and mild memory loss resulting in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. In making this determination, the Board has carefully reviewed the VA examination results of record. Although the May and October 2010 and December 2011 examination reports state that the Veteran has occupational and social impairment due to only mild or transient symptoms that decrease his work efficiency and ability to perform occupational tasks only during periods of significant stress, they also document consistent impairment from chronic sleep impairment, mild memory loss, and exaggerated startle response in addition to anxious and depressed moods with periods of irritability. Thus, although the examiners quoted the schedular criteria for a 10 percent disability rating in their opinions, the results of their interviews and examinations of the Veteran reflect symptoms that more nearly approximate the level of disability contemplated by a 30 percent rating. In making this determination, the Board is aware that the symptoms listed under the rating criteria are essentially examples of the type and degree of symptoms for that evaluation, and that the Veteran need not demonstrate those exact symptoms to warrant a particular evaluation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). In this regard, the Board has also reviewed the evidence to determine his overall level of impairment. Id; see also Vazquez-Claudio v. Shinseki, 2012-7114 (Fed. Cir. April 8, 2013) (Although the Veteran's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the Veteran's level of impairment.). In addition to examination and treatment findings reflecting that the Veteran's social and occupational function is consistently impaired by hypervigilance, sleep disruption, and mild memory loss, the Veteran has repeatedly reported that he has to avoid or leave certain environments to prevent himself from experiencing anxiety to the point of panic. The Board also notes that the December 2011/May 2010 VA examiner reviewed the entire claims file in April and determined that a GAF score of 60 most accurately reflected the overall severity of the Veteran's PTSD. As noted above, a score of 51 to 60 is defined as indicating moderate symptoms or moderate difficulty in social, occupational, or school functioning. During the course of the appeal, three other clinicians have also assigned the Veteran GAF scores in the range indicating moderate, rather than mild, impairment. A mental health professional's classification of the level of psychiatric impairment, by words or by a score, is not determinative of the percentage rating to be assigned. VAOPGCPREC 10-95. However, a GAF score is probative as it relates directly to the Veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. Massey v. Brown, 7 Vet. App. 204 (1994). In evaluating this claim, the Board has analyzed the lay evidence presented by the Veteran - his written statements, oral testimony, and statements made to health care professionals. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. 38 C.F.R. § 3.159(a) (2). The courts have also held that lay individuals are competent to provide observations regarding psychiatric disability - in Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006), the Federal Circuit held that a claimant was competent to testify to chronicity and continuity of mental health symptoms; in Culver v. Derwinski, 3 Vet. App. 292, 297-98 (1992), the U.S. Court of Appeals for Veterans Claims held that a claimant was competent to report a nervous breakdown. Thus, the Veteran is competent to report his PTSD symptoms. However, credibility is separate from competency - once evidence is determined to be competent, the Board must determine whether it is also credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Here, multiple examiners have observed that the Veteran has predominantly interacted with medical professionals in his pursuit of compensation benefits. However, no examiners have questioned his diagnosis and they have consistently recorded the same symptoms. Although VA may consider self interest and desire for monetary gain when assessing the credibility of the evidence, it also considers internal consistency, facial plausibility, and consistency with other evidence of record. See Caluza v. Brown, 7 Vet. App. 498 (1995). Here, the Board finds the Veteran credible in his contentions. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Not only are his statements as to his symptoms internally consistent, but they are plausible and consistent with the other evidence of record - to specifically include evidence not discussed by any VA examiner such as the October 2010 statement from his friend/employer and the 1977 and 1985 VA notations pertinent to mental health history. Although the Veteran may be motivated by desire for monetary gain, the evidence does not reflect that desire has diminished his credibility. Based on the foregoing, the Board finds that, although the Veteran generally functions satisfactorily (as evidenced by repeated assessment of his abilities to behave routinely, maintain social relationships, appropriately groom himself, and think and speak logically and coherently), his PTSD symptoms more nearly approximate the criteria for a 30 percent rating. This finding is supported by the GAF scores as well as treatment and examination reports denoting symptoms consistent with occasional decrease in work efficiency and intermittent inability to perform occupational tasks. See May 2010, October 2010, and December 2011VA examination reports with April 2011 addendum; VA outpatient treatment records; SCMHC treatment records. The Board has granted the Veteran a 30 percent disability rating for PTSD throughout the appellate period, thus satisfying his appeal to the extent argued. As a result, the Board is not required to consider entitlement to all available ratings for PTSD. AB, 6 Vet. App. at 38, 39 (citing Hamilton v. Brown, 4 Vet. App. 528 (1993) for the proposition that, after express indication from the claimant, neither the RO nor the Board have the authority to adjudicate a claim beyond the wishes of the claimant absent subsequent authorization). In summary, and for the reasons and bases set forth above, the Board finds the preponderance of the evidence supports the grant of an initial 30 percent disability rating for service-connected PTSD. In making this determination, all reasonable doubt has been resolved in favor of the Veteran. See Gilbert, supra. II. Other Considerations In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims held that a claim for a total rating based on individual unemployability (TDIU) is part of an increased rating claim when expressly raised by the Veteran or reasonably raised by the record. Although the Veteran has appealed the rating assigned for his PTSD and presented evidence of unemployment, the Board finds that no claim of entitlement to a TDIU is raised here. Specifically, although the Veteran has contended that he is unable to work as the result of alleged in-service injury, he has specified that in-service injury was musculoskeletal in nature and that he became unable to work due to resulting arthritis. Although he did also report during the course of the appeal that he performed some "under the table" work at a bar, which he had to stop as the result of disability, he clarified that he ceased that employment because it was too physically strenuous. Thus, a claim for a TDIU as part of his claim for an increased rating has not been expressly raised by the Veteran or reasonably raised by the record. As a result, the issue of entitlement to a TDIU is not considered part of his appeal. Id.; 38 C.F.R. § 3.155(a) (2012). ORDER An initial 30 percent disability rating for PTSD is granted. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs