Citation Nr: 1318964	
Decision Date: 06/11/13    Archive Date: 06/21/13

DOCKET NO.  06-25 220	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUE

Entitlement to an initial rating higher than 50 percent for posttraumatic stress disorder from December 12, 2008, to February 28, 2009.


REPRESENTATION

Veteran represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Veteran 

ATTORNEY FOR THE BOARD

L. J. Wells-Green, Counsel





INTRODUCTION

The Veteran served on active duty from April 1967 to March 1977.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in December 2004 of a Department of Veterans Affairs (VA) Regional Office (RO).  

In January 2009, the Veteran appeared at a hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is in the Veteran's claims files.  

In a decision in April 2011, the Board, in part, increased the rating for PTSD to 50 percent from December 12, 2008.  The Veteran appealed that part of the Board's decision denying higher ratings for PTSD to the United States Court of Appeals for Veterans Claims (Court).  In November 2012 in Memorandum Decision, the Court vacated that part of the Board's decision denying a rating higher than 50 percent for PTSD since December 12, 2008, and remanded the claim for compliance with the Memorandum Decision.  The Court found that the Veteran's appeal regarding an initial rating for PTSD before December 12, 2008, was abandoned.  

While on appeal in a rating decision in September 2012, the RO increased the rating for PTSD to 70 percent, effective March 1, 2009.  In subsequent correspondence received in April 2012, the Veteran stated that he was satisfied with the 70 percent rating, except that the 70 percent rating should be assigned since December 2008.  In light of the above, the claim has been recharacterized as reflected on the title page.  









FINDING OF FACT

From December 12, 2008, to February 28, 2009, PTSD was manifested by symptoms that more nearly approximated occupational and social impairment with deficiencies in most areas.  


CONCLUSION OF LAW

The criteria for an initial rating of 70 percent for PTSD from December 12, 2008, to February 28, 2009, have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2012).

The Veterans Claims Assistance Act of 2000 (VCAA)

VA has a duty to notify and to assist a claimant in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103 and 5103A.  As the Board is granting in full the benefit sought on appeal, VCAA compliance need not be addressed. 

REASONS AND BASES FOR FINDING AND CONCLUSION

Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4.  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 military service and their residual conditions in civil occupations.  Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.






VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions.  Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991).

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.

The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings."  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007).  

Evidence

The Veteran is not seeking a rating higher than 70 percent, which is his right.  See AB v. Brown, 6 Vet. App. 35, 39 (1993) (a Veteran is presumed to be seeking the highest possible rating unless he expressly limits the appeal to a specific rating).  

Under Diagnostic Code 9411, the criteria for a 70 percent rating are 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 worklike setting); inability to establish and maintain effective relationships.  



In a letter, dated December 12, 2008, the Team Leader at the Vet Center where the Veteran was being treated stated that the Veteran's symptoms included hyperarousal, re-experiencing of traumatic events and avoidance behaviors, prolonged sleep disturbance, nightmares, daily intrusive memories of his experiences in Vietnam, panic attacks several times a week, and avoidance of social settings, family gatherings, and loud noises.  Other subjective symptoms included being down most of the time, low energy, isolation, low memory and concentration, and a lack of motivation to begin or complete tasks.  The GAF score was 45 with a high of 50 in the last year.  

In January 2009, the Veteran testified that he had been treated for PTSD since 2001 at a Vet Center, but he was not on medication because he was afraid of taking it due to a previous bad experience.  The Veteran stated that he had been married for 30 years.  He testified that he had been working at the Postal Service for 31 years and had had problems with co-workers and supervisors, but for the last three to four years he had been in a job where he did not have to work with others, except for about two hours a day.  The Veteran described symptoms that included nightmares, sleep disturbance, avoidant behavior, hyperarousal, panic attacks several times a week, being down most of the time, low energy, and social isolation.  He testified that he did group counseling at the Vet Center twice a month and sometimes had individual counseling sessions when needed.  He felt that he had a strained relationship with his oldest son and had no friends.  

From December 12, 2008, to February 28, 2009, the Veteran's PTSD was manifested by sleep disturbance, nightmares, intrusive memories, hyperarousal, anxiety, irritability, avoidance behavior, and social isolation.  Although he had been married to his wife for 30 years and had adult children, he described himself as a strict disciplinarian and as having a strained relationship with his oldest son.  He denied having any friends. He also reported having difficulty with co-workers and supervisors at work.  He had chronic sleep disturbance, panic attacks several times a week and near continuous depression.  The Vet Center treatment provider gave the Veteran a GAF score indicative of serious impairment.  



Overall, the manifestations of PTSD more nearly approximate the criteria for a 70 percent rating from December 12, 2008, to February 28, 2009.

As the Veteran has limited his appeal to a 70 percent rating for the appellate period, and as 70 percent disability has been granted, the Board need not address an extraschedular rating under 38 C.F.R. § 3.321(b)(1). 


ORDER

An initial rating of 70 percent for PTSD, from December 12, 2008, to February 28, 2009, is granted.  



____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs