Citation Nr: 1320549	
Decision Date: 06/26/13    Archive Date: 07/05/13

DOCKET NO.  10-03 805	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUE

Entitlement to an increased disability rating for posttraumatic stress disorder (PTSD), currently evaluated as 30 percent disabling.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

S. Finn, Counsel



INTRODUCTION

The Veteran served on active duty from November 1958 to June 1967.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO).

A review of the Virtual VA paperless claims processing system does not reveal any additional pertinent records to the present appeal.


FINDING OF FACT

The Veteran's PTSD is manifested by occupational and social impairment with reduced reliability and productivity due to symptoms such as disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships.


CONCLUSION OF LAW

The criteria are met for the assignment of a 50 percent rating for PTSD.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Before addressing the underlying merits of a claim, the Board generally is required to ensure that VA's duties to notify and assist the claimant with the claim has been satisfied under the VCAA.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).

The Veteran's representative has stated that "the Secretary should grant an increased evaluation of 50 percent for the Veteran's service connected posttraumatic stress disorder" and if the grant could not be made to remand for another VA psychiatric examination.  (See October 2010 Statement of Accredited Representative).  Here, the Board grants the full benefit sought on appeal, that is, the assignment of a 50 percent schedular rating for PTSD.  Thus, any failure to notify and assist the Veteran with respect to his claim is nonprejudicial.

In May 2009, the Veteran filed a claim for service connection for PTSD.  In a July 2009 rating decision, he was granted service connection and an evaluation of 30 percent, effective May 14, 2009.

Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability.  See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.  Separate diagnostic codes identify the various disabilities.  38 C.F.R, Part 4.

The Court has held that an appeal from an initial rating is a separate and distinct claim from a claim for an increased rating.  See Fenderson v. West, 12 Vet App 119 (1999).  Therefore, in matters concerning an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings.  See Fenderson, 12 Vet. App. 125-26.  The Court since has extended this practice even to cases that do not involve initial ratings, so also established ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Veteran's psychiatric disorder has been evaluated under the General Rating Formula for Mental Disorders.  Under these criteria, a 30 percent rating contemplates 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, panic attacks, chronic sleep impairment, and mild memory loss.  Id.

A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to particular symptoms such 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; and difficulty in establishing and maintaining effective work and social relationships.  Id.

A 70 percent rating is warranted where the disorder is manifested by 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 that is 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 an inability to establish and maintain effective relationships.  Id.

A 100 percent rating is indicative of 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 of names of close relatives, own occupation or own name.  Id.

The nomenclature employed in the portion of VA's Rating Schedule addressing service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (also known as the "DSM-IV").  38 C.F.R. § 4.130.  The DSM-IV contains a Global Assessment of Functioning (GAF) scale, with scores ranging from zero to 100 percent and representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness.  See also Richard v. Brown, 9 Vet. App. 266, 267 (1996).  Higher scores correspond to better functioning of the individual.

According to the DSM-IV, GAF scores ranging between 41 and 50 are assigned when there are 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 from 51 to 60 represent moderate symptoms, such as flat affect and circumstantial speech, and occasional panic attacks, or moderate difficulty in social, occupational, or school function (such as few friends, conflicts with peers or co-workers).

Symptoms listed in VA's General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list, but rather are to serve as mere examples of the type, frequency, and degree of the symptoms, or their effects, that would justify a particular rating.  See Mauerhan v. Principi, 16 Vet. App. 436 (2002).

When evaluating a mental disorder, the evaluation must be 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).  Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment.  38 C.F.R. § 4.126(b).

Applying these criteria to the facts of this case, the Board finds that the Veteran's PTSD warrants the assignment of a 50 percent rating.  The evidence supporting this conclusion is the June 2009 VA examination.

In a June 2009 VA examination, the Veteran reported anxiety, anger outbursts, nightmares, sleep disturbances, flashbacks, jumpiness, irritability, difficulty concentrating, hypervigilance, and hyper-startle response on a daily basis.  He had seen a licensed social worker due to anger management issues.  The Veteran recalled one incident where he came home from work, argued with his wife, and he struck her.  She pressed charges against him.  The sound of helicopters triggered flashbacks and he jumped at the drop of small noise.  He did not like having people behind him and he belted an attending physician accidentally who approached him from behind.  He has major difficulty getting along with people.  He has tense anger, was argumentative, and socially isolated himself.  He did a "considerable" amount of drinking before his battery charge and received help to stop the alcohol abuse approximately eight years ago.  The Veteran also stated that he experienced hearing noises of the war and felt that he was there even though he was aware of his current surroundings.  He tried to avoid any thoughts, feelings, or conversations associated with the trauma.  He felt detached from his family and friends.  He was placed on Prozac.  He thought it did not help and his wife complained that he had changed.  He felt emotional numbness and complained of not having "loving feelings."  He reported a lack of libido.  He and his wife slept in separate rooms because of his yelling and screaming during a nightmare.  With regards to employment, the Veteran has been able to work, to develop himself despite other symptoms and continues to work at the present time.  According to the examiner, his symptoms have not majorly affected his employment functioning.

Upon mental status examination, the Veteran was initially aloof, but warmed up.  His speech was well within normal limits.  He was oriented to time, place, and person.  His memory function for events was within normal limits.  His affect of expression was that of an individual who had blunted affect versus emotional searching and tense rage reactions when triggered.  The Veteran had difficulty having warm and loving feelings.  His motor activity was tense.  His judgment was good.  There was no evidence of any major dissociative states.  No delusions to synchronized thinking or hallucinations.  He could perform all activities of daily living.  The Veteran was diagnosed with PTSD and assigned a GAF score of 60.

The Veteran's PTSD approximates the criteria for a 50 percent rating because he has occupational and social impairment with reduced reliability and productivity due to symptoms such as disturbances of mood and sleep disturbance.  For example, he was described as having the following symptoms:  anxiety, anger, nightmares, sleep disturbance, argumentative, socially isolative, detachment, feelings of numbness, hypervigilance, hyper-startle response, difficulty concentrating, and flashbacks.  He also has difficulty in establishing and maintaining effective work and social relationships, as evidenced by his GAF scale score of 60 showing moderate impairment in social and occupational functioning and his admission that he socially isolates himself because of his mood.

As noted above, in October 2010 the Veteran's representative essentially stated that the Veteran will be satisfied with the assignment of a 50 percent rating for PTSD.  Thus, he has limited his appeal to the assignment of a 50 percent rating and the Board need not consider whether he is entitled to an even higher schedular evaluation under DC 9411 or to an extraschedular rating under 38 C.F.R. § 3.321(b).


ORDER

Entitlement to a 50 percent rating for PTSD is granted, subject to the statutes and regulations governing the payment of VA compensation.



____________________________________________
P.M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs