Citation Nr: 1322583 Decision Date: 07/16/13 Archive Date: 07/24/13 DOCKET NO. 09-24 878 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a higher rating for posttraumatic stress disorder (PTSD), evaluated as 30 percent disabling from July 1, 2004, and as 50 percent disabling from April 21, 2009. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jennifer R. White, Counsel INTRODUCTION The Veteran served on active duty from January 1966 to November 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. FINDING OF FACT The Veteran's service connected PTSD has resulted in symptoms sufficient to result in total occupational and social impairment. CONCLUSION OF LAW The criteria for a rating of 100 percent for PTSD have been met throughout the claim period. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & West Supp. 2013); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2008); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2012); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2012); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10 (2012). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the Veteran has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found--a practice known as "staged" ratings. The Veteran's PTSD is rated under Diagnostic Code 9411. 38 C.F.R. § 4.130. A 30 percent rating requires 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 conversion normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating requires 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating requires 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 affected 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); and inability to establish and maintain effective relationships. A 100 percent rating is assigned when there is 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. The Board notes that in accordance with the General Rating Formula for Mental Disorders, a 100 percent rating is applicable if the manifestations of the service-connected psychiatric disorder result in total occupational and social impairment. Although the Rating Formula lists specific symptoms that are indicative of total impairment, the United States Court of Appeals for Veterans Claims has held that the symptoms listed in the Rating Formula are only examples, and that evidence of those specific symptoms is not required to show that the veteran is totally disabled. In rating a mental disability VA is required to consider all symptoms that affect his social and occupational functioning, and not limit consideration to those symptoms listed in the Rating Formula. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In other words, the primary consideration is whether the manifestations of the service-connected psychiatric disorder result in total social and occupational impairment, regardless of whether the veteran demonstrates those symptoms listed in the Rating Formula. 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. One factor for consideration is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM- IV)). A GAF score of 61 to 70 indicates some mild symptomatology (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or social functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, with some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect 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). Scores ranging from 41 to 50 reflect 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). Scores ranging from 31 to 40 reflect 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). While the Rating Schedule does indicate that the rating agency must be familiar with the DSM IV, it does not assign disability percentages based solely on GAF scores. See 38 C.F.R. § 4.130 (2012). The Veteran was granted service connection for PTSD as of July 1, 2004 by a February 2008 rating decision. The Veteran's representative submitted a statement dated September 2008 requesting that his PTSD evaluation be readjudicated based on the evidence attached to the statement. In the evidence submitted during September 2008, there is a private psychological evaluation dated August 2008 indicating that the Veteran was completely and totally disabled due to his service-connected PTSD. The physician indicates that the Veteran was unemployable due to his symptoms of flattened affect, circumstantially, stereotypic speech, panic attacks, difficulty understanding complex commands and impairment of short and long term memory. The physician's signature block notes that he was a battalion surgeon in Vietnam during 1967 and 1968 and he is a Fellow of the American Board of Psychiatry and Neurology. The private examiner reiterated the seriousness of the Veteran's disability in a April 2009 letter. The Board additionally notes that a May 2008 VA treatment note indicates that the Veteran was transferring care from the physician who offered the August 2008 statement to the VA. The provider did not comment on employability, but did indicate the Veteran's GAF score was 40. A January 2009 VA treatment noted that the Veteran reported he had to retire due to his PTSD symptoms. The GAF score was indicated at 40. A March 2009 VA examination report, considering the Veteran's PTSD, indicates that his ability to tolerate employment was compromised. He was diagnosed with chronic PTSD and major depressive disorder. He had a sad mood, restricted affect, was irritable, had psychomotor retardation, passive death wishes and feelings of personal worthlessness. There is a mention that the depressive symptomatology is independent of the PTSD, but with no rationale for this conclusion. The GAF score was 42. An August 2009 VA treatment note indicates that the Veteran cannot function in a normal, competitive work environment. The provider noted that the Veteran's concentration and memory were poor and he had panic attacks twice per week. His GAF score was 38. A September 2009 letter from a private provider indicates that the Veteran has severe, recurrent, and chronic PTSD from his experiences in Vietnam. The provider indicated that the Veteran is 100 percent disabled from his PTSD. An additional letter dated September 2009 from a different private provider indicates that the Veteran was unable to seek or perform any type of employment due to his PTSD. A letter dated October 2009 from the same provider reiterated these contentions. The Veteran was provided a VA examination in January 2012. The Veteran was diagnosed with major depressive disorder, PTSD and panic disorder. The Veteran's GAF score, only considering his PTSD, was noted as 51. The examiner did not provide an opinion concerning his employability. However, the examiner did indicate that the Veteran had occupational and social impairment with reduced reliability and productivity. The examiner additionally indicated that the Veteran had depressed mood; anxiety; panic attacks more than once a week; chronic sleep impairment; disturbances in motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; and suicidal ideation. Records from the Vet Center and the St. Louis VA Medical Center (VAMC) indicate that the Veteran continued to receive counseling and attend group sessions throughout the relevant period. There is evidence of record which indicates that the Veteran is totally occupationally impaired due to the manifestations of his PTSD. There is no medical evidence directly disputing this evidence. Additionally, the Veteran's GAF score from his treating VA physician and the VA examination report indicates that his symptoms are serious and result in occupational impairment to a level that he would be unlikely able to keep a job. Thus, with resolution of reasonable doubt in the Veteran's favor, the Board finds that the Veteran's PTSD symptomatology warrants a 100 percent disability rating throughout the claim period. ORDER Entitlement to an initial rating of 100 percent for PTSD is granted, subject to the laws and regulations governing the payment of monetary benefits. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs