Citation Nr: 1328177 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 08-16 300 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to an evaluation in excess of 50 percent prior to January 14, 2011, for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active military service from May 1964 to May 1968. This matter is before the Board of Veterans' Appeals (Board) following a Board Remand in December 2010. This matter was originally on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Boston, Massachusetts. In September 2010, the Veteran testified at a Travel Board hearing. A transcript of that hearing is of record. In August 2013, the Veteran was advised that the Veterans Law Judge who conducted his September 2010 hearing was no longer employed by the Board and that he had the option of testifying at another hearing. At the June 2012 hearing, the Veteran waived his right to another hearing. While the case was undergoing Remand development, a 100 percent schedular rating was assigned for the PTSD from January 14, 2011. This was reported as the date of an examination showing an increase in symptoms. That is a complete grant of the benefit requested as to that period. The earlier period remains at issue and the issue has been recharacterized so as to reflect the current issue on appeal. FINDING OF FACT It is at least as likely as not that, prior to January 14, 2011, his PTSD was manifested by symptomatology that resulted in total occupational and social impairment. CONCLUSION OF LAW With resolution of reasonable doubt in the appellant's favor, prior to January 14, 2011, the criteria for an evaluation of 100 percent for service-connected PTSD were approximated. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. § 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Preliminary Matters Pursuant to the Board's December 2010 Remand, the Appeals Management Center (AMC) obtained additional VA treatment records and hard copies of Social Security Administration (SSA) records and associated them with the claims file, scheduled the Veteran for VA examination to assess the current severity of his PTSD, readjudicated the Veteran's claim under provision of the VCAA, and issued a Supplemental Statement of the Case. Based on the foregoing actions, the Board finds that there has been compliance with the Board's December 2010 Remand. Stegall v. West, 11 Vet. App. 268 (1998). Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In light of the favorable outcome of this appeal, any perceived lack of notice or development under the VCAA should not be considered prejudicial. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, 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. When, as here, the Veteran is requesting a higher rating for an already established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) Under the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130, Diagnostic Codes 9411, a 50 percent evaluation requires occupational and social impairment, but with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, 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 task); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted for even greater occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting 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 inability to establish and maintain effective relationships. Id. The maximum rating of 100 percent evaluation requires total occupational and social impairment due to such symptoms as: 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; and memory loss for names of close relatives, own occupation, or own name. Id. One factor for consideration is the Global Assessment of Functioning 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 the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM -IV)). A global assessment of functioning score of 51 to 60 reflects 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 global assessment of functioning score of 41 to 50 reflects 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 global assessment of functioning score of 31 to 40 indicates the examinee has 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 directs that the rating agency be familiar with the DSM-IV, it does not assign disability percentages based solely on global assessment of functioning scores. See 38 C.F.R. § 4.130 (2012). Thus, in order for the Veteran's PTSD to warrant a rating higher than 50 percent, the Veteran must demonstrate occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood or total occupational and social impairment. The Veteran underwent VA examination in August 2006 at which time he reported experiencing horrible insomnia and nightmares in which he woke up in a sweat hitting and kicking. The Veteran explained that he only slept for four hours each night and that most nights he woke hourly and checked the clock. The Veteran also reported homicidal ideation and a physical altercation with an individual who he thought was following him. The Veteran reported depressed mood, decreased motivation, and difficulty concentrating. He also reported intrusive thoughts of Vietnam and increased reactions to noise and other PTSD stimuli. The Veteran reported constant feelings of anxiety, headaches, as well as increased physical aches and pains. He reported increased conflict with his live-in girlfriend and difficulty dealing with his parents' illnesses. The Veteran noted bad anxiety attacks with sweats and nausea. He also reported that he talked to his son a few times a week, that he spent a considerable amount of time caring for his elderly parents, that he was a loner, and that he tried not to socialize too much. On mental status examination, the Veteran was extremely tense but cooperative; and his body was shaking throughout the interview. The Veteran was oriented to time, place, and person; and his rate and flow of speech were within normal limits. His affective state was that of an individual who was highly anxious, agitated, and subject to major mood states and multiple variations. The Veteran's motor activity was agitated and restless. His judgment was fair. There was no evidence of any major thought disorder. There were no delusions, disorganized thinking, or hallucinations. The Veteran reported major sleep disturbance, numbness, rage or startle, and major sexual dysfunction. He denied any homicidal or suicidal ideation. The Veteran reported experiencing flashbacks on a regular basis and nightmares several times a week. The examiner noted that the Veteran fluctuated between emotionally numb, withdrawn, depressed, and guilty about surviving. The examiner diagnosed the Veteran as having PTSD and assigned a GAF of 50 for moderate symptoms and difficulty in social, occupational, physiologic, and psychological functioning. VA treatment records indicate that the Veteran presented depressed and in despair as he had just lost his job on October 2, 2006, replaced by a much younger man who had computer skills as well as safety officer experience. The provider noted that the Veteran was able to recognize that his on-the-job panic attacks as well as his general high level of anxiety contributed to this event. In November 2006, it was noted that the Veteran had been actively trying to fight off feeling depressed but was having more difficulty especially in light of his job loss and lack of daily structure. In February 2007, the Veteran reported that he became so angry that VA had denied his request for increased compensation that he punched his first into the wall and broke a vase. The Veteran stated that he had been trying so hard to come out of his depression since he lost his job and that this just made him feel even worse. He spoke to his treating physician who restarted his antidepressant medications, but he described feeling more depressed than ever and not wanting to get out of bed. The Veteran stated that he had been having a lot of trouble sleeping, no appetite, no energy, and did not have "anything left to give" The provider noted that the Veteran was suffering from increased depressive symptoms due to denial of increased benefits from VA. In April 2007, it was noted that the Veteran denied being actively suicidal or homicidal but wished that he would not wake up one morning. It was also noted that the Veteran had no plan to hurt himself or anyone else, but that he was increasingly worried that he might hurt someone impulsively. Also, that month, the Veteran reported being increasingly irritable with other people and noted that if he had had a knife, he would have stabbed another Veteran at the VFW. The assessment by the provider was that the Veteran was overwhelmed by feelings of helplessness and unrelenting depression. He had been doing all he had been asked to do by his healthcare providers yet he still remained depressed and anxious. In June 2007, the Veteran described feeling increasingly irritable and worried that he might "fly off the handle and hurt someone" because he was so easily upset. The provider noted that his girlfriend had been commenting on this increase in irritability and that the Veteran had been unable to enjoy any of his usual activities and came home early from drinking/playing cards with his friends because he was not enjoying it. That same month, the Veteran's treating psychologist noted that the Veteran's current life was significantly impaired by his PTSD symptoms, that his relationship with his girlfriend was highly strained, that he had no pleasurable activities that he could identify, that he was highly avoidant and visibly tense, and that he had been unable to work due to his symptoms for several years. In a letter dated in October 2007, the Veteran's treating psychologist noted that in the previous few years, the Veteran had been experiencing an increase in his PTSD symptoms including heightened anxiety on the job, once to the point of passing out; increased arguments with coworkers, once to the point of physical violence when he tried to choke someone; decreased concentration and memory; difficulty sleeping; intrusive memories of combat on a regular basis and flashbacks at different times during the day; and avoidance of social situations. The psychologist noted that over the prior two years, the Veteran's PTSD symptoms had increased dramatically. His intrusive memories and flashback had increased. He was much more withdrawn, isolated, and avoidant to the point where he was avoiding almost all relationships and social contact. The psychologist noted that the Veteran spent most of his days sitting and thinking and that he had learned to stay away from people. The Veteran's hypervigilance was noted to be more pronounced, and he was noted to be constantly anxious with a feeling of being unsafe. The psychologist noted that the Veteran's irritability had increased to the point where he had been involved in a number of altercations and that his startle response had increased. The psychologist stated, "As a result of this, he has become unable to perform his duties at his job and his social world has been severely diminished. He has become seriously impaired in thinking, judgment, and mood. He is unemployable. ..." VA treatment records indicate that in November 2008, the Veteran reported that he thought that it was over with his girlfriend and noted that he was looking forward to going to Florida to relax. The Veteran spent time with his son and "some other friends." In December 2008, the Veteran reported that he was attacked by two men, one with a tire iron while he was in Florida but took the tire iron away and knocked the man down and the other one ran away. The Veteran returned to Florida in early 2009 at which time he noted that he began getting edgy and had some panic attacks and some suicidal thoughts. In March 2009, the Veteran noted that he was always afraid that when he went out that someone would set him off and if the anger took over, he would just go off and not even know that he had done. A trip to Florida in April 2009 did not go well, but the Veteran managed to avoid an altercation with ex-wife. In June 2009, the Veteran became upset when someone keyed his car and he went looking for them. Later that month, the Veteran had a flashback of being blown through the air in Vietnam by a Russian rocket which was triggered by him hitting a bump and falling out of a golf cart. In November 2009, the Veteran reported that he and son were involved in a fist fight with each other because his son decided to "bail" on a condo for which the Veteran cosigned. In December 2009, the Veteran was on his way to settle the mortgage issue. He was noted to be calm, relaxed and without aggression; but the provider noted that he massively lost his temper against his son and at a bar with strangers and was aware that he should avoid or back off from situations that would provoke anger. In February 2010, the Veteran reported that he blew up at the bank when trying to renegotiate his mortgage. In March 2010, the Veteran described a social incident in which he felt that someone had insulted his girlfriend and he jumped over the table and grabbed the person by the throat. Others had to jump in and pull him off. In a letter dated in August 2010, the Veteran's treating psychologist noted that in June 2008, he got into a fight and had to be pulled off the individuals; in July 2008, he got into an argument with his ex-wife and destroyed his phone; in December 2008, he got into a fight with two men who had insulted a friend's wife; in December 2009, he reported blowing up at lawyers while trying to refinance a mortgage; in March 2010, he blew up at the bank and was asked to leave; and in March 2010, he started choking an individual who he thought had insulted his girlfriend. The psychologist noted: At this point, [the Veteran] continues to suffer from severe and chronic combat related PTSD. His difficulties are well documented in his treatment record. Although he has made gains in some areas his everyday life and adjustment is significantly impaired. He is isolated and unable to enjoy most things in life. His thinking, judgment and mood are continuously influenced by his combat experience. He is depressed and angry and can become combative very quickly if he feels threatened in any way. His GAF over the last six months, including an incident of choking a man at a social gathering and having to be pulled off him, is no higher than 40. The veteran has not been significantly employed since being forced to retire in 2005. He is currently unemployable due to his PTSD symptoms. The Board notes that the Veteran underwent VA examination in January 2011 at which time the examiner noted that anger problems persisted and that the Veteran felt that he needed to stay home to contain that. The Veteran reported that his last blow up was three months prior in an incident in which he hurt his shoulder. The Veteran stated, "These days I just sit on the couch." The Veteran reported feeling depressed and anxious. The Veteran reported that he had been with his current girlfriend for a year, that he had a few friends but did not spend time with them, and that he stayed inside to stay out of trouble. The Veteran reported that he had joined a gym but that he had had a disagreement with other customers who he thought stole his cell phone and damaged his car intentionally. The Veteran stated that he broke all the windows of their car as a result and had not returned to the gym since. The Veteran also reported that he got into an argument in a restaurant three months prior. Psychiatric examination demonstrated that he was clean, neatly groomed, and casually dressed. He was cooperative; his psychomotor activity and speech were unremarkable. His affect was normal, his mood was good, his attention was intact. He was oriented to person, time, and place. The Veteran's thought process and content were unremarkable. He had no delusions. He understood the outcome of his behavior and that he had a problem. The Veteran reported sleep impairment with nightmares three to four times a week. There were no hallucinations. The examiner noted that the Veteran continued to have severe problems managing his temper and was able to avoid getting into fights only by staying at home nearly all the time. The Veteran had no obsessive/ritualistic behavior. He reported panic attacks. The Veteran denied homicidal ideation but admitted to prior suicidal ideation. The extent of the Veterans impulse control was noted to be poor. The Veteran's immediate memory was noted to be mildly impaired. The Veteran was diagnosed as having PTSD, and a GAF of 47 was assigned. The examiner noted that the prognosis for improvement was fair at best. The examiner stated that the Veteran was improving mainly because of restricting his activities and staying at home for the most part. The examiner noted that the Veteran had been in good psychiatric treatment for many years and despite this, when in public, continued to have repeated episodes of behavior dyscontrol. The examiner opined that the Veteran had total occupational and social impairment due to PTSD signs and symptoms. The examiner noted that the Veteran had a clear record of serious behavioral dyscontrol and had managed to avoid similar incidents only by means of isolation. The examiner also noted that in addition to difficulty managing anger, the Veteran had notable problems with anxiety and that his social adjustment had remained tenuous despite years of psychotherapy. Although the Board notes that there have been fluctuations in the Veteran's occupational and social functioning during the appeal period, the Board does not see significant deterioration or improvement during the period. In fact, the symptoms and problems the Veteran reported at the January 2011 VA examination are very similar to the symptoms and problems that the Veteran reported at the August 2006 VA examination. The GAF score of 50 assigned at the August 2006 VA examination is indicative of serious symptoms or serious impairment in social or occupational functioning. The record indicates that the Veteran's PTSD symptoms at that time included depressed mood, anxiety, panic attacks and depression affecting his ability to function independently, sleep impairment, disturbances of motivation and mood, suicidal ideation, impaired impulse control, difficulty adapting to stressful circumstances, and difficulty establishing and maintaining effective relationships. In fact, at the August 2006 VA examination, the Veteran reported homicidal ideation and a physical altercation with an individual who he thought was following him. By February 2010, he was noted to have a GAF no higher than 40 indicative of some impairment in reality testing or communication or major impairment in several areas, such as work, family relations, judgment, thinking, or mood. The record indicates that the Veteran had very serious anger issues in addition to the anxiety, panic attacks, depression, flashbacks, nightmares, and sleep impairment. The Board notes that the Veteran was in Florida for six weeks in January and February 2010. In April 2010, the Veteran reported playing golf and enjoying it, living with his girlfriend. In May 2010, the Veteran was invited to join a league that played golf weekly. In June 2010, the Veteran joined a Stress Management and PTSD group. The Veteran reported doing better and making plans for Florida in November. At the Veteran's last session with his initial treating psychologist, it was pointed out that the Veteran had made many gains although severe symptoms of PTSD persisted. Despite the apparent decline in the Veteran's social functioning noted above, it is the Board's opinion that there has not been a significant change in the Veteran's PTSD symptomatology since he filed his claim for increase. As such, the Board finds that resolving all doubt in the Veteran's favor, a 100 percent disability evaluation is warranted for entire appeal period. ORDER Entitlement to an evaluation of 100 percent prior to January 14, 2011, for PTSD, is granted. The appeal is allowed to this extent, subject to the law and regulations governing the award of monetary benefits. ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs