Citation Nr: 1329067 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 10-30 371 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to a rating in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1967 to November 1972, including combat service in the Republic of Vietnam and his decorations include the Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in October 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts that confirmed and continued a 30 percent disability rating for service-connected PTSD. By way of background, an April 2008 rating action granted service connection for PTSD, assigning a 10 percent disability evaluation effective February 8, 2006, and a 30 percent disability evaluation effective April 1, 2008. Within one year of this determination, the Veteran did not express disagreement with this initial disability evaluation, nor was any relevant new and material evidence, medical or lay, physically or constructively received by VA prior to the expiration of the appellate period. See 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.156(b); 20.201 (2012); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011). As such, the April 2008 rating action became final. In August 2011, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. FINDING OF FACT Since April 30, 2009, the Veteran's PTSD has been manifested by occupational and social impairment with deficiencies in most areas, due to such symptoms as irritability, avoidance, difficulty concentrating, social isolation, chronic sleep impairment, flashbacks, intrusive thoughts, anxiety, multiple panic attacks per week, nightmares, and hypervigilance. CONCLUSION OF LAW Effective April 30, 2009, the criteria for a rating of 70 percent for PTSD have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS At his August 2011 Board hearing, the Veteran indicated that he was seeking a 70 percent rating for his PTSD, and that a grant of a 70 percent evaluation would satisfy his appeal. Because the Veteran limited his appeal to a 70 percent rating, see AB v. Brown, 6 Vet. App. 35, 38 (1993), and since the Board finds that the evidence supports entitlement to that rating, no discussion of VA's duty to notify or assist is necessary as he is being awarded a complete grant of the benefit sought on appeal. Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. Separate diagnostic codes (DCs) identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 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); Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Veteran's PTSD is currently rated 30 percent disabling. He contends that his PTSD symptoms have worsened and become more severe than the currently assigned rating and that his PTSD most closely approximates the criteria for a 70 percent evaluation. The Veteran's PTSD is currently rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9411 (2012). Ratings are assigned according to the manifestation of particular symptoms. The use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). When determining the appropriate disability evaluation to assign for psychiatric disabilities, however, the Board's "primary consideration" is the Veteran's symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013.) Under the General Rating Formula for Mental Disorders, a 30 percent rating is warranted for 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, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted for 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted for 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 that 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. The Board finds that, since April 30, 2009, the Veteran's PTSD has been manifested by occupational and social impairment with deficiencies in most areas due to such symptoms as irritability, avoidance, difficulty concentrating, social isolation, chronic sleep impairment, flashbacks, intrusive thoughts, anxiety, multiple panic attacks per week, nightmares, and hypervigilance, warranting a 70 percent rating. The May 2009 VA examiner assigned a Global Assessment of Function score (GAF) of 52, stating that PTSD symptoms resulted in deficiencies in family relations and mood. Specifically, there was a lack of intimacy with his spouse and avoidance of parties, crowds, related children, and grandchildren. Current symptoms included recurrent intrusive memories, nightmares, flashbacks, significant distress from traumatic triggers, active avoidance, social isolation, difficulty concentrating, and hypervigilance. Letters dated June 2009 from his treating VA psychiatrist and social worker stated that his symptoms included recurrent nightmares, intrusive memories, flashbacks, hypervigilance, irritability, multiple panic attacks per week, impaired short and long term memory (forgetting tasks and daily functions), anxiety, and chronic sleep impairment. These symptoms led to avoidance, social isolation, and impaired concentration. The social worker noted that he "has become very distant from his loved ones and isolates himself quite often...not trusting anyone." Both of them assigned a GAF score of 45. The psychiatrist stated, "[t]he PTSD symptoms have made a huge impact interfering with both the psychosocial and occupational aspects of his life." The social worker felt that PTSD resulted in significant limits in the Veteran's ability to function both socially and occupationally. VA treatment records dated in 2009 show GAF scores of 50 and 55 due to symptoms including sleep impairment, frequent nightmares, frequent intrusive memories, long-term memory impairment, weekly flashbacks, and anxious, agitated, and depressed mood. A January 2010 VA treatment record reflects two panic attacks in one week. The Board has considered the Veteran's GAF scores assigned during the appeal. A GAF score is a scale indicating the psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness. A GAF score between 31and 40 indicates 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, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). GAF 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). A GAF score between 51and 60 indicates 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 coworkers). GAF scores of 61 to 70 are indicative of some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, with some meaningful interpersonal relationships. A GAF score is highly probative as it relates directly to his level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. DSM-IV; Massey v. Brown, 7 Vet. App. 204, 207 (1994). The Veteran's treating VA psychiatrist and social worker both assigned a GAF of 45, reflecting a "huge impact" and "significant limits" on his ability to function both socially and occupationally, due to PTSD. This score reflects serious symptoms and impairment consistent with a 70 percent rating. The VA examiner and VA treatment records show GAFs of 50, 52, and 55, reflecting serious to moderate symptoms observed on those particular dates. However, the Board finds that the GAF of 45 more accurately describes the Veteran's symptomatology, especially the significant effect of his symptoms on his ability to function. The Board finds that the Veteran's symptoms that result in deficiencies in most areas. The evidence shows that many of his symptoms are not enumerated in the rating criteria, including avoidance, flashbacks, intrusive thoughts, nightmares, and hypervigilance. However, the focus in evaluating psychiatric claims is the overall impact a Veteran's specific psychiatric symptoms have upon his level of occupational and social functioning. Mauerhan; Vazquez-Claudio. Thus, the Board finds that the Veteran's disability picture and symptomatology, taken as a whole and in combination with the objective mental status examination, have more nearly approximated the criteria for a 70 percent rating for the entire appeal period. Finally, the Board finds that the Veteran's symptoms have been stable throughout the appeal and therefore staged ratings are not appropriate. Francisco. Based on the foregoing, a 70 percent disability rating for PTSD is warranted for the entire appeal period, effecting a complete grant of the benefit sought on appeal. ORDER Effective April 30, 2009, a 70 percent rating for PTSD is granted, subject to the law and regulations governing payment of monetary benefits. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs