Citation Nr: 1330207 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 11-08 162 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut THE ISSUE Entitlement to an evaluation in excess of 50 percent for post traumatic stress disorder (PTSD), from the initial grant of service connection. REPRESENTATION Appellant represented by: Connecticut Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from January 1969 to November 1971. By rating action in January 2005, the RO denied, in part, service connection for PTSD. The Veteran and his representative were notified of this decision and did not appeal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 decision by the RO which reopened and granted service connection for PTSD, and assigned a 50 percent evaluation; effective from June 11, 2007, the date of the reopened claim. A notice of disagreement was received in April 2010, a statement of the case was promulgated in March 2011, and a substantive appeal (VA Form 9) was received in March 2011. A videoconference hearing before the undersigned was held in August 2011. FINDINGS OF FACT 1. Prior to January 12, 2009, the Veteran's PTSD was productive of occupational and social impairment with reduced reliability and productivity due to various symptoms contemplated by a 50 percent schedular rating, and no higher. 2. From January 12, 2009, the Veteran's symptoms are of such severity as to produce total social and industrial inadaptability. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 50 percent for PTSD prior to January 12, 2009 are not met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.126, 4.130, Part 4, Diagnostic Code 9411 (2012). 2. The criteria for a schedular 100 percent rating for PTSD from January 12, 2009 are met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.126, 4.130, Part 4, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before addressing the merits of the Veteran's claim, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in August 2007. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); see also, Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Kent v. Nicholson, 20 Vet. App. 1 (2006). Furthermore, the Veteran is challenging the initial rating assigned following the grant of service connection. In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). That notwithstanding, the Veteran and his representative were nevertheless apprised of the rating criteria for PTSD in the statement of the case promulgated in March 2011. As to VA's duty to assist, the Board finds that all necessary development has been accomplished and that appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records (STRs) and all VA medical records have been obtained and associated with the claims file. The Veteran was examined by VA twice during the pendency of this appeal, and testified at a videoconference hearing before the undersigned in August 2011. The Board has also reviewed the Veteran's Virtual VA records. Further, neither the Veteran nor his representative have made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the issue on appeal, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. See Shinseki v. Sanders, 129 S.Ct.1696 (2009). Concerning the August 2011 videoconference hearing, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the individual who chairs a hearing must fully explain the issues and to suggest the submission of evidence that may have been overlooked. In the present case, while the undersigned VLJ did not discuss the bases of the prior RO determination, she asked specific questions directed at identifying any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding and might substantiate his claim for increase. Accordingly, the Veteran is not shown to be prejudiced on this basis. Additionally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Based on a review of the claims file, the Board concludes that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. Increased Ratings - In General In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When the appeal arises from an initial assigned rating, as in the present case, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are also appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Under Diagnostic Code (DC) 9411, a 50 percent evaluation is for assignment when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereo-typed 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 disability evaluation is contemplated 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 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent evaluation is warranted when there is evidence 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 for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, DC 9411. The use of the term "such as" in the general rating formula for mental disorders 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 symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as" followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. Id. In evaluating psychiatric disorders, the VA has adopted and employs the nomenclature in the rating schedule based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). See 38 C.F.R. § 4.130. As such, the diagnosis of a mental disorder should conform to DSM-IV. See 38 C.F.R. § 4,125(a). Diagnoses many times will include an Axis V diagnosis, or a Global Assessment of Functioning (GAF) score. The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). PTSD Following a review of the evidence of record, the Board finds that a 50 percent evaluation is warranted for the Veteran's PTSD from the date of his claim to reopen in June 2007, and a 100 percent schedular rating from January 12, 2009, the date of discharge from his initial VA hospitalization in December 2008. In reaching this decision, the Board has considered all the evidence of record, including the numerous VA outpatient notes and hospitalization reports and the assigned Global Assessment of Function (GAF) scale scores during the pendency of this appeal. As an initial matter, the Board notes that VA medical records during the one year prior to the Veteran's request to reopen his claim of service connection for PTSD in June 2007, did not show any specific psychiatric treatment. A VA treatment note for an unrelated matter, dated in August 2006, indicated that the Veteran had previously been followed in the VA mental health clinic, but had not been to the Vet Center in the past year because he felt that it was "a waste of time" and that he declined to go for treatment. The Veteran reported that he did not want to talk about his Vietnam experiences, but said that he had nightmares once a week. He was still drinking a six pack a day and smoking marijuana to relax, and said that he did not want to stop. When seen by VA for medications in February 2007, the Veteran reported that he had nightmares about twice a week and would go to the Vet Center, but that he did not want to stop his alcohol or marijuana consumption. An August 2007 VA treatment note indicated that the Veteran had filed to reopen his claim for PTSD and was scheduled for a stay in Northampton VAMC after he stopped his marijuana use. VA records showed that the Veteran was admitted for a 2-day inpatient PTSD evaluation in February 2008. The Veteran reported sad mood, anxiety, insomnia, irritability, fatigability, problems with concentration and memory, restlessness, decreased libido, and social withdrawal. He reported occasional flashbacks, recurrent thoughts/dreams, avoidant behavior, emotional numbing, hypervigilance, and exaggerated startle response. He denied any spontaneous panic attacks, delusions, hallucinations, or suicidal or homicidal ideations. The Veteran reported that he continued to drink four beers most every day, but said that he stopped smoking marijuana in September 2007, in order to enter the VA PTSD treatment program. The Veteran reported that he spends his days watching TV, doing a little house cleaning, feeds the dog and in the summer, works in his yard, mowing the lawn, painting, gardening and other general house maintenance projects. He said that he enjoys fishing on his boat out on the ocean either alone or with his close friends, as it allows him time away from crowds. The Veteran reported that he had worked as an outside machinist at a shipyard, but sustained a back injury on the job and had not worked since 1996. On mental status examination, the Veteran was alert, cooperative and made good eye contact. There was no evidence of any cognitive/memory impairment or thought disorder. His mood was anxious and depressed, and his affect was constricted but appropriate to thought content. The diagnoses included PTSD and depression, and the GAF score was 45. The evidence showed that the Veteran was admitted to a six week VA SIPU/PTSD program in December 2008. During group meetings, the Veteran was quiet and pleasant, but in speaking with him individually, the examiner noted that he could become easily irritated and often swore. In group meetings, the Veteran initially felt intimidated, but became more comfortable and indicated that he was willing to try group sessions. The Veteran reported symptoms of anger, especially road rage and explosive anger with his second wife of 18 years. He also reported isolative behavior to avoid situations and problems. When he's upset, his sleep is very disturbed, but said that this was true most nights even at home. The examiner indicated that the Veteran was well oriented and competent, and that he had been unemployed for over 12 years due to an injury at work. The diagnoses was PTSD and depression, not otherwise specified. The examiner indicated that the Veteran was still rated totally unemployable, and assigned a GAF score of 38. The examiner commented that the Veteran completed Phase I of the SIPU program and made good use of his time on the ward and was an active participant in groups, didactic classes and ward activities. The Veteran was admitted to a two week program for Phase II of the SIPU/PTSD in June 2009. At that time, his symptoms included hypervigilance, poor sleep with early, middle, and late insomnia and nightmares. The Veteran reported monthly flashbacks, depression, anxiety, intrusive thoughts anger and rage, emotional numbing, social isolation, survivor guilt, avoidance behavior and a foreshortened future. During his admission, the Veteran was mostly quiet during group meetings, but did speak when prompted, and shared ongoing problems with road rage and elevated anxiety, particularly when in crowds. The Veteran reported that he tried to avoid crowds and did his shopping around 2 am. He said that his wife told him that he seemed to be "slipping back" into his old habits of avoidance and isolation recently. On mental status examination, the Veteran was cooperative, maintained good eye contact, and was well oriented. His speech was goal directed, his memory was intact and his insight and judgment was fair. His mood was depressed and his affect anxious, but there was no evidence of formal thought disorder or any suicidal or homicidal ideations. The diagnoses included PTSD and depression, and the GAF score was 38. When admitted to a three week program of Phase II of the SIPU/PTSD in June 2010, the Veteran reported that his symptoms were getting worse with increased nightmares, road rage, irritability toward his wife and difficulty falling and staying asleep. He reported frequent sad mood, anxiety, pan-insomnia, irritability, fatigability when he can't sleep, and problems with concentration, restlessness, decreased libido, social withdrawal and anhedonia. The Veteran's description of his PTSD symptoms were essentially the same as on the prior admission and manifested by recurrent intrusive thoughts, flashbacks, emotional and physiologic reactivity to cues that remind him of his traumatic experiences, avoidant behavior, emotional numbing, hypervigilance and exaggerated startle response. The Veteran denied any suicidal or homicidal ideations, spontaneous panic attacks, delusions or hallucinations. The diagnoses was PTSD and depression, and the GAF score was 38. The Veteran's reported symptoms and the clinical findings during a three week admission for Phase II of the SIPU/PTSD program in June 2011, were essentially the same as on his prior admission in July 2010. The Veteran reported that he felt better for about two months after his prior admission, but that things "got worse from there." The Veteran reported that his current emotional state was terrible, that he was moody and had road rage and problems with a neighbor, but said that his relationship with his wife had improved since his last admission. The Veteran reported that he kept to himself and stayed busy around the house watching TV, listening to music and playing with his computer. The diagnoses was PTSD and depression, and the GAF score was 38. The Veteran's reported symptoms and the clinical findings during a three week admission for Phase II of the SIPU/PTSD program from March to April 2012, were essentially the same as on his prior admission in July 2011. He reported ongoing problems with high anxiety, intrusive combat memories, hypervigilance, anger, fear of intimacy, emotional numbing, social isolation, depression and difficulty being around crowds. The Veteran denied any suicidal or homicidal ideations, spontaneous panic attacks, delusions or hallucinations. The diagnoses was PTSD and depression, and the GAF score was 38. The Veteran was also examined by VA twice during the pendency of this appeal, in July 2009 and July 2010. The first examination was conducted for purposes of establishing entitlement to service connection. The examiner indicated that the claims file was reviewed and included a detailed description of the Veteran's complaints, medical history and the clinical findings on examination. The July 2010 examination was conducted for purposes of evaluating the severity of his PTSD. The examiner indicated that the claims file was not reviewed, but that he reviewed the July 2009 VA examination report and the Veteran's electronic VA treatment records. The Veteran's complaints and the clinical findings on both examinations were not significantly different from those described on the VA SIPU hospital reports discussed above. In addition to the symptoms and findings described on those reports, the Veteran reported that he wakes several times a night, and that he checks the doors and windows to make sure they're locked and that the stove is off. He said that he rarely engages in activities with others and does his shopping at 3 am, to avoid crowds. The Veteran also reported that he sometimes sees "ghosts" and images of his deceased mother around the house and believes that his home is haunted, but denied any stress related to this. When examined in July 2010, the examiner noted that the Veteran was an inpatient in the SIPU/PTSD program at that time. The diagnoses was PTSD and depression, and the GAF scores on both examinations was 50. The evidentiary record also includes several Vet Center treatment notes from 1999 to May 2010, and two assessment reports, dated in July 2009 and March 2010. The Veteran's reported symptoms and the mental status findings were essentially the same as on the VA inpatient treatment notes. On the most recent note in May 2010, the Veteran reported his frustration with the VARO and waiting for results, and said that his sleep was restless and that he was up several times a night. He said that working in his garden was good therapy. The assessment reports included a description of the Veteran's medical and military history, and his symptoms associated with PTSD. The diagnoses included PTSD and alcohol abuse, and indicated that a GAF score was deferred. At the videoconference hearing in August 2011, the Veteran testified that he was irritable and always snapping at his wife, and that he regrets doing it and apologizes but still can't seem to control his anger. He reported problems with short term memory loss and nightmares about his combat experiences. His wife does not sleep with him because he thrashes about, and she fears that he might accidentally strike her. He described his isolative behavior, startle response and hypervigilance to various triggers, such as helicopters flying overhead, fireworks, and gunshots from hunters nearby during hunting season. He testified that he checks around the house for security on a regular basis, and that he has difficulty controlling his anger and irritability. He also reported increased difficulty with motivation to fix things around the house. In this case, prior to his admission to the VA SIPU/PTSD program in December 2008, the Veteran's symptoms were manifested primarily by occasional flashbacks and occasional recurrent thoughts, hypervigilance and exaggerated startle response. The evidence showed that the Veteran returned to his monthly meetings at the Vet Center in July 2007, and was seen by VA on only a couple of occasions from February 2007 until his admission into the PTSD program in December 2008. Although he reported a history of isolative and avoidant behavior when seen by VA in February 2008, he said that he enjoyed fishing, particularly out on the ocean with his close friends. He described himself as a jack of all trades, and said that he worked around his house doing electrical and carpentry work and enjoyed working in his garden. He said if it wasn't for the fact that he was disabled from an industrial back injury, he probably could return to work. The Veteran denied any panic attacks, delusions, hallucinations, or suicidal or homicidal ideations. On mental status examination, he was alert, cooperative and made good eye contact. There was no evidence of any cognitive/memory impairment or thought disorder. His mood was anxious and depressed, and his affect was constricted but appropriate. The Vet Center records showed that the Veteran was seen about once a month between July 2007 and November 2008. Other than irritability, anxiety and some problems sleeping, the handwritten notes did not describe any significant psychiatric symptoms or residual impairment associated with his PTSD. The records indicated that the Veteran was working at reducing his alcohol consumption and that he had stopped smoking marijuana around September 2007. While the evidence prior to his admission to the VA PTSD program in December 2008, showed reduced reliability and some problems with interpersonal relationships, it does not suggest that his psychiatric symptoms were of such severity to warrant a rating of 70 percent or higher. The evidence did not reflect any impairment of thought process or communication, such as, inappropriate behavior, a danger of hurting himself or others, or an inability to perform the routine activities of daily living. The Veteran has never displayed any evidence of disorientation or any psychotic symptoms. Accordingly, the Board finds that the Veteran's psychiatric symptoms prior to his admission to the VA PTSD program in December 2008 were consistent with the criteria for a 50 percent evaluation and no higher. Although the Veteran has not displayed any symptoms, such as, gross impairment in thought processes or communication, grossly inappropriate behavior or any psychotic symptoms at anytime during the pendency of this appeal, and is not a danger to himself or others, the records showed that since his initial VA inpatient treatment in December 2008, he has been readmitted for increased symptoms associated with his PTSD at least once a year since then. While the records indicated that the Veteran received some benefit during his admissions, the examiners overall assessments of his PTSD, as reflected in the GAF scores assigned from January 2009 to his most recent admission in March 2012 was 38, which is reflective of some impairment in reality testing or communication, or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., where a depressed man avoids friends, neglects family, and is not able to work). DSM-IV; 38 C.F.R. §§ 4.125, 4.130. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). The material question is whether the Veteran has sufficient occupational and social impairment to disrupt his performance of occupational tasks to the extent set forth in the rating criteria described above for a higher evaluation of 70 percent or greater since January 12, 2009 (the date of discharge from his initial hospitalization in December 2008). 38 C.F.R. § 4.130 (2012). VA regulations provide that when evaluating a mental disorder, the rating agency must consider the frequency, severity and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation 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) (2012). In this case, while the evidence suggests that the Veteran has been able to control his symptoms with medication over the years, the Board does not discount the effect that his irritability, mood swings, sleep disturbance and depression have on his daily life. Whereas the Veteran initially reported that he enjoyed fishing with his friends and working around his house, the record showed that he has increasingly isolated himself since 2009 and is progressively less motivated to engage in activities that he previously found therapeutic because of his PTSD symptoms. The evidence required to warrant a grant of disability benefits does not have to be conclusive. The question is whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In this regard, the Board notes that while the Veteran was assigned GAF scores of 50 on VA examinations in July 2009 and July 2010, the reported scores, in this case, are less persuasive than those rendered by the various treating psychiatrists during the Veteran's inpatient care since his initial hospitalization in December 2008. The scores rendered by the treating psychiatrists were based on their observations and interactions with the Veteran over an extended period of time (two to six week admissions), and is more likely reflects the severity of his overall symptomatology, rather than from a single interview or evaluation. After reviewing the evidence of record, the Board concludes that the Veteran's psychiatric disability picture since January 12, 2009, more closely approximates the criteria for a 100 percent schedular rating. ORDER An initial evaluation in excess of 50 percent for PTSD prior to January 12, 2009, is denied. A schedular evaluation of 100 percent for PTSD from January 12, 2009 is granted, subject to VA laws and regulation concerning payment of monetary benefits. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs