Citation Nr: 1336902 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 06-36 253 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M.H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty from April 1966 to April 1970. He is the recipient of, among other decorations, the Navy Commendation Medal with "V" device and the Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision of the Department of Veterans Affairs (VA) regional office (RO) located in St. Paul, Minnesota that granted the veteran's claim for service connection for PTSD with depression and assigned a 30 percent disability rating, effective September 12, 2005. A July 2006 rating decision granted a higher initial evaluation of 50 percent disabling, effective September 12, 2005. A March 2010 rating decision granted a higher initial evaluation of 70 percent disabling, effective September 12, 2005. The Veteran continues his appeal. See AB v. Brown, 6 Vet. App. 35 (1993). In November 2009, May 2010, August 2012, and May 2013, the Board remanded the Veteran's claim so that additional records could be obtained and associated with the claims file. In May 2013, the Board also ordered a VA examination. The Veteran's claims file is electronic and located in Virtual VA and VBMS. FINDING OF FACT Resolving any doubt in the Veteran's favor, the evidence demonstrates that his PTSD has been manifested by symptomatology that more closely approximates total occupational and social impairment. CONCLUSION OF LAW The criteria for an initial grant of 100 percent for PTSD have been approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.125-4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Given the Board's favorable disposition of the claim to for an initial total (100 percent) rating for PTSD, the Board finds that failure to discuss VCAA compliance will result in harmless error to the Veteran. Laws and Regulations Disability ratings are assigned in accordance with the 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. See 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, 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. The Board observes that in cases where the original rating assigned is appealed, consideration must be given to whether a higher rating is warranted at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). The Court has held that 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). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Any reasonable doubt will be resolved in favor of granting the veteran's claim. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. § 3.102. The Veteran's PTSD was evaluated under Diagnostic Code 9411. Regulations pertaining to the criteria for evaluating psychiatric disorders, including PTSD, provide for a 70 percent disability rating there is 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 a work-like setting); and the inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 100 percent evaluation is warranted 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. Id. In evaluating psychiatric disabilities, the Board has adopted the Diagnostic and Statistical Manual of Mental Disorders, 4th ed., American Psychiatric Association (DMS-IV). That manual includes a Global Assessment of Functioning (GAF) scale reflecting psychological, social and occupational functioning on a hypothetical continuum of mental illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996)(citing DSM-IV). A score of 41-50 indicates 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 score of 51-60 is assigned where there are 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, conflict with peers or co-workers). See Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Washington, DC, American Psychiatric Association, 1994. The symptoms and manifestations listed under the above rating formula are not requirements for a particular evaluation, but are examples providing guidance as to the type and degree of severity of these symptoms. Consideration also must be given to factors outside the rating criteria in determining the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Factual Background and Analysis The Veteran's service-connected PTSD is currently rated 70 percent, effective September 12, 2005 (date of formal claim). The Veteran contends that his symptoms are more severe, and warrant a 100 percent rating. Notably, in a May 2010 rating decision, the RO granted entitlement to total disability based on individual unemployability, effective September 12, 2005. In November 2005, the Veteran was afforded a VA PTSD examination. He was well-groomed, aware, and cooperative during the interview. He lived with his wife of 31 years, and had three grown children. He reported that his father "beat" him during his childhood. He has a sister and two half-brothers. He indicated he did not keep in contact with his sister, indicating this was due to her religious views. He discussed his employment history after service, and the motor vehicle accident in June 2001 which resulted in his inability to continue physical employment. During service, the Veteran served as a door gunner and was exposed to mortar and sniper fire. During his service he witnessed the death of a close friend. He reported that he was irritable, easily angered, and had trouble "dealing with people." He feels he was harsh to his own children when they were growing up. He experienced intrusive thoughts, nightmares related to service, difficulty sleeping, rare flashbacks, emotional distress (which increased after his medical retirement) and he grinded his teeth and chewed his fingernails. He stated he wished he had killed fewer people during service, and that this caused him to be "unhappy." He became tearful when explaining he remembered most of his military experiences, but he could not remember the voice of his friend who was killed in action. He reported a history of being a "heavy drinker" and participating in numerous "bar fights," but stated he stopped this behavior with his marriage and children. He felt distant and detached from others and emotionally numb. He also reported concentration difficulties, hypervigilance and "feeling jumpy with loud noises." Although he continued to endorse irritability, he denied ever being physically abusive to his wife or children. He "worked to not lose control" because he knew he could hurt someone. The Veteran described living in an "earth home" which is three feet underground, and could be "fortified if World War III came." His hobby is reloading and selling ammunition, and so he has up to 500,000 rounds of ammunition in his home at any given time. He reported "moderate levels of distress and impairment in his social and occupational areas of functioning with more severe impact soon after his return" from service. He was diagnosed with PTSD and assessed with a GAF of 55. In July 2006, the Veteran was afforded a VA general medical examination. During the examination he reported that he had not worked since 2001. The examiner thought that the available paperwork made it appear that "this is due to emotional challenges," but the Veteran stated it was due to residuals of a motor vehicle accident. He reported he worked as a cement mason right before he became disabled, but that "Rollover told him he would not be reemployed after he had some conflicts with the foreman." Regarding his mental health concerns, he reported sleep impairment and stated that he was "easy to anger." Additionally, the Veteran was afforded a VA PTSD examination in July 2006. He reported significant pain since his 2001 accident. He was noted to live in a "secure bunker with only one exposed wall and constructed of heavy concrete block construction to withstand any sort of attack." He reported that he is armed at all times. His hobbies included reloading ammunition and hunting and fishing. He and his wife would also travel in their trailer to as far as California and Florida. He reported difficulty "getting along with people." His only friends were fellow veterans, and he described himself as irritable and socially-isolated. Due to tension and anxiety-driven grinding of his teeth, the Veteran had several teeth pulled. "He has stopped being violent, but he is very irritable and apparently argues with his wife a good deal." He reported symptoms of hypervigilence, easy startle response, nightmares, poor sleep, and cautiousness. He denied suicidal impulses. During the interview, the Veteran was well-groomed and cooperative. His speech was normal but his affect was tense. He admitted feeling depressed, with tearfulness and irritability. He denied alcohol abuse or drug use. He was assessed with PTSD with prevalent depression and was assigned a GAF of 50. A January 2007, PTSD intake evaluation noted the Veteran was well-groomed, with normal cognition and memory. He was cooperative and calm, but guarded. He denied suicidal or homicidal ideations. He was noted to have intact judgment and insight. He reported that friends, who were diagnosed with PTSD, had told him that he likely suffered from PTSD as well, and that they felt his symptoms were worse than their own. He reported a military history of service in the U.S. Marines during the Vietnam war as a door gunner. He worked in construction until 2001, and then he could no longer work due to pain. He reported a close family relationship between his wife and adult children. He continued to live with his wife of more than 30 years. He reported long-term feelings of depression. He was noted to have a large collection of weapons and to regularly carry a weapon. He has thrown things, broken things, and punched walls when in conflicts with his wife. The Veteran did not want to share any stressful events with the VA social worker, and so a diagnosis of PTSD was deferred. He was assigned a GAF of 50. In August 2007, the Veteran sough psychological assistance through therapy with the VA, which included couples, group and individual counseling. He reported increased difficulty with anger, frustration, and health issues. He was mildly anxious but had a full range of affect. He denied suicidal or homicidal ideation or intent, although he was aware of increased levels of aggression in his mood. In September 2007, the therapist noted that the Veteran demanded that those who operated within his "sphere of influence" behave a certain way. The examiner noted that this egocentric point of view was damaging to his relationships. In another September 2007 treatment note, the therapist noted the Veteran had not undergone testing because he was "attempting to continue to suppress many of his vulnerabilities as a deep-seated psychological defensive barrier to further pain." A similar note was in the Veteran's individual treatment note from December 2008. The last two treatment records, from February and March 2009, began to address the Veteran's in-service traumas and experiences. During group therapy in August 2007, the Veteran began to "rant" about the VA, and his "general presentation was quite angry and frustrated...with much profanity." He snapped at the female social worker who was leading the group when she attempted to redirect his attention. He was noted to be "angry again" during his September 2007 group meeting. He was hostile to other group members angry at the VA and had trouble "settling down." He was assessed with a GAF of 52 by the mental health interdisciplinary treatment plan team. He was calmer during his October 2007 meeting, but defensive and continued to express anger. Group meeting notes reveal that the Veteran generally carried a loaded weapon and kept a loaded weapon in his home. This was a source of some contention as others in the group did not think it was wise, and the Veteran felt that he was careful with his possessing and carrying of firearms. A November 2007 group therapy note revealed the Veteran expressed less anger than in prior sessions. He was still a "very vocal member," and was "talking more than other members." He was involved in a conflict with another member "over which branch of service did more in Vietnam," but was able to be redirected. In December 2007, the Veteran was assigned a GAF of 60. He was guarded, defensive, sarcastic and hostile initially. He was groomed, but only volunteered limited information. His speech was normal, and his thought content was adequate. His insight was poor, but judgment good. He denied suicidal ideation, and cited religion as the reason, though he voiced a passive death wish. Also in December 2007, he complained of significant sleep disturbance and a "poor memory." In January 2008, subsequent to testing, there was evidence to suggest the Veteran had "severe memory impairment." His memory was better for information which was cohesive and contextual (story memory). He was thought to have more difficulty with short-term memory than long-term memory. Behavioral assessment noted he was mildly irritable, and was somewhat frustrated by the testing. His wife reported he would wake up every couple hours, and that he has distressing dreams regarding his service. In May 2008, the Veteran decided to stop taking his sleep medication and antidepressant because he worried the pills would be detrimental to his behavior since he did not feel "fully in control." He did not feel the help he received regarding his sleep difficulties had been working, and so he was going to stop going to those sessions as well. During group sessions in June 2008, the Veteran was noted to be disrespectful of other's comments and to express anger and hostility. In November 2008, the Veteran reported that after learning that a friend was accused of killing fellow soldiers in Iraq, that he was distraught. He drank and used Vicodine in excess on the day he found out, but reported "that was it" and he did not continue to abuse the Vicodine. He made a conscious decision to "just get drunk," which again only happened once and he stated he has been better since. He reported improved sleep, which he attributed to decreased financial stress. He reported going on a hunting trip the week prior, which he enjoyed. He was assigned a GAF of 60. During a group therapy session in January 2009 the Veteran was "verbally challenged by another group member about how he interacts in the group." The Veteran was able to handle this confrontation calmly, but the other group member left. He was given feedback from other group members, and he was receptive and listened. Many of the group therapy records indicate that the Veteran was talkative during group sessions to the point that other members frequently requested that he not monopolize the sessions. Also in January 2009, the Veteran was afforded a VA PTSD examination. The examiner noted the November 2007 results of cognitive testing, which revealed pronounced loss of immediate memory of unrelated material. His memory deficits "did not seem" to be the result of a traumatic brain injury, and psychological testing suggested his deficits were not due to psychological factors because he reported minimal anxiety and mild depressive symptoms. "It is likely that the Veteran's memory deficits are due to difficulty sustaining attention and a lack of mental challenge in recent years." He stated during the interview that his mood was "total crap" for the past six months. In particular, he struggled with feeling depressed, hopeless and helpless after learning of a friend facing murder charges. He denied suicidal ideation but stated he wished for death. He had low energy levels, low self-esteem, and significant survivor's guilt. The Veteran was tearful during the interview. He remained married to a wife of 34 years, but he had conflicted relationships with his children. He was estranged from his son and sister, with occasional contact with his half-brothers. He was able to maintain some friendships outside of his family. He reported his hobbies included "shooting, firearms and re-loading ammunition." His speech was unremarkable, but his attitude was hostile and irritable. He had a constricted affect and depressed mood. He reported difficulty staying asleep, often due to violent dreams. Notably, the examiner described that the Veteran's August 2006 VA examination was prematurely ended when the examining physician discovered the Veteran had a gun in the clinic. The Veteran became upset when he was asked to take his gun back to his car, and he refused to complete the examination. He reported overall irritability and anger toward "whoever happens to be around." His wife described him as a "neat freak, and he stated himself that if his reloaded ammunition is not orderly he will "go nuts." He endorsed homicidal thoughts, and prefaced if he were ever diagnosed with cancer there were ten people he would like to kill. He denied suicidal thoughts. He had mildly impaired memory, intrusive thoughts regarding his service, nightmares, social isolation, detachment, hypervigilence, outbursts of anger, and depressed feelings. He was assigned a GAF of 50. The examiner noted his overall level of functioning appeared similar to that of his July 2006 examination. The examiner noted that the Veteran's individual unemployability was most likely caused by his PTSD. His "significant problems with anger and irritability" would greatly affect his ability to tolerate stress and interact appropriately with others in a work environment. His poor sleep and concentration/memory difficulties would further affect his efficiency and productivity. The examiner noted that the Veteran did not have total occupational and social impairment due to his PTSD symptoms, but that he had deficiencies in most areas (judgment, thinking, family relations, work, and mood) due to his PTSD symptoms. The Veteran was afforded a general medical examination in February 2009. The examination focused on his physical disabilities. The examiner noted that the Veteran's diabetic peripheral neuropathy limited his ability to walk. The residuals of his 2001 accident limited his use of his hands and contributed to his difficulty walking and standing. The examination did not address the Veteran's psychiatric symptoms. In March 2009, during group therapy, the Veteran reported he recently travelled to visit family and friends. He "really enjoyed" the trip, especially visiting two young relatives. During the trip he also saw a friend (soldier) who is awaiting a trial for murdering fellow soldiers in Iraq. Treatment notes reveal the Veteran struggled after his friend was accused of murder. In an April 2009 letter, the Veteran reported several grievances with the VA. He also noted that his "life is not happy at all." He stated he had a poor relationship with his son, a minimal relationship with his daughters, and "an untenable relationship with his wife." He noted that his religion made it unlikely that he would commit suicide, but he wished for death. The tone of the letter was rather angry. In April 2009, the Veteran reported to VA care providers that he had chronic suicidal ideation, but adamantly denied any plans or intent to commit suicide. He was not on psychiatric medication and refused to take any medication. He requested a therapist. In May 2009, a VA psychologist contacted the Veteran regarding his mental health treatment. The Veteran stated he did not feel that therapy was beneficial to him and he did not want to take any medications. He expressed frustration with the VA in his treatment and regarding his benefits. Because he had complaints regarding the therapist he was working with, the psychologist offered to arrange for him to meet with a different therapist, but the Veteran declined. He reported he was not suicidal because "suicide is a sin." He was noted to be in distress, but not judged to be at imminent risk to himself or others. He reported he may withdraw from the support group he had been attending as well. A mental health discharge note from December 2009 revealed that the Veteran declined to continue meeting with a VA social worker after May 2008. He also stopped working with a medication provider in April 2009. The VA social worker noted the Veteran had "been quite irritable at times during his contact with PTSR staff." The Veteran's mental health treatment was closed, but noted that it could be reopened if he ever requested a new appointment. In June 2013, in accordance with the Board's remand instructions, the Veteran was afforded another VA PTSD examination. The examiner indicated that the Veteran's PTSD symptoms resulted in occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking and mood, but did not result in total occupational and social impairment. He reported an argumentative relationship with his wife, which he attributed to his irritability and being opinionated. He was estranged from his son, but reported he "got along fine" with his daughters. He reported two half-brothers, one he no longer talks to and one with whom he infrequently has contact. He reported having three close friends who he sees about weekly. He belonged to the Civil Air Patrol and another organization. He stated he was last employed in 1991, but stopped working after a car accident. He was not in any kind of mental health treatment at the time of the examination. He was angry with his prior care providers and wrote many letters; he also refused medication. The Veteran's PTSD symptoms included depressed mod, anxiety, chronic sleep impairment, mild memory loss, difficulty establishing and maintaining work and social relationships, difficulty adapting to stressful situations, and impaired impulse control. He also had intermittent inability to perform the activities of daily living. He was logical, coherent and mostly cooperative during the interview. He was talkative and communicated with a sense of bravado. He thought of himself as a "survivalist" and lived in a mostly underground concrete house. He "hoards ammunition" and supplies and has for a few years. There were no signs of delusions or hallucinations. The examiner opined that it was at least as likely as not that the Veteran was unemployable due to his PTSD with depression. He noted a severe impairment of the ability to interact with supervisors or coworkers. He also had moderate to severe impairment in judgment and moderate mood impairment. His assigned GAF was 50. As noted above, the Board remanded the claim several times so that the RO could provide missing medical evidence. Although the RO referred to some treatment records as "examinations" in Supplement Statements of the Case, after the last remand requesting copies of these examinations, the RO provided correspondingly dated treatment records. As such, the Board believes that all missing medical evidence has been provided and is located in the electronic record. In adjudicating a claim, the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Here, the Board finds the Veteran's statements to be credible. He has presented consistent complaints and social and medical histories to treatment care providers. The minor discrepancy in the 2013 examination regarding the year he became unable to work due to an accident (1991 instead of 2001 as previously consistently reported) was likely accidental or human error in transcribing. The Board notes that the VA examiners have consistently noted that the Veteran's PTSD symptoms do not render him totally occupationally and socially impaired. The record reveals that the Veteran has remained married, has contact with some family members, has friends, and participates in social occasions (going out to dinner with friends, visiting family, going on vacations with his wife). The VA examiners have, however, consistently noted that the Veteran is unemployable due to his PTSD symptoms. Some symptoms cited as the rationale for unemployability include his inability to act appropriately in social situations and to get along with coworkers and employers. Additionally, the record contains several instances of the Veteran being confrontational and hostile with treatment care providers and fellow veterans during his group therapy sessions. He was singled out by the other members of his group therapy sessions on several occasions for socially inappropriate behavior, such as hostility, anger, defensiveness, and being overbearing during the meetings (talking so much as to disadvantage others). Notably, the Veteran has indicated that his only friends are other veterans. Although the medical evidence does not show that the Veteran has gross impairment in thought processes or communication; persistent delusions or hallucinations; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name, the Veteran does have grossly inappropriate behavior (bringing a loaded gun to a VA examination, starting arguments during group therapy); persistent danger of hurting self or others (although he denies suicidal intent due to religious believes, he wishes for death and surrounds himself with guns); and intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene). Thus, the Veteran's symptoms fall between the criteria for a 70 percent and 100 percent rating. As the VA examiners have noted that his PTSD renders him unemployable, and the record demonstrates significant anger, depression, and paranoia (stockpiling ammunition, guns and supplies and living in an underground bunker-style home), the Board finds that his symptoms more nearly approximate the higher 100 percent rating for PTSD. As his symptoms have remained relatively consistent throughout the time period on appeal, as noted in the 2009 VA examination. Pursuant to 38 C.F.R. § 4.7, when a question arises as to which of two ratings apply under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. In this case, there is a question as to whether the Veteran's PTSD symptoms warrant a 70 or 100 percent rating under diagnostic code 9411. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the clinical signs and manifestations of the Veteran's symptoms more nearly approximate the criteria for a 100 percent schedular rating under diagnostic code 9411. Accordingly, a total schedular rating for PTSD is assigned for the entire rating period. ORDER An initial total disability evaluation of 100 percent for PTSD is granted, subject to the laws and regulations governing monetary awards. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs