Citation Nr: 1338019 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 11-14 348 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to a disability rating in excess of 50 percent for the period prior to January 31, 2011, for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Lech, Associate Counsel INTRODUCTION The Veteran had active service from May 1991 to December 1993. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida that granted a higher 50 percent rating for PTSD, effective December 17, 2009. Jurisdiction of this matter is with the RO in Detroit, Michigan. Thereafter, in a June 2011 decision, the RO granted a temporary 100 percent rating for the period from January 31, 2011, to April 30, 2011, based on hospitalization pursuant to 38 C.F.R. § 4.29. Therefore, the Board's consideration of the claim for a higher rating necessarily excludes the time period for which the temporary total rating was in effect. In addition, in a September 2011 rating decision, the RO granted a schedular 100 percent disability rating for PTSD, effective May 1, 2011. Since the grant of the 100 percent rating for this period is the maximum schedular rating available, it constitutes a full grant of the benefit for the period beginning on May 1, 2011. However, as higher ratings are available for the period prior to May 1, 2011, the claim for increase for the period prior to May 1, 2011, excluding any period of a temporary total rating, remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The Board has reviewed the physical claims file and the Virtual VA electronic claims file. FINDING OF FACT The Veteran's PTSD symptomatology has more nearly approximated total occupational and social impairment for the entire period on appeal. CONCLUSION OF LAW With resolution of all reasonable doubt in favor of the Veteran, the criteria for a 100 percent disability for PTSD have been met for the period prior to January 31, 2011. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2013) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). In this decision, the Board has granted the maximum 100 percent rating for service-connected PTSD for the entire appellate period. This represents the maximum benefit that can be assigned by law (either by schedular or extraschedular application), and is thus a full grant of the benefit sought on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). As such, no discussion of VA's duty to notify and assist is necessary. Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating applies. 38 C.F.R. § 4.7 (2013). The Veteran's entire history is to be considered when assigning disability rating. 38 C.F.R. § 4.1 (2013); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When rating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant's capacity for adjustment during periods of remission. VA 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)(2013). When rating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign an rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b)(2013). On December 17, 2009, the RO received the Veteran's claim for an increased rating for his service-connected PTSD. In the March 2010 rating decision, the RO granted a 50 percent disability rating for PTSD, effective December 17, 2009. The Veteran was granted a temporary total disability rating for the period from January 31, 2011 to April 30, 2011, pursuant to a June 2011 rating decision, and a September 2011 rating decision granted the maximum 100 percent schedular rating for PTSD, effective May 1, 2011. For the period prior to January 31, 2011, the Veteran PTSD is assigned a 50 percent disability rating pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411 (2013). Pursuant to the General Rating formula, a 50 percent rating requires occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once per 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 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 work like setting); inability to establish and maintain effective relationships. A rating of 100 percent is warranted for 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. Reports of psychiatric examination and treatment frequently include a GAF score. According to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), a GAF scale includes scores ranging between zero and 100 which represent the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health- illness. The GAF score and the interpretations of the score are important considerations in rating a psychiatric disability. See, e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the rating issue; rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a) (2013). In December 2009, the Veteran submitted his claim for an increased rating for his service-connected PTSD. VA medical records show that the Veteran has been re-experiencing the traumatic event from service every day in his dreams and has a sad/depressed mood for most of his life. He has been migratory with employment and is reluctant to make attachments to people. He has been mostly solitary except for communication with his family who live in Michigan. He describes being emotionally "numb at times". He has problems with insomnia, normally sleeping 2 hours per night, decreased concentration, anhedonia, decreased self-esteem, periods of hopelessness and times with suicidal ideation. He has a history of "binge drinking." He was currently working on repairing soda machines, but found it "boring." He does not have any close friends and no outside activities other than work. He had fair eye contact, and his psychomotor activity and cognitive processing were both slow. His affect was sad. Though process was linear, but often pauses during thoughts. There was no evidence of delusions, hallucinations, current suicidal or homicidal ideation, intent or plan. His insight was limited to fair and judgment was fair. He has symptoms of decreased concentration, decreased energy, increased startle response, poor sleep, psychomotor slowing with increased rumination. He has sad mood, anxiety, affective numbing, re-experiencing events and some adrenergic symptoms. he is a self-described loner and has lived a relatively solitary existence for the past 10 to 15 years. He has trouble with trust, especially in new relationships. He was diagnosed with PTSD, chronic, alcohol dependence, depressive disorder, NOS, and was assigned a GAF score of 52. In a January 2010 statement, the Veteran reported that he was hospitalized in November 2009, and has been seeing a social worker, a psychologist, and a psychiatrist at VA. The Veteran related that he experienced flashback, nightmares, insomnia, and intrusive and recurring thoughts, in which he saw the eyes of the young soldier who died in his arms. He stated that he was unable to be around people without experiencing severe anxiety attacks, and that he left Michigan to get away from everyone and everything. He stated that he was unable to sit with his back to the door or to other people, and that he did not care about anything, nor did he think that we would be capable of caring about anything. The Veteran stated that he was married for three years, but that his ex-wife was not able to deal with him and his attacks. He reported that he had 15 jobs since discharge from service in 1993 and that he hated the job he currently had. The Veteran stated that he did not think that his medications were working, and that the PTSD symptoms were not new to him, but that he did not know how to make them stop. A February 2010 VA examination notes that the Veteran has attended therapy with the examiner and included some progress notes in the examination report. The Veteran moved to Florida in July 2009 and had no family or friends in the area. He had been struggling with PTSD symptoms and abusing alcohol to cope. The Veteran reported suicidal ideation and was considered a high risk for suicidal behavior, he took various medications for his PTSD, and attended both group and individual therapy. The Veteran reported that he experienced occasional nightmares/dreams; intrusive thoughts; avoidance behavior; problems with sleep; difficulty concentrating; emotional numbing and feeling distant from others; and depressed mood. The Veteran denied such symptoms as suicidal ideation, homicidal ideation, and hypomanic/manic symptoms. The Veteran decreased his alcohol intake and reported problems at work due to attending his mental health visits. The Veteran also stated that Veteran's Day and other holidays constituted a PTSD stressor for him, resulting in his hospitalization in November 2009. The examiner also noted that the Veteran had suicidal thoughts about twice a year; experienced a high level of depression most of the time; "numbed himself" not to think about the young soldier who died in his arms after being stabbed by a gang in Germany; avoided people, even at work; did not go shopping until about 6am; experienced anxiety, dysthmia and anhedonia; experienced decreased energy; and loss of interest in pleasurable activities. The examiner assigned the Veteran a GAF of 65 at the medication management visit and described the impact on the Veteran's personal, social, physical and occupational functioning as moderate. Mental status examination revealed that the Veteran appeared clean, neatly groomed, and appropriately dressed. The Veteran made no eye contact; his speech and motor activity were unremarkable; his attitude cooperative; his affect constricted; his mood depressed and dysphoric; his attention intact; he was oriented; his thought content was unremarkable; he denied delusions; he judgment was intact; his intelligence was average; and he had insight into his problem. The examiner noted that the Veteran experienced sleep impairment and woke up every one-two hours; he denied hallucinations; did not exhibit inappropriate behavior; interpreted proverbs appropriately; did not report any obsessive or ritualistic behavior; denied homicidal or suicidal thoughts or episodes of violence; exhibited fair impulse control; was able to maintain minimum personal hygiene; his memory was normal; and he did not have issues with activities of daily living. The Veteran experienced panic attacks when he was around people, trying to escape, and felt warm, burning, with sobbing and a rating heart during those attacks. The examiner stated that the Veteran's PTSD symptoms included daily intrusive recollections of the young American killed in Germany; dreams occurring sometimes three-four times a week, sometimes up to two weeks with no dreams, which woke him up; no flashbacks; anxiety caused by being in crowds of people; mild to severe distress when exposed to cues, resulting in the Veteran removing himself from the situation or staying home due to panic attacks; daily avoidance of thoughts and feeling of the stressor event, resulting in the Veteran staying at home; daily avoidance of activities, people, and places, again resulting in the Veteran staying at home; diminished interest in activities; detachment from others and self; restricted range of affect; sleep disturbances; infrequent high irritability or outbursts of anger; and daily difficulty in concentration, resulting in loss of interest in everything. The Veteran denied the inability to recall important aspects of the trauma; sense of foreshortened future; exaggerated startle response; and hypervigilance. The Veteran also denied any remission of his symptoms, and the examiner stated that his prognosis was poor. After conducting testing, the examiner noted that the Veteran's PTSD symptoms were moderate. The testing showed that the Veteran had concerns about work, relationships, depression/anxiety; low energy; poor concentration; he isolated himself and was emotionally detached and isolated from others; and had a difficult time with trust. The examiner noted that the validity of the psychological test results was unclear. The Veteran was usually employed as a temporary construction worker, working servicing Pepsi vending machines for the past six weeks. The examiner confirmed the diagnosis of PTSD and assigned the Veteran a GAF score of 57. He noted that the Veteran could not talk with others; lost concentration; avoided people; isolated from family; had no relationships; had no interests; felt out of control; experienced hyperarousal; and experienced intrusive thoughts and dreams, as well as avoidance behaviors, that were a direct result of PTSD. The examiner stated that the symptoms increased the Veteran's anxiety, depression, irritability, major mood swings, and interfered with social and occupational functioning. The symptoms also reduced the Veteran's ability to cope with daily stressors and lowered his self-confidence and self-esteem. The depression and anxiety the Veteran experienced were secondary to PTSD; that the Veteran's alcohol use has decreased; and that the prognosis for improvement was poor, as the Veteran's mood was not stable. He concluded that that the Veteran experienced reduced reliability and productivity due to PTSD symptoms. In his June 2010 notice of disagreement, the Veteran stated that he was working to overcome his social impairment and had been listening to his doctors, but that on his first trip out into the public, he was arrested for punching a police officer in May/June 2010. The Veteran stated that he had a severe panic attack, someone grabbed his shoulder, he "totally freaked out", turned around, and hit the officer. The Veteran reported that the blacked out and came to only to realize that he was in jail. The Veteran stated that he was not going out anywhere in public [again]. In a May 2011 statement (accepted in lieu of a VA form 9), the Veteran stated that he had three hospitalizations for suicidal and homicidal ideation, a fight with a police officer, and destroyed his roommate's house because the roommate did not clean. The Veteran reported that he experienced anger outbursts and dizziness caused by stress. He stated that he experienced continuous depression throughout approximately three years of therapy, and that his three-year marriage was the only relationships that he had had. The Veteran reported that he was working on repairing the relationship with his family, but did not think things would be the same as they were before the incident [of him destroying his uncle's kitchen]. The Veteran stated that he had held five different jobs since his last VA examination [February 2010] due to his inability to handle crowds, anger outbursts, and severe anxiety when around people. The Veteran reported that his isolation was so severe that when he did have a home, he would park in the back so that no one would know he was home. The Veteran disagreed with the VA examination GAF score of 57, stating that he had been continuously evaluated at 40-45. In an October 2012 statement, the Veteran reported that after his November 2009 hospitalization, he was arrested for assaulting a police officer and moved back to Michigan immediately thereafter, as he did not believe that he was capable of taking care of himself. He reiterated that he was admitted to the hospital in January 2011 for suicidal and homicidal ideation and that, while there, he had threatened doctors and nurses. The Veteran also added that he experienced severe depression, hallucinations, severe anxiety, hypervigilance, sleep disorders, nightmares, flashbacks, the inability to maintain employment, and social isolation. He also stated that he was on 15 different medications that caused him side effects such as dizziness, agitation, and suicidal and homicidal ideation; and added that he has held about 20 different jobs since his discharge from active service in 1993. In January 2013 correspondence, the Veteran provided a chronology of his hospitalizations and claims-related filings beginning in November 2009 when he was hospitalized for being suicidal. He added to the record that he had altercations with other people and family members, not only the police office and the doctor, but that those altercations were not reported. Specifically, that he had an altercation with a police officer in June 2010, and that his PTSD symptoms had worsened and that he trashed his uncle's kitchen in December 2010 due to anger issues and increased PTSD symptoms. In a January 2013 statement, the Veteran stated that, at the time of his November 2009 hospitalization, he was socially avoidant, suffered from nightmares and flashbacks, experienced severe depression most of the time, and suffered from insomnia, sometimes getting only two hours of sleep at a time. The hospital flagged the Veteran as a high risk for suicidal behavior. In his statement, he reiterated that he had assaulted a police officer, experienced a spotty and inconsistent employment history, and was hospitalized for treatment of his PTSD from January 2011 to August 2011. Based on a thorough review of the record, the Board concludes that the evidence is at least in relative equipoise as to the level of psychiatric disability during the entire appeal period, and as to whether it is reasonable to conclude that the disability picture is comparable to a 100 percent rating. Therefore, with favorable resolution of reasonable doubt in the Veteran's favor, the Board finds that a 100 percent schedular rating under Diagnostic Code 9411 is warranted during the entire period of the appeal. 38 C.F.R. § 4.7 (2013). The evidence shows that the Veteran's PTSD symptoms are of greater severity than the current 50 percent disability rating provides. With respect to the rating criteria, the pertinent evidence of record shows that the Veteran's PTSD symptomatology included recurring and constant thoughts and recollections of the trauma from service, grossly inappropriate behavior, such as assaulting a police officer and medical staff and destroying his uncle's kitchen; at times presenting with suicidal ideation and thoughts; and the intermittent inability to perform activities of daily living, including going shopping, or performing errands. He experienced constant depression and anxiety; hypervigilance; chronic sleep impairment; nightmares; markedly diminished interest and participation in significant activities; feeling of detachment and estrangement from others; sense of a foreshortened future; exaggerated startle response; suspiciousness; extreme difficulty in establishing and maintaining effective relationships; and the inability to maintain employment. The Veteran had been hospitalized three times in in-patient psychiatric wards due to the severity of his PTSD symptoms. The Veteran avoided people and was basically completely isolated. The Veteran was on as many as 15 medications at a time that caused him side effects such as dizziness, agitation, and suicidal and homicidal ideation. In addition, the Veteran has held about 20 different jobs since his discharge from active service in 1993. The Board finds that the Veteran has exhibited the above symptoms consistently for years, and that any decreases in the Veteran's symptoms were always sporadic, only temporary, and never long-lasting. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2013). Furthermore, the Veteran, while a lay person, is competent to describe mental health symptoms, such as persistent depression and anger, which are within the realm of his personal experience. Layno v. Brown, 6 Vet. App. 465 (1994). Moreover, his statements in this regard are considered credible as they are both internally consistent and in accord with the other evidence of record. Caluza v. Brown, 7 Vet. App. 498 (1995) (indicating that the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant). In granting the 100 percent for the Veteran's PTSD, the Board has considered the rating criteria in the General Rating Formula for Mental Disorders not as an exhaustive list of symptoms, but as examples of the type and degree of the symptoms, or effects, that would justify a particular rating. The Board has not required the presence of a specified quantity of symptoms in the rating schedule to warrant the assigned rating for PTSD. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board is aware that the GAF scores assigned of 52, 57, and 65 appear to reflect less impairment than contemplated by the 100 percent rating. In this regard, according to the DSM-VI, a GAF score of 51 to 60 is indicative of moderate symptoms (e.g., flat affect and circumstantial speech, and occasional panic attacks) or moderate difficulty in social, occupational, or school functioning. A score of 61-70 represents 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, and has some meaningful interpersonal relationships. Such symptoms appear to correspond to no more than the 50 percent disability rating currently assigned in this case. However, the Board reiterates, as noted above, that the GAF scores assigned in a case, like an examiner's assessment of the severity of a condition, are not dispositive of the evaluation issue; rather, they must be considered in light of the actual symptoms of the Veteran's disorder (which provide the primary basis for the rating assigned). See 38 C.F.R. § 4.126(a). In this case, the extent and severity of the Veteran's actual PTSD symptoms reported and/or shown are suggestive of total occupational and social impairment; the level of impairment contemplated in the highest 100 percent disability rating for psychiatric disabilities, notwithstanding the GAF scores. The Veteran's overall picture is that he is unemployable and that the PTSD symptoms have been continuous and increasing in severity. It is the descriptions of the Veteran's symptomatology during this time period that provide the most accurate guide to identifying the severity of his PTSD. 38 C.F.R. § 4.21 (2013) (not all cases will show all findings specified in the rating criteria, but the rating must in all cases be coordinated with actual functional impairment). Thus, a 100 percent disability rating is warranted. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As 100 percent is the maximum rating available, a higher rating is not available. ORDER An increased 100 percent disability rating for the Veteran's service-connected PTSD is granted for the period prior to January 31, 2011, subject to the provisions governing the award of monetary benefits. ____________________________________________ Lesley A. Rein Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs