Citation Nr: 1338596 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 07-37 796 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial disability evaluation in excess of 50 percent for the Veteran's posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C.K., Counsel INTRODUCTION The Veteran had active service from July 1987 to June 1991. He served in Southwest Asia and was awarded the Combat Action Ribbon (CAR). This matter came before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Waco, Texas, Regional Office (RO) which established service connection for PTSD; assigned a 50 percent evaluation for that disability; and effectuated the award as of May 17, 2006. In April 2010, the Veteran was afforded a hearing before the undersigned Acting Veterans Law Judge sitting at the RO. A hearing transcript was prepared and associated with the record. In March 2013, the Board remanded the Veteran's appeal to the RO for further action. The Board has reviewed both the Veterans Benefits Management System (VBMS) and the "Virtual VA" file so as to insure a total review of the evidence. This appeal was processed using the VBMS and "Virtual VA" paperless claims processing systems. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDING OF FACT The Veteran's PTSD has been shown to be manifested by a depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; "memory loss for names of close relatives, own occupation, or own name;" impaired judgment; gross impairment in thought processes or communication; disturbance of motivation and mood; difficulty establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances including work or a work-like setting; an inability to establish and to maintain effective relationships; obsessional rituals which interfere with routine activities; impaired impulse control such as unprovoked irritability with periods of violence; a persistent danger of hurting himself or others; and Global Assessment of Functioning (GAF) scores of 50 to 70. CONCLUSION OF LAW The criteria for an initial 100 percent evaluation for the Veteran's PTSD have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 4.3, 4.7, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Court issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473(2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this decision, the Board grants an initial 100 percent schedular evaluation for the Veteran's PTSD. Therefore, no further discussion of VA's duties to notify and to assist is necessary as to that issue. II. Initial Evaluation The Veteran asserts that record supports the assignment of an initial 100 percent evaluation for his PTSD as the disability is productive of essentially total occupational and social impairment. The report of a November 2006 VA psychiatric examination states that the Veteran was diagnosed with PTSD. A GAF score of 55 was advanced. In November 2006, the RO established service connection for PTSD; assigned a 50 percent evaluation for that disability; and effectuated the award as of May 17, 2006. As will be established below, the Board finds that the Veteran's PTSD more nearly assignment of an initial 100 percent schedular evaluation as it has been shown to be manifested by total social and occupational impairment as the result of symptomatology including a depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; "memory loss for names of close relatives, own occupation, or own name;" impaired judgment; gross impairment in thought processes or communication; disturbance of motivation and mood; difficulty establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances including work or a work-like setting; an inability to establish and to maintain effective relationships; obsessional rituals which interfere with routine activities; impaired impulse control such as unprovoked irritability with periods of violence; a persistent danger of hurting himself or others; and GAF scores of 50 to 70. Disability evaluations are determined by comparing the veteran's current symptomatology with the criteria set forth in the Schedule For Rating Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. A 50 percent evaluation is warranted for PTSD which is productive of occupational and social impairment with reduced reliability and productivity due to symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks occurring 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 or forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation requires occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 an inability to establish and maintain effective relationships. A 100 percent evaluation requires total occupational and social impairment due to symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, a persistent danger of hurting herself or others, an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In his May 2006 claim for service connection, the Veteran advanced that his PTSD was manifested by "severe mood swings, obsessive tendencies; severe depression, easily [irritability], and much more" which affected his "work, study, and relationships." At the November 2006 VA psychiatric examination, the Veteran complained of recurrent combat-related nightmares, persistent irritability, angry outbursts, "road rage," "sporadic difficulty controlling his impulses with explosive behavior, intermittent suicidal ideation, emotional distress when interacting with his children, and social isolation. He reported that he was currently employed; held 11 different jobs over the preceding 15 years; and had difficulty interacting with his family. The Veteran was observed to be well groomed and to be oriented to person, place and time. On mental status examination, the Veteran exhibited depression; severe anxiety; "hypervigilance that borders on delusions;" and no memory impairment, obsessive or ritualistic behavior, or suicidal or homicidal ideation. A GAF score of 55 was advanced. The examiner commented that the Veteran "has been able to maintain employment, but with a good deal of difficulty." A May 2007 VA mental health clinic treatment record states that, the Veteran complained of recurrent combat-related intrusive thoughts and nightmares; twice weekly suicidal thoughts; and homicidal thoughts while angry. He reported that he had previously attempted suicide; had held 16 different jobs; and quit a job when he became frustrated. The Veteran was oriented to person, place, and time. On mental status examination, he was logical; goal directed; and exhibited no signs of delusions or psychosis. An October 2007 VA treatment record states that the Veteran complained of "a lot of anger issues," frustration; social isolation; and "thoughts of getting on [a] roof top and shooting people." In his November 2007 Appeal to the Board (VA Form 9), the Veteran conveyed that he was constantly angry, frustrated, hypervigilant, disoriented, and socially isolated. He reported that he has become violent toward co-workers over the slightest social interaction. At a December 2007 VA psychiatric evaluation, the Veteran complained of chronic PTSD symptoms including nightmares, angry outbursts, irritability, a sense of a foreshortened future, and social isolation. He reported having had two to three physical altercations at work over the preceding year. The Veteran was observed to be oriented to person, place, and time. On mental status examination, he exhibited panic attacks; "checking behavior, specifically checking doors multiple times a day, preoccupation with symmetry, and avoidance of cracks on the pavement;"impaired impulse control with "occasional physical altercation;" intermittent unformed and non-command auditory hallucinations; mild paranoid ideation; and intermittent suicidal ideation without complete intent or plans. Close personal contact at work was overwhelming. A GAF score of 50 was advanced. The examining psychiatrist commented that "the Veteran has worsened vocational capabilities as he now has verbal and occasional physical altercations at work." At the April 2010 hearing before the undersigned Acting Veterans Law Judge, the Veteran testified that: he had obsessional rituals that interfered with his daily functioning including constantly rearranging his closets and basement; was hypervigilant and constantly on guard and had flashbacks; had suicidal ideation; he had never held a job for more than a year; and was only employed due to the accommodations of his current employer. At a July 2013 VA psychiatric examination, the Veteran reported that while he was currently employed, he expected to lose his job as his contract was not being renewed. On examination, the Veteran's PTSD was reported to be manifested by a depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; "memory loss for names of close relatives, own occupation, or own name;" impaired judgment; gross impairment in thought processes or communication; disturbance of motivation and mood; difficulty establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances including work or a work-like setting; an inability to establish and to maintain effective relationships; obsessional rituals which interfere with routine activities; impaired impulse control such as unprovoked irritability with periods of violence; and a persistent danger of hurting himself or others. A GAF score of 70 was advanced. Notwithstanding the Veteran's severe psychiatric symptomatology which he documented, the examiner concluded that "I cannot consider the Veteran anywhere close to being unemployable." During all relevant periods, the Veteran's service-connected psychiatric disability has more nearly approximated total social and occupational impairment as the result of symptoms such as a persistent danger of hurting himself or others; impaired impulse control such as unprovoked irritability with periods of violence; a depressed mood; anxiety; suspiciousness; panic attacks; "memory loss for names of close relatives, own occupation, or own name;" impaired judgment; gross impairment in thought processes or communication; disturbance of motivation and mood; difficulty establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances including work or a work-like setting; an inability to establish and to maintain effective relationships; and obsessional rituals which interfere with routine activities. The Board acknowledges that the Veteran was not found to be unemployable due to his PTSD at the most recent VA psychiatric examination. However, given documented severity of the psychiatric symptomatology and upon applications of the provisions of 38 C.F.R. §§ 4.3, 4.7, the Board concludes that an initial 100 percent schedular rating is warranted for the entire initial evaluation period. ORDER An initial 100 percent schedular evaluation for the Veteran's PTSD is granted subject to the law and regulations governing the award of monetary benefits. ____________________________________________ J. T. HUTCHESON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs