Citation Nr: 1343404 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 03-31 985 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to an initial disability rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Daniel Krasnegor, Esq. ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran had active service from April 1970 to November 1971, with service in the Republic of Vietnam, for which he received a Combat Infantry Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Commonwealth of Puerto Rico. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a complete review of the evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT For the entire period on appeal, the Veteran's PTSD manifested in symptoms more nearly approximating total occupational and social impairment, than impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria of an initial disability rating of 100 percent, for the entire period on appeal, for service-connected PTSD, have been met or approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.21, 3.321(b), 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. Legal Criteria and Analysis The Veteran was granted entitlement to service connection for PTSD in a November 2009 rating decision and assigned an initial 50 percent disability rating, effective June 18, 2002. The Veteran appealed, requesting a higher rating. The Board notes that the Veteran is currently in receipt of multiple disability ratings for various service-connected disabilities related to his service in the Republic of Vietnam. Notably, the Veteran has been awarded a total, 100 percent disability rating for service-connected coronary artery disease due to herbicide exposure; this total disability rating was found to be permanent in a November 2005 rating decision. He has been receiving 100 percent disability benefits since March 2003. The Board notes it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C.A. § 1155. Psychiatric disability is rated under the General Rating Formula for Mental Disorders. PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411, and the current 50 percent evaluation is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty 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; difficult establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where 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; 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 inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted where 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; and memory loss for names of close relatives, own occupation, or own name. Id. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). 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. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126(b). The Global Assessment Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (1996). A score of 31 to 40 reflects some impairment in reality testing or communication or major impairment in several areas such as work or school, family relations, judgment, thinking, or mood. A score of 41 to 50 is assigned where there are "[s]erious 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)." DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM-IV) 47 (4th ed. 1994). A score of 51 to 60 is appropriate where there are "[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers)." Id. A GAF score of 61 to 70 indicates the examinee has some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functions pretty well with some meaningful interpersonal relationships. Id. at 46. While particular GAF scores are not contained in the VA schedule of ratings for mental disorders, 38 C.F.R. § 4.130, they are a useful tool in assessing a Veteran's disability and assigning disability evaluations. However, they are just one of many factors considered when determining an evaluation. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, including degree of disability, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3 The United States Court of Appeals for Veterans Claims (Court) has held that when the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119 (1999). At the outset, the Board notes that while the Veteran did not file his claim of entitlement to service connection for PTSD until June 2002, the record indicates that he has been receiving intermittent mental health treatment since as early as March 1983, when he was admitted to a Puerto Rican hospital after attempting to commit suicide. At that time the Veteran was assigned a diagnosis of rule out major depression and schizophrenic disorder and was discharged with orders to be transferred to the San Juan VA Medical Center for continued treatment. VA treatment records show that the Veteran had two periods of inpatient treatment in 1983, with documented complaints of auditory hallucinations, fears, insomnia, and anxiety. These records show that the Veteran was diagnosed with major depression with psychotic features. Additionally, the record indicates that prior to filing his claim for entitlement to service connection, the Veteran filed for, and was granted, disability benefits with the Social Security Administration (SSA) in December 1983, due to his mental health disability. Of record are private treatment records from Dr. F.L., which show in 2002 the Veteran sought mental health treatment for symptoms of "nervousness" and after mental status examination he was diagnosed with PTSD and assigned a GAF score of 44. The Veteran continued to receive intermittent PTSD treatment from Dr. F.L., and in an April 2007 letter Dr. F.L., explained that the Veteran's PTSD manifested in symptoms of flashbacks, nightmares, nervousness, anger, and depression. He also stated that the Veteran experienced intrusive thoughts of his combat experiences, avoidance symptoms, restricted affect, hypervigilance, insomnia, difficulty concentrating, and exaggerated startle response. Dr. F.L. assigned a GAF score of 42 at the time of the April 2007 letter. VA treatment records associated with the claims file, show that following his 1983 hospitalizations at the San Juan VAMC, the Veteran did not seek routine mental health treatment until 2002, which became more regular in December 2006. These records show that in June 2004 the Veteran was admitted to the San Juan VAMC following a suicide attempt. During this period of inpatient treatment, the Veteran reported that his PTSD, which at that time was diagnosed as depressive disorder by the VAMC, manifested in symptoms of frequent episodes of feeling sad or depressed, crying spells, feelings of guilt, loss of interest in activities, loss in energy, fatigue, sleep impairment, poor concentration, and feelings of worthlessness and hopelessness. In August 2007, it was noted that the Veteran had complained of many symptoms attributable to PTSD, and a diagnosis of "rule out PTSD" was added to his primary diagnosis of major depressive disorder and anxiety disorder. In November 2008, the Veteran was seen at the VAMC for a PTSD evaluation, at which time he was given an official VA diagnosis of PTSD. The Board notes that the symptoms the Veteran reported in November 2008 [i.e., sleep impairment, irritability, angry outbursts, concentration problems, hypervigilance, exaggerated startle response, guilty feelings, avoidance, self destructive or impulsive behavior, social withdrawal, and impaired relationships with others] are consistent with the symptoms documented and reported in the private and VA treatment records associated with the claims file since the Veteran first began seeking voluntary mental health treatment in 2002. The Veteran was afforded a VA examination in August 2003. At that time, the examiner noted the Veteran's 1983 hospitalizations and that he had been given a diagnosis of major depression with psychotic features by the VAMC at that time. At the time of his examination, the Veteran reported that he lived with his wife and his 27 year old daughter. He reported a history of daily alcohol use until 1999. He reported that he had been employed as a diesel mechanic until 1982 and that he now received disability benefits from SSA. He reported that after separation from active service, he lived in New York until 1981, and that while in New York, he was hospitalized at Jacobi Hospital in 1971 for suicidal ideas. He reported symptoms of depression, poor sleep, even with medication, and nightmares. He reported that he had suicidal ideas frequently, that those ideas usually came at night when he could not sleep, and that his medication helped sometimes. He reported that he was usually alone at home because his wife worked and his daughter studied, and that he was more depressed when he was alone. He reported one previous violent altercation, which occurred between 1985 and 1987, when he assaulted another man and broke his nose. He reported that he spent his time watching television. On mental status examination, the Veteran was noted to be clean and adequately dressed and groomed. He was alert and oriented to person, place, month, and year. His mood was anxious and depressed and he exhibited some odd behavior. His affect was noted to be blunted. His attention, concentration, and memory were all noted to be fair. His speech was clear and coherent, he was not hallucinating, and there was no suicidal or homicidal ideation present. His insight and judgment were noted to be fair and he was found to exhibit good impulse control. After examination the examiner noted that the Veteran did not fulfill the diagnostic criteria for PTSD, but noted a diagnosis of chronic schizophrenia with some mild cognitive defects. The Veteran was assigned a GAF score of 55. The Veteran was afforded a new VA examination in March 2006. The Veteran's previous psychiatric hospitalizations and suicide attempts were noted. During the examination, the Veteran reported that his symptoms had been present for many years, and referred to a suicide attempt in 1979 while living in New York. The Veteran reported auditory hallucinations and an inability to tolerate people, implying he was easily irritated. He reported that because of his irritability he tended to remain isolated from others, particularly in the last few years, as he preferred to stay at home and was afraid to go out. He reported that sometime after his return from the Republic of Vietnam and sometime before his 1979 suicide attempt, he got into a physical altercation with his boss and lost his job. He reported that after the 1979 suicide attempt, he decided to return to Puerto Rico, which he did in 1981; however, his mental health continued to deteriorate. He reported that his symptoms had prevented him from working since 1982 and that he was in receipt of SSA benefits. He reported that despite his medication, his mind remains active and his "thoughts are with [him] all the time." He reported that he completely avoided, when he could, going out for any type of activity. He reported that he continued to have almost constant thoughts of suicide, but that he had made no more attempts since he was hospitalized in 1983 after attempting to hang himself. [However, the Board notes that he was hospitalized in 2004 after a suicide attempt.] He reported feelings of depression, and acknowledged that he felt sad, frustrated, and overwhelmed by his condition. He reported that he became tearful many times and that he was unable to watch war movies without crying. He reported sleep impairment, despite his medication. On mental status examination, the Veteran was found to be casually dressed. He was noted to be mostly avoidant of direct eye contact, although he was cooperative during the interview. He showed no impairment of thought process or communication. There were no delusions present, but he described some auditory hallucinations. The Veteran endorsed suicidal and homicidal ideation; he mentioned that there are times when he saw his wife and suddenly wanted to kill her for no reason. He had the ability to maintain his personal hygiene and other activities of daily living. He was oriented to person, place, and time, although it was noted that his memory showed lacunae for many specific details. He was noted to have difficulty with retention, concentration, and ability to remember specific details regarding past and recent memories. His affect was very constricted and his rate and flow of speech was noted to be slow, but logical. There was no obsessive or ritualistic behavior. After examination, the examiner noted that the Veteran did not meet the diagnostic criteria for PTSD as he did not have persistent symptoms of increased arousal related to his experience in the Republic of Vietnam. The examiner assigned the Veteran a diagnosis of schizoaffective disorder, depressive type and a GAF score of 50 to 45. The Veteran was afforded another VA examination in November 2008. At that time, the Veteran reported that he had been married for 39 years and had four children and three grandchildren. He described his relationship with his family as "good." He reported that he had no relationship with his neighbors, that he had no friends at all, and that his only leisure pursuit/activity was watching television. He reported a history of suicide attempts in 1979 and 1982; both times he attempted to hang himself. He denied any history of violence or assaultiveness; however, the examiner noted that this was contradicted by the record as he had previously reported a physical altercation with a former employer while living in New York and another altercation that occurred sometime between 1985 and 1987 when he broke another man's nose. He reported that he had no social life due to the fact that he easily lost his temper, so he preferred to stay at home. He denied any alcohol or substance use. On mental status examination, the Veteran was clean and appropriately dressed. His speech was unremarkable, spontaneous, clear, and coherent. He was cooperative and attentive with the examiner. His affect was noted to be constricted and his mood was anxious. He was able to perform the serial 7's and spell a word forward and backward. He was oriented to person, time, and place. He was noted to have an overabundance of ideas and was preoccupied with one or two topics. There were no delusions or hallucinations present. His judgment was good, in that he understood the outcome of his behavior, his intelligence was noted to be average, and he understood that he had a problem. He endorsed sleep impairment, but reported that he still felt good the next day. He was not noted to have any inappropriate, obsessive, or ritualistic behavior. He did not report any panic attacks or suicidal or homicidal ideation. The Veteran's impulse control was noted to be fair. He was able to maintain a minimum level of personal hygiene and had no problems with activities of daily living. His remote, recent, and immediate memory were all normal. It was noted that the Veteran had been unemployed for more than 20 years due to his mental condition and that the Veteran's history of an uninterrupted period of illness with symptoms of marked hallucinations, nightmares, interrupted sleep pattern, anxiety, depressive mood, intrusive thoughts of war, and withdrawal from people other than family, certainly supported his occupational impairment. After examination, it was noted that the Veteran did not meet the criteria for a diagnosis of PTSD and he was assigned a diagnosis of schizoaffective disorder, depressive type and a GAF score of 55. The Veteran was afforded another VA examination in May 2009. At that time it was noted that the Veteran's current mental health treatment included anti-psychotic, anti-depressant, and anti-anxiety medications. It was noted that he attended group and individual therapy, which was noted to have a fair effect. The Veteran reported severe nightmares every night and moderate to severe irritability on a daily basis. He reported that he had tended to isolate himself from others since active service, and that this had worsened in the last few months. He reported that he did not want to go out or see people, that he did not want to talk about his combat experiences, and that this was one of the reasons he avoided people. He reported a severe startle response since his separation from active service. He reported that after separation from active service he was engaged in an altercation with his boss, and the police were called. He referred to another incident when he attacked a person and broke his nose. He reported that he had a good relationship with his wife and four children, but did report some marital trouble immediately following his separation. He reported that he engaged in no activities or leisure pursuits and reported a history of suicide attempts. He denied any problems with alcohol use and denied any use of other substances. The Veteran reported that he had suffered from his symptoms since he returned from the Republic of Vietnam and that they were present "90 percent of the time" and in a severe intensity, with only mild relief provided by his treatment, but that his irritability, sleep impairment, and nightmares were continuous. He reported that he maintained his isolation because he was afraid of losing control and harming another person. On mental status examination, the Veteran was noted to be casually dressed and tense. His speech was unremarkable and his attitude was cooperative. His affect was normal and his mood was anxious. He was unable to perform the serial 7's, but was able to spell a word forward and backward, with some difficulties. He was oriented to person, time, and place. His thought process was unremarkable, but he was noted to be preoccupied with one or two topics. There were no delusions, hallucinations, or suicidal or homicidal ideation present at the time of the examination. He understood the outcome of his behavior and that he had a problem. His intelligence was noted to be average, he was able to interpret proverbs appropriately, and he did not exhibit any inappropriate behavior. There was no obsessive/ritualistic behavior noted and he was not noted to experience panic attacks. The Veteran's impulse control was noted to be fair as he had a history of violent episodes. He was noted to have the ability to maintain a minimum level of personal hygiene and did not have any problems with his activities of daily living. His remote memory was mildly impaired, in that he had some difficulty with dates, but his recent and immediate memory were normal. It was noted that the Veteran suffered from recurrent and intrusive distressing recollections of his combat experiences, including nightmares. He was noted to engage in efforts to avoid thoughts, feelings, or conversations associated with the combat experiences, or that could arouse memories of such. He had a markedly diminished interest or participation in significant activities and feelings of detachment or estrangement from others. It was noted that he had persistent symptoms of hyperarousal in that he had difficulty falling or staying asleep, irritability, angry outbursts, and exaggerated startle response. After examination, the Veteran was assigned a diagnosis of PTSD and a GAF score of 55. The examiner noted that the Veteran's PTSD caused total occupational and social impairment, and it was acknowledged that the Veteran had been unemployed for more than 20 years due to his mental condition and had been awarded SSA disability in 1983. Based on a review of the evidence, the Board finds that a disability rating of 100 percent, for the entire period on appeal, is warranted for the Veteran's service-connected PTSD. In this regard, the Board notes that the evidence of record strongly suggests that since the Veteran filed his claim for service connection in June 2002, he has been suffering from severe PTSD symptoms that include: nightmares, sleep impairment, flashbacks, anxiety, depression, suicidal ideation (with numerous attempts), homicidal ideation, irritability, angry outbursts, hypervigilance, exaggerated startle response, avoidance, isolation, withdrawal, memory impairment, difficulty concentrating, auditory hallucinations, feelings of guilt and hopelessness, impaired impulse control, and episodes of violence. While the Board notes the record does not indicate that the Veteran suffers from all of these symptoms on a constant basis, it is apparent that his symptoms, however manifested, have been severe in nature since he filed his claim of entitlement to service connection. Further, the record shows that these symptoms have resulted in total occupational and social impairment since at least the time the Veteran filed his claim for service connection. In this regard, the Board notes that the Veteran has not worked since 1982, and he filed for, and was awarded, SSA disability benefits due to his mental health disability in 1983. The Board notes that even when the Veteran was still employed, sometime before returning to Puerto Rico, the Veteran's PTSD symptoms allegedly caused him significant impairment, as he has reported that his irritability and angry outburst resulted in a physical altercation with his supervisor. Additionally, the Board notes that the Veteran has consistently reported, at his VA examinations and during his mental health treatment, that he has remained socially isolated as a result of his PTSD. He has denied having any friends or socializing in any way with his neighbors. He does not engage in any leisure activities and spends all of his time alone in his home. He has reported that he has a "good" relationship with his wife and four children, but the Board does not find any evidence in the record that shows the Veteran even socializes with these family members. The Board notes that the Veteran's wife accompanies the Veteran to his therapy sessions at times, and there is no evidence that she has reported he participates in any family events. Further, the Board notes at the Veteran's most recent VA examination in May 2009, the VA examiner noted that the Veteran's PTSD resulted in total occupational and social impairment. Therefore, the Veteran is entitled to a 100 percent disability rating for the entire period on appeal. The Board acknowledges that the results of the VA examinations and the symptoms described in the mental health treatment notes do not indicate that the Veteran experiences all the symptoms associated with a 100 percent disability rating for PTSD for the entire period on appeal. However, as noted above, the Court has held that the symptoms enumerated under the schedule for rating mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan, 16 Vet. App. 436 (2002). Moreover, this case could arguably be remanded for a medical opinion as to which symptoms and impairment are due to the now service-connected PTSD versus the other previously diagnosed psychiatric disabilities. However, the 2009 VA examiner did opine that the severity of the Veteran's PTSD symptoms had been present 90 percent of the time since his separation from service and that PTSD can be associated with psychotic symptoms such as hallucinations and dissociative events. Thus, a finding that there is total occupational and social impairment sufficient to warrant a 100 percent disability rating for the entire period on appeal, even though all the specific symptoms listed for a 100 percent rating are not manifested. ORDER Entitlement to a 100 percent disability for PTSD, for the entire period on appeal, is granted, subject to the laws and regulations governing payment of monetary benefits. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs