Citation Nr: 1428501 Decision Date: 06/24/14 Archive Date: 07/03/14 DOCKET NO. 12-17 507 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to an initial rating higher than 30 percent for posttraumatic stress disorder (PTSD) for the period prior to August 23, 2012 and higher than 50 percent for the period since. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran served on active duty from January 2002 to January 2006. He received the Combat Infantryman Badge, among other decorations. This appeal to the Board of Veterans' Appeals (Board) arose from a January 2012 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Lincoln, Nebraska which-in pertinent part, granted service connection for PTSD with an initial 30-percent rating, effective November 21, 2011. The Veteran appealed the initial rating. In a March 2013 rating decision, a decision review officer (DRO) increased the initial rating from to 50 percent, effective August 23, 2012. In an April 2013 statement (VA Form 21-4138), the Veteran noted he was satisfied with the 50-percent rating but asserted it should have applied to the entire initial rating period. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (the veteran may indicate he is content with a certain rating, even if less than the maximum possible rating). At the hearing, however, he reported increased symptoms and contended he was entitled to rating higher than 50 percent. The Veteran testified at a Board hearing via video conference in December 2013 before the undersigned. A transcript of the hearing testimony is associated with the claims file. At the hearing, the Veteran submitted additional medical evidence under waiver of initial RO review and consideration of the evidence. In light of the waiver, the Board may consider the evidence without the necessity for a remand. See 38 C.F.R. § 20.1304 (2013). The issue of entitlement to an initial rating for PTSD in excess of 50 percent is REMANDED to agency of original jurisdiction (AOJ). The Veteran will be advised if further action is required on his part. FINDINGS OF FACT For the period since November 21, 2009, the Veteran's PTSD has been manifested by reduced reliability and productivity. CONCLUSIONS OF LAW The requirements for an initial evaluation of 50 percent for PTSD have been met, since the effective date of service connection. 38 U.S.C.A. § 1155, (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9411 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Governing Law and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The symptoms recited in the criteria in the rating schedule for evaluating 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." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath, 1 Vet. App. at 594. A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the effective date of service connection. See Fenderson v. West, 12 Vet. App. 119 (1999). Hence, the Veteran is entitled to a staged rating where indicated by the evidence. Analysis Rating Criteria PTSD that manifests with occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events) warrants an evaluation of 30 percent. 38 C.F.R. § 4.130, DC 9411. A 50-percent evaluation will be assigned for PTSD where the evidence shows occupational and social impairment with reduced reliability and productivity due to such symptoms as: a flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70-percent evaluation applies when a veteran's occupational and social impairment reflects 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; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; or an inability to establish and maintain effective relationships. Id. A 100-percent rating is assigned 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; and memory loss for names of close relatives, own occupation, or own name. Id. The GAF score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness." See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed.1994) (DSM-IV). Parenthetically, the Board notes VA has not yet implemented DSM-V. Hence, DSM-IV is still the governing directive. A GAF of 55 is midway of the range 51 to 60, and is indicative of 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, conflicts with peers or co-workers). The December 2011 examination report and other medical evidence notes the Veteran worked full time as of the date of the examination. It noted further that the Veteran was single, lived alone in an apartment, and he maintained contact with his extended family. The Veteran reported few friends, thought he did report a couple whom he saw every once in a while. He did not socialize with any co-workers due to the age difference. The Veteran reported he had difficulty being around a lot of people. His outings were limited to a small local bar where he saw the same people all the time. Veteran's Symptomatology The Veteran has been the recipient of outpatient mental health treatment since 2009. The Veteran complained of chronic sleep deprivation, racing thoughts, flashbacks, and nightmares which he described as watermarks. He also reported social anxiety, depression, and tendency to isolate. In June 2009, the Veteran denied any active or passive suicidal ideation. He was variously diagnosed with bipolar disorder, PTSD, and depressive disorder. The therapist noted the Veteran was very resistant to treatment. On several occasions he was noted be agitated. In April 2009, the therapist noted the Veteran's depression had resolved, and his primary symptoms were decreased concentration and distractibility. In July 2009, his case was closed. A May 2010 entry noted the Veteran had stopped his weekly therapy due to scheduling conflicts. As of November 2010, the Veteran had completed his college education and had just started a job with an information technology contractor at Offutt Air Force Base, Nebraska. The December 2011 examination report reflects the examiner noted review of the claims file and the Veteran's electronic records. The examiner included, verbatim, the Veteran's January 2009 intake assessment. That assessment noted the Veteran denied ever having experienced suicidal ideation or thoughts he would be better off dead, but he did wonder sometimes what things would be like if her were not around. The examiner also noted that, while the Veteran met the vegetative criteria for major depressive disorder, he had not had sustained depression lasting more than two weeks but an intermittently depressed mood over a long period of time. The January 2009 entry noted diagnoses of PTSD and depressive disorder not otherwise specified (NOS). Obsessive compulsive personality traits were noted in Axis II. The December 2011 examination report then noted the Veteran's military and social history. The December 2011 examination report reflects the mental status examination (MSE) revealed the Veteran presented for the examination alone and appropriately attired in casual attire. He appeared his stated age, was very verbal, appeared intelligent, and interacted well with the examiner. The Veteran was oriented in all spheres, and his attention and concentration were intact. The Veteran described his mood as defeated and anxious, on edge, and depressed. The examiner noted the Veteran's insight and judgment were intact. He reported he had trouble getting to and staying asleep, and that he had a lot of dreams related to his military experience. He described them as intermittent-sometimes occurring nightly for a week, while at others, maybe a couple of times a week. The Veteran was able to interpret a proverb; and, his memory for remote, recent, and immediate events were intact. In response to the examiner's question, what did he do on the previous day, the Veteran replied that he went to work, did not wear a tie, and he had Jimmy Johns for dinner. The Veteran described how his recall of his service in Afghanistan was constant and, at times they caused him to feel depressed. As a result, the Veteran reported there were times he needed to remove himself from work and go to a quiet place until the mental images moved on. At other times, he did not go to work because of a bad night, and he knew he would not be productive. In the portion of the examination report that notes the examiner's assessment of whether the Veteran's symptoms met the DSM criteria for a diagnosis of PTSD, the examiner noted the Veteran's symptoms caused clinically significant distress of impairment in social and occupational functioning. As concerns the symptoms the examiner noted supported the diagnosis of PTSD, the examiner noted depressed mood, anxiety, and chronic sleep impairment. He resumed treatment at a Vet Center in January 2012. At that time, he reported suicidal ideation, disturbed sleep, irritability or aggressiveness, anxiety, and depression. There was evidence of hallucinations. He continued to work as a contractor at the Air Force Base. In December 2012, he was given a GAF of 59. At the hearing, the Veteran testified that many of the symptoms he reported to the 2011 examiner were not noted on the examination reports. For example, he reported occasional suicidal ideation which was not noted. Hence, the Veteran suggested he was not properly rated for the period prior to August 23, 2012. At a VA examination in August 2012, the examiner indicated that the Veteran's PTSD symptoms were those listed in the rating criteria for a 50 percent rating; and assigned a GAF of 53. At the hearing, the Veteran testified that he had the same symptoms at the time of the December 2011 examination as subsequently reported. Using the list of clinical symptoms listed on the Disability Benefits Questionnaire (DBQ) as a guide, the Veteran asserted he reported suicidal ideation but the examiner did not list it. The Veteran testified he had occasional suicide ideation. He related the examiner asked the question, which he answered in the affirmative, but the examiner did not note it as one of his, the Veteran's symptoms. See Transcript, pp. 8-9. The Veteran also testified, in response to a question from his representative, that he suffered from obsessional ritual behavior. When asked for an example, the Veteran responded that he had been known to check his doors and locks three to five times prior to going to bed. The Veteran testified further that the examiner in fact inquired into the subject, but that particular symptom was not checked. Id., pp. 9-10. He also asserted the examiner did not note near continuous depression. Since before the date of service connection, the Veteran's disability has fluctuated, but GAFs have been indicative of moderate disability. Although he has been able to maintain work relationships, he reportedly has had difficulty establishing social relationships. Having had the opportunity to observe the Veteran at his hearing, and review the record, the Board finds that a 50 percent rating is warranted throughout the appeal period. In reaching this decision the Board considered the doctrine of reasonable doubt and allowed it where indicated by the evidence. See 38 C.F.R. §§ 4.3, 4.7. Further, the Board has also allowed a staged rating where supported by the evidence. See 38 C.F.R. § 3.400. ORDER Entitlement to a 50 percent rating for PTSD is granted, effective November 21, 2011. REMAND At the hearing the Veteran reported a level of current symptoms that was worse than that reported in the previous treatment and examination reports. He is entitled to a new examination. Snuffer v. Gober, 10 Vet. App. 400 (1997). Accordingly, the case is REMANDED for the following: 1. Afford the Veteran a new examination to evaluate the current severity of his PTSD. 2. If the benefit sought is not fully granted, issue a supplemental statement of the case and return the appeal to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded Kutscherousky v West, 12 Vet App 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans Appeals for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs