Citation Nr: 0007129 Decision Date: 03/16/00 Archive Date: 03/23/00 DOCKET NO. 98-06 724 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an increased disability rating for post- traumatic stress disorder (PTSD), currently evaluated as 50 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. L. Kane, Associate Counsel INTRODUCTION The veteran had active military service from January 1968 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, which denied a disability rating in excess of 30 percent for the veteran's service-connected PTSD. Thereafter, a July 1999 rating decision assigned a 50 percent disability rating for the veteran's PTSD. However, this was not a full grant of the benefit sought on appeal because a higher disability rating is available under Diagnostic Code 9411. On a claim for an original or an increased rating, the claimant is generally presumed to be seeking the maximum benefit allowed by law and regulation, and such a claim remains in appellate status where a subsequent rating decision awarded a higher rating, but less than the maximum available benefit. AB v. Brown, 6 Vet. App. 35, 38 (1993). Therefore, this issue remains before the Board. FINDINGS OF FACT 1. The veteran's claim is plausible, and sufficient evidence has been obtained for correct disposition of this claim. 2. The veteran's service-connected PTSD is manifested by mood disturbances such as depression and anxiety, increased irritability, occasional flashbacks, chronic sleep disturbances, hypervigilence, violent thoughts, panic attacks, obsessive rituals, difficulty with social interaction, and social isolation, resulting in serious social and occupational impairment. CONCLUSIONS OF LAW 1. The veteran has stated a well-grounded claim for an increased evaluation for PTSD, and VA has satisfied its duty to assist him in development of this claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103 (1999). 2. The criteria for a 70 percent disability rating, and no higher, for PTSD are met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.125, 4.126, and 4.130, Diagnostic Code 9411 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The first responsibility of a claimant is to present a well- grounded claim. 38 U.S.C.A. § 5107(a) (West 1991). A claim for an increased disability rating is well grounded if the claimant alleges that a service-connected condition has worsened. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). The veteran has complained of increased psychiatric symptomatology; therefore, his claim is well grounded. VA has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103 (1999). The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a well-grounded claim for an increase, but the medical evidence is not adequate for rating purposes, an examination will be authorized. 38 C.F.R. § 3.326(a) (1999). Reexamination will be requested whenever VA determines that there is a need to verify either the continued existence or the current severity of a disability. 38 C.F.R. § 3.327(a) (1999). Generally, reexaminations are required if it is likely that a disability has improved, if the evidence indicates that there has been a material change in a disability, or if the current rating may be incorrect. Id. In this case, the RO provided the veteran appropriate VA examinations in 1997 and 1999. There is no indication that VA or private treatment records exist that the RO failed to obtain. It appears that the veteran is receiving Social Security benefits, but it is not known whether this is based on his PTSD. Ordinarily, VA would obtain these records. See Hayes v. Brown, 9 Vet. App. 67, 74 (1996) (VA is required to obtain evidence from the Social Security Administration, including decisions by the administrative law judge, and give the evidence appropriate consideration and weight). However, in the circumstances of this case, it is not necessary to remand this case to obtain Social Security records. The objective findings reported in the VA examination reports from 1997 and 1999, in conjunction with the VA outpatient records for treatment between 1996 and 1999, provide sufficient evidence to rate the service-connected disability fairly. The VA examination reports provide information as to the veteran's complaints and disability resulting from his PTSD. There is no objective evidence indicating that there has been a material change in the severity of the veteran's PTSD since he was last examined. Moreover, there is no indication that the Social Security records would provide any additional information other than that already shown by the evidence of record. In this case, there is enough evidence to render a favorable decision. Accordingly, no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Murphy v. Derwinski, 1 Vet. App. 78 (1990); Littke v. Derwinski, 1 Vet. App. 90 (1990). Disability ratings are intended to compensate reductions in earning capacity as a result of the specific disorder. The ratings are intended, as far as practicably can be determined, to compensate the average impairment of earning capacity resulting from such disorder in civilian occupations. 38 U.S.C.A. § 1155 (West 1991). Evaluation of a service-connected disorder requires a review of the veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1 and 4.2 (1999). For a claim for an increased rating, the primary concern is the current level of disability. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Peyton v. Derwinski, 1 Vet. App. 282 (1991). It is also necessary to evaluate the disability from the point of view of the veteran working or seeking work, 38 C.F.R. § 4.2 (1999), and to resolve any reasonable doubt regarding the extent of the disability in the veteran's favor. 38 C.F.R. § 4.3 (1999). If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation 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 (1999). The veteran is evaluated under Diagnostic Code 9411 at 50 percent. The current 50 percent disability 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 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; difficulty in establishing and maintaining effective work and social relationships. The criteria for a 70 percent rating are: 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 worklike setting; inability to establish and maintain effective relationships. And, the criteria for a 100 percent rating are: 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. 38 C.F.R. § 4.130 (1999). The medical evidence shows assignment of a GAF score of 44 upon VA examination in 1999. A GAF score of 41-50 contemplates 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). DSM-IV at 44-47 (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)). A GAF score is highly probative as it relates directly to the veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. See Massey v. Brown, 7 Vet. App. 204, 207 (1994). The Board has reviewed the recent evidence, which consists of VA outpatient records for treatment between 1994 and 1999, the reports of the VA examinations conducted in 1997 and 1999, and the veteran's contentions. The criteria for a 50 percent disability rating generally contemplate a moderate severity of psychiatric symptoms, but this is clearly not the veteran's situation. The veteran's psychiatric symptoms have resulted in a high level of social isolation. He has little, if any, social interaction with others. The veteran is afraid to leave his home unprotected, and the medical evidence indicates that it is a "major event" in his life to leave his home for any reason, including traveling to the VA Medical Center for treatment or examination. He is apparently unable to make the trip to the VA Medical Center alone because he is afraid to do so. For the most part, he remains secluded in his home. The veteran experiences panic and/or depression at such a level that it affects his ability to function independently. At the VA examination in 1999, he was highly anxious. The veteran's PTSD symptoms have always included mood disturbances such as depression, anxiety, irritability, sleep disturbances, and hypervigilence. However, he has experienced increased symptoms recently. He now suffers from regular panic attacks. He has begun exhibiting obsessive rituals. These interfere with his routine activities in the sense that if he leaves his home before completing his routines, he must return to finish the rituals. He has reported experiencing an increase in violent thoughts towards others as his neighborhood has become unsafe. He is often unable to go to sleep before 5:00 a.m. At times, he experiences increased memories of Vietnam and flashbacks. The VA examiner discussed a letter that the veteran's treating physician had placed in his records. That letter, in April 1999, indicated that the veteran was "still functioning at a very low level and stays disabled." Even though the veteran was cooperative and trusted his treating physician, he felt "unprotected" while in the office and was always very anxious to leave as soon as the visit ended. Prior to 1997, the veteran's psychiatric symptoms did not affect his functioning to such a degree that he found it necessary to seek outpatient treatment. However, since January 1997, he has received treatment on a regular basis (approximately every three months). Moreover, he had previously expressed fears about taking psychiatric medications, but his increased symptoms became so intrusive in 1997 that he began taking such medications. The Board has considered the requirement of 38 C.F.R. § 4.3 to resolve any reasonable doubt regarding the level of the veteran's disability in his favor. Even though he has not exhibited symptoms such as impaired speech, spatial disorientation, or neglect of personal appearance and hygiene, the Board concludes that the objective medical evidence and the veteran's statements regarding his symptomatology shows disability that more nearly approximates that which warrants the assignment of a 70 percent disability rating. See 38 C.F.R. § 4.7 (1999). The GAF score assigned in 1999 supports this conclusion. That scores reflects "serious" impairment in social and occupational functioning, which is commensurate with a higher degree of social and industrial impairment as required for the assignment of a 70 percent or higher disability evaluation. The Board considered assigning the veteran a rating higher than 70 percent, but the preponderance of the evidence is against assignment of such a rating. He meets none of the criteria for a rating higher than 70 percent. For example, he has never exhibited impairment in thought processes or communication. He does not experience delusions or hallucinations, and he has not exhibited inappropriate behavior. His personal hygiene is appropriate. There is no objective evidence of disorientation or memory loss. Therefore, a higher rating is not warranted. (CONTINUED ON NEXT PAGE) ORDER Entitlement to a 70 percent disability rating, and no more, for post-traumatic stress disorder (PTSD) is granted, subject to the governing regulations pertaining to the payment of monetary benefits. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals