Citation Nr: 0001701 Decision Date: 01/20/00 Archive Date: 01/28/00 DOCKET NO. 98-13 910 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to an evaluation in excess of 30 percent for PTSD. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Taylor, Associate Counsel INTRODUCTION The veteran had active service from January 1991 May 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 1998 rating decision from the Boise, Idaho Department of Veterans Affairs (VA) Regional Office (RO). In February 1999, the RO denied the veteran's application to reopen a claim of service connection for muscle tension headaches, fatigue or tiredness, pain in shoulders and back, breathing difficulties, difficulty sleeping, memory loss or poor concentration, undiagnosed illness manifested by headaches, undiagnosed illness manifested by fatigue, and an undiagnosed illness manifested by joint pain. The RO notified the veteran of that decision by letter dated March 16, 1999. The veteran has not appealed the February 1999 rating decision. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of this appeal has been obtained. 2. The veteran has service-connected PTSD and nonservice- connected depression. 3. The preponderance of the evidence demonstrates that the veteran's service-connected PTSD is manifested by no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.130, Diagnostic Code 9411 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background The veteran's service medical records do not reflect any psychiatric diagnoses. The claims file contains a letter dated March 1995 from a private physician who reported that the veteran suffered from "Gulf Syndrome." The physician opined that this condition was probably caused by chemical exposure, and stated that the veteran had continuous headaches, tremor, various myalgias, nighttime suffocating spells, dyspnea, occasional repeated numbness of the right leg, decreased energy, depression, forgetfulness, intolerance of others, and an inability to concentrate. In July 1995, the veteran reported for a VA psychiatric examination. The examiner reviewed the claims file and noted the veteran's service history, including his service in the Persian Gulf War where he had worked in field service setting up laundries and shower facilities. The veteran stated that he had not actually been involved in combat but reported that he "saw" many dead bodies during service and was still able to recall the smell of them. Further, he stated that since his return from the war he had divorced his wife, withdrawn from family, abused alcohol, been unable to work on a full- time basis, and been unable to "deal" with people. The veteran also reported having difficulties with his memory and concentration, along with feelings of hopelessness and helplessness. Examination revealed that the veteran was alert and oriented. The examiner described the veteran's speech as slow and noted that he appeared to be mildly irritable, manifested primarily through his tone of voice. He made good eye contact and interacted appropriately, although there appeared to be mild psychomotor retardation. His form of thought was lineal, without evidence of psychosis. The examination report indicates that the veteran endorsed prominent anhedonia, insomnia, decreased libido, decreased energy and lack of ambition. The examiner noted that while the veteran reported ideas of suicide, he denied any intention of acting upon those ideas. Judgment and insight appeared to be poor. The examiner opined that the veteran did not report a history consistent with a diagnosis of PTSD, concluding that the veteran suffered from a major depressive episode, which, by history, was probably related to his war experience. The assigned global assessment of functioning (GAF) score was 45 (serious symptomatology). In August 1995, the veteran presented for a VA general medical examination. The examiner noted the veteran's service history, including his service in the Persian Gulf War. The veteran stated that since his return from the war he had had difficulty breathing both day and night, and indicated that he had been exposed to fumes in Saudi Arabia. He complained of back and shoulder pain, occasional numbness in his right thigh, headache, fatigue and sleeplessness, and memory loss in relation to names, dates, and times. Further, the veteran reported that he was under a lot of stress, was emotionally labile, and had lost jobs and his family. The examiner's impression was that the veteran had a possible psychiatric disease. In a medical report dated in April 1997, N. Hakiel, M.A., M. Coun., Ed.S., noted, as background information, that veteran reported being under a lot of pressure while serving in the Persian Gulf War and that his most traumatizing memory was of being on a "bagging detail" for one week, and as a result, experienced nausea and vomiting. The veteran stated that he "can still taste the stench" of dead bodies. The veteran further stated that he still suffered nausea triggered by a variety of odors, which led to an olfactory hallucination. The report indicates that the veteran had explosive episodes of anger, sometimes triggered by cues reminiscent of the war. The veteran reported difficulty sleeping, stress associated with relationships, depression, lethargy, anxiety, and memory loss. Psychological tests were administered and the MMPI-II resulted in a profile that reportedly might be exaggerated. The examiner indicated that the veteran represented a profile of chronic psychological maladjustment, being overwhelmed by anxiety, tension and depression. Further, the examiner indicated that the veteran presented as avoidant, introverted and uneasy around other people. The report states that the veteran was functioning at a low level of efficiency, overreacting to minor stressors and rapid behavioral depression. The examiner summarized that the veteran had PTSD and major depressive disorder, recurrent, severe. The assigned GAF score was 45 (serious symptomatology). The RO denied service connection for major depression in April 1996 and May 1997 rating decisions of which the veteran was advised but did not appeal. A VA medical examination report dated in June 1998, indicates that the veteran's major complaints were feelings of anger, irritability and isolation since he returned from the Gulf war which had increased in severity. When asked by the examiner, the veteran reported that in March 1991, while in the Gulf War, he had a two or three day assignment on a bagging detail to "pick up parts and pieces." He denied flashbacks and nightmares, reporting that he could sleep only for only a few hours at a time and awakened in a cold sweat, at times unable to breathe. He reported that his major problems were anger, irritability and isolation. The veteran stated that he avoided spending time with his daughters and avoided being in crowds because the noise associated with both made him irritable. The report shows that the veteran presented with some degree of irritability and frustration. His affect was somewhat restricted but his cognitive functioning appeared to be intact as was his memory. He denied suicidal ideation, homicidal ideation, and auditory and visual hallucinations. He stated that he was only able to attend work approximately 20 hours per week, even though his job required him to work forty hours per week, due to his PTSD and depression. The diagnoses were PTSD, mild to moderate, and depression. The examiner reported a GAF score of 47, stating that the veteran had a significant degree of impairment due to his depression and a mild-to-moderate form of PTSD. The examiner stated that approximately 50 percent of the veteran's overall level of impairment was due to PTSD and 50 percent was due to depression. Evidence in the claims folder reflects that the veteran had an industrial accident in July 1997, when he was throwing heavy bags of salt over his shoulder. He sustained a neck strain. When he was seen for continuing neck complaints in August 1998 he reported also having some stress-related issues that originated in the military, with a reported history of neck spasms related to that. Statements written by family members and friends indicate that since the veteran returned from the Persian Gulf War, he failed to maintain appropriate personal hygiene. Further, the statements indicate that although he was a good father, the veteran had withdrawn from family, did not want to be touched, had memory loss and was in physical pain. In a rating decision dated in July 1998, the RO established service connection and assigned a 30 percent disability evaluation for PTSD, effective May 14, 1997. The veteran appealed. Pertinent Criteria In rating PTSD, a 30 percent evaluation is warranted for 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, mild memory loss (such as forgetting names, directions, recent events). A 50 percent evaluation is warranted where there is 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, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. 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; inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. A 100 percent evaluation is warranted where there is evidence of 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; disorientation to time or place; memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130. GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed. 1994), p. 32.). GAF scores ranging between 61 to 70 reflect some 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. Scores ranging from 51 to 60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or 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). Scores ranging from 41 to 50 reflect 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). In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. Fenderson, at 121; Cf. Francisco v. Brown, 7 Vet. App. 55, 58 (1994) (where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern). In that decision, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Analysis In general, an allegation of increased disability is sufficient to establish a well-grounded claim seeking an increased rating. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). When a veteran is awarded service connection for a disability and subsequently appeals the initial assignment of a rating for that disability, the claim continues to be well grounded. Fenderson v. West, 12 Vet. App. 119 (1999); Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). In the instant case, there is no indication that there are additional records which have not been obtained and which would be pertinent to the present claim. Thus, no further development is required in order to comply with VA's duty to assist mandated by 38 U.S.C.A. § 5107(a). Disability evaluations are determined by the application of VA's Schedule, 38 C.F.R. Part 4 (1999). The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1999). In determining the disability evaluation, the VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Governing regulations include 38 C.F.R. §§ 4.1, 4.2 (1999), which require the evaluation of the complete medical history of the veteran's condition. In each case, the Board must determine whether evidence supports the veteran's claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Where there is a question as to which of two evaluations shall be applied, 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). All benefit of the doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3 (1999). In this case the veteran's only service-connected psychiatric disorder is PTSD. The RO denied service connection for major depression in April 1996 and May 1997 rating decisions of which the veteran was advised but did not appeal. Thus, inasmuch as depression has been adjudicated as nonservice- connected, it can not form the basis for a higher psychiatric rating. In regard to PTSD, the only specific claimed stressor is related to dead bodies. He first indicated that while in Saudi Arabia during Operation Desert Storm he had seen many dead bodies. He then variously reported that for two to three days/five days/a week he had been assigned to place bodies in body bags. His actual participation in graves registration or similar duties has not been corroborated, although military records indicate that such certainly was not impossible as personnel from units such as the veteran's were assigned those duties. In any event, PTSD has been service connected and the issue now before the Board is the appropriate rating. Nevertheless, his varying accounts raise a question as to the reliability of his statements. At the time of a VA examination in July 1995, the examiner diagnosed major depression rather than PTSD and assigned a GAF of 45. A private clinician diagnosed both major depression and PTSD in April 1997. The GAF assigned was 45. At that time the veteran was afforded psychological tests, which suggested some exaggeration. Similarly, the June 1998 VA medical examination report reflects a GAF of 47. However, the examiner specifically attributed 50 percent of the impairment to PTSD and 50 percent to depression. Thus, were it not for the depression, the GAF would be considerably higher. At that examination the veteran complained of difficulty sleeping but denied flashbacks and nightmares. He stated that his major problems were anger, irritation and isolation. There was no complaint or evidence or panic attacks, difficulty understanding commands, memory impairment, or impairment of abstracting ability, which are all among the criteria for a 50 percent rating. Although unprovoked irritability is a criterion for a 70 percent rating, it must be accompanied by violence, which is not shown in this case. Additionally, the veteran denied suicidal ideation, homicidal ideation, and auditory and visual hallucinations. Although he stated that he could only work 20 hours a week due to PTSD and depression, no evidence corroborating that statement has been identified or submitted. The Board notes evidence showing that in July 1997 the veteran sustained a work-related neck injury with arm symptoms. Although he reported improvement with treatment more than a year after the injury he was again seeking treatment for chronic neck pain with radiation down the left arm and left hand weakness. In an August 1998 private medical record it was noted that the veteran also referred to having some stress related symptoms due to service but there is nothing in that report to indicate that he had been able to work only half time do to PTSD. In sum, the veteran has a nonservice-connected depressive disorder in addition to PTSD. The depression was recently opined by a psychiatric examiner to contribute about 50 percent to the veteran's impairment. The GAF scores reported on several occasions have been in the 45 to 47 range. GAF scores ranging from 41 to 50 have been interpreted as reflecting serious symptoms such as suicidal ideation, severe obsessional rituals, frequent shoplifting, no friends, and an inability to keep a job. See Carpenter v. Brown, 8 Vet. App. at 242 (citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed. 1994), p. 32.). GAF scores ranging from 51 to 60 reflect "moderate symptoms." Thus, even assuming that the diagnosed depression contributes less than 50 percent to the overall psychiatric disability and results in only a five or six point reduction in the GAF, the GAF score would be in the range of moderate symptoms were it not for the depression. In view of the above factors along with the veteran's complaints and psychiatric findings, the Board concludes that PTSD alone results in no more than occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, consistent with no more than the assigned 30 percent rating. Additionally, the Board does not find that consideration of an extraschedular rating under the provisions of 38 C.F.R. § 3.321(b)(1) is in order. The evidence in this case fails to show that PTSD, in and of itself, now causes or has in the past caused marked interference with his employment, or that such has in the past or now requires frequent periods of hospitalization rendering impractical the use of the regular schedular standards. Id. The Board concludes by noting that although the decision herein included consideration of the Court's decision in Fenderson, 12 Vet. App. 119, the veteran has not been prejudiced by such discussion. Case law provides that when the Board addresses in its decision a question that had not been addressed by the RO, it must consider whether the claimant has been given adequate notice of the need to submit evidence or argument on that question and an opportunity to submit such evidence and argument and to address that question at a hearing, and, if not, whether the claimant has been prejudiced thereby. Bernard v. Brown, 4 Vet. App. 384, 392-394 (1993). In this case, the veteran has been advised of the laws and regulations pertinent to disability evaluations relevant to psychiatric disability and, subsequent to the grant of service connection for PTSD, has been afforded an examination and opportunity to present argument and evidence in support of his contentions relevant to the evaluation of his disability. The Board has also discussed whether extraschedular consideration is warranted in this case. In doing so, the Board has considered all the evidence of record, including records of post-service medical treatment to date. Such review is consistent with the Court's recent decision in Fenderson. ORDER Entitlement to a rating in excess of 30 percent for PTS is denied. JANE E. SHARP Member, Board of Veterans' Appeals