Citation Nr: 0004974 Decision Date: 02/25/00 Archive Date: 03/07/00 DOCKET NO. 98-13 127 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an initial rating higher than 30 percent for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. L. Kane, Associate Counsel INTRODUCTION The veteran had active military service from October 1940 to August 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which granted service connection for PTSD, with assignment of a 30 percent disability rating. 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, crying spells, recurrent war-related thoughts and nightmares, chronic sleep disturbances, decreased interest, difficulty going into crowded places, hypervigilence, difficulty with social interaction, and social isolation, resulting in moderate social and occupational impairment. 3. The veteran's current cognitive deficits are attributable to nonservice-connected age-related cognitive decline. CONCLUSIONS OF LAW 1. The veteran has stated a well-grounded claim for a higher 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 50 percent disability rating, and no higher, for PTSD were met as of the grant of service connection. 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). The veteran perfected his appeal as to the initial grant of service connection and original assignment of a disability rating for his PTSD. Therefore, his claim continues to be well grounded as long as the rating schedule provides a higher rating for the service-connected condition. Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). 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 an appropriate VA examination. There is no evidence indicating that there has been a material change in the severity of his PTSD symptoms since he was examined in 1997, and sufficient evidence is of record to rate the service-connected disability properly. There is no indication of private or VA treatment records that the RO failed to obtain. 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). The veteran has disagreed with the original disability rating assigned for his PTSD. There is a distinction between a claim based on disagreement with the original rating awarded and a claim for an increased rating. Fenderson v. West, 12 Vet. App. 119 (1999). The distinction may be important in determining the evidence that can be used to decide whether the original rating on appeal was erroneous and in determining whether the veteran has been provided an appropriate Statement of the Case (SOC). Id. at 126 and 132. With an initial rating, the RO can assign separate disability ratings for separate periods of time based on the facts found. Id. at 126. With an increased rating claim, "the present level of disability is of primary importance." Francisco v. Brown, 7 Vet. App. 55, 58 (1994). This distinction between disagreement with the original rating awarded and a claim for an increased rating is important in terms of VA adjudicative actions. Fenderson, 12 Vet. App. at 132. The Supplemental Statement of the Case (SSOC) provided to the veteran identified the issue on appeal as evaluation of the service-connected PTSD. Throughout the course of this appeal, the RO has evaluated all the evidence of record in determining the proper evaluation for the veteran's service- connected disability. The November 1997 rating decision that granted service connection for this condition considered all the evidence of record in assigning the original disability rating. The RO did not limit its consideration to only the recent medical evidence of record, and did not therefore violate the principle of Fenderson. The veteran has been provided appropriate notice of the pertinent laws and regulations and has had his claim of disagreement with the original rating properly considered based on all the evidence of record. The RO complied with the substantive tenets of Fenderson in its adjudication of the veteran's claim. 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). Because this appeal is from the initial rating assigned to a disability upon awarding service connection, the entire body of evidence is for equal consideration. Consistent with the facts found, the rating may be higher or lower for segments of the time under review on appeal, i.e., the rating may be "staged." Fenderson v. West, 12 Vet. App. 119 (1999); cf. Francisco v. Brown, 7 Vet. App. 55, 58 (1994) (where an increased rating is at issue, the present level of the disability is the primary concern). Such staged ratings are not subject to the provisions of 38 C.F.R. § 3.105(e), which generally requires notice and a delay in implementation when there is proposed a reduction in evaluation that would result in reduction of compensation benefits being paid. Fenderson, 12 Vet. App. at 126. The Board will consider all evidence in determining the appropriate evaluation for the veteran's service-connected disability. 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 30 percent. The current 30 percent disability rating requires: 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, or recent events). The criteria for a 50 percent disability rating are: 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 58 upon VA examination in 1998. A GAF score of 51-60 contemplates 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). 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 in 1997 and 1998, the report of the VA examination conducted in 1997, the veteran's contentions, and a statement from his wife. The evidence shows symptoms listed above as warranting a higher disability rating such as spatial disorientation and impairment of short- and long-term memory. The determinative question, however, is whether this cognitive impairment is due to the veteran's service-connected PTSD or a nonservice-connected disorder. In order to make that determination, it is necessary to examine the medical evidence closely. The veteran was diagnosed with age-related cognitive decline in 1998. In March 1998, he stated that he had had increasing memory loss over the prior three months. It is clear that the veteran's current age-related cognitive decline has significantly affected his cognitive functioning, including memory and speech abilities. Prior to diagnosis of this condition in 1998, he exhibited normal and coherent speech, and no memory deficits were noted. Only after diagnosis of age-related cognitive decline in 1998 did the veteran experience symptoms such as inability to recall the date or his own address or difficulty forming words. Therefore, although these symptoms are consistent with the criteria for a disability rating higher than 30 percent, they are clearly not the result of his service-connected PTSD. There is no doubt that the veteran has severe cognitive impairment. However, these symptoms, attributable to a nonservice- connected disorder, do not warrant a higher disability rating for his service-connected PTSD. However, the criteria for a 30 percent disability rating indicate that the veteran is generally functioning satisfactorily with routine behavior, self-care, and normal conversation, and this is not the veteran's situation. His psychiatric symptoms include pronounced depression and anxiety. His VA outpatient records contain numerous references to crying spells that he has exhibited when discussing his wartime experiences. He has reported frequent suicidal ideations, although he states he will not act on them. He has little, if any, social interaction with others. His sleep-related disturbances include waking in the middle of the night, insomnia, restless sleep, and some combat- related dreams. The fact that the veteran was diagnosed with age-related cognitive decline in 1998 does not change the conclusion that he shows a higher level of symptoms due to his PTSD than reflected in his 30 percent rating. The medical evidence of record showed several symptoms of PTSD prior to the diagnosis of age-related cognitive decline (inability to handle stress and loud noises, anger, irritability, depression, intrusive thoughts, crowd avoidance, social withdrawal, intermittent suicidal ideations, difficulty concentrating, and emotional lability). These symptoms affected the veteran to such a degree that he requested psychiatric medication in August 1997. However, these symptoms were somewhat relieved by medication, and the veteran reported feeling calmer and sleeping better. In October 1997, it was noted that he had fair energy level and fair interests. As discussed above, the veteran's current age-related cognitive decline has significantly affected his cognitive functioning. This has also resulted in his inability to drive, and, in many ways, care for himself. He now needs his wife's assistance with such things as his medication regime and getting to doctors' appointments. 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 his age- related cognitive decline is affecting his social and occupational functioning, it is clear that most of his psychiatric symptomatology is attributable to his PTSD. 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 50 percent disability rating. See 38 C.F.R. § 4.7 (1999). Although the veteran's cognitive impairment is not due to his PTSD, his PTSD symptoms alone are clearly disabling to him to a greater degree, and a 50 percent disability rating is warranted. The Board considered assigning the veteran a rating higher than 50 percent, but the preponderance of the evidence is against assignment of such a rating. As discussed above, the veteran's cognitive symptoms cannot be used as the basis for assignment of a higher rating since they are not due to his PTSD. He meets none of the other criteria for a rating higher than 50 percent. For example, he has never exhibited impaired judgment, obsessional rituals, near-continuous depression, impaired impulse control, violence, poor hygiene, delusions, hallucinations, or inappropriate behavior. Therefore, a higher rating is not warranted. ORDER Entitlement to a 50 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