Citation Nr: 0300974 Decision Date: 01/16/03 Archive Date: 01/28/03 DOCKET NO. 02-02 719 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a rating of permanency for the 100 percent schedular evaluation assigned for service-connected post- traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. L. Wight, Associate Counsel INTRODUCTION The veteran served on active duty from June 1967 to June 1969. This case comes before the Board of Veterans' Appeals (Board) by means of a January 2001 rating decision rendered by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. VA has made all reasonable efforts to assist the veteran in the development of his claim and has notified him of the information and evidence necessary to substantiate his claim. 2. The veteran's 100 percent rating for service-connected PTSD is shown to be reasonably certain to continue at this level throughout his life. CONCLUSION OF LAW The criteria for a finding of permanency of a total rating for the veteran's service-connected PTSD have been met. 38 U.S.C.A. § 3501 (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.327, 3.340, 4.15 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA. At the outset, the Board must consider the impact of the Veterans Claims Assistance Act of 2000 (VCAA) on the veteran's claim. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5126 (West Supp. 2001); McQueen v. Principi, 14 Vet. App. 300 (2001) (per curiam). The law provides that VA has a duty to assist veterans and other claimants in developing their claims for VA benefits. Inasmuch as the Board is granting the benefit sought on appeal, action to correct any deficiency on the part of the RO in complying with the requirements of the VCAA would serve no useful purpose, but would only needlessly delay favorable action on the veteran's appeal. Legal Criteria. The term "total disability permanent in nature" means any disability rated total for the purposes of disability compensation which is based upon an impairment reasonably certain to continue throughout the life of the disabled person. 38 U.S.C.A. § 3501(a)(8). Permanent and total disability will be held to exist when an individual is unemployable as a result of disabilities that are reasonably certain to last throughout the remainder of that person's life. See Talley v. Derwinski, 2 Vet. App. 282, 285 (1992); 38 C.F.R. §§ 3.340(b), 4.15. Total disability exists when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a). Total disability may or may not be permanent. Permanence of total disability exists when such impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 3.340(b). Diseases and injuries of long standing which are actually totally incapacitating will be regarded as permanently and totally disabling when the probability of permanent improvement under treatment is remote. The age of the disabled person may be considered in determining permanence. Id. Once permanence is established, a veteran need not undergo further VA examinations in order to retain his 100 percent disability rating for the permanent disability. 38 C.F.R. § 3.327(b)(2)(iii). Factual Background. The record reflects that the veteran was born in 1946 and served with artillery units during his military service with the Army from 1967 to 1969. He was exposed to a great deal of combat during his service in Vietnam from November 1967 to November 1968. Shortly after his release from military service, the veteran entered the police force. He was hospitalized at a VA facility in September 1998 for PTSD symptoms, such as daily intrusive thoughts, nightmares, flashbacks, hypervigilance, exaggerated startle response, depression, anxiety, and survivor guilt. When the veteran was released from the hospital in November 1968, he was diagnosed with severe PTSD and it was reported that he would not be able to return to his work due to the severity of the PTSD. The report of VA examination for disability evaluation purposes in December 1998 reflects that the veteran was on emergency leave from his job as a policeman. He had worked in that capacity for the last 29 years. Severe PTSD was diagnosed and the examiner assigned a Global Assessment of Functioning (GAF) score of 45, reflecting severe psychological symptoms affecting his social and occupational functioning as well as a general decline in his cognitive functioning. In February 1999 the veteran reported that he became too disable to work as a sheriff's detective in August 1998. A notice from the Social Security Administration reflects that the veteran had been found to be disabled as of August 1998 and was entitled to monthly disability benefits beginning February 1999. By a rating dated in August 1999, the RO established service connection for PTSD and rated this disorder as 100 percent disabling from August 24, 1998. VA outpatient treatment progress notes reflect that the veteran was seen on a frequent basis during 2000, that he continued to have intrusive memories and nightmares, and that he was virtually still obsessed with Vietnam. He remained very depressed and had some vague suicide ideation. He was noted to be functioning poorly. In September 2000, the veteran reported for a VA psychiatric examination. It was noted that he attended group therapy three or four times per week and had been seeing a psychiatrist for medication every month. Despite this treatment and medication, he continued to be "very fragile." He slept a lot and was bothered by nightmares. The examiner noted that the veteran continued to have difficulties from day to day and he stayed at home most of the time. The only relief he had was when he attended his VA group therapy sessions. Otherwise, he was noted to be "completely isolated at home from everybody." The veteran was sad and showed some stuttering-like problems when describing his history. The examiner noted that it appeared that the veteran was suffering with severe depression. He became very emotionally upset when starting to describe some of his problems. The examiner noted fear in the veteran's eyes quite often. Content of thought seemed to indicate severe problems related to Vietnam. These were manifested by frequent nightmares, flashbacks, extreme guilt, difficulty adjusting to life, and a tendency to isolate himself. Diagnoses of PTSD and major depressive disorder were rendered. A GAF score of 35 was assigned. The examiner noted that, regarding the possibility of the veteran working in the future, he was permanently and totally disabled. It was further noted that the veteran's depressive symptoms were the consequence of his war experiences. Analysis. The veteran has not worked since August 1998 when he was admitted to a VA hospital for PTSD symptoms. Upon his release from the hospital in November 1968, he was diagnosed with severe PTSD and it was reported that he would not be able to return to his work due to the severity of the PTSD. Evaluation for disability evaluation purposes in December 1998 confirmed that the veteran's PTSD was severe. The veteran was found to be disabled by the Social Security Administration as of August 1998. The Court has held that although a Social Security Administration's decision with regard to unemployability is not controlling for purposes of VA adjudications, the decision is "pertinent" to a determination of the appellant's ability to engage in substantially gainful employment. Martin v. Brown, 4 Vet. App. 136, 140 (1993). By a rating dated in August 1999, the RO rated the veteran's PTSD as 100 percent disabling from August 1998. VA outpatient progress notes for 2000 reflect that the veteran was seen on a frequent basis and that he continued to have intrusive memories and nightmares and was virtually still obsessed with Vietnam. He remained very depressed and had some vague suicide ideation. He was noted to be functioning poorly. Examination in September 2000 revealed that despite treatment and medication, the veteran continued to be "very fragile." The veteran was depressed and, except when attending group therapy sessions, he was completely isolated. The examiner offered his opinion that the veteran was permanently disabled and would not be able to return to work. The medical evidence presented indicates that the severity of the veteran's PTSD is reasonably certain to continue throughout his life. The fact that the veteran has been a cooperative participant in regular treatment, both group and individual, and that he has been tried on several medications but with poor success, supports such a finding, as does the fact that the physician who examined the veteran for disability evaluation purposes in September 2000 offered his opinion that the veteran was permanently disabled and would not be able to return to work. There is no medical evidence of record to contradict the opinion of permanency of the veteran's PTSD proffered by the VA examiner in September 2000. Thus, the Board finds that the 100 percent disability rating is reflective of the veteran's current disability status and that the total disability resulting from veteran's PTSD is permanent as envisioned by the statute and regulations. ORDER Permanency of a total rating for service-connected PTSD is granted. Gary L. Gick Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.