Citation Nr: 0614411 Decision Date: 05/17/06 Archive Date: 05/31/06 DOCKET NO. 05-04 272 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a rating in excess of 50 percent for post- traumatic stress disorder (PTSD). 2. Entitlement to a total rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nancy McElwain, Associate Counsel INTRODUCTION The veteran had active service from September 1968 to September 1970. This matter came before the Board of Veterans' Appeals (Board) on appeal from July 2004 and December 2004 decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. FINDINGS OF FACT 1. The veteran's PTSD is manifested by severe symptoms such as impaired concentration, impaired memory, impaired thought processing, difficulty interacting with other people, difficulty dealing with stress, anxiety, intrusive thoughts, flashbacks, isolation, startled response, hypervigilance, occasional depression, and anger. 2. The overall evidence suggests that the veteran's service- connected PTSD is of such nature and severity as to prevent him from obtaining and retaining substantially gainful employment CONCLUSIONS OF LAW 1. The criteria for an increased rating of 70 percent, but no higher, for post-traumatic stress disorder are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9400 (2005). 2. Affording the veteran the benefit of the doubt, the criteria for a TDIU are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties of notification and assistance In December 2003 and October 2004, the agency of original jurisdiction (AOJ) sent letters to the veteran providing the notice required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) for claims for an increased rating and TDIU. Although the record reflects that the RO has not provided VCAA notice with respect to the effective-date elements of the claim for TDIU, See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), that matter is not currently before the Board and the RO will have the opportunity to provide the required notice before deciding those matters. The VA has also done everything reasonably possible to assist the veteran with respect to his claim for benefits, such as obtaining medical records, providing VA examinations, and providing a hearing. Consequently, the Board finds that the duties of notification and assistance are met. Increased rating for PTSD The veteran is currently rated at 50 percent under Diagnostic Code (DC) 9411 for post-traumatic stress disorder (PTSD). Under the rating criteria for mental disorders, a 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, 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 work-like setting); inability to establish and maintain effective relationships. The veteran's reported PTSD symptoms include impaired concentration, impaired memory, impaired thought processing, and difficulty interacting with other people. He also gives a history of anxiety, intrusive thoughts, flashbacks, isolation, startled response, hypervigilance, occasional depression, and anger. The veteran is currently medicated for his PTSD and he regularly attends PTSD counseling. He has also had an inpatient admission for PTSD. Records reveal the assignment of Global Assessment of Functioning (GAF) score of 50 by a VA examiner in 2004. A score of 41 to 50 is defined as "serious symptoms (e.g., suicidal ideations, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." Another VA examiner opined that the veteran's PTSD was severe enough as to render him unemployable and noted that the veteran had an extreme impairment in responding appropriately to supervision and co- workers, and in being able to follow work instructions. The evidence is, at a minimum, in equipoise as to whether the veteran's symptoms more nearly approximate the criteria for a 50 percent or 70 percent rating. The law requires that the benefit of the doubt goes to the veteran and, accordingly, a rating of 70 percent is warranted for the veteran's PTSD. A rating higher than 70 percent is not warranted since there is no evidence of total impairment. There is no evidence of that the veteran has hallucinations, delusions, poses a danger of hurting himself or others, is disorientated as to time or place, or is unable to perform activities of daily living. In addition, the veteran's GAF scores reflect substantially less than total impairment of social and occupational functioning. The preponderance of the evidence is against a finding that the veteran meets or approximates the criteria for a 100 percent rating under DC 9411. Total Disability Ratings Based On Individual Unemployability (TDIU) A TDIU rating may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.16(a) (2005). The veteran has a rating of 70 percent for PTSD; consequently, he meets the schedular threshold for determining entitlement to a TDIU rating. The only question remaining is whether there is evidence that the veteran is unable to secure substantially gainful occupation as the result of this disability. The veteran has been unemployed for over 6 years. A VA vocational rehabilitation evaluation was conducted in 2004, and the examiner noted that the veteran was not able to cope with the stress and pressures of competitive employment due to an extreme impairment in responding appropriately to supervision and co-workers, and following work instructions. The examiner also found that the severity of the veteran's PTSD symptoms limited his ability to process work procedures and instructions. The examiner believed that the veteran's severe problems prevented him from being able to meet the demands of work on a sustained basis in a competitive work environment. In conclusion, the examiner found that the veteran is "not employable or feasible for vocational rehabilitation due to the severity of his psychiatric problems (PTSD) and the poor prognosis for recovery." A VA psychologist who treats the veteran for PTSD subsequently submitted a statement asserting that the veteran was totally and permanently disabled. This evidence, in conjunction with a finding of "disability" by the Social Security Administration (due to PTSD among other disorders), is sufficient to warrant a grant of a total disability rating due to individual unemployability. ORDER A rating of 70 percent, but no higher, is granted for PTSD. A TDIU is granted. ____________________________________________ RONALD W. SCHOLZ Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs