Citation Nr: 0810875 Decision Date: 04/02/08 Archive Date: 04/14/08 DOCKET NO. 06-31 117 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE 1. Entitlement to an initial rating in excess of 50 percent for post-traumatic stress disorder (PTSD). 2. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tahirih S. Samadani, Associate Counsel INTRODUCTION The veteran served on active duty from February 1943 to October 1945. His awards and decorations included the Purple Heart Medal, the Silver Star Medal, and the Bronze Star. This case comes before the Board of Veterans' Appeals (Board) on appeal of August 2005 and February 2006 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. FINDING OF FACT Throughout the initial evaluation period, the social and occupational impairment from the veteran's PTSD has more nearly approximated total than deficiencies in most areas. CONCLUSIONS OF LAW 1. The criteria for a 100 percent disability rating for post-traumatic stress disorder are met throughout the initial evaluation period. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2007). 2. The issue of entitlement to a total disability rating based on individual unemployability due to service connected disabilities is moot. Vettese v. Brown, 7 Vet App. 31 (1994); Holland v. Brown, 6 Vet App. 443 (1994). REASONS AND BASES FOR FINDING AND CONCLUSIONS The veteran is seeking a higher initial disability rating for his service-connected post-traumatic stress disorder (PTSD). He is also seeking a total disability rating based on individual unemployability due to service connected disabilities (TDIU). The Board will initially discuss certain preliminary matters, and will then address the pertinent law and regulations and their application to the facts and evidence. As the veteran's PTSD claim is being granted in full, and as the claim of entitlement to TDIU is being dismissed as moot, the Board will not include a discussion of the RO's compliance with the Veterans Claims Assistance Act of 2000 (VCAA) at this time, as any failure of VA to properly implement the VCAA has necessarily been nonprejudicial with respect to these claims. Legal Criteria Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2007). The percentage ratings contained in the Rating 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 their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2007). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2007). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2007). Analysis The veteran contends that the symptomatology associated with his PTSD results in total occupational and social impairment. Under Diagnostic Code 9411, a 50 percent rating for PTSD is warranted if it is productive of 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 effective work and social relationships. A 70 percent rating is warranted for PTSD if it is productive of 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. A 100 percent rating is warranted for 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, Diagnostic Code 9411. The Global Assessment of Functioning (GAF) scores are based on 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); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) [citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), p. 32]. GAF 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). Id. GAF scores ranging between 51 to 60 reflect 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). The veteran was assigned a GAF score of 55 in a November 2004 outpatient treatment record. He was assigned a GAF score of 55 in a January 2005 outpatient treatment record. A July 2005 VA examination report reflects that the veteran was assigned a GAF score of 45, and the examiner stated that the veteran's symptomatology was in the serious range. The Board acknowledges that the results of the July 2005 VA examination and outpatient treatment records do not indicate that the veteran experiences all of the symptoms associated a 100 percent rating. Specifically, in the July 2005 examination, the examiner found the veteran's appearance was neat, clean and casual. His remote memory was good and his immediate and recent memories were satisfactory. He was oriented to all spheres. His thought process production was spontaneous and abundant. He did have rambling and repetitive rambing; however, the veteran could be goal directed and relevant when refocused by examiner. He had no delusions, ideas of reference, or feeling of unreality. However, the Court has held that the symptoms enumerated under the schedule for rating mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular disability rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Thus, a finding that there is total occupational and social impairment is sufficient to warrant a 100 percent rating even though the specific symptoms listed for a 100 percent rating are not manifested. In this case, the veteran has reported on numerous occasions that he has episodes of physical outbursts of temper in the work setting. In November 2004, the veteran noted that he had just been laid off from his job a month and half earlier. In a January 2005 outpatient treatment record, the veteran was diagnosed with severe PTSD. Over the years, the veteran did not advance in his job and stepped down from a vice president position due to stress. During a July 2005 VA examination, the veteran stated that his temper is verbal but that he will also throw objects. He reported a long history of problems with anger and irritability. When he came back from the war, the veteran had an episode where he put his hands around his wife's neck. The examiner noted that inappropriate behavior for this veteran relates to anger and irritability which is regular in occurrence. The examiner found that the veteran's PTSD to be in the serious range. The veteran testified during the Travel Board hearing that he felt pressured out of his job. With respect to social impairment, the veteran has friends and is involved with military-related organizations, but the veteran also reported during the July 2005 examination that he gets irritated and aggravated with his wife two to three times a week where he will yell or holler. In the Board's view, the evidence adequately establishes that the social and industrial impairment from the veteran's PTSD has more nearly approximated total than deficiencies in most areas throughout the initial evaluation period. Accordingly, a 100 percent rating is warranted throughout the initial evaluation period. A TDIU rating contemplates that the schedular rating is less than total. 38 C.F.R. § 4.16(a) (2007). Since the veteran is entitled to a 100 percent rating for his PTSD on a schedular basis; and, as the total rating has been made effective for the entire period encompassing the TDIU claim, the claim for a TDIU is rendered moot. See Vettese, 7 Vet App. 31 ("claim for TDIU presupposes that the rating for the condition is less than 100 percent"); Holland, 6 Vet App. 443. ORDER A 100 percent disability rating for PTSD is granted from the effective date of service connection, subject to the criteria applicable to the payment of monetary benefits. The issue of entitlement to a TDIU is dismissed. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs