Citation Nr: 0812409 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 05-25 766 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an increased evaluation for anxiety reaction with depression and post-traumatic stress disorder (PTSD), currently rated 70 percent disabling. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Morales, Associate Counsel INTRODUCTION The veteran served on active duty from March 1967 to December 1968 and from April 1976 to April 1979. He also served in the National Guard. This appeal comes before the Board of Veterans' Appeals (Board) from an April 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbus, South Carolina, which denied the veteran's claim for a rating in excess of 10 percent. The veteran's evaluation was increased to 70 percent in a July 2005 decision of the Atlanta, Georgia, RO. The veteran attended a hearing before the undersigned Veterans Law Judge in February 2008. The veteran provided additional documentary evidence following the hearing. Such evidence was accompanied by a waiver of agency of original jurisdiction consideration. Therefore, appellate review may proceed. See 38 C.F.R. § 20.1304 (2007). FINDING OF FACT Throughout this appeal period the veteran's PTSD has been manifested by symptoms such as gross impairment in thought processes or communication, grossly inappropriate behavior, being a persistent danger to himself and others, poor personal hygiene, and loss of memory. CONCLUSION OF LAW The criteria for a 100 percent evaluation for the veteran's mental disability have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007), 38 C.F.R. §§ 3.102, 3.159, 4.130, Diagnostic Code 9411 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran's mental disability is currently rated 70 percent disabling, and he contends that he is entitled to a complete 100 percent rating for the disability. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007), 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2006). Here, the Board is granting the veteran's request for a 100 percent rating for his mental disability. Thus, no further discussion of the VCAA is required. Increased Evaluation Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and there must be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1. The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. If two evaluations are potentially applicable, 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. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Recently, in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Thus, the Board has considered whether the veteran is entitled to staged ratings at any time during the appeal period. A 100 percent rating contemplates 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. Under this standard, the veteran is entitled to a 100 percent rating if the record shows total occupational impairment, total social impairment, or the host of symptoms associated with a 100 percent rating. When there is a question as to which rating applies, the higher evaluation should be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 CFR § 4.7. The evidence shows that the veteran is totally socially impaired, particularly by symptoms of gross impairment in thought process and communication, grossly inappropriate behavior, and being a persistent danger to himself and others. The claims file contains numerous letters from the veteran's family, including a lengthy correspondence between the veteran and his brother. In a letter to the veteran from his brother, dated February 2007, the brother discusses some sort of incident at a funeral home where the veteran upset his grieving mother and step-father. The brother also says that the veteran twists everything "into something nasty and unrealistic," often goes years without speaking to his family following a minor incident, sends threatening letters to his mother, and fixates on Vietnam and veterans' activities. The veteran responded with a 52-page handwritten letter that sounds irate and threatening. The veteran states that he is "not looking for an excuse to hurt anyone" and goes on to discuss the things about other people that upset him, saying they are lucky they were not kidnapped, murdered, the victim of a natural disaster, raped, sexually abused, and so forth. He capitalizes all of the calamities that could have befallen these people. He also capitalizes statements about "untold vengeance fermenting" and "bursting hot destructive energy." Letters to VA from the veteran's family described multiple and life long behavior by the veteran that was verbally abusive and distressing. Some witnessed beatings to one of his wives, and others describe other personal assaults. The veteran was reported to have ripped off someone's clothes, set woods on fire, and to have spit in the faces of other people. Some in his family described their fear that he would kill someone in anger. At his February 2008 hearing, the veteran said that he is afraid of himself and his anger. He has a lot of bitterness towards people whom he feels have given nothing to this country yet feel entitled. The veteran reported getting angry enough to have an outburst about once a month. He had recently gotten upset with an old woman while driving. He flipped her off, called her names, drove up closely behind her before slamming on the brakes, and followed her. At the hearing, he expressed dismay and shame for having intimidated an old woman, but said that he was unable to control himself. The veteran also reported an incident where a yard crew got dirt and rocks on his new car, so the veteran got in a verbal argument with one member of the crew. When the man drove off, the veteran followed him and challenged him to a fist fight. The veteran said that, had he been witness to his own behavior, he would have thought he was a truly insane person needing medical care. The veteran feels he will never be able to have a successful romantic relationship since he is not capable of giving that type of love or care. He also reported memory problems, in that he forgets where he is when driving and has forgotten most of the people on his mother's side of the family. The veteran said that, once within the last year, he took several prescription pills and drank whiskey, and then went to bed not knowing if he would wake up. He felt this was an "accidental overdose" and not a suicide attempt. The veteran and his family are competent to testify as to the veteran's symptoms and their severity, and have done so well. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Furthermore, their testimony is consistent with the medical evidence. In March 2004, the veteran was admitted to the emergency room following a VA examination. On his questionnaire for the VA examination, the veteran had written that he thought of hurting himself and that he planned to kill his ex-wife in the next two weeks. The veteran was told he needed to be admitted to the hospital, but he ran away and the police were called. When they contacted the veteran via cell phone, the veteran told the police that he had a gun and that he was lost on country roads. In regard to the threat against his ex-wife, the veteran later said that he would not kill her, but he would laugh if she was hurt. He was admitted to the hospital with suicidal and homicidal precautions and was discharged a few days later. He reported significant PTSD symptoms, including intrusive memories, nightmares, avoidance, and hypervigilence. The veteran attended another VA examination in April 2004. He reported constant intrusive thoughts, trouble sleeping, nightmares, and being so guarded and suspicious that he had his gun ready at all times. He also reported road rage, depression, and anger outbursts. The examiner noted that he was unkempt and untidy. The veteran described passive thoughts of suicide and violent thoughts towards others. He was diagnosed with PTSD and major depression. The veteran was admitted to the VA PTSD program in June 2004 with symptoms such as flashbacks, insomnia, erratic moods, anhedonia, apathy, period of depression, panic attacks, anxiety, anger, extreme social isolation and alienation, hypervigilence, hyperalertness, and dysfunctional relationships secondary to angry and wild moods and temperament. The admitting provider noted severe PTSD symptoms and severe avoidance and numbness. VA outpatient treatment records contain regular notations of memory problems, anger outbursts, and the veteran fearing he was going to hurt someone. They also show serious problems getting along with his family, neighbors, and co-workers. He attended treatment groups for substance abuse and PTSD. Based on the veteran's poor and often violent familial relationships, his history of near-violent encounters with strangers, and the fact that the veteran is clearly a danger to himself as well as others, the Board finds that the veteran is totally socially impaired. The evidence also shows that the veteran is totally occupationally impaired by these symptoms. At his February 2008 hearing, the veteran explained that he was a career employee of the United States Postal Service. He held five to six positions, each one lower than the next, and each one involving less and less contact with people. Eventually, he had to beg his employer to allow him to become a custodian. He was forced to take early retirement in 2003. The veteran's problems at work included getting angry with others and "going off" on them. He said at his hearing that he would always wish for more time to explain himself, and that he would wish he wasn't getting so angry even while he was yelling at others. The veteran also worked for the National Guard, but, after leaving, his mother said he could not discuss the National Guard without reaching "near violence." Clearly, the veteran's extreme anger and his inability to control it can result in violence, and eventually this made it impossible for him to continue working at either job. Based on the veteran's increasingly angry and unsocial behavior at the post office, the fact that the veteran was forced to take early retirement, and the veteran's extreme anger and inability to control it, and his grossly inappropriate behavior, the Board finds that the veteran is totally occupationally impaired and has been during the course of this appeal. The preponderance of the evidence shows that the veteran is totally occupationally and socially impaired by his mental disability. His evaluation for a mental disability is increased to 100 percent. ORDER A 100 percent evaluation is assigned for anxiety reaction with depression and PTSD, subject to the laws and regulations governing payment of monetary awards. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs