Citation Nr: 1007158 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 07-01 771 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased disability evaluation for posttraumatic stress disorder (PTSD), currently rated as 50 percent disabling. 2. Entitlement to a total disability evaluation based upon individual employability due to service-connected disabilities (TDIU). 3. Entitlement to an effective date earlier than February 27, 2006, for an increased evaluation for PTSD. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran had active service from January 1967 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2006 and October 2007 rating determinations of the Department of Veterans Affairs (VA) Regional Office (RO) located in Waco, Texas. The Veteran appeared at a Travel Board hearing at the RO before the undersigned Acting Veterans Law Judge in October 2009. A transcript of the hearing is of record. FINDINGS OF FACT 1. The Veteran's service-connected PTSD disability is manifested by total occupational impairment and symptoms that approximate total social impairment. 2. In view of the 100 percent schedular rating for PTSD granted in this decision, there is no longer a controversy on the question of the Veteran's entitlement to TDIU. 3. The date of receipt for the Veteran's request for an increased evaluation for PTSD was February 27, 2006. 4. An increase in PTSD symptomatology was factually ascertainable as of January 31, 2006. CONCLUSIONS OF LAW 1. The criteria for a 100 percent evaluation for PTSD have been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.130, Diagnostic Code 9411 (2009). 2. The question of whether the Veteran is entitled to an award of TDIU is now moot, warranting dismissal of the appeal as to that issue. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2009); 38 C.F.R. § 4.16 (2009). 3. The criteria for an effective date of January 31, 2006, for the assignment of a 100 percent disability evaluation for PTSD have been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.157, 3.400 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). The Court has also held that that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5- 2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision with regard to the claim for an increased evaluation for PTSD, further assistance is not required to substantiate that element of the claim. As a result of finding that the TDIU appeal is moot, further assistance is also unnecessary to aid the Veteran in substantiating that claim. As it relates to the issue of an earlier effective date, the Veteran is challenging the effective date assigned following the grant of an increased evaluation. In an April 2006 letter, the RO provided notice to the Veteran regarding what information and evidence was needed to substantiate the increased rating claim, as well as what information and evidence must be submitted by the Veteran and the types of evidence that will be obtained by VA. In addition, a March 2007 letter advised the Veteran how effective dates were assigned, what information and evidence had to be submitted by the Veteran and the types of evidence that would be obtained by VA, and the type evidence which impacted that determination. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file includes the Veteran's post-service treatment records and hearing testimony. As discussed above, the Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was a very active participant in the claims process, setting forth in statements and testimony the reasons he believed he was entitled to an earlier effective date for the increased evaluation. It is clear from such statements and testimony that the Veteran has actual knowledge of the criteria necessary to establish an earlier effective date. Thus, he has been provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Evaluation of PTSD Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are, however, 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. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). A 50 percent evaluation is to be assigned for 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. A 70 percent evaluation is assigned for 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 evaluation is assigned 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 Function (GAF) is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." American Psychiatric Association: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM), 32 (4th ed.) (1994) (DSM IV); 38 C.F.R. §§ 4.125, 4.130 (2009). GAF scores ranging from 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. Scores ranging from 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). 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). A GAF score of between 31 and 40 contemplates some impairment in reality testing or communication (e.g., speech at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). The Veteran's request for an increased evaluation for PTSD was received on February 27, 2006. In conjunction with his claim, the Veteran was afforded a VA examination in April 2006. The Veteran was noted to be living with his wife and not working. The Veteran stated that he had become a heavy drinker about seven months earlier. He noted a satisfactory relationship with his wife. He reported having a grown son and daughter, with whom he did not have good relationships. The Veteran's PTSD was noted to involve his depression. Following examination, the examiner rendered a diagnosis of chronic PTSD and depression. He assigned a GAF score between 45 and 50. The examiner indicated that he had learned that the Veteran's law license had been suspended and that this has been influenced by his PTSD and depression. The Veteran was afforded an additional VA examination in July 2007. The Veteran reported waking up in the middle of the night and having trouble getting back to sleep. He would awake startled but could not remember what he dreamed about. He noted having intrusive memories about Vietnam in the daytime about 3 to 5 times per year and had flashback-like experiences one to two times per year. The Veteran was irritable, lost his temper quickly, and snapped at people over small things. He did not like people and avoided being around them. He also did not like social events or crowds. He was easily startled and would hide for cover and become agitated with thunder and lightning. The Veteran liked to stay in his "safe zone". He had had these problems for years but they began increasing in 2003. Triggers were being around Vietnamese people, helicopters flying over, thunderstorms, heat, certain roads, and news of the Iraq War. The Veteran indicated that he did not file the proper paperwork towards the end of his period of practicing law and lost any referrals as a result of his conduct. He stated that he had no desire to practice law or work in any field. He noted that he got along okay with his wife because she was a caretaker and knew how to deal with him. The Veteran stated that he saw his father every now and then and his children one time per year. He had no other social contacts and was fairly isolated. He had been divorced four times. Following examination, the examiner rendered Axis I diagnoses of chronic PTSD; recurrent major depressive disorder in partial remission; and alcohol abuse, reportedly in remission. The examiner assigned a GAF score of 48. The examiner indicated that the GAF score was reflective of serious impact in social and occupational functioning. He noted that while the Veteran's PTSD and personality disorder was likely to impact his ability to work in highly social and interactive settings, he should be able to engage in more isolated-type work settings, possibly even working from home. The Veteran underwent an additional VA examination in December 2008. At the time of the examination, the Veteran reported that he continued to have frequent problems with his PTSD and depression with no remission since the time of the last evaluation. The Veteran indicated that he continued to experience symptoms of guilt, nightmares with night sweats, daily flashbacks, intense distress at some stimuli, and triggers of intense memories of experiences in Vietnam. He also reported increased irritability and intrusiveness of thoughts about stressors since he experienced estrangement from others. He also had feelings of sadness, anhedonia, problems with sleep, difficulty concentrating, loss of energy, and guilt. Following examination, the examiner rendered a diagnosis of severe PTSD and moderate recurrent major depressive disorder. The examiner assigned a GAF score of 45. The examiner noted that the Veteran had increased problems related to his PTSD since his last evaluation. He also indicated that the Veteran was more socially isolated than in 2007. At his October 2009 hearing, the Veteran reported numerous symptoms related to his PTSD. The Veteran noted having panic attacks at least twice a week where he could not adapt to anything. He also avoided crowds and people and had no social interaction. He further noted having lapses of memory as to where he was several times per week. The Veteran also needed reminders with regard to personal hygiene. He also stayed in bed one or two times per week. The Veteran also had motion activated lights and an electric fence. He further reported having hallucinations about his location. The Veteran stated that he was taking the maximum amount of medication for his depression. He also testified as to having suicidal and homicidal ideations. The Veteran reported that he could not practice law anymore as he did not want to go to the courthouse. His wife testified that he could not follow complex directions. The Veteran has been unemployed at all times during the course of this appeal. He has been assigned GAF scores that denote an inability to maintain employment. GAF scores between 41-50 have been assigned throughout the course of this appeal. As noted above, such scores contemplate 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). While psychiatric disabilities other than PTSD have been identified, all have been evaluated as a single service connected entity. Cf. Mindenhall v. Brown, 7 Vet App 271 (1994). The Veteran does not have total social impairment inasmuch as he remains married to his wife. However, his only social circle is the individuals that he sees at the VA. He sees his daughter and son no more than a few times per year. His symptoms thus approximate total social and occupational impairment. 38 C.F.R. § 4.7, 4.21 (2009). The criteria for a 100 percent rating are therefore met. Entitlement to TDIU Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2009). A 100 percent schedular rating is a higher benefit than TDIU; thus, when a 100 percent rating has been granted, it is not permissible to consider entitlement to TDIU. VAOPGCPREC 6- 99, 64 Fed. Reg. 52,375 (1999). In light of the Board's decision set to grant a 100 percent rating for PTSD, the claim of entitlement to TDIU is now moot. Accordingly, the veteran's claim for TDIU must be dismissed as a matter of law. Sabonis v. Brown, 6 Vet App 426 (1994). Earlier Effective Date of Rating The Board observes that the assignment of effective dates for increased disability evaluations is governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. In the case of claims for an increased disability rating, the effective date assigned is generally the date of receipt of the claim, or the date the entitlement arose, whichever is later. However, if the claim is filed within one year of the date that evidence shows an increase in the disability rating has occurred, the earliest date of which an increase is factually ascertainable will be used, not necessarily the date of receipt of the evidence. 38 C.F.R. §§ 3.400(o)(1) and (2); Harper v. Brown, 10 Vet. App. 125, 126-27 (1997). Evidence in the claims file showing that an increase was ascertainable up to one year before the claim was filed will be dispositive. Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992); Scott v. Brown, 7 Vet. App. 184, 188 (1994); VAOPGCPREC 12-98. However, an increase cannot be assigned prior to being clinically established. 38 C.F.R. § 3.400. A specific claim in the form prescribed by VA must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151 (2009). A "claim" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p) (2009). Any communication or action from a claimant, indicating intent to apply for one or more benefits under the laws administered by VA may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a) (2009). Once a formal claim for compensation has been allowed, a report of examination or hospitalization by VA will be accepted as an informal claim for increased benefits if the report relates to treatment or evaluation of a disability for which service connection has been previously established. The date of outpatient or hospital examination or date of admission to a VA hospital will be accepted as the date of receipt of the claim. 38 C.F.R. § 3.157(b)(1) (2009). In a May 2005 rating determination, the RO granted service connection for PTSD and assigned a 30 percent disability evaluation. The Veteran was notified of this decision and did not perfect his appeal and the decision became final. In a statement in support of claim received on February 27, 2006, the Veteran requested an increased evaluation for his PTSD. The pertinent period for whether an earlier effective date may be assigned is the one year period prior to Veteran's request for an increased evaluation. The Board notes that in conjunction with his claim for service connection for PTSD, the Veteran was afforded a VA examination in March 2005. Following examination, the examiner rendered Axis I diagnoses of PTSD, between mild and moderate, and mild chronic depression. The examiner assigned a GAF score of between 55 and 60. The examiner noted that the Veteran still kept his law office open. Treatment records from March 2005 to January 31, 2006, do not demonstrate that the Veteran showed an increased in severity for his PTSD nor was there a different GAF score provided with regard to the Veteran's PTSD. At the time of the January 31, 2006, visit/examination, the Veteran was again diagnosed as having chronic PTSD and recurrent moderate major depressive disorder but the GAF score that was assigned at that time was 41. As noted above, such a score contemplates 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). Based upon the January 31, 2006, treatment record, an increase in severity in the symptomatology associated with the Veteran's PTSD, warranting a 100 percent disability evaluation, was factually ascertainable. In reaching this decision, the Board has resolved reasonable doubt in the Veteran's favor, but finds that the weight of the evidence is against an effective date earlier than January 31, 2006. (CONTINUED ON NEXT PAGE) ORDER Entitlement to a 100 percent disability evaluation for PTSD is granted. The issue of entitlement to TDIU is dismissed as moot. An effective date of January 31, 2006, for the assignment of a 100 percent disability evaluation for PTSD is granted. ____________________________________________ JOHN H. NILON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs