Citation Nr: 1008355 Decision Date: 03/05/10 Archive Date: 03/11/10 DOCKET NO. 03-36 702 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to an increased evaluation for post-traumatic stress disorder (PTSD), currently rated as 50 percent disabling. 2. Entitlement to service connection for diabetes. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD David T. Cherry, Counsel INTRODUCTION The veteran had three periods of service from November 1943 to February 1946, from August 1950 to June 1954, and from June 1954 to February 1958. The final period of service was under other than honorable conditions. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which denied entitlement to an increased evaluation for PTSD. In June 2006, the Board held that between at least the date of claim and at least February 14, 2005, the Veteran met the schedular criteria for a 50 percent disability rating for PTSD. The Board remanded the issue of entitlement to a rating in excess of 50 percent for PTSD. In an October 2006 rating decision, the Appeals Management Center assigned a 50 percent disability rating effective May 22, 2002. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to service connection for diabetes is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The evidence is in equipoise as to whether the Veteran's PTSD has been productive of a total occupational and social impairment since May 22, 2002. CONCLUSION OF LAW Since May 22, 2002, the Veteran's PTSD does meet the criteria for an evaluation of 100 percent. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 5110 (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9411 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. Given the decision below, a detailed explanation of how VA complied with the Act is unnecessary. Analysis The Veteran suffers from PTSD as result of in-service stressors while serving on the U.S.S. Wallace L. Lind. In March 2001, VA granted entitlement to service connection for PTSD effective April 19, 2000 and assigned a 30 percent evaluation. On May 22, 2002, the Veteran filed a claim for an increased rating for PTSD. In the October 2006 rating decision implementing the June 2006 Board decision, a 50 percent evaluation was assigned effective May 22, 2002. Rating criteria Under the current criteria, a 50 percent rating is 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 effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating 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 work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating 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 or minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. Global Assessment of Functioning Global assessment of functioning scores are 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) (citing the DSM-IV, p. 32). Global assessment of functioning scores ranging 51 to 60 reflect more 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). See 38 C.F.R. § 4.130 [incorporating by reference the VA's adoption of the DSM-IV, for rating purposes]. Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is 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; child frequently beats up other children, is defiant at home, and is failing at school). A score from 21 to 30 is indicative of behavior which is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or inability to function in almost all areas. Id. The Board is presented with a record on appeal that demonstrates that, in addition to PTSD, medical professionals have diagnosed dementia and a major depressive disorder. The Board is precluded from differentiating between symptomatology attributed to a non-service-connected disability and a service-connected disability in the absence of medical evidence which does so. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). A report of a February 2001 VA examination contains a diagnosis of PTSD with depressive features. A July 2002 VA examiner indicated that the Veteran had feelings of depression and anxiety associated with PTSD. A report of a February 2008 VA examination shows that the examiner noted that a major depressive disorder was secondary to PTSD. In light of the above, the Board will attribute all reported psychiatric symptomatology from his depressive disorder to the Veteran's PTSD. The Board will discuss in further detail below any differentiation between the PTSD and dementia. Schedular rating The pertinent evidence of record includes VA examination reports dated in July 2002, July 2007, February 2008, and July 2009; a September 2009 social and industrial survey; VA treatment records from 2002 to 2009; and November 2003 and February 2005 statements of VA psychologists. In the November 2003 statement, a VA psychologist noted that the claimant's functioning appeared to have worsened over the prior two years. In the February 2005 statement, another VA psychologist opined that the Veteran was unable to work due to his PTSD and depression. The July 2007 VA examiner determined that the claimant was unemployable due to many factors, including PTSD, physical illnesses, and his poor cognition and memory. That examiner stated that it was simply impossible to determine whether PTSD alone rendered him incapable of productive employment because of confounding factors from other illnesses. The February 2008 VA examiner indicated that the Veteran was unemployable and that he had PTSD along with possible dementia. That examiner did not address whether the claimant was unemployable solely due to PTSD. The July 2009 VA examiner opined that the combination of the PTSD and dementia rendered the appellant unemployable and that it is at least as likely as not that his PTSD in its own right would be sufficient to render him unemployable. That examiner noted the claimant's symptomatology of recurring distressing thoughts, nightmares, exaggerated startle responses, and irritability. That examiner confirmed the severity of the appellant's symptomatology with his treating psychotherapist. Medical professionals have assigned global assessment of functioning scores for PTSD ranging from 52 to 35. The Veteran does not demonstrate a gross impairment in thought processes or communication. He does not suffer from persistent delusions or hallucinations. His behavior is not grossly inappropriate, and he is not in persistent danger of hurting himself or others. The Board's inquiry, however, is not necessarily strictly limited to the criteria found in the VA rating schedule. Mauerhan v. Principi, 16 Vet. App. 436 (2002) (the criteria set forth in the rating formula for mental disorders do not constitute an exhaustive list of symptoms, but rather are examples of the type and degree of the symptoms, or their effects, that would justify a particular rating). The Board has weighed the evidence of record and finds that there exists an approximate balance of evidence for and against the claim. Simply put, the evidence is equally balanced as to whether the appellant can work due to his PTSD. When the evidence for and against the claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In this case, the evidence is equipoise as to whether the Veteran has had a total occupational and social impairment since the date of his May 22, 2002 claim. Therefore, a 100 percent evaluation for PTSD since May 22, 2002 is in order. 38 U.S.C.A. §§ 1155, 5107. The benefit sought on appeal is allowed to the extent indicated. ORDER Entitlement to a 100 percent evaluation for PTSD since May 22, 2002 is granted subject to the laws and regulations governing the award of monetary benefits. REMAND In the December 2002 rating decision, the RO denied entitlement to service connection for diabetes. In April 2003, the Veteran submitted a notice of disagreement as to that denial. As such, a statement of the case must be issued concerning this issue. Manlincon v. West, 12 Vet. App. 242 (1999). (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested.) Accordingly, the case is REMANDED for the following action: The RO should issue a statement of the case addressing the claim of entitlement to entitlement to service connection for diabetes. The Veteran is hereby informed that the Board may only exercise appellate jurisdiction over this matter if he perfects an appeal in a timely manner. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.200 (2009). The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs