Citation Nr: 1011069 Decision Date: 03/24/10 Archive Date: 03/31/10 DOCKET NO. 09-04 480 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 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 (TDIU) due to service-connected disabilities. ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from May 1965 to May 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veteran's Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. FINDINGS OF FACT 1. Throughout the appeal period, the evidence of record shows that the Veteran experiences 3-4 panic attacks per week, with associated agoraphobia, anxiety depression, insomnia, anger irritability, decreased energy, and crying spells. 2. Throughout the appeal period, the evidence of record does not show that the Veteran's symptomatology associated with his PTSD more closely approximates total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusion, 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 as to time or place; and memory loss for names of close relatives, own occupation, or own name. 3. Service connection is in effect for PTSD, which more nearly approximates the criteria for a 70 percent disabling as a result of this decision. 4. The medical and other evidence of record indicates that the Veteran is unable to obtain and/or maintain substantially gainful employment due to his service-connected PTSD. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the appellant's favor, the criteria for an evaluation of 70 percent, but not greater, for the Veteran's service-connected PTSD have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 4.1- 4.14, 4.126, 4.130, Diagnostic Code (DC) 9411 (2009). 2. With resolution of reasonable doubt in the appellant's favor, the criteria for the establishment of a TDIU are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.340, 4.3, 4.7, 4.16 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist As the Board's decision herein to grant both an increased initial evaluation for PTSD to a 70 percent disability rating and TDIU, is a full grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enacted November 9, 2000 (codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009)) and the implementing regulations. Analysis I. PTSD In Fenderson v. West, 12 Vet. App. 119 (1999), the Court held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. As such, the Board has considered all evidence of record in evaluating the Veteran's PTSD. Also, in Fenderson, the Court discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson at 126-28. As such, in accordance with Fenderson, the Board has considered the propriety of assigning initial staged ratings for the Veteran's service- connected PTSD. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2009). 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 (West 2002 & Supp. 2009); 38 C.F.R. § 4.1 (2009). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2009). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). 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 (2009). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran's claim is to be considered. In initial rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson, supra; 38 C.F.R. § 4.2 (2009). For reasons discussed in more detail below, the Board finds that the competent evidence demonstrates that the Veteran's service- connected disability did not undergo an increase in severity sufficient to warrant a staged rating during the relevant appeal period. As such, the Board will discuss the Veteran's PTSD symptomatology in relation to the applicable rating criteria for the entire appeal period. The Veteran's PTSD is evaluated pursuant to 38 C.F.R. § 4.130, DC 9411 (2009). Under that diagnostic code, a 50 percent rating is assigned when there is evidence 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 and maintaining effective work and social relationships. Id. A 70 percent rating is prescribed when there is evidence 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 work like setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating is prescribed when there is evidence of 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 as to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. In addition to evidence regarding the Veteran's symptomatology and its impact on his social and occupational functioning, the evidence of record contains a Global Assessment of Functioning (GAF) score. The GAF is a scale reflecting the "'psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness'" from 0 to 100, with 100 representing superior functioning in a wide range of activities and no psychiatric symptoms. Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (quoting DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 32 (4th ed. 1994)). GAF scores ranging between 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 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). 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). See Quick Reference to the Diagnostic Criteria from DSM-IV at 47 (American Psychiatric Association 1994) ("QRDC DSM-IV"). The Board notes that GAF scores are just one component of the Veteran's disability picture, and that it does not have a 'formula' that it follows in assigning evaluations. Rather, the Board considers the Veteran's entire disability picture, including GAF scores. Under such circumstances Veterans with identical GAF scores may be assigned different evaluations based on each individual's symptomatology and level of functioning. Furthermore, the Board need not accept a GAF score as probative. See Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995) (it is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in so doing, the Board may accept one medical opinion and reject others). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran meets the criteria for an increase to a 70 percent evaluation, but no more, for PTSD for the entire appeal period. The March 2008 VA examination report indicates that the Veteran's PTSD is characterized by 3-4 panic attacks per week and with associated agoraphobia. He experiences anxiety, depression, insomnia, anger, irritability ,decreased energy, and crying spells. As will be discussed in more detail below, such symptoms warrant a disability rating of 70 percent. The Board observes that a higher rating is not warranted because the competent evidence of record does not demonstrate that the Veteran's symptomatology most closely approximates a 100 percent evaluation or higher. In this regard, the Board notes that the Veteran's medical records do not contain evidence which supports a finding that he has gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, an inability to perform activities of daily living, disorientation as to time or place, or memory loss for names of close relatives, own occupation, or own name. As such, the Board notes that as the Veteran does not meet the criteria for the higher evaluation, an evaluation of 100 percent is unwarranted. At the March 2008 VA examination, the Veteran stated that he was moderately to severely anxious and depressed most of the time. He had insomnia, anger, and irritability issues, decreased energy, crying spells, etc. He denied suicidal or homicidal ideation or intent. He had reasonable insight and judgment. His intellectual capacity appeared intact. He was oriented to time and space and reported no delusions or hallucinations. The Veteran also noted 3-4 panic attacks per week. Evidence, with respect to the Veteran's ability to establish and maintain effective relationships, indicates that the Veteran has become increasingly isolated from other people. While he attended church with his wife, he did not like to be in large groups. The Veteran noted that he had not worked since 1998 when he had a cerebrovascular accident. But even prior to that incident, he said that had a short temper, poor relationships with his co-workers, and worked in a rather isolated job at this own request. The examiner noted that the Veteran had moderate to severe impairment in social, occupational, recreational, and familial functioning. Current GAF score was 40. As noted earlier, this score reflects some impairment in reality testing or communication 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. It is the Board's conclusion that the Veteran's overall disability picture for the entire appeal period most closely approximates that contemplated by a 70 percent evaluation. In sum, the evidence of record demonstrates that although the Veteran reports irritability problems, as stated above, there is no indication of a lack of impulse control. The record also demonstrates that he is able to function independently, has good hygiene and has no delusions or cognitive impairment. He does, however, exhibit a depressed mood, anxiety, chronic sleep impairment, frequent panic attacks, and agoraphobia. Additionally, it appears that he experiences impairment in the ability to establish and maintain effective relationships as evidenced by his apparent lack of friends, other than his wife and children. Based on the foregoing, the Board finds that the Veteran's PTSD more closely approximates the criteria for a 70 percent rating for the entire appeal period and entitlement to an increased rating on a schedular basis is therefore warranted. Hart v. Mansfield, 21 Vet. App. 505 (2007). As a final note, the Board acknowledges the Veteran's own statements that he is entitled to higher disability ratings. The Board must consider the entire evidence of record when analyzing the criteria laid out in the ratings schedule. However, while the Board notes that the Veteran is competent to provide evidence regarding symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology. Such evidence must come from a medical professional. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The evidence does show that symptomatology associated with the Veteran's PTSD more nearly approximates the schedular criteria associated with a higher rating for the entire appeal period. Under the above circumstances, the Board finds that the evidence is in favor of the Veteran's claim for an increased initial evaluation for PTSD for the entire appeal period, but a preponderance of the evidence is against higher evaluations than are assigned herein. Additionally, the Board has considered the benefit of the doubt rule and determined that the claim must be granted. 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2009); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). II. TDIU Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice- connected disabilities. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2009). In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The law provides that a total disability rating may be assigned where the schedular rating is less than total, when the disabled person is 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, or 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. See 38 C.F.R. § 4.16(a) (2009). As a result of this decision, the Veteran is service- connected for PTSD, which is rated as 70 percent disabling, effective October 4, 2007, which is the date that his claim was filed. Thus, as of this date he meets the criteria for schedular consideration of TDIU. See 38 C.F.R. § 4.16(a) (2009). For reasons stated immediately below, the Board finds that the evidence of record demonstrates that the Veteran's service-connected PTSD renders him unable to secure and follow a substantially gainful occupation. The symptomatology associated with the Veteran's service- connected PTSD has been described in some detail above in connection with the first issue on appeal. The Board will not belabor the point that the Veteran's anxiety, panic attacks, and problems interacting with others appropriately evidences difficulty adapting to a worklike setting, as such has already been detailed in the discussion of the increased rating claim above. In short, the medical and other evidence of record indicates that the Veteran's service-connected PTSD is productive of serious symptomatology which can be said to preclude employability. Based on the above analysis, the Board concludes that a grant of TDIU is warranted under 38 C.F.R. § 4.16(a) (2009). The benefit sought on appeal is accordingly granted. ORDER Entitlement to an increased initial evaluation of 70 percent throughout the appeal, but not greater, for service-connected PTSD is granted, subject to the law and regulations governing the award of monetary benefits. Entitlement to a TDIU is granted, subject to the law and regulations applicable to the payment of monetary benefits. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs