Citation Nr: 1120701 Decision Date: 05/27/11 Archive Date: 06/06/11 DOCKET NO. 07-30 737 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an increased rating for posttraumatic stress disorder (PTSD), currently rated as 30 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. C. Dale, Associate Counsel INTRODUCTION The Veteran had active duty service from December 1967 to October 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision by Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied an increased rating for PTSD. The Board notes that the Veteran has submitted additional evidence following the last adjudication by the agency of original jurisdiction (AOJ) without a waiver of review by the AOJ. However, as the Board is granting a total disability rating, a waiver of review by the AOJ is not necessary. 38 C.F.R. § 20.1304(c). FINDING OF FACT The Veteran's PTSD is manifested by near total occupational and social impairment. CONCLUSION OF LAW The criteria for a 100 percent rating for PTSD have been met. 38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.125, 4.126, 4.130, Diagnostic Code (DC) 9411 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 as amended (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. 2010); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). As the Board is granting a total disability rating, the claim is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 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"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (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). Analysis Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 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 evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances 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, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder, VA will also consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The schedular criteria for rating psychiatric disabilities incorporate the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). See 38 C.F.R. §§ 4.125, 4.130. PTSD is rated under 38 C.F.R. § 4.130, DC 9411, according to the General Rating Formula for Mental Disorders. Under the General Rating Formula, a 50 percent disability rating is warranted when there is 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability rating is warranted when there is 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); and inability to establish and maintain effective relationships. A 100 percent disability rating is warranted when there is 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; and memory loss for names of close relatives, own occupation, or own name. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). On the other hand, if the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). The Global Assessment of Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." Richard v. Brown, 9 Vet. App. 266, 267 (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). A GAF score of 31-40 indicates some impairment in reality testing or communications or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. Id. A GAF score of 41-50 is assigned where there are, "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. A GAF score of 51-60 rating indicates 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). Id. Turning to the evidence, VA treatment records showed that the Veteran has received extensive psychological treatment. VA treatment records from October 2005 reflected that the Veteran had trouble maintaining basic hygiene due to his depressed mood. In VA treatment notes, dated in December 2005, the Veteran continued to have hygiene difficulties, and he reported feeling uncomfortable driving due to his memory impairment. He also had severe insomnia. VA provided the Veteran with a PTSD examination in December 2005. The examiner reviewed the claims file and interviewed the Veteran. She noted the Veteran had appropriate hygiene and behavior. The Veteran stated that he believed his PTSD symptoms were increasing. He cited an increase in nightmares, depressed moods, and auditory hallucinations. He also reported frequent crying spells, hygiene problems, and general thoughts of violence. The Veteran noted that there were several periods where he would not leave his house for days and lost track of the time he spent at home. The examiner maintained the PTSD diagnosis and assigned a GAF score of 51. The Veteran visited a private psychiatrist, Dr. E.H., in January 2006 for an evaluation. Dr. E.H. related symptoms including frequent nightmares and intrusive thoughts that significantly impaired the Veteran's daily functioning and ability to rest. He believed the Veteran's memory was severely restricted. Dr. E.H. also noted that the Veteran frequently had auditory hallucinations. He concluded that these symptoms wholly precluded employment and moderately compromised his ability to sustain social relationships. Dr. E.H. assigned a GAF score of 30. VA treatment records show that the Veteran participated in VA group therapy throughout 2008. The Veteran underwent an additional VA PTSD examination in January 2009. The examiner reviewed the claims file and interviewed the Veteran. The Veteran reported having frequent crying spells and a depressed mood on a daily basis. He reported sleep impairment and frequent panic attacks. He also affirmed having what were described as "hallmark PTSD symptoms" such as intrusive thoughts, avoidant behavior, and increased arousal. All of these symptoms occurred on a frequent basis. Although he had been married for a long time, he reported martial problems over his mood. The Veteran did not have any friends and avoided all social activities. Although the Veteran presented clean hygiene and unimpaired communication skills at the examination, the examiner observed a depressed mood and significant memory impairment. She commented that he could not concentrate for more than 10 to 15 minutes and was easily distracted during conversation. The Veteran relied on his spouse to ensure that he maintained his personal hygiene and performed necessary domestic activities. He was severely restricted in his ability to drive due to his memory impairment and social anxiety. The examiner judged the Veteran's remote memory to be normal, but observed problems with his immediate and recent memory. She determined that the Veteran could not maintain his usual employment due to his memory problems and social inhibitions. She diagnosed PTSD and major depressive disorder. She also assigned a GAF score of 45 and reported that there was total occupational and social impairment due to PTSD symptoms. She cited the near complete social isolation, inability to drive or concentrate, mood disturbances, and sleep disturbances. The most recent medical evidence is a letter, dated in January 2010, by Dr. E.H. He noted the Veteran's recent PTSD symptoms included intrusive thoughts, hypervigilance, memory impairment, auditory hallucinations, depressed mood, and crying spells. Dr. E.H. concluded that the Veteran was moderately compromised in his ability to sustain social relationships, but permanently incapable of gainful employment. He listed the Veteran's GAF score as 35. The Veteran asserts that his PTSD symptoms approximate the 100 percent rating criteria of Diagnostic Code (DC) 9411. 38 C.F.R. § 4.130, DC 9411. After reviewing the evidence, the Board agrees, and the claim is granted. Id.; Mauerhan. The rating criteria provide a 100 percent disability rating where there is total occupational and social impairment. The Veteran has consistently been found to have many of the symptoms listed in the criteria for the 100 percent rating. With the exception of the 2005 VA examination, he has been given GAFs indicative of an inability to maintain employment. The 2005 VA examiner did not comment directly on the Veteran's occupational impairment, but symptoms that would appear to be incompatible with employment, such as going two to three days without bathing or leaving the house and difficulty with volition. The treatment notes report very serious symptoms and the remaining VA and private examiners have concluded that the Veteran could not work. The most recent VA examiner essentially found that the Veteran met the specific criteria for a 100 percent rating. The Veteran has been able to maintain his marriage, which weighs against finding total social impairment due to PTSD symptoms. 38 C.F.R. § 4.130, DC 9411. However, he is otherwise socially isolated. Given the clear showing of total occupational impairment and serious social impairment, the Board finds that the disability has most closely approximated the criteria for a 100 percent disability rating throughout the appeal period. A 100 percent disability rating is granted for service connected PTSD. 38 C.F.R. §§ 4.7, 4.21, 4.130, DC 9411; See id. This represents a full grant of the benefit sought on appeal. Total disability rating based upon individual unemployability (TDIU) The Veteran has filed an increased rating claim and provided evidence of unemployment. He has also asserted that his service connected PTSD precludes gainful employment. Thus, there is the issue of whether TDIU is warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In this case, a 100 percent disability rating has been assigned. The TDIU claim arises in conjunction with the increased rating claim. A TDIU is provided where the combined schedular evaluation for service connected diseases and disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16(a). A TDIU is considered a lesser benefit than the 100 percent rating, and the grant of a 100 percent rating in the instant decision renders moot the issue of entitlement to a TDIU for the period when the 100 percent rating is in effect. VAOPGCPREC 6-99; 64 Fed. Reg. 52,375 (1999). ORDER A 100 percent disability rating for service connected PTSD is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs