Citation Nr: 1121633	
Decision Date: 06/03/11    Archive Date: 06/09/11

DOCKET NO.  09-42 123A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas


THE ISSUE

Entitlement to a disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD).


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Jebby Rasputnis, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1970 to April 1972.
  
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas.  

A hearing was scheduled before the Board in January 2011.  The Veteran failed, without apparent cause, to appear for the scheduled hearing. Therefore, his request for a hearing is considered as having been withdrawn. 38 C.F.R. § 20.704 (2010).


FINDINGS OF FACT

Resolving all reasonable doubt in the Veteran's favor, his PTSD approximates 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 of names of close relatives, own occupation or own name.


CONCLUSION OF LAW

The criteria for a 100 percent disability evaluation for service-connected PTSD  have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.13, 4.20, 4.130, Diagnostic Code 9434 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board will discuss the relevant law which it is required to apply.  This includes statutes published in Title 38, United States Code ("38 U.S.C.A."); regulations published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions.  38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (Implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (The Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction.  The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts).

Duties to Assist and Notify

The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009), and implemented by 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010).  Under the VCAA, VA has a duty to notify the Veteran of any information and evidence needed to substantiate and complete a claim.  38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

As the Board has granted the full benefits sought with respect to the issue herein decided, there is no prejudice to the Veteran under VA's duties to notify and assist.  As such, any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to have caused injury to the claimant.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).



Increased Rating

The Veteran seeks entitlement to a disability rating in excess of 70 percent for his service connected psychiatric disability.  He submitted a claim for an increased rating in December 2008 and, in a February 2009 rating decision, the RO granted a 70 percent rating effective the date of his claim; he timely appealed that decision, noting disagreement with the level of disability that was assigned.  For the reasons and bases discussed below, the Board finds that a 100 percent rating is appropriate for his disability.

Disability ratings are determined by applying VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4.  The percentage ratings 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; 38 C.F.R. § 4.1.  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.  See 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the Veteran's favor.  38 C.F.R. § 4.3.

Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, staged ratings are appropriate for an increased rating claim, if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  The following discussion addresses the Veteran's level of disability from the time the increased rating claim was filed in December 2008.  Francisco, 7 Vet. App. 55; Hart, 21 Vet. App. 505.  

The Veteran's psychiatric disorder has been evaluated under the general rating formula for mental disorders (38 C.F.R. § 4.130):


A 70 percent rating is warranted where the disorder is manifested by 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 that is 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 an inability to establish and maintain effective relationships.

A 100 percent rating is indicative 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 to time or place; memory loss of names of close relatives, own occupation or own name.

The nomenclature employed in the portion of VA's Rating Schedule that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (also known as "DSM-IV").  38 C.F.R. § 4.130. DSM-IV contains a Global Assessment of Functioning (GAF) scale, with scores ranging between zero and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness.  Higher scores correspond to better functioning of the individual.

Under DSM-IV, GAF scores ranging between 61 and 70 are assigned when there are 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 when the individual is functioning pretty well and has some meaningful interpersonal relationships.

GAF scores ranging between 51 and 60 are assigned when there are moderate symptoms (like flat affect and circumstantial speech, and occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).

GAF scores ranging between 41 and 50 are assigned when 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).

GAF scores ranging between 31 and 40 are assigned when there is 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).

Symptoms listed in VA's general rating formula for mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).

The Veteran was afforded a VA examination in January 2009.  The examiner assessed his GAF at 60 for PTSD, 45 for major depression, and 50 overall.  The examiner explicitly stated that his PTSD symptoms had increased since the last evaluation.  The examination report reflects that the Veteran experienced, due to PTSD, depressed mood, blunted affect, anxiety, suicidal ideation, memory problems, sleep disturbance, irritability/anger outbursts, hypersomnolence, and poor hygiene and grooming.  Interview responses from the Veteran indicated social isolation and the examiner stated that, if he were to attempt to work, his occupational functioning would be significantly impaired.  Although no overt hallucinations were noted, the examination report reflects that the Veteran stated that he feels as though there is someone sitting next to him when watching television alone.  The examiner observed that the Veteran had been hospitalized (psychiatric) multiple times since the last examination and noted that one such hospitalization occurred as the result of a suicide attempt.

The Veteran's sisters wrote letters to VA in January 2009 describing the effects of PTSD on the Veteran.  The letters indicate that the Veteran experiences suicidal ideation and struggles to care for himself.

VA treatment notes associated with the claims file reflect ongoing treatment, including therapy and medication, for PTSD.  VA treatment records also show that the Veteran received inpatient psychiatric treatment in November and December 2008 and January 2009.  GAF scores assessed for the Veteran range from 30 (October 2008), 55 (November 2008), 60 (December 2008), 40 (January 2009), and 60 (January 2009).

Records from the Social Security Administration (SSA) reflect a determination that the Veteran is precluded from employment as the result of his psychiatric disabilities.  A July 2010 VA rating decision granted entitlement to a total disability rating based on individual unemployability (TDIU), finding the Veteran "unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, "primarily [his] PTSD."

The above evidence reflects that the Veteran's condition is manifested by  persistent danger of hurting himself, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), inability to work, memory and sleep disturbances, and inappropriate behavior in the form of angry outbursts.  Although the Veteran has not been diagnosed with total (italics added for emphasis) social impairment or persistent (italics added for emphasis) delusions or hallucinations, which are symptoms listed under the general rating formula for a 100 percent disability rating, the Board notes that 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.  See 38 C.F.R. § 4.7.  

Additionally, the Veteran's GAF scores have ranged from 30 to 60, indicating impairment with reality and serious symptoms to moderate symptoms.  Although these scores have fluctuated, GAF scores are just one of the medical findings employed in a rating determination; the score assigned does not determine the disability rating VA assigns.  Massey, 7 Vet. App. at 207.  As such, the Board finds that the evidence most closely approximates a 100 percent rating.  As the Board has determined that the highest rating possible is appropriate for the appellate period, there is no basis for assigning a staged rating under Hart, 21 Vet. App. 505.

Although entitlement to a total disability rating based on individual unemployability is an element of all appeals of an increased rating (Rice v. Shinseki, 22 Vet. App. 447 (2009)), a July 2010 rating decision granted entitlement to TDIU.  As such, there is no need to address entitlement to TDIU here.


ORDER

A 100 percent disability evaluation for service-connected PTSD is granted.



____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs