Citation Nr: 1124820 Decision Date: 06/30/11 Archive Date: 07/06/11 DOCKET NO. 10-15 790 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to a rating greater than 70 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Kenneth M. Carpenter, Attorney at Law ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The appellant is a veteran who served on active duty from March 1968 to January 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. The Board notes the Veteran also perfected an appeal seeking a total disability rating based on individual unemployability (TDIU). Although it is not categorically true that assignment of a total schedular rating renders a TDIU claim moot, see Bradley v. Peake, 22 Vet. App. 280 (2008), given that the TDIU in this case was raised only in the context of the PTSD claim (and not by the Veteran in the form of an allegation that all of his service-connected disabilities have rendered him unemployable), the Board finds that the assignment of a total schedular evaluation for the PTSD does render the TDIU claim moot. The RO, in a May 2009 Statement of the Case (SOC) granted the Veteran an increased rating from 50 percent to 70 percent disabling for his PTSD. After the Veteran has perfected his appeal, a subsequent rating decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal. AB v. Brown, 6 Vet. App. 35 (1993). Accordingly, the issue is still properly before the Board here and the issue has been appropriately rephrased above. The Board notes that in April 2010, the Veteran's representative argued, among other things, that the Veteran's rating for PTSD should be higher than 50 percent from the initial grant of service connection. The Veteran initially claimed entitlement to service connection for PTSD in February 2006. The claim was granted by the RO in November 2006 assigning the Veteran an initial rating of 30 percent, effective February 22, 2006, the date of the initial claim. The Veteran filed a notice of disagreement (NOD) with the initial rating in December 2006 and the RO granted the Veteran an increased rating of 50 percent, but no higher, for the initial rating of PTSD in a December 2007 SOC. The Veteran was notified of this decision on December 19, 2007. On February 15, 2008, 74 days after the December 2007 SOC, the Veteran's then-representative indicated in a statement that the Veteran had recent treatment for his PTSD and to "please continue to process his claim." The RO proceeded to treat this statement as an increased rating claim, which was adjudicated in May 2008, and this appeal ensued. In April 2010, the Veteran's current representative now takes issue with the initial 50 percent rating arguing the Veteran should have a total disability rating effective February 22, 2006. After a careful review of the record, the Board concludes the Veteran's initial PTSD rating is not currently before the Board here. The February 15, 2008 statement from the Veteran's then-representative did not indicate the Veteran was appealing any prior decision. Even if liberally construed, the February 2008 statement is not a timely appeal of the initial rating following the December 2007 SOC. That is, the most immediate correspondence after the December 2007 SOC (dated February 15, 2008) was not received by the VA until 74 days after notification of the SOC and well over one year after the December 2006 rating decision granting service connection and assigning the initial rating for PTSD. See 38 C.F.R. § 20.302(b) (2010) (requiring a substantive appeal to be filed within 60 days from the date that the RO mails the SOC to the Veteran, or within the remainder of the 1-year period from the date of mailing the notification of the determination being appealed, whichever period ends later). Accordingly, the Board's analysis of the PTSD claim here is limited to whether the Veteran is entitled to a rating greater than 70 percent for PTSD from February 21, 2008. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, since the date of the Veteran's increased rating claim in February 2008, the Veteran's PTSD primarily results in nightmares, flashbacks, intrusive memories, difficulties sleeping, anxiety, irritability, depression, social isolation with a strong preference to be alone other than immediate family, obsessive compulsive behavior, and some short-term memory impairment all resulting in total social and occupational impairment. CONCLUSION OF LAW The criteria for a total (100) disability rating for posttraumatic stress disorder (PTSD) have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In light of the total grant of benefits here, the Board concludes any VCAA deficiencies are non-prejudicial. Increased Rating (PTSD) The Veteran claims his PTSD renders him unemployable and, therefore, should be rated at 100 percent disabling. The Board finds noteworthy that the Veteran's only other service-connected disability is tinnitus, rated as 10 percent disabling. Disability ratings are assigned, under a schedule for rating disabilities, based on a comparison of the symptoms found to the criteria in the rating schedule. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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 an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). For a claim for an increased rating, such as the disabilities in this case, the primary concern is the current level of disability. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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. The Court recently held that "staged" ratings are 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, for reasons explained below, the Board finds the Veteran's disability is consistent throughout the relevant appellate time period and, therefore, staged ratings are not warranted here. The General Rating Formula for Mental Disorders provides, in pertinent part: 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 . . . . . . . . . . . . . . . . . . . . . . . 50 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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 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 name . . . . . . . . . . . . . . . . . . . . . . . . . 100 38 C.F.R. § 4.130, Diagnostic Code 9411. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase 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). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)). Id. Additionally, a GAF score is often used by treating examiners to reflect the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Richard v. Brown, 9 Vet. App. 266 (1996). A GAF score is highly probative as it relates directly to the Veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. See Massey v. Brown, 7 Vet. App. 204, 207 (1994). In this case, most recent VA outpatient treatment records from 2009 indicate a GAF score of 50. Prior to that time, however, the Veteran was assigned GAF scores between 43 and 45. Indeed, the Veteran was most recently afforded a VA examination in March 2008 where the examiner assigned the Veteran a GAF score of 43. In May 2009, the Veteran's therapist at a local Vet Center indicated the Veteran's GAF score is more likely 40 or 41. The DSM-IV provides for a GAF rating of 31 to 40 for 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 younger children, is defiant at home, and is failing at school). A GAF rating of 41-50 is assigned for 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). Clearly the difference between a GAF score of 40 and 50 is significant. According to all the medical records and the Veteran's statements, the Veteran's PTSD is mainly manifested by significant anxiety, sleep disturbances, depression, irritability, distrust of others and obsessive compulsive behavior. The Veteran was afforded a VA examination in March 2008 where the examiner indicated the Veteran had a lengthy marriage with a good relationship with his wife, adult children and grandchildren. Aside from his family, however, the examiner noted the Veteran had a significant distrust of other people and owned twenty guns. The Veteran indicated he always had a gun nearby or he would not feel comfortable. The Veteran also exhibited obsessive compulsive behavior to include obsessively counting, avoiding black squares when walking and checking his safe three times before leaving his basement. The Veteran also indicated increased anxiety and intrusive memories. The only leisure activity noted was a "cowboy shooting game" where the Veteran could use live ammunition and practice shooting his guns. The examiner noted on examination that the Veteran was well oriented to time, place and circumstance with normal speech and a goal oriented thought process. The Veteran was anxious and showed impaired short-term memory and concentration. Even so, the Veteran had adequate personal hygiene and denied any suicidal ideation or homicidal ideation at that time. The examiner also noted the Veteran owned his own concessions business for many years, but his wife had to take over five to six years ago because he could not get along with customers, due to impatience and irritability. A January 2008 VA outpatient treatment record also indicates the Veteran's complaints of being "unemployable" due to severe PTSD symptoms such as impulsivity, nightmares, flashbacks, irritability, insomnia, attention deficits, concentration impairments, short temper, and avoidance of places. More recent VA outpatient treatment records, however, indicate a less-severe condition. In October 2008, for example, the Veteran was noted to be anxious, but had good grooming and hygiene, was cooperative and did not exhibit any abnormal behavior, delusions or hallucinations. The Veteran, at that time, denied suicidal or homicidal ideation. Also in October 2008, the Veteran sought treatment for an unrelated condition and the VA physician described the Veteran as "a very pleasant...male." In October 2009, the Veteran was afforded a GAF score of 50, for moderately severe PTSD symptoms, which is a significant improvement from the 2008 VA examination. In contrast, the Veteran's therapist from a local Vet Center indicated in a May 2009 statement that the Veteran regularly receives therapy from the Vet Center since August 2005 and the Veteran's symptoms warrant a GAF score of 40 to 41. Specifically, the therapist indicated the Veteran's symptoms included depression, anger, rage, flashbacks intrusive thoughts, mistrust of others, nightmares, lack of sleep, avoidance, isolation, irritability, short-term memory loss, anxiety, hypervigilance, and suicidal ideation. The therapist explained the Veteran's suicidal ideation was a recent symptom developed over the past six months where the Veteran has no plans to act out the ideation. The therapist opined that the Veteran is unlikely to obtain or maintain employment. After a careful review of the record and for reasons and bases expressed immediately below, the Board finds that the medical records as a whole support an increased rating of 100 percent for PTSD. While the GAF scores range from 40 to 50, the medical records clearly support the finding that the Veteran suffers from severe PTSD symptoms, to include sleep disturbances, extreme anxiety, depression, mistrust of people, social isolation other than immediate family members, occupational impairment, obsessive compulsive behavior and some memory and concentration problems. A 70 percent rating is warranted where the Veteran has occupational and social impairment with symptoms such as suicidal ideation, obsessional rituals, illogical or irrelevant speech, near-continuous panic or depression, impaired impulse control, neglect of personal appearance and hygiene and inability to adapt to stressful circumstances or maintain effective relationships. A 100 percent rating is awarded under DC 9411 where there is evidence of marked symptomatology such as delusions, hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, an inability to take care of minimal personal hygiene and disorientation to time or place. While the Veteran clearly has some obsessive compulsive behavior with inconsistent notations of suicidal ideation, no medical professional has ever indicated the Veteran suffers from delusions, hallucinations or other grossly inappropriate behavior. Indeed, even the Vet Center therapist that noted the new symptom of suicidal ideation indicates the Veteran has no plans to carry out the ideation and is not a persistent danger to himself or others. Clearly the Veteran does not have all of the symptoms contemplated under the 100 percent criteria. The Veteran, however, has many of these symptoms. In contrast, medical professionals consistently note the Veteran as a well-groomed, pleasant man despite his complaints of anger problems and mistrusting others. The Veteran exhibits some symptoms of poor memory and concentration, but the Veteran has never exhibited any symptoms indicating he was not oriented to time and place. In light of the conflicting GAF scores and varying symptomatology, the Board has considered the requirement of 38 C.F.R. § 4.3 to resolve any reasonable doubt regarding the level of the Veteran's disability in his favor. In that regard, the Board has considered the Veteran's contention that he is unable to work due to his PTSD. The Veteran claims he was self employed from 1975 to 2001 and had to let his wife take over his concessions business in 2001 because, due to his PTSD, he could no longer deal with customers. He further complained that his severe symptoms of PTSD render him unemployable to his VA physician as well as his Vet Center therapist. These complaints are noted in the VA and Vet Center treatment records. According to the Veteran's TDIU form, the Veteran last worked in 2001 and was self-employed. The Veteran indicates on the form that he has a college education. The Veteran never claimed that he ever attempted to find alternative employment. The Board notes VA outpatient treatment records through 2010 indicate the Veteran has a lengthy list of non-service related disabilities. Indeed, the Veteran is currently on portable oxygen and cannot walk more than 3/4 of a mile. A January 2008 VA outpatient treatment record specifically indicates the Veteran suffers "from problems with severe PTSD symptoms...which are making him unemployable." Again, the treatment record merely appears to reflect the Veteran's complaints rather than an independent medical opinion. The Veteran was afforded a VA examination in March 2008 where the examiner noted the Veteran's wife took over the Veteran's concessions business due to his inability to deal with customers. The examiner, however, did not indicate the Veteran was incapable of sustaining any employment. In May 2009, the Veteran's therapist from the Vet Center opined that it was "highly unlikely" that the Veteran could obtain or maintain any substantial employment due to his PTSD symptoms. On the one hand, the Veteran still owns his own company, albeit his wife runs the daily operations of the business. VA outpatient treatment records, moreover, clearly indicate the Veteran suffers from severe non-service related disabilities. On the other hand, the Veteran's therapist from the Vet Center indicates a treatment history since 2005 finding the Veteran "highly unlikely" to maintain or obtain employment due to severe PTSD symptoms. His PTSD symptoms, moreover, are consistently described as "severe" by physicians throughout the appellate time frame. Although it is not clear whether the Veteran's current unemployment is strictly due to his service-connected PTSD, the Board finds the evidence is, at the very least, in relative equipoise. As such, the Veteran is entitled to the benefit of the doubt. Therefore, the Board concludes his PTSD causes him "total" occupational impairment. In regard to social impairment, while the Veteran mistrusts people, has no friends and prefers to avoid places, he also reported having a good relationship with his wife, children and grandchildren. He also indicated he is involved in a cowboy shooting game. The Veteran's PTSD symptoms include, most significantly, obsessive compulsive behavior, anxiety, social isolation, anger, irritability, depression, significant sleep disturbances and "total" occupational impairment. The Veteran has largely been assigned a GAF score consistent with a "serious" impairment in social and occupational functioning. Again, the Veteran does not have some of the symptoms ordinarily associated with "total" social and occupational impairment, such as delusions, hallucinations, disorientation to time and place, deficient personal hygiene and grossly inappropriate behavior. Overall, since the Veteran has some of the criteria for a 100 percent rating, such as "total" occupational impairment, along with several psychiatric symptoms not listed in the rating schedule such as mistrust of people and poor concentration, etc., see Mauerhan, supra, the Board concludes his overall level of disability more nearly approximates that consistent with a 100 percent rating. ORDER Entitlement to a 100 percent (total) disability rating for posttraumatic stress disorder is granted, subject to the laws and regulations governing monetary awards. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs