Citation Nr: 1124855 Decision Date: 06/30/11 Archive Date: 07/06/11 DOCKET NO. 10-01 173 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD), to include entitlement to a total disability rating based on unemployability (TDIU). 2. Basic eligibility for Dependents' Educational Assistance (DEA) benefits under the provisions of Chapter 35, Title 38, United States Code. ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from February 1969 to January 1972. This matter comes to the Board of Veterans Appeals (Board) from January 2009 and July 2009 rating decisions of the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. The Veteran's PTSD causes total occupational and social impairment. 2. The Veteran has a total disability permanent in nature resulting from a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for a 100 percent rating for PTSD are met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2010). 2. The issue of entitlement to a TDIU is moot. Vettese v. Brown, 7 Vet App. 31 (1994); Holland v. Brown, 6 Vet App. 443 (1994). 3. The criteria for eligibility for DEA benefits under the provisions of Chapter 35, Title 38, United States Code, have been met. 38 U.S.C.A. §§ 3500, 3501 (West 2002 & Supp. 2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). The Veteran's claims are being granted. As such, any deficiencies with regard to VCAA are harmless and nonprejudicial. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. In Fenderson v. West, 12 Vet. App 119 (1999), the Court emphasized the distinction between a new claim for an increased evaluation of a service-connected disability and a case (such as this one) in which the Veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been recognized as service-connected. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim-a practice known as "staged rating." However, as discussed below, because the level of impairment associated with the Veteran's PTSD has been relatively stable throughout the appeal period, the application of staged ratings (i.e., different percentage ratings for different periods of time) is inapplicable in this case. The Veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C.A. § 5107(a). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id. The regulations for mental disorders are found in 38 C.F.R. §§ 4.125-4.130. The Board notes that psychiatric disabilities evaluated under Diagnostic Code 9411 are rated according to the General Rating Formula for Mental Disorders. A 50 percent rating is provided 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 and maintaining effective work and social relationships. A 70 percent rating is provided 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is provided 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 of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. §§ 4.125-4.130. The Board further notes that a GAF rating 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 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994). The Board notes that an examiner's classification of the level of psychiatric impairment, by a GAF score, is to be considered but is not determinative of the percentage rating to be assigned. VAOPGCPREC 10-95. GAF scores ranging between 81 and 90 reflect absent or minimal symptoms (e.g., mild anxiety before an exam), good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns (e.g., an occasional argument with family members). GAF scores ranging between 71 and 80 reflect that if symptoms are present they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument; no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). 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). 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. A score of 11 to 20 denotes some danger of hurting one's self or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement) or occasionally fails to maintain minimal personal hygiene (e.g., smears feces) or gross impairment in communication (e. g., largely incoherent or mute). A GAF score of 1 to 10 is assigned when the person is in persistent danger of severely hurting self or others (recurrent violence) or there is persistent inability to maintain minimal personal hygiene or serious suicidal acts with clear expectation of death. See 38 C.F.R. § 4.130. The Veteran has been assigned a 50 percent rating for PTSD. The Veteran meets the criteria for a 100 percent rating. In August 2008, the Veteran's claim for service connection for PTSD was received. In conjunction with his claim, he was afforded a VA examination in January 2009. On mental status examination, the Veteran presented in a clear and coherent manner. He was cooperative and appropriate in his affect. His mood was depressed and he appeared teary-eyed. He was easily distracted and unable to perform serial 7's. He was oriented in all spheres and his thought content was unremarkable. He was preoccupied with one or two topics. He did not endorse delusions and understood the outcome of behavior. He had insight. The Veteran reported sleep impairment and would get up and patrol his house and eat. He did not have hallucination, but had obsessive and ritualistic behavior. He did not have panic attacks. There were no suicidal or homicidal thoughts. He had fair impulse control and no episodes of violence, although he reported having temper issues and road rage problems. He was able to maintain his personal hygiene and attend to his activities of daily living, other than shopping and driving for which he had moderate impairment. His recent memory was mildly impaired, but remote and immediate memory were normal. The diagnosis was PTSD and the examiner indicated that the GAF was 51. It was noted by the examiner that the Veteran had previously worked for 25 years. Currently, his problems revolved mostly around anger with others as well as concentration/attention issues. The examiner noted that there was an earlier report from Dr. Wendy J. Anderson in which the Veteran endorsed suicidal and homicidal ideation. However, at this time, the Veteran reported that he did not have those problems, but previously did. The examiner stated that the Veteran was previously denied service connection for PTSD by VA, but it appeared that the Veteran sought a private examination from Dr. Anderson and obtained a PTSD diagnosis. This VA examiner also determined that the Veteran did in fact meet the criteria for PTSD. A review of Dr. Anderson's earlier August 2008 examination showed that the Veteran was easily engaged in his evaluation, although he appeared quite reticent regarding direct discussions of his military experiences. His impulse control fell below normal limits. Speech was normal. Although form of thought fell within normal limits, thought content was consistent with the presence of suicidal and intermittent homicidal ideation. Specific means for suicide involved the use of a gun. There was no plan or intent endorsed. The Veteran was appropriate, but intense. The Veteran was oriented to all spheres and his ability to track the topic of discussion was normal. His concentration and memory were normal. The diagnosis was PTSD and the assigned GAF was 39. Dr. Anderson explained that the Veteran had difficulties in multiple areas, including social functioning, employment functioning, family relationships, judgment related issues, and mood. The Veteran described a marked pattern of social isolation and problems with authority figures. He had a history of arguments and problematic family relationships. He also had a history of irritability, angry outbursts, suicidality, and intermittent homicidality. The Veteran exhibited significant depressive symptoms including anhedonia. It was felt that he had severe symptoms and would likely be a danger to any work environment. Psychoeducational, couples counseling, and psychiatric symptoms management were recommended. His prognosis was extremely guarded. Following the VA examination, the Veteran was again examined by Dr. Anderson in January 2009. The findings were consistent with the 2008 examination and the GAF remained 39. Dr. Anderson indicated that the Veteran had been involved in a weekly support group run by her. She indicated that the Veteran had homicidal tendencies and was unable to maintain a normal standard of living. He had problems with emotional and behavioral controls as evidenced by his history of angry outbursts and suicidality. In addition, he had cognitive impairment. She felt that the symptoms were severe and not anticipated to remit in the next 13 months. She also stated that the Veteran's treatment was unlikely to significantly impact his overall presentation. She explained that the Veteran's PTSD was not highly amenable to treatment. The Board recognizes that he VA examination appeared to show higher functioning that the August 2008 private evaluation. However, the later 2009 private examination was consistent with the earlier examination and performed by the psychologist who has been treating the Veteran. She essentially indicated that the Veteran was unable to function normally due to anger issues and tendencies. She described him as presenting a danger in work environments and having social isolations, with temper issues. He also exhibited psychomotor retardation and cognitive impairment. His GAF is consistent with some impairment in reality testing or communication or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. In light of the foregoing, the Board finds that a 100 percent schedular rating is warranted. Further, the psychologist indicated that the Veteran's PTSD is basically not highly amenable to treatment and not likely to improve. Thus, the rating is permanent in nature. The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities has been perfected on appeal, but is moot in light of the grant of a 100 percent schedular rating for PTSD. Chapter 35 VA law provides that DEA benefits under Chapter 35, Title 38, United States Code, may be paid to dependents of a veteran who meet certain basic eligibility requirements. As pertinent to this appeal, basic eligibility for DEA exists if a veteran has a permanent, total service-connected disability. 38 U.S.C.A. §§ 3500, 3501. A total disability may be assigned where the Veteran's service-connected disabilities are rated 100 percent disabling under the rating schedule, or if the veteran is unemployable due to service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341 (2009). Permanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 3.340(b). As indicated above, the Veteran has been assigned a 100 percent rating for PTSD. He also has other service-connected disabilities. His PTSD is totally disabling and this level of disability is reasonably certain to continue throughout the life of the Veteran. As such, basic eligibility for Chapter 35 DEA benefits is established. ORDER An initial 100 percent schedular rating for PTSD is granted, subject to the law and regulations governing the payment of monetary benefits. Basic eligibility for DEA benefits under the provisions of Chapter 35, Title 38, United States Code, is granted. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs