Citation Nr: 1126554 Decision Date: 07/14/11 Archive Date: 07/21/11 DOCKET NO. 05-06 847 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) for the period dated from October 15, 1975 to April 17, 1997. REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD Stephanie L. Caucutt, Counsel INTRODUCTION The Veteran served on active duty from April 1968 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating determination of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Lincoln, Nebraska. In February 2007, the Board adjudicated the issue of entitlement to a disability rating in excess of 10 percent for PTSD for the period dated from October 15, 1975, to April 17, 1997. In its decision, it awarded a rating of 30 percent, effective from November 6, 1996, to April 17, 1997. It also denied a rating in excess of 10 percent for the period dated from October 15, 1975, to November 5, 1996. The Veteran subsequently appealed the Board's February 2007 decision to the Court of Appeals for Veterans Claims (Court). In a January 2010 Memorandum Decision, the Court determined that it was unclear whether the Board had considered evidence favorable to the Veteran in making its determination. As such, it vacated the Board's decision and remanded the matter for readjudication. Thereafter, in September 2010, the Board remanded this appeal for additional evidentiary and procedural development. As discussed in more detail below, the Board is granting the full benefit sought on appeal. As such, there is no need to consider whether there was compliance with its remand directives and it may proceed with a decision at this time. FINDING OF FACT The competent and credible evidence demonstrates that, at a minimum, there is genuine equipoise regarding whether the Veteran's PTSD was characterized by symptomatology which resulted in virtual isolation in the community throughout this appeal; additionally, as of May 1985, the competent and credible evidence demonstrates an inability to obtain or retain employment. CONCLUSION OF LAW The criteria for a disability rating of 100 percent for PTSD have been met for the entirety of this appeal. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10 (2010); 38 C.F.R. § 4.132, Diagnostic Codes 9400-9406 (1976). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the 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, 3.326(a) (2010). In this case, the Board is granting in full the benefit sought on appeal - namely, an 100 percent schedular disability rating for the entirety of the appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Legal Criteria and Analysis Historically, the Veteran was awarded service connection for PTSD by RO rating decision dated in October 1998 and assigned an initial rating of 30 percent, effective April 18, 1997. He subsequently sought both a higher initial rating and an earlier effective date for his award of service connection. In September 2001, the RO increased the initial rating assigned from 30 percent to 50 percent; it also awarded a total disability based on individual unemployability (TDIU) effective April 18, 1997. In May 2004, the RO granted an earlier effective date for service connection for PTSD, namely, October 15, 1975, and assigned a 10 percent disability rating effective that date. In July 2004, the Veteran notified the VA that he only disagreed with the 10 percent rating assigned from October 15, 1975, to April 17, 1997. In February 2007, the Board awarded an increased rating for PTSD (i.e., 30 percent), but only for the period of the appeal dated from November 7, 1996, to April 17, 1997. As noted above in the Introduction, the Veteran appealed this decision to the Court, which subsequently vacated the February 2007 decision and remanded the matter for readjudication. Following the Board's September 2010 remand, the RO increased the Veteran's rating from 10 percent to 50 percent, effective October 15, 1975. It also awarded an earlier effective date for TDIU - May 1, 1985. As of the date of this decision, the VA has not received any communication from the Veteran or his accredited representative indicating that he is satisfied with the increase awarded by the RO in the March 2011 rating decision. As such, the issue of entitlement to a higher disability rating for PTSD for the period dated from October 15, 1975, to April 17, 1997, remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that, on a claim for an original or increased rating, the veteran will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy, even if partially granted, where less than the maximum benefit available is awarded). As discussed immediately hereafter, the Board finds that the evidence is, at a minimum, in genuine equipoise as to whether the Veteran's PTSD has resulted in virtual isolation in the community throughout this appeal such that he is entitled to a 100 percent schedular rating. By way of background, disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.10 (2010). Regulations require that where there is a question as to which of two evaluations is to 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 (2010). In accordance with 38 C.F.R. §§ 4.1, 4.2 (2010) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the service treatment records and all other evidence of record pertaining to the history of the Veteran's PTSD. As previously discussed above, the Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes. As of October, 15, 1975, the effective date for the Veteran's grant of service connection for PTSD, there was no diagnostic code for PTSD. In fact, PTSD was not recognized as a mental disorder in the Rating Schedule until April 11, 1980. See 45 Fed. Reg. 77, 26326-27 (April 18, 1980). Thus, the Board must determine which diagnostic code, prior to April 11, 1980, is most analogous to PTSD, and apply the applicable rating criteria. The Board notes that when PTSD was finally added to the Rating Schedule it was classified as a psychoneurotic disorder. As such, prior to April 11, 1980, the Board will use the general rating criteria for psychoneurotic disorders effective as of September 29, 1975. 38 C.F.R. § 4.132, Diagnostic Codes 9400-9406 (1976). According to Diagnostic Codes 9400 to 9406 (1976), an 100 percent schedular rating is warranted when any of the following criteria is met: [1] The attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community. [2] Totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities such as phantasy, confusion, panic and explosions of aggressive energy resulting in profound retreat from mature behavior. [3] Demonstrably unable to obtain or retain employment. 38 C.F.R. § 4.132, Diagnostic Codes 9400-9406 (1976). See Johnson v. Brown, 7 Vet. App. 95, 97-99 (1994) (upholding VA's interpretation that the criteria for a 100 percent schedular rating are each independent bases for an award). According to governing legal precedent, the above rating criteria may be applied throughout this appeal, regardless of the fact that the criteria for mental disorders were amended effective February 2, 1988, and November 7, 1996. See Diorio v. Nicholson, 20 Vet. App. 193, 197 (2006), citing Swann v. Brown, 5 Vet. App. 229, 232 (1993) (recognizing that where the law is amended during pendency of appellant's claim the most favorable version applies); Rodriguez v. Nicholson, 19 Vet. App. 275, 287 (2005). Therefore, because the Board is awarding a full grant of benefits pursuant to the rating criteria in effect as of October 15, 1975, it need not discuss the other rating criteria that may apply to PTSD at various times during this appeal. Here, the evidence of record reflects that the Veteran has been receiving on-going mental health treatment, including both pharmaceutical- and psychotherapy, for "nerves" and "anxiety" since approximately 1973. With regard to his social and occupational history, the record indicates that he was divorced and living with his mother and brother from 1975 to 1977 while attending school and working part-time. It also shows that, in 1977, he began a romantic relationship with a woman that has continued to present day. Following school, the Veteran was employed as a machine operator at a box factory from 1978 to April 1985. At such time he ceased working, and while he occasionally did some antique buying/selling with his brother, he failed to earn a living and was, for all intents and purposes, unemployed. Pertinent to the current determination, the competent evidence dated throughout this appeal indicates that the Veteran lacks a level of maturity commensurate with his peers and that what few relationships he does maintain (i.e., with his mother, brother, and girlfriend) are described by clinicians as "dependent." Other than his mother, brother, girlfriend, and daughter, there is no mention of any interpersonal relationships in the contemporaneous record. At a March 1999 VA examination, the Veteran described himself as a "loner" who is bothered by other people. Such self-assessment was echoed by his long-time girlfriend at a March 2004 interview when she noted that he has always actively avoided interaction with other veterans, including reunions, and that he often becomes agitated in public and will need to go home immediately. She also stated that he will occasionally withdraw at home, sitting and staring at a blank television. The Board acknowledges that many of the records that discuss the Veteran's social functioning during this appeal are not actually contemporaneous to the appeal and are dated after he stopped working in 1985. However, relevant to its analysis, the Board observes that a July 1973 inpatient summary indicates that withdrawal was objectively observed as well as "only minimal interest in interpersonal activities and relationships." Thus, it appears that the Veteran exhibited symptoms consistent with isolating behavior as early as 1973. Absent some evidence in the various treatment records and reports dated during this appeal indicating a significant change in the Veteran's social desires and functioning, the Board feels that the evidence supports a finding that he has maintained only a few intimate relationships since service which, in and of themselves, are not entirely healthy per mental health professionals. As relevant to its analysis, the Board finds it notable that at no time has the Veteran ever co-habitated with his girlfriend of more than three decades. Such fact only further reinforces a disability picture characterized by severe social withdrawal and isolation. While the above evidence is suggestive of the fact that the Veteran has been socially withdrawn since at least 1973, the applicable rating criteria expressly state that "[s]ocial impairment per se will not be used as the sole basis for any specific percentage evaluation, but is of value only in substantiating the degree of disability based on all of the findings." 38 C.F.R. § 4.132, Diagnostic Codes 9400-9406 (1976), Note (1). And the specific rating criteria provide that "the attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community (emphasis added)", implying some effect on occupational contacts/relationships. 38 C.F.R. § 4.132, Diagnostic Codes 9400-9406 (1976). Here, the Board notes that regardless of the Veteran's social impairment, the evidence clearly demonstrates that PTSD has resulted in occupational impairment severe enough to preclude employment as of May 1, 1985. In this regard, mental health records and a private forensic opinion dated in May 2007 demonstrate that the Veteran's PTSD results in various psychosomatic manifestations such as hyperventilation syndrome, heart palpitations, dizziness, and lightheadedness. As previously discussed, the Veteran's girlfriend has indicated that the Veteran must immediately go home when these anxiety episodes occur. Thus, it is difficult to comprehend how he could effectively maintain steady employment. Also of record is a forensic opinion by a VA psychiatrist that the Veteran's past occupational problems were more likely than not related to his PTSD given that such disorder resulted in difficulty adapting to stressful work settings and establishing or maintaining relationships. Finally, an earnings history from the Social Security Administration (SSA) shows that the Veteran failed to earn any income from 1986 to 1996 despite evidence that he was, at least occasionally, looking for employment. An 100 percent schedular rating should therefore be assigned at least as early as May 1, 1985, based on evidence of unemployability due to PTSD. See Johnson, 7 Vet. App. at 97-99. As for whether an 100 percent schedular rating is also assignable prior to May 1, 1985, the Board is of the opinion that the evidence is, at a minimum, in genuine equipoise regarding whether the social impairments previously discussed resulted in serious occupational functioning prior to May 1, 1985. In this regard, the Veteran was able to attend school and maintain part-time employment as a groundskeeper and janitor from 1975 to 1977. He was also able to maintain a position within a box company from 1978 to 1985. On the other hand, the Board notes that the Veteran completed a two-year degree program for horticulture technology, but was only able to find factory-type work following completion of his degree. Additionally, the various occupations held during this period all represent solitary-type jobs that did not require significant interaction with other people. Finally, the Veteran reported at the February 2011 VA examination that he recalls not getting along with his supervisors and co-workers during his employed years and that receiving many verbal warnings about his work performance. In sum, it appears that the Veteran's PTSD-related isolation resulted in some level of occupational impairment prior to May 1, 1985, and affording all reasonable doubt in favor of the Veteran, the Board finds that his disability picture therefore more nearly approximately that of an 100 percent schedular rating for this period of the appeal as well. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2010). The reasons behind an assignment of a schedular rating of 100 percent as of May 1, 1985, have already been discussed and therefore will not be repeated here. As this award represents a total grant of benefits sought, no further discussion is necessary. ORDER An 100 percent schedular disability rating for PTSD is granted for the entirety of this appeal. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs