Citation Nr: 1112857	
Decision Date: 03/31/11    Archive Date: 04/07/11

DOCKET NO.  08-23 947	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1.  Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder, for the period from April 5, 2007 through December 16, 2007, for the purpose of receiving accrued benefits.

2.  Entitlement to an evaluation in excess of 30 percent for posttraumatic stress disorder for the period from March 1, 2008 through September 2, 2008, for the purpose of receiving accrued benefits.

3.  Entitlement to an evaluation in excess of 50 percent for posttraumatic stress disorder for the period from September 3, 2008 through March 5, 2009, for the purpose of receiving accrued benefits.

4.  Entitlement to an increased evaluation for posttraumatic stress disorder, evaluated as 70 percent disabling, for the period on and after March 6, 2009, for the purpose of receiving accrued benefits.

5.  Entitlement to an effective date earlier than March 6, 2009, for the grant of a total disability rating for compensation purposes based on individual unemployability, for the purpose of receiving accrued benefits.


REPRESENTATION

Appellant represented by:	Joseph R. Moore, Attorney at Law


ATTORNEY FOR THE BOARD

David S. Ames, Counsel


INTRODUCTION

The Veteran served on active duty from September 1968 to March 1970.  He died in April 2010, and the appellant is his surviving spouse.

This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in Muskogee, Oklahoma (RO).


FINDINGS OF FACT

1.  The Veteran died in April 2010.  The appellant filed a proper claim for substitution in June 2010.

2.  In August 2010, prior to the promulgation of a decision in the appeal, the appellant withdrew her appeal as to the issue of entitlement to an increased evaluation for posttraumatic stress disorder (PTSD), evaluated as 70 percent disabling for the period on and after March 6, 2009, for the purpose of receiving accrued benefits.

2.  The medical evidence of record during the entire appeal period shows that the Veteran's service-connected PTSD was consistently manifested by depression, difficulty sleeping, difficulty concentrating, anger, irritability, isolative behavior, panic attacks, neglect of personal hygiene, difficulty in adapting to stressful circumstances, and impairment in establishing and maintaining effective work and social relationships.

3.  The Veteran filed a formal claim for entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU) on January 16, 2008.

4.  Prior to November April 5, 2007, a noncompensable combined disability rating was in effect.

5.  The evidence of record shows that the Veteran's service-connected disabilities alone did not preclude him from securing or following substantially gainful employment prior to April 5, 2007.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of the substantive appeal by the appellant for the issue of entitlement to an increased evaluation for PTSD, evaluated as 70 percent 

disabling, for the period on and after March 6, 2009, for the purpose of receiving accrued benefits, have been met.  38 U.S.C.A. §§ 5121, 7105 (West 2002); 38 C.F.R. §§ 3.1000, 20.202, 20.204(b), (c) (2010).

2.  The criteria for an initial evaluation of 70 percent, but no more, for PTSD, for the period from April 5, 2007 through December 16, 2007, for the purpose of receiving accrued benefits, have been met.  38 U.S.C.A. §§ 1155, 5103A, 5107, 5121 (West 2002); 38 C.F.R. §§ 3.1000, 4.130, Diagnostic Code 9411 (2010).

3.  The criteria for an evaluation of 70 percent, but no more, for PTSD, for the period from March 1, 2008 through March 5, 2009, for the purpose of receiving accrued benefits, have been met.  38 U.S.C.A. §§ 1155, 5103A, 5107, 5121 (West 2002); 38 C.F.R. §§ 3.1000, 4.130, Diagnostic Code 9411 (2010).

4.  The criteria for an effective date of April 5, 2007, for the grant of TDIU, for the purpose of receiving accrued benefits, have been met.  38 U.S.C.A. §§ 5103A, 5107, 5110, 5121 (West 2002); 38 C.F.R. §§ 3.157, 3.400, 3.1000 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Substitution

At the time of his death, the Veteran had a pending appeal of entitlement to an initial evaluation for his service-connected PTSD, including all subsequent periods of staged ratings.  While the Veteran never specifically perfected an appeal as to the effective date assigned for TDIU, a notice of disagreement to the effective date assigned for the grant of TDIU was received by the RO in August 2009.  Substitution in an appealed case requires a Notice of Disagreement to have been filed prior to the appellant's death.  38 U.S.C.A. § 5121A.  When a Veteran has 

claims pending at the time of his death, his surviving spouse may be paid periodic monetary benefits, which were due and unpaid, to which he was entitled at the time of his death based on existing ratings or decisions, or other evidence that was on file when he died.  38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000.

The statute regarding accrued benefits claims was amended on October 10, 2008.  Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212 (2008).  Section 212 created a new statute, which provided that if a claimant died while a claim or appeal for any benefit under a law administered by VA was pending, a living person who would be eligible to receive accrued benefits due to the claimant may, not later than one year after the date of the death of the claimant, request to be substituted as the claimant for the purposes of processing the claim to completion.  See 38 U.S.C.A. § 5121A.  The new statute allows a person who could be considered an accrued benefits claimant to substitute for a deceased claimant to continue adjudication of the deceased claimant's claim.  The provisions of the new statute apply with respect to the claim of any claimant who dies on or after October 10, 2008.  See Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008).  In this case, the Veteran died on April [redacted], 2010 and the appellant filed a proper claim for substitution in June 2010.  Accordingly, the appellant has been substituted as the claimant for the purposes of all claims that were pending at the date of the Veteran's death.  38 U.S.C.A. § 5121A.

PTSD Evaluation On and After March 6, 2009

In April 2007, the Veteran filed a claim of entitlement to service connection for PTSD.  By a rating decision dated in December 2007, service connection for PTSD was granted and a 30 percent evaluation was assigned.  The Veteran perfected an appeal as to the denial of an initial evaluation in excess of 30 percent for PTSD in July 2008.  Subsequent rating decisions dated in January 2009 and May 2009 assigned staged ratings for the Veteran's PTSD, including a 70 percent evaluation 

for the period on and after March 6, 2009.  The Veteran died in April 2010 and in June 2010 the appellant filed a claim to be substituted as the claimant for the Veteran's pending claims.  In August 2010, the appellant's representative stated that she wished to withdraw her appeal for the issue of entitlement to an increased evaluation for PTSD, evaluated as 70 percent disabling for the period on and after March 6, 2009, for the purpose of receiving accrued benefits.

Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision.  38 C.F.R §§ 20.202, 20.204(b).  Withdrawal may be made by the appellant or by her authorized representative, except that a representative may not withdraw a substantive appeal filed by the appellant personally without the express written consent of the appellant.  38 C.F.R. § 20.204(c).

With regard to the issue of entitlement to an increased evaluation for PTSD, evaluated as 70 percent disabling, for the period on and after March 6, 2009, for the purpose of receiving accrued benefits, prior to the promulgation of a decision by the Board, the appellant indicated that she wished to withdraw her appeal as to this issue.  As a result, no allegation of error of fact or law remains before the Board for consideration with regard to the issue of entitlement to an increased evaluation for PTSD, evaluated as 70 percent disabling, for the period on and after March 6, 2009, for the purpose of receiving accrued benefits.  As such, the Board finds that the appellant has withdrawn her claim as to this issue, and accordingly, the Board does not have jurisdiction to review the appeal as to the issue of entitlement to an increased evaluation for PTSD, evaluated as 70 percent disabling, for the period on and after March 6, 2009, for the purpose of receiving accrued benefits, and it is dismissed.


PTSD Evaluations for All Periods From April 5, 2007 through March 5, 2009

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule).  38 C.F.R. Part 4 (2010).  The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2010).  In resolving this factual issue, the Board may only consider the specific factors as are enumerated in the applicable rating criteria.  See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992).

In considering the severity of a disability, it is essential to trace the medical history of the Veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41 (2010).  Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending.  Powell v. West, 13 Vet. App. 31, 34 (1999).  The appeal of the PTSD claims is based on the assignment of an initial evaluation following an initial award of service connection for PTSD, as well as multiple subsequent staged ratings.  As such, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous."  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  If later evidence indicates that the degree of disability increased or decreased following the 

assignment of the initial rating, staged ratings may be assigned for separate periods of time.  Id.

Service connection for PTSD was granted by a December 2007 rating decision and a 30 percent evaluation was assigned under 38 C.F.R. § 4.130, Diagnostic Code 9411, effective April 5, 2007.  A June 2008 rating decision assigned a temporary total disability evaluation under 38 C.F.R. § 4.29 (2010), effective from December 17, 2007 through February 29, 2008, with the previous 30 percent evaluation resuming effective March 1, 2008.  A January 2009 rating decision assigned a 50 percent evaluation, effective September 3, 2008.  Finally, a May 2009 rating decision assigned a 70 percent evaluation, effective March 6, 2009.

In a March 2007 VA outpatient medical report, the Veteran complained of depression, flashbacks, hypervigilance, and irritability.  He also reported experiencing an inability to concentrate, insomnia, anxiety, panic attacks, obsessive behaviors, anhedonia, and resentment towards others.  The Veteran reported that his relationship with his wife was suffering and that she no longer slept in the same bed with him "for fear of an outburst."  He reported that he had been employed as an insurance agent for 17 years, but that he began having difficulty concentrating five years before and eventually resigned from his job due to this difficulty.  On observation, the Veteran was pleasant and cooperative.  His affect was depressed, his mood was congruent, and he was feeling sad and worthless.  An addendum gave a diagnostic impression of rule out PTSD.

In an April 2007 VA outpatient psychiatry note, the Veteran reporting feeling very depressed, having loss of concentration, and experiencing sleep deprivation.  He also reported getting angry, getting irritable, isolating himself, and having panic attacks.  The Veteran denied suicidal ideation, homicidal ideation, auditory hallucinations, and visual hallucinations.  On examination, the Veteran was alert and oriented in all spheres.  His appearance was within normal limits, his speech 

was of normal rate, rhythm, and tone, and his eye contact was fair.  The Veteran's mood was sad and down, with a mood-congruent affect.  His thought process was logical and goal directed, his memory was grossly intact, his kinetics were normal, and his insight and judgment were good.  The assessments were major depressive disorder and PTSD.

In a second April 2007 VA outpatient psychiatry note dated the following day, the Veteran presented in a very agitated and tearful state.  An accompanying friend reported that the Veteran had been seen in an emergency room the previous day after becoming angry and threatening while at home with his wife.  The Veteran reported that he had to quit his job due to an inability to function on the job and concentrate.  He stated that since that time he had not sought work and he was fearful of losing his marriage.

An addendum to a third April 2007 VA outpatient psychiatry note stated that the Veteran's wife called, reporting that she was very anxious about the Veteran who had not slept since the previous day and was agitated.  She reported that she was afraid that if nothing was done, she would not be able to handle him at home and was requesting that he be admitted for treatment.

In a fourth April 2007 VA outpatient psychiatry note, the Veteran was in a very agitated state.  He reported that he had not been able to sleep and had become very angry since he started taking medications a few days earlier.  The Veteran could not focus on questions that were asked of him and repeatedly "vented about how his wife did not respect him and how he could not win his father's approval."

In a fifth April 2007 VA outpatient psychiatry note, the Veteran reported that he had relapsed into alcohol use a few weeks before but had since returned to alcoholics anonymous.  He reported experiencing a great deal of anxiety, stress, and disturbed sleep.

In a June 2007 VA outpatient report, the Veteran reported that he feared for his marriage.

In a July 2007 statement, the appellant gave a general description of the Veteran's psychiatric symptoms, as well as a journal of the Veteran's behavior at regular intervals from July 2005 to July 2007.  This statement included extensive examples of significant problems that the Veteran experienced in social and work relationships.  These examples included numerous conflicts with his spouse and other people.

In a November 2007 VA fee-based psychiatry report, the Veteran reported relationship problems with coworkers due to feelings of mistrust, confrontation, and feeling manipulated.  He reported that he had been employed in insurance sales for 16 years, but had been unemployed since September 2005.  He reported that his symptoms had increased following the Oklahoma City bombing in 1995, with overwhelming anxiety, fear of exploitation, fear of explosions, and poor social interaction.  The Veteran reported a long history of difficulties with sleep.  The Veteran reported that he had been married for thirty years and his relationship with his wife was "great."  He denied having any major social function changes since developing PTSD.  On mental status examination, the Veteran's orientation was within normal limits.  His appearance and hygiene were not appropriate and showed signs of neglect, including being unshaven and unclean.  The Veteran's behavior was appropriate, his affect and mood were normal, and his communication and speech were within normal limits.  The Veteran showed difficulty understanding complex commands.  He failed a serial seven test.  The Veteran had panic attacks which occurred less than once per week in response to loud noises.  There was no suspiciousness, delusions, hallucinations, or obsessional rituals.  His thought processes were appropriate, his judgment was not impaired, his abstract thinking was normal, and his memory was within normal limits.  There was no suicidal or homicidal ideation.  The diagnosis was PTSD.  The examiner assigned a Global 

Assessment of Functioning (GAF) score of 65, which contemplates mild symptoms, such as depressed mood and mild insomnia, or some difficulty in social, occupational, or school functioning, but generally functioning pretty well with some meaningfully interpersonal relationships.  See QUICK REFERENCE TO THE DIAGNOSTIC CRITERIA FROM THE DSM-IV, 46-47 (1994) (DSM-IV).  The examiner opined that the best description of the Veteran's psychiatric impairment was that the Veteran's psychiatric symptoms were mild or transient but caused occupational and social impairment with decrease in work efficiency and occupational tasks only during periods of significant stress.

In a December 2007 statement, the Veteran reported that after the Oklahoma City bombing in 1995, his ability to work began to suffer due to isolative and unresponsive behavior.  He stated that these symptoms increased again after the September 11, 2001 attacks, eventually resulting in his retirement from employment in September 2005.  The Veteran stated that after he retired, he retreated to his house and attempted to deal with his symptoms.  He reported that in April 2007 he had a flashback which caused him to take up "a defensive position" in his front yard, scaring his wife and neighbors and resulting in police intervention and immediate treatment at a VA medical facility.

In a January 2008 TDIU claim, the Veteran reported that he had worked full time for an insurance company from January 1989 to September 2005.  He reported two periods of employment since September 2005, with one period of full-time employment lasting from January 2006 to December 2006 and one period of part time employment lasting from September 2007 to December 2007.

A February 2008 VA hospital discharge summary report stated that the Veteran had been treated with in-patient psychiatric care from December 17, 2007 to February 1, 2008.  At the time of the Veteran's admittance to the hospital on December 17, 2007, his GAF score was listed as 50, which contemplates serious symptoms, such 

as suicidal ideation, severe obsessional ritual, or frequent shoplifting, or serious impairment in social, occupational, or school functioning, such as no friends or an inability to keep a job.  See Id.

A March 2008 VA outpatient psychiatry note stated that on objective examination, the Veteran was alert and oriented in all spheres.  He was fairly groomed and nourished and in no apparent distress.  The Veteran's speech was slow in rate, rhythm and tone, with fair eye contact and an "OK" mood.  His affect was restricted and nonlabile.  The Veteran denied suicidal ideation, homicidal ideation, auditory hallucinations, visual hallucinations, and delusions.  His thought process was logical and goal directed.  The Veteran's memory was grossly intact and he did not have psychomotor retardation or agitation.  The Veteran's insight and judgment were fair.

In a March 2008 VA PTSD examination report, the Veteran reported experiencing nightmares, flashbacks, sleep disturbances, physiological changes, irritability, difficulty concentrating, decreased energy, visual hallucinations, hypervigilance, and hopelessness.  He reported that his wife had slept in a separate room from him for the previous five years and that she was "fairly intimidated by him due to his tendency to have outbursts."  The Veteran also reported outbursts during meetings with church leadership and being inappropriate with other veterans during group psychotherapy sessions.  During the interview, the Veteran became inappropriate and used profanity.  He reported a 15 year history of teaching Sunday school at his church and being very active in an evangelical ministry.  The Veteran reported that he stopped his involvement about three years before and did not spend any time with other people outside of church, alcoholics anonymous meetings, and being with his wife.

On mental status examination, the Veteran was somewhat disheveled and unshaven.  He walked very slowly.  The Veteran's speech was somewhat rapid but not 

pressured.  He was oriented to person, place, time, and situation.  The Veteran's affect was appropriate and his mood was somewhat anxious.  He was somewhat disruptive at times and had to be interrupted several times by the examiner.  The Veteran's eye contact was good and his facial expressions were animated.  He had restless movements, which the examiner stated were indicative of anxiety about the examination situation rather than anxiety due to PTSD.  The Veteran's thought processes were tangential and he had to be interrupted several times due to storytelling.  He denied suicidal ideation, homicidal ideation, and auditory hallucinations, but reported visual hallucinations.  The Veteran's memory was intact and his concentration, attention, and abstract reasoning were good.  His judgment was adequate or fair, with impaired judgment and inappropriateness demonstrated during the examination.  The diagnosis was PTSD.  The examiner assigned a GAF score of 57, which contemplates moderate symptoms, such as flat affect, circumstantial speech, or occasional panic attacks, or moderate difficulty in social, occupational, or school functioning, such as few friends and conflicts with peers or co-workers.  See Id.  The examiner opined that the Veteran had a moderate level of impairment, with decreased ability to perform social tasks during periods of significant stress.

A March 2008 Social Security Administration (SSA) psychiatric report stated that the Veteran had marked restriction of activities of daily living; marked difficulties in maintaining social functioning; marked difficulties in maintaining concentration, persistence, or pace; and one or two episodes of decompensation, each of an extended duration.  On observation, the Veteran was pleasant and cooperative, with a good appearance and good grooming.  The Veteran had concentration problems, memory problems, sleep difficulties, and recurring nightmares.  He was moody, uncommunicative, combative, and had difficulty with conversation and completing tasks.  The Veteran had anxiety, paranoia, hypervigilance, and suspicion of others.  A SSA disability determination report dated the same day stated that the Veteran had been disabled due to an anxiety related disorder since December 6, 2007.

In an April 2008 statement, an insurance company supervisor stated that the Veteran had been employed by the company from January 2006 to December 2006.  The supervisory stated that the Veteran "suffered bouts of depression and anxiety, which became more frequent and severe the last few months of his employment.  He missed several meetings and had to be reminded frequently to complete daily [and] monthly reports, and other activities."  The supervisor stated that the Veteran was no longer working for the company because he had resigned due to an inability to meet sales production standards.  The Veteran was reported to have lost approximately 25 days of employment over the 12 months prior to the last date of employment due to a disability.

A July 2008 VA outpatient psychiatry note stated that, on objective examination, the Veteran was alert and oriented in all spheres.  He was fairly groomed and nourished and in no apparent distress.  The Veteran's speech was slow in rate, rhythm, and tone, with fair eye contact and an "OK" mood.  His affect was restricted and nonlabile.  The Veteran denied suicidal ideation, homicidal ideation, auditory hallucinations, visual hallucinations, and delusions.  His thought process was logical and goal directed.  The Veteran's memory was grossly intact and he did not have psychomotor retardation or agitation.  The Veteran's insight and judgment were fair.

In an August 2008 letter, an insurance company manager stated that he had hired the Veteran in January 1989 to sell life insurance products.  The manager described the Veteran's work efforts up through 1994 in a positive manner but stated that after the Oklahoma City bombing in 1995, "he began to lose the personal battle to stay focused and consistent" with his work.  The manager reported that from 1995 onwards, the Veteran's behavior began to increasingly interfere with his job performance and interactions with coworkers.  The manager stated that from 2002 to 2005, the Veteran "faltered and continued to have a substandard level of 

productivity.  He was clearly not going to make it.  He did not meet even the minimum requirements of production for 2004 and, in August of 2005, we had a final meeting where he tendered his resignation to me."

In an October 2008 VA PTSD examination report, the Veteran reported that he had worked in the insurance industry for 17 years, but quit in September 2005 due to psychiatric difficulties.  Since then, the Veteran reported that he had worked for another company for one year, "but was not able to keep up with the pace of the work and what they wanted from him."  The Veteran reported that he was presently employed on contract in a customer service position, which was "easier for him as he is able to work whenever he feels up to it.  It is not demanding that he work every day, so that if he is having a bad day he does not have to go into work."  The Veteran reported experiencing flashbacks and nightmares.  He stated that his symptoms were aggravated by the 1995 Oklahoma City bombing and the attacks of September 11, 2001.  The Veteran was reported to have a fairly good interpersonal ability and was able to interact superficially with others fairly easily.  However, the Veteran had some difficulty with talking about real issues or underlying problems, and reported that he trusted very few people and did not like many people.  He reported that his functionality varied significantly, with high productivity on some days and being barely able to get out of bed on other days.  The Veteran reported experiencing difficulty with anger and stated that he was afraid of crowds and engaging in significant conversations with others.  He reported experiencing regular panic attacks and difficulty sleeping.  The Veteran reported that his marriage was doing much better.

On examination, the Veteran was casually dressed and groomed.  He reported feeling depressed about half of the days of the week, during which time he preferred to sit by himself and do nothing.  The Veteran reported regular feelings of anger.  The Veteran presented in a calm manner, although he became irritated at times.  He denied suicidal or homicidal ideation.  The Veteran reported some memory and 

concentration difficulties, the latter of which he felt was "very impaired."  The diagnosis was PTSD.  The examiner assigned a GAF score of 52, which contemplates moderate symptoms.  See Id.  The examiner stated that the Veteran had some friends and social activities through alcoholics anonymous and his psychiatric treatment clinic.  However, the examiner state that the Veteran

could not hold traditional full-time employment as he would not be able to manage that demand, and that the reason he likely is able to maintain the current job situation is because they are very understanding of his condition and allow him to work at his own pace and when he is able to.  If he did not have this flexibility, he would not be able to maintain employment.

The examiner stated that the Veteran did not have any periods of remission, and that the symptoms had increased in severity since being "stirred" in 1995.  The Veteran had social relationships which were primarily related to his recovery.

In a January 2009 letter, an employer of the Veteran stated that the Veteran began part-time work with the company in September 2008.  The employer stated that the Veteran was qualified for his job and had the understanding and competency to complete it.  The Veteran was reported to have met job expectations on a good day, but had several instances of unscheduled absences and requests to depart early from work.  On those days, the Veteran "showed a different dimension, struggling to stay focused on his tasks, and unable to project the empathy critically important for our incoming callers."  The employer reported that when the Veteran's "concentration was suffering, his performance deteriorated as well."  The employer described the Veteran as a valued employee while he worked for the company, but that management "wished he could have remained more focused, was more dependable 

when scheduled, and had fewer days of unplanned absences."  In a February 2009 TDIU application, the Veteran reported that this job had lasted from September 2008 to November 2008.

In a March 2009 letter, a friend of the Veteran reported that he had worked as a staff member at the Veteran's church since 1989.  The letter stated that, after the 1995 Oklahoma City bombing, the Veteran began to withdraw from involvement in the church and complained of strained relationships with others.  The friends stated that the Veteran's behavior was unusual and that he had withdrawn from "just about all" of the church activities, closed his work office, and no longer played with his band despite being trained as a musician.

In a May 2010 letter, a VA psychiatrist stated that the psychiatrist had treated the Veteran for PTSD since November 2007.  The psychiatrist stated that the Veteran's psychiatric symptoms "did not allow him to be around people and thus, he could not hold a job."

The Schedule provides that assignment of a 30 percent evaluation is warranted for PTSD with occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation, due to such symptoms as: depressed mood, anxiety, suspiciousness, weekly or less often panic attacks, chronic sleep impairment, mild memory loss, such as forgetting names, directions, recent events.  38 C.F.R. § 4.130, Diagnostic Code 9411

A 50 percent evaluation is warranted for PTSD with 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 such as, 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.  Id.

A 70 percent evaluation is warranted for PTSD with 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 work-like setting; and the inability to establish and maintain effective relationships.  Id.

A 100 percent disability evaluation is warranted 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; and disorientation to time and place, memory loss for names of close relatives, own occupation, or own name.  Id.

The medical evidence of record shows that the Veteran's service-connected PTSD was consistently manifested by depression, difficulty sleeping, difficulty concentrating, anger, irritability, isolative behavior, panic attacks, neglect of personal hygiene, difficulty in adapting to stressful circumstances, and impairment in establishing and maintaining effective work and social relationships.  The Veteran also had observed irregularities of speech.  These manifestations cover 

several of the criteria contemplated by a 70 percent evaluation.  While the evidence does not show that the Veteran experienced suicidal ideation, obsessional rituals, near-continuous panic or depression, or spatial disorientation, the Veteran's symptoms had a significant impact on his work and social relationships.  Regarding the Veteran's social relationships, while the Veteran reported that his relationship with his wife was "great" in November 2007, this report is not consistent with the preponderance of the evidence of record.  The medical evidence of record includes numerous reports of significant relationship difficulties, and the July 2007 statement from the appellant provides compelling evidence of a significantly strained relationship, with the appellant herself stating the Veteran's behavior had resulted in "alienation from friends, church members, family and myself."  The July 2007 statement is competent and credible evidence as to the state of the Veteran's social relationships, and it warrants high probative value due to the level of detail provided.  See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (noting that lay testimony is competent to establish observable symptomatology but not competent to establish medical etiology or render medical opinions).

The evidence of record showed that the Veteran held full-time employment in the insurance industry for many years, including employment with a single company from 1989 to September 2005.  However, statements from the Veteran and this employer both demonstrate that the Veteran's job performance was significantly impaired by his psychiatric symptoms.  While the Veteran resigned from his job, the preponderance of the evidence shows that the Veteran would have been terminated if he had not taken this action.  Furthermore, the Veteran had significant difficulties maintaining employment after resigning in September 2005.

The Veteran only found employment with two companies after September 2005.  The first company employed him from January 2006 to December 2006 in a full-time position.  The April 2008 statement from a supervisor at that company stated that the Veteran's psychiatric symptoms resulted in multiple work 

deficiencies, and the Veteran had eventually resigned due to an inability to meet job requirements.  In addition, the Veteran was shown to have lost nearly a month of work time due to disability during his one year of employment.

The second company that employed the Veteran did so on a "seasonal" basis, employing him from September 2007 to December 2007, and again from September 2008 to November 2008.  However, this employment was part-time and in a January 2009 letter, the employer stated that the Veteran had performed well on some days, but had multiple deficiencies on others.  The examiner who conducted the October 2008 PTSD examination report commented on this employment, stating that the only reason the Veteran was able to maintain the job was because his employer was "very understanding of his condition and allow[ed] him to work at his own pace and when he [was] able to."  The examiner specifically stated that, without this understanding from his employer, the Veteran would not have been able to maintain employment.  The severe impact of the Veteran's symptoms on his social relationship and employability was further demonstrated by the May 2010 letter from a VA psychiatrist, which specifically stated that the Veteran's psychiatric symptoms "did not allow him to be around people" and prevented him from holding a job.

The medical evidence of record includes multiple GAF scores.  While the Veteran's GAF score was evaluated as 65 in November 2007, contemplating only mild symptoms, only a month later the Veteran's symptoms were found to be sufficiently severe to warrant a GAF score of 50, contemplating serious symptoms.  See DSM-IV, 46-47.  Furthermore, at the same time, the Veteran's psychiatric symptoms were found to be sufficiently severe to warrant a month and a half of in-patient treatment.  Accordingly, the Board finds that the November 2007 GAF score is not consistent with the other evidence of record regarding the severity of the Veteran's initial symptomatology.  After the Veteran's discharge from in-patient therapy, he received GAF scores which contemplated moderate symptomatology.  

See Id.  There is no question that the GAF scores and interpretations of the scores are important considerations in rating a psychiatric disability.  See e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995).  However, the GAF scores assigned in a case, like an examiner's assessment of the severity of a condition, are not dispositive of the evaluation issue; rather, the GAF scores must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned.  See 38 C.F.R. § 4.126(a) (2010).  In this case, while the Veteran's GAF scores overall indicate a moderate level of disability, the Veteran's actual symptoms are most closely analogous to the criteria contemplated by a 70 percent evaluation under the Schedule, particularly in regards to the impact on establishing and maintaining effective work and social relationships.  See 38 C.F.R. § 4.130, Diagnostic Code 9411.

Accordingly, manifestations of the Veteran's service-connected PTSD meets the criteria contemplated for a 70 percent evaluation for all periods on appeal.  See 38 C.F.R. § 4.130, Diagnostic Code 9411.  While all symptoms listed for a 70 percent evaluation, such as suicidal ideation and spatial disorientation, have not been shown, the criteria are simply guidelines for determining whether the Veteran meets the dominant criteria.  The dominant criteria for a 70 percent evaluation are occupational and social impairment, with deficiencies in most areas.  In this case, the evidence of record demonstrates that this was met.  Accordingly, based on all the evidence of record, the manifestations of the Veteran's PTSD meets the criteria contemplated for an initial 70 percent evaluation under the provisions of Diagnostic Code 9411.

However, a rating in excess of 70 percent is not for assignment as the evidence of record does not show that manifestations of the Veteran's service-connected PTSD included persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities 

of daily living; and disorientation to time and place, memory loss for names of close relatives, own occupation, or own name that resulted in total occupational and social impairment.

As this issue deals with the rating assigned following the original claim for service connection, consideration has been given to the question of whether staged ratings would be in order.  While there may have been day-to-day fluctuations in the Veteran's service-connected PTSD during the period of time discussed herein, the evidence shows no distinct periods of time during which the Veteran's service-connected PTSD varied to such an extent that a rating less than or in excess of 70 percent would be warranted.  Thus, staged ratings are not in order.  Fenderson, 12 Vet. App. at 126.

Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Schedule is sufficient.  See 38 C.F.R. §§ 4.20, 4.27 (2010).  However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual Veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability.  In exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating.  38 C.F.R. § 3.321(b) (2010).  The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Thun v. Peake, 22 Vet. App. 111, 115 (2008); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Schedule for that disability.  Thun, 22 Vet. App. at 115.  If the criteria under the Schedule reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Schedule, and the assigned schedular evaluation is adequate, and no referral is 

required.  See VAOGCPREC 06-96, 61 Fed. Reg. 66749 (1996) (when service- connected disability affects employment "in ways not contemplated by the rating schedule[,]" § 3.321(b)(1) is applicable).

The Veteran's disability picture is not so unusual or exceptional in nature as to render his disability rating for PTSD inadequate.  The Veteran's service-connected PTSD was evaluated under to 38 C.F.R. § 4.130, Diagnostic Code 9411, the criteria of which is found by the Board to specifically contemplate the Veteran's level of disability and symptomatology.  As noted above, the Veteran's service-connected PTSD was manifested by depression, difficulty sleeping, difficulty concentrating, anger, irritability, isolative behavior, panic attacks, neglect of personal hygiene, difficulty in adapting to stressful circumstances, and impairment in establishing and maintaining effective work and social relationships.  When comparing this disability picture with the symptoms contemplated by the Schedule, the Board finds that the Veteran's symptoms are more than adequately contemplated by the 70 percent rating for his service-connected PTSD.  A rating in excess of the currently assigned rating is provided for certain manifestations of PTSD, but the medical evidence reflects that those manifestations are not present in this case.  The criteria for a 70 percent rating for the Veteran's PTSD more than reasonably describe the Veteran's disability level and symptomatology and, therefore, the schedular evaluation assigned herein is adequate and no referral is required.  See VAOGCPREC 06-96, 61 Fed. Reg. 66749 (1996); see also 38 C.F.R. § 4.130, Diagnostic Code 9411.

In reaching this decision, the Board considered the doctrine of reasonable doubt.  However, as the evidence of record does not show findings that meet the criteria for a 100 percent evaluation, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); see also Massey, 7 Vet. App. at 208 (1994) (the Board may only consider the specific factors as are enumerated in the applicable rating criteria).

Earlier Effective Date TDIU

A rating decision in May 2009, granted TDIU, effective March 6, 2009.  The Veteran's representative filed a notice of disagreement to the effective date assigned to the grant of TDIU in August 2009.   

Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. § 3.340(a)(1).  A total disability rating for compensation purposes may be assigned on the basis of individual unemployability: that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  38 C.F.R. § 4.16(a).  In such an instance, if there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more.  Id.

As a result of the decision made above, the Veteran's PTSD is evaluated as 70 percent disabling, effective April 5, 2007.  In addition, the Veteran was also service connected for bilateral hearing loss, evaluated as 10 percent disabling, effective April 5, 2007; bilateral tinnitus, evaluated as 10 percent disabling, effective April 5, 2007; and left wrist fracture, evaluated as noncompensable, effective March 10, 1970, and 10 percent disabling, effective December 17, 2007.  The combined disability evaluation was noncompensable, effective March 10, 1970, and is now 80 percent disabling, effective April 5, 2007.  38 C.F.R. § 4.25 (2010).  Accordingly, the percentage criteria of 38 C.F.R. § 4.16(a) have been met, effective April 5, 2007.

A claim for TDIU was, in essence, an application for an increased rating.  See Wood v. Derwinski, 1 Vet. App. 367, 369 (1991); see also Isenbart v. Brown, 7 Vet. App. 537 (1995).  VA law provides that the effective date of an evaluation and award of compensation for an increased rating claim is the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 U.S.C.A. § 5110; 38 C.F.R. § 3.400.  An earlier effective date may be assigned when it is factually ascertainable that an increase in disability occurred and the claim for increase was received within one year from that date, but otherwise the date of receipt of the claim.  38 C.F.R. § 3.400(o)(2).

Generally, a specific claim in the form prescribed by VA must be filed in order for benefits to be paid to any individual under the laws administered by the VA.  38 C.F.R. § 3.151 (2010).  The term "claim" means a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief of entitlement, to a benefit.  38 C.F.R. § 3.1(p) (2010).

An "informal claim" is any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA.  Such informal claim must identify the benefit sought.  Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.  If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim.  38 C.F.R. § 3.155 (2010).

A report of examination or hospitalization which meets certain requirements will be accepted as an informal claim for benefits if the report relates to a disability which may establish entitlement.  38 C.F.R. § 3.157(a).  Once a formal claim for compensation has been allowed or disallowed for the reason that the service-connected disability is not compensable in degree, receipt of evidence from a private physician will be accepted as an informal claim for increased benefits when the evidence furnished is within the competence of the physician and shows 

the reasonable probability of entitlement to benefits.  38 C.F.R. § 3.157(b)(2).  For private medical records, the date of receipt by VA is fixed as the date of the claim.  Id.

Determining whether the effective date assigned for an increased rating is correct or proper under the law requires a determination of the date of the receipt of the claim for the increased rating, as well as a review of all the evidence of record to determine when an increase in disability was "ascertainable."  See Hazan v. Gober, 10 Vet. App. 511, 521 (1992).

38 U.S.C.A. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2) are applicable only where an increase in disability precedes a claim for an increased disability rating; otherwise the general rule of 38 C.F.R. § 3.400(o)(1) applies.  See Harper v. Brown, 10 Vet. App 125 (1997).  Thus, three possible dates may be assigned depending on the facts of the case: if an increase in disability occurs after the claim is filed, the proper effective date is the date that the increase is shown to have occurred (date entitlement arose); if an increase in disability precedes the claim by a year or less, the proper effective date is the date that the increase is shown to have occurred (factually ascertainable); and if an increase in disability precedes the claim by more than a year, the proper effective date is the date that the claim is received (date of claim).  Id. at 126.

The evidence shows that the Veteran filed a formal claim for TDIU on January 16, 2008.  Accordingly, the exception to the general rule allows assignment of an effective date on or after January 16, 2007, if the evidence demonstrates that a factually ascertainable increase in disability occurred.  See 38 C.F.R. § 3.400(o)(2).  Thus, the proper effective date for the award of TDIU is the earliest date on or after January 16, 2007 at which the evidence shows that the Veteran was entitled to TDIU.  See Id.; 38 C.F.R. § 4.16(a).

As discussed above, the evidence of record shows that the Veteran's last period of full-time employment ended on December 29, 2006, when he resigned from his position due to an inability to meet employment standards.  The evidence of record shows that from December 30, 2006 onwards, the Veteran's only employment was seasonal, part-time employment from a company that gave the Veteran great latitude in working hours and conditions.  Combined with the other evidence of record, this demonstrates that the Veteran's service-connected PTSD prevented him from securing or following a substantially gainful occupation at that time.  Also as discussed above, as a result of the decision made herein, the earliest date on which the Veteran met the percentage criteria of 38 C.F.R. § 4.16(a) is April 5, 2007.  As such, for the purposes of this appeal, the Veteran's entitlement to TDIU arose on April 5, 2007.  As date is within one year of the date of the claim, April 5, 2007 is the appropriate effective date for the award of TDIU.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2).


ORDER

The claim of entitlement to an increased evaluation for PTSD, evaluated as 70 percent disabling, for the period on and after March 6, 2009, for the purpose of receiving accrued benefits, is dismissed.

An initial evaluation of 70 percent disabling, but no more, for PTSD is granted, for the period from April 5, 2007 through December 16, 2007, for the purpose of receiving accrued benefits, subject to the laws and regulations governing the payment of monetary benefits.

An increased evaluation of 70 percent disabling, but no greater, for PTSD is granted, for the period from March 1, 2008 through March 5, 2009, for the purpose of receiving accrued benefits, subject to the laws and regulations governing the payment of monetary benefits.
An effective date of April 5, 2007 for the award of TDIU is granted, for the purpose of receiving accrued benefits, subject to the laws and regulations governing the payment of monetary benefits.



____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs