Citation Nr: 1117387 Decision Date: 05/05/11 Archive Date: 05/17/11 DOCKET NO. 10-21 412 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Entitlement to an increased rating for posttraumatic stress disorder (PTSD), currently evaluated as 50 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from March 1971 to August 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota, which continued a 50 percent rating for PTSD and major depressive disorder. The Veteran testified before the undersigned at a December 2010 Video Conference hearing. The hearing transcript is of record. FINDING OF FACT Effective from May 29, 2008, the Veteran's PTSD produces nearly total occupational and social impairment. CONCLUSION OF LAW Effective from May 29, 2008, the criteria for a 100 percent schedular rating for PTSD are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b), 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION VA has substantially satisfied its duties to notify and assist in this case, as required by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this appeal given the favorable nature of the Board's decision. Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2010). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2010). Each disability must be considered from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2 (2010). 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. Where an increase in an existing disability rating based upon established entitlement to compensation is at issue, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. A 50 percent rating is warranted for PTSD if it is productive of 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating is warranted 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 100 percent 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); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. In assessing the evidence of record, it is important to note that the Global Assessment of Functioning (GAF) score is based on 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 (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). 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)." Id. A score of 41 to 50 is indicated where there are "Serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job)." Id. A score of 51-60 is appropriate where there are, "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)." Id. A score of 61-70 is indicated when there are, "Some mild symptoms (e.g., depressed mood and mild insomnia OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships." Id. The symptoms listed in the criteria for a 50 percent evaluation are not intended to serve as an exhaustive list, but as examples of the type of symptomatology that would warrant that evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational and social impairment equivalent to that which would be caused by those listed in the rating criteria the appropriate equivalent rating will be assigned. Id. 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 all evidence of record pertaining to the history of the service-connected disability at issue. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Analysis In a December 2008 rating decision, the Veteran was granted service connection for PTSD and major depressive disorder. A 50 percent evaluation was assigned, effective May 29, 2008. In March and April 2009, the Veteran filed claims for TDIU and in conjunction with the adjudication of the TDIU claims, the RO readjudicated his PTSD claim in the July 2009 rating decision on appeal. The Veteran contends that the symptomatology associated with his PTSD warrants a rating higher than 50 percent. In essence, the evidence shows that the Veteran's PTSD has been productive of symptoms that are listed in the 50 percent, 70 percent, and 100 percent levels. The symptoms themselves, however, are not the determinative factor; rather, it is the resulting social and occupational impairment that is paramount. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Outpatient treatment records from the VA Medical Center in Fargo, North Dakota (Fargo VA) dated from April 2006 to May 2008 show that the Veteran reported that his mood was good and stable, that he had a good support system (his cousin and best friend), that he was married with a ten-year old son, with whom he had a good relationship, that he did not have suicidal thoughts, and that he was working a part-time job (once a week). He reported occasional anger and irritability towards his wife and kids, but indicated that he was able to control his mood. He also reported sleep deprivation without his medication. Mental status examination during that time was normal, with no suicidal or homicidal thoughts. However, in a May 2008 statement, the Veteran's wife reported that the Veteran experienced nightmares, sleep disturbance and sleep walking. She also reported that he had a very bad temper and was physically abusive, making her afraid to leave her son alone with him, and that he had a severe drug and alcohol problem. Outpatient treatment records from the Fargo VA show that in August 2008, the Veteran's wife reported that he was combative at night while sleeping; that his anger was escalating during the day; that he slept till noon; and that he was in bed all day, with no physical activity. In September 2008, he reported daytime sleepiness. In October 2008, he reported depression, nightmares, anger issues and anxiety, controlled by medication. He also reported a history of domestic charges and arguments with his wife and brother, as well as a history of alcohol dependence. He was assigned a GAF score of 58 in October 2008. In November 2008, he reported occasional depression, stabilized by medication. In November 2008, the Veteran was afforded a VA examination in response to his claim for service connection. He reported sleep problems, for which he was taking Zolpidem. He reported a history of nightmares, but noted that he had not had any since 2003. He reported intrusive thoughts, which were improved with medication. The Veteran also reported anger and temper problems, problems focusing and an easy startle response. Socially, he reported a history of interpersonal problems, and noted that he had been married four times, and that his third and fourth marriages had suffered because of his temper and general adjustment problems. With regard to employment, he reported problems with work and co-workers and behavior that led to him being fired or quitting in anger. The examiner also noted that the Veteran had periods of depression related to bipolar disorder and passive thoughts of death, due to his physical condition, but no suicidal thoughts. The Veteran reported that he had been granted Social Security Administration (SSA) disability benefits in 1999. The examiner diagnosed PTSD, chronic-moderate, major depressive disorder, recurrent; rule out bipolar disorder, and assigned a GAF score of 50. In March 2009, the Veteran filed a claim for a TDIU, claiming that he had been too disabled to work since March 2000, due to his PTSD and major depressive disorder. The claim for TDIU was interpreted as a claim for an increased rating for the service-connected PTSD. The Veteran was afforded another VA examination in May 2009. He reported at that time that he was frustrated due to his inability to function physically as he did before because of his shoulder disability and other health problems. He also reported that he was stressed because he spent all day with his wife who was having trouble finding a job. He also reported that he was very depressed, and that his physical health was making him feel worse. However, he was not suicidal or homicidal. He reported that his fourth marriage went through a very abusive and disruptive time, but that he spent time with his thirteen-year old son. He noted again that he retired in 2000 and was receiving SSA benefits since that time. The Veteran complained of significant intrusive thoughts, but indicated that he did not experience nightmares or flashbacks. He experienced avoidance and general numbing, as he reported that he did not like going into crowded places. He complained of an exaggerated startle response and hypervigilance, a significant amount of anxiety, irritability, anger, significant depression (exacerbated by health problems), and sleep deprivation. The Veteran reported that he was still drinking, and that he had severe trouble with his marriage and parenting due to his irritability. He also noted that he was socially withdrawn and the he was not active and did not practice his hobbies, when depressed. The examiner assigned a GAF score of 50, and opined that his diagnoses of PTSD and depression alone would not justify unemployability. In an August 2009 statement, the Veteran's wife reported that the Veteran was very moody and irritable; that he had no motivation or enthusiasm; that he was depressed, angry and irritable; that he could not control his temper; that he was socially isolated when depressed; that he had bad hygiene-going for days without showering or shaving; and that they had no sexual relationship. Outpatient treatment records from the Fargo VA show that in January 2010, the Veteran was sleeping very well and that medication had helped with his irritability and anger, but that he still experienced increased anxiety, tension and irritability during holidays and depression after the holidays. He was also noted to have good attention to grooming. In April 2010, he reported a history of alcohol and substance abuse, and indicated that he had been sober for approximately ten years. He reported irritability, anger, depression and sadness. He was also noted to exhibit depressive symptoms of fatigue and low motivation and energy. His mood was labile with congruent affect, his grooming was fair, and he was not suicidal or homicidal. At his December 2010 Video Conference hearing, the Veteran credibly testified that he experienced regular flashbacks, anger and depression, and indicated that his PTSD had negatively affected his relationship with his wife and children, as well as his employability. He also indicated that he would probably not survive without his PTSD medication. The Board also notes that SSA records show that the Veteran has a long history of drug and alcohol abuse and treatment, and that he has been considered disabled due to his psychiatric disorders, which include PTSD and bipolar disorder, since June 2000. In the present case, the evidence shows that the social and industrial impairment from the Veteran's PTSD more nearly approximates the total occupational and social impairment required for a 100 percent rating than the occupational and social impairment with reduced reliability and productivity contemplated by the assigned evaluation of 50 percent. The Veteran has reported and the record reflects that he has been unable to work due to his psychiatric disabilities, including PTSD, since at least June 2000. He has been married four times and has reported that his previous marriages ended in part, due to symptoms of his PTSD. Furthermore, he has no social life, no friends and a poor relationship with his current wife. In this regard, his wife has reported that their relationship is poor due to the Veteran's unprovoked anger and irritability, physical and verbal abuse, moodiness, depression, social withdrawal and isolation, his occasional lack of personal hygiene, and a lack of intimacy. In the past, she was afraid to leave their son alone with the Veteran because he was physically abusive. Further, he had a history of domestic problems and disputes with his wife and her relatives. The Veteran has reported that he spends time with his son from his current wife, who is approximately thirteen or fourteen years old, but his wife has reported that he lacks the energy or motivation to interact with the child in a positive manner. The Veteran's wife has also reported that the Veteran fails to maintain personal hygiene when having a bout of depression. The medical evidence of record also shows that the Veteran has reported sleep deprivation, nightmares, intrusive thoughts, flashbacks, an easy startle response and hypervigilance and anxiety. Furthermore, he has been hospitalized three times for treatment for his drug and alcohol dependence, and psychological disorders, including PTSD. The Board also notes that the Veteran has consistently been assigned a GAF score of 50 during the period of this claim, which is indicative of the Veteran's serious impairment in social and occupational functioning. Given his inability to maintain employment, and his nearly total social impairment, and resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's PTSD symptoms most closely approximate the criteria for a 100 percent rating. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21 (2010). TDIU The Court recently held that a request for a TDIU, whether expressly raised by Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a service-connected disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue whether a TDIU is warranted as a result of that disability. Id. As discussed above, an evaluation of 100 percent has been assigned herein for the Veteran's PTSD. As such, the Veteran's TDIU claim has become moot. See Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994); VA O.G.C. Prec. 6-99, 64 Fed. Reg. 52,375 (1999) (a TDIU claim may not be considered when a schedular 100 percent rating is in effect as no additional monetary benefit would accrue to a Veteran). Accordingly, the Board must dismiss the claim as lacking legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to a 100 percent disability evaluation for post traumatic stress disorder is granted from May 29, 2008. ____________________________________________ D. MARTZ AMES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs