Citation Nr: 1300549 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 09-27 124 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to higher initial and subsequent disability ratings for post-traumatic stress disorder (PTSD), to include entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from January 1964 to December 1967. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions by the Atlanta, Georgia Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Board has not only reviewed the Veteran's physical claims file, but also the Veteran's file on the Virtual VA electronic file system, to ensure a total review of the evidence. FINDINGS OF FACT 1. The Veteran's PTSD produces occupational and social impairment with deficiencies in most areas, such as work, family relations, thinking, and mood, due to such symptoms as suicidal ideation, panic, near-continuous depression, difficulty in adapting to stressful circumstances including work, and difficulty maintaining effective relationships. 2. The Veteran's PTSD makes him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The Veteran's PTSD meets the criteria for a 70 percent disability rating. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2012). 2. The 70 percent rating and effects on employability of the Veteran's PTSD meet the criteria for a total disability rating based on individual unemployability. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.16(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In January 2004, the Veteran submitted a claim for service connection for PTSD. In an April 2004 rating decision, the RO granted service connection for PTSD, effective in January 2004, and assigned a disability rating of 30 percent. In an August 2004 statement, the Veteran wrote that his panic attacks had become much worse and had manifested as chest pains. In a September 2004 statement, he wrote that his PTSD symptoms made him unable to get along with people or work at his job. In an October 2004 rating decision, the RO increased the disability rating for the Veteran's PTSD from 30 percent to 50 percent, effective in July 2004. The RO also denied service connection for chest pains. A claimant initiates appeal of a rating decision by filing a notice of disagreement (NOD) within one year from the date of the mailing of the rating decision. 38 U.S.C.A. § 7105 (West 2002). The Board finds that the Veteran's August and September 2004 statements, submitted less than a year after the April 2004 rating decision, can reasonably be construed as an NOD with the RO's April 2004 decision assigning an initial rating of 30 percent for PTSD. In a June 2006 rating decision, the RO granted a temporary total (100 percent) rating for PTSD for February to April 2006, a period of hospital treatment for PTSD, and resumed a 50 percent rating from May 2006. In that decision the RO also denied a total disability rating based on individual unemployability (TDIU). In February 2007, the Veteran submitted an NOD with the rating for his PTSD. VA assigns disability ratings by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10 (2012). If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Therefore, the Board will consider whether different ratings are warranted for different time periods. VA regulations allow for the assignment of a total disability rating based on individual unemployability (TDIU) when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain combinations of ratings for service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. 38 C.F.R. § 4.16(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. The rating schedule provides for evaluating mental disorders such as PTSD under a General Rating Formula for Mental Disorders. That formula provides for ratings of 50 percent and higher as follows: 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 .......................... 100 percent Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships ............................................. 70 percent Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships ................................. 50 percent 38 C.F.R. § 4.130. One factor that may be considered in evaluating mental disorders is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)); see also Richard v. Brown, 9 Vet. App. 266 (1996). GAF scores ranging between 51 and 60 indicate 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 peer or coworkers). A GAF score of 41 to 50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals) or serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep job). A GAF score of 31 to 40 indicates 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). See Diagnostic and Statistical Manual of Mental Disorders, (4th ed. 1994) ((DSM-IV)). While the rating schedule does indicate that the rating agency must be familiar with the DSM IV, it does not assign disability percentages based solely on GAF Scores. See 38 C.F.R. § 4.130. The Veteran receives VA mental health and medical treatment. Treatment notes reflect mental health treatment from 2003 forward. Treating clinicians diagnosed PTSD and depression, and medication was started. In outpatient treatment in October 2003, the Veteran reported a history of mood and behavioral problems since service, with difficulty with employment and with relationships with family and others. He reported that he was divorced and that his children had little to do with him. He indicated that he worked as a truck driver, and related that he experienced road rage. In October 2003, a treating VA psychologist assigned a GAF score of 55. In December 2003, the Veteran reported having suicidal thoughts. He stated that he was unable to keep a job. The Veteran was admitted in January 2004 for a period of VA inpatient mental health treatment. In February 2004, the Veteran reported having auditory hallucinations, even in the daytime. Treating psychiatrist S. L. B., M.D., noted that the Veteran had symptomatic worsening of PTSD. In March 2004, the Veteran reported having a troubled work history, with a great deal of turnover and difficulty dealing with supervisors. He stated that he was having anxiety around people, vivid Vietnam nightmares, disturbed sleep, and occasional auditory hallucinations. Dr. B. indicated that the Veteran's symptoms were inadequately controlled by medications. The Veteran was asked to participate in a volunteer program as part of treatment, but he stated that in the volunteer setting he could not tolerate being around people and his anxiety increased. In April 2004, the Veteran reported having daytime flashbacks to Vietnam. Dr. B. assigned a GAF score of 45, and wrote, "In my opinion, [the Veteran] is disabled and unemployable due to chronic post-traumatic stress disorder." After discharge from VA domiciliary care in April 2004, the Veteran was continued on outpatient treatment and medication for PTSD. In a July 2004 treatment visit, the Veteran reported that he was still isolating himself in order to manage his irritability. He reported having panic attacks about three times per week, and occasional daytime flashbacks. He reported frequently interrupted and very poor sleep, with nightmares and nighttime flashbacks. Dr. B. expressed the clinical opinion that the Veteran was "100% totally and permanently disabled due to PTSD." Dr. B. noted that the Veteran had very poor interpersonal relationships and was unable to tolerate even minimal work stress. Dr. B. assigned a GAF score of 45. In August 2004, the Veteran went to a private hospital emergency room due to chest pain. Medical testing was normal. The Veteran informed his treating VA facility of the episode, and a VA clinician listed a diagnosis of probable panic attack. In statements submitted in August and September 2004, the Veteran wrote that his panic attacks had become much worse. He indicated that nightmares, panic attacks, and hallucinations made him unable to sleep, and that his problems with sleeping made him unable to work. He expressed that he sometimes felt it would be better if he were dead. He also stated that his inability to get along with people made him unable to work. In September 2004, the Veteran had a VA mental health examination. He reported that he had nightmares about Vietnam and awakened sweating. He stated that he became angry easily and that he did not like to be around people. He indicated that he felt sad and hopeless. He related having suicidal thoughts and a history of homicidal thoughts. He reported that he had difficulty concentrating and focusing, and that he got lost while driving. He indicated that he had panic attacks. He stated that he had left jobs because of problems handling discipline, authority, and stress, and that he quit working in 2003. The examiner found that the Veteran was oriented, with a depressed mood and a constricted affect. There was no indication of suicidal plans, obsessive behavior, or hallucinations. On examination the Veteran had intact memory, adequate impulse control, and fair judgment and insight. The examiner found that the Veteran had chronic PTSD with relationship problems and occupational problems. The examiner noted that the Veteran had not worked since 2003 due to his difficulties handling stress. The examiner assigned a GAF score of 50. The Veteran had a period of VA inpatient mental health treatment in October and November 2004. The attending psychiatrist, Dr. B., assigned a GAF score of 45. VA outpatient treatment in 2005 and 2006 for the Veteran's PTSD continued to include medications, which at times were adjusted. The Veteran reported ongoing sleep disturbance and frequent nightmares. On most visits, the Veteran denied suicidal or homicidal ideation, though in June 2005 he reported having passing suicidal thoughts. The Veteran indicated that hallucinations were controlled on medications, and Dr. B. stated that what the Veteran endorsed as hallucinations were actually flashbacks. In January 2006, the Veteran reported that he heard voices that took him back to Vietnam. Dr. B. assigned GAF scores of 45 in January and March 2005, 43 in June and August 2005, and 45 in October 2005 and January 2006. In a September 2005 statement, the Veteran wrote that his PTSD had made him unable to keep a job because he could not get along with his co-workers or supervisors. He noted that he could not sleep well at night, and that he heard voices. The Veteran underwent an eight week VA intensive outpatient PTSD treatment program from February to April 2006, and lived in a VA domiciliary during that program. The Veteran reported ongoing nightmares, intrusive thoughts, painful memories, depression, isolation, night terrors, and interrupted and poor sleep. On discharge, clinicians assigned a GAF score of 50 to 53. The clinicians recommended ongoing outpatient treatment. The Veteran had a VA mental health examination in March 2006. He reported that he had last worked driving a truck, and had been unemployed since 2003. He stated that he quit his last job due to PTSD symptoms. He related that he lived alone, and that he felt depressed most of the time. The examiner observed that the Veteran had an unconstricted affect, a mood within normal limits, and no signs of psychosis. The examiner estimated that the impact of the Veteran's PTSD symptoms on his social and occupational functioning was moderate. The examiner assigned a GAF score of 50. In a February 2007 statement, the Veteran reported that he had suicidal ideation at least a couple of times a week. He stated that his PTSD made him unable to maintain effective relationships. In April 2008 statements, the Veteran asserted that his PTSD caused him to be unemployed and caused his divorce. He reported that despite medications for PTSD he had depression, sleeplessness, issues with authority, nightmares, flashbacks, and panic attacks. He indicated that sometimes he thought he was back in Vietnam and heard soldiers talking to him. In VA outpatient mental health treatment in October 2008, the Veteran reported ongoing PTSD. He indicated that he had difficulty sleeping without medication, and that he still had nightmares several times a week. He reported having intrusive thoughts and episodic panic attacks. He stated that he lived alone, and avoided crowds and war-related news and movies. The treating psychiatrist, R. M., M.D., assigned a GAF score of 45. The Veteran had a VA mental health examination in February 2009. The examiner reported having reviewed the Veteran's claims file, and stated that the Veteran had received VA mental health treatment since 2007. The Veteran reported that he stayed depressed all the time, and had difficulty sleeping. He related having panic attacks. He stated that he had suicidal thoughts but that he would not act on them. He indicated that during the day he watched television and took naps. He stated that he occasionally shopped. He stated that he prepared some of his meals and his sister brought some of his meals. The examiner found that the Veteran had an anxious mood, an appropriate affect, and normal memory. The examiner endorsed that the Veteran's PTSD signs and symptoms resulted in deficiencies in mood. The examiner assigned a GAF score of 50. The examiner stated that the history and examination indicated that the Veteran's PTSD symptoms were not such that they would interfere with his ability to maintain gainful employment. In March 2009, the Veteran had a hearing at the RO before a Decision Review Officer (DRO). The Veteran reported great having difficulty sleeping at night and during the day. He related that sometimes he went up to four days without sleep. He stated that he had bad nightmares four to five times a week, and also had frequent flashbacks and panic attacks. He indicated that his grown children avoided him, and that he had no social life. He stated that he had problems with people, and had major panic attacks in crowded places. He related that before his divorce his wife complained that he isolated himself and would not interact with the family. He stated that he had frequent intrusive thoughts of suicide. He expressed that he had no life. Notes from VA treatment in 2009 through 2011 reflect that the Veteran continued in VA PTSD individual treatment. He also attended an eight week VA PTSD treatment program in 2009, and group counseling sessions in 2009 and 2010. In an individual treatment visit in May 2009, the Veteran reported depressed feelings, sleep problems, impaired concentration, and difficulty getting along with people. Dr. M. assigned a GAF score of 45. In a July 2009 statement, the Veteran contended that his PTSD symptoms were consistent with most of the rating schedule criteria for a 70 percent rating. He stated that due to his depression he spent weeks at a time in his apartment, and could not find the motivation to even bathe. He indicated that his irritability and depression had caused him to lose his family, home, and friends. He stated that his flashbacks and hallucinations made him unable to sleep. He reported that for forty years his PTSD interfered his ability to hold a steady job. He stated that while he was employed he was always in turmoil with his employers, and only remained employed with help from his union. He indicated that over the years since service he often became depressed and spent days or weeks on the couch, unable to work. He stated that his inability to get along with anyone made him unable to maintain family relationships or to have friends. In VA PTSD treatment in January 2010, the Veteran reported ongoing problems with nightmares and disturbed sleep. He stated that he stayed awake for two to three days and then crashed into a deep sleep. He reported chronic wishes for death, but denied any active suicidal plan. He stated that despite medications his insomnia, nightmares, and intrusive thoughts were worsening over time. He indicated that he stayed depressed all the time. He stated that he had limited relationships with his grown children. Treating psychiatrist M. Y., M.D., assigned a GAF score of 43. In February 2010, the Veteran reported having nightmares every night, and sleeping only a few hours each evening. He endorsed feeling depressed daily, and anxious and nervous most of the time. In December 2010, the Veteran reported hearing voices from the Vietnam War, both at night and during the day. He also related having difficulty with his memory. He admitted to passive wishes of death, but denied suicidal ideation. Testing performed in January 2011 indicated cognitive changes with deficits in many areas, including memory and attention. In March 2011, the Veteran reported ongoing symptoms. In September 2011, he reported having had more frequent nightmares after a medication change. He indicated that he stopped taking one medication, and that he sometimes forgot to refill others. He related having ongoing and worsening depression and wishing to die, without intending to act on his suicidal thoughts. Dr. Y. assigned a GAF score of 43 in December 2010, March 2011, and September 2011. The Veteran has been in treatment for PTSD since 2003. He has reported that his PTSD is manifested by considerable to severe sleep impairment, persistent depression, some flashbacks or hallucinations, and suicidal ideation. He has indicated that his PTSD makes him unable to get along with others and has caused him occupational and social impairment with deficiencies in work, family relations, and mood. VA psychiatrists, including Drs. B., M., and Y., who have treated the Veteran have generally concluded that the Veteran's PTSD produces serious occupational and social impairment. They have noted serious symptoms such as suicidal ideation and serious impairment of family and other interpersonal interaction, and have assigned GAF scores largely of 43 and 45. On VA examinations, some examiners have found somewhat less severe levels of impairment, and have assigned GAF scores of 50. Where the treatment findings and examination findings differ, the treatment findings carry somewhat more evidentiary weight than the examination findings, because the treating clinicians observed the Veteran on more occasions and over greater periods of time. The greater weight of the evidence indicates that the Veteran's PTSD has produced impairment consistent with the criteria for a 70 percent rating. The Board therefore grants a 70 percent rating. The treatment and examination records do not tend to show that the Veteran has even more disabling manifestations, such as impaired thought processes, persistent hallucinations, grossly inappropriate behavior, persistent danger of hurting himself or others, disorientation, or severe memory loss, such as would warrant a 100 percent rating under the rating schedule. As the Board is granting a 70 percent rating for the Veteran's PTSD, and the Veteran has contended that his PTSD makes him unemployable, the Board will consider the issue of whether a TDIU is warranted. In two statements in 2004 Dr. B., the VA psychiatrist then treating the Veteran, expressed the opinion that the Veteran's PTSD made the Veteran totally disabled and unemployable. As noted above, the opinion of the treating psychiatrist Dr. B. carries greater weight than the conclusions of VA examiners who saw the Veteran only once for examination. The Board finds that at least half of the evidentiary weight supports the grant of a TDIU based on the effects of the Veteran's PTSD. This finding does not suggest the Veteran will always be unemployable due to his PTSD, and further evaluation may be warranted in the future to determine if the disability has improved. The Board finds that the Veteran's PTSD disability picture is contemplated by the present grants of a 70 percent rating for PTSD and a TDIU based on PTSD. The Veteran's PTSD disability therefore does not present a disability picture so exceptional or unusual that it is impractical to apply the regular standards of the rating schedule. Thus, it is not necessary to refer the issue of the PTSD rating to appropriate VA officials for consideration of an extraschedular rating under 38 C.F.R. § 3.321(b)(1). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011)) redefined VA's duty to assist a claimant in the development of a claim for VA benefits. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has stated that the requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). Insufficiency in the timing or content of VCAA notice is harmless, however, if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). The RO provided the Veteran with VCAA notice in letters issued in 2004, 2006, and 2008. Those letters addressed the information and evidence necessary to substantiate claims for service connection and increased ratings, and informed the Veteran how VA assigns effective dates. The letters also addressed who was to provide the evidence. The claims file contains the Veteran's service medical records, post-service medical records, statements from the Veteran, reports of VA medical examinations, and the transcript of the March 2009 DRO hearing. The Board finds that the Veteran was notified and aware of the evidence needed to substantiate the claim on appeal, as well as the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran has actively participated in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process, and he has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication nor to have caused injury to the Veteran's interests. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless, and does not prohibit consideration of the claim on the merits. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). ORDER Entitlement to an initial 70 percent disability rating for PTSD is granted, subject to the laws and regulations controlling the disbursement of monetary benefits. Entitlement to a TDIU is granted, subject to the laws and regulations controlling the disbursement of monetary benefits. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs