Citation Nr: 1302275	
Decision Date: 01/22/13    Archive Date: 01/31/13

DOCKET NO.  10-05 133	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to an initial disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	Kenneth Lavan, Esq. 


ATTORNEY FOR THE BOARD

D. M. Donahue, Associate Counsel


INTRODUCTION

The Veteran had active duty service from January 1951 to December 1953.

This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a September 2008 rating decision, of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted service connection for PTSD and assigned an initial disability rating of 50 percent.

In a January 2010 rating decision, the RO increased the evaluation assigned to 70 percent for the Veteran's service-connected PTSD from December 5, 2007, which is the date of the Veteran's original claim.  Since the RO did not assign the maximum disability rating possible, this appeal for a higher evaluation remains before the Board.  AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal).

The Veteran testified before the undersigned Veterans Law Judge during a videoconference hearing in September 2012.  However, a transcript of the hearing was unable to be produced.  The Veteran was offered another hearing scheduled for December 2012.  In a November 2012 letter, the Veteran indicated he wished to withdraw his request for another hearing.  The Board considers this request withdrawn and will continue to decide the claims on the evidence therein. 


FINDING OF FACT

The Veteran's service-connected PTSD more nearly approximates total occupational and social impairment for the entire period under consideration in this appeal.


CONCLUSION OF LAW

The criteria for a 100 percent disability rating for PTSD are met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  As the Veteran's claim has been granted in full, no further notification or assistance is necessary, and deciding the appeal is not prejudicial to the Veteran.

The Veteran appeals the denial of the assignment of a rating greater than 70 percent for his service-connected PTSD.  Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  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.

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition.  Schafrath v. Derwinski, 1 Vet.App. 589, 594 (1991).  In Fenderson v. West, 12 Vet. App. 119 (1999), and in Hart v. Mansfield, 21 Vet. App. 505 (2007), the United States Court of Appeals for Veterans Claims (Court) discussed the concept of the 'staging' of ratings, finding that in cases where an initially assigned disability evaluation or an increased rating has been disagreed with, it was possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period.  The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.  However, the Board concludes that a uniform rating is warranted.  

The Veteran's PTSD is rated under 38 C.F.R. § 4.130's General Rating Formula for Mental Disorders, under which a 70 percent evaluation is warranted where there is 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; intermittently illogical obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships.

A 100 percent evaluation is warranted where there is 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.  See 38 C.F.R. § 4.130, Diagnostic Code 9411.

The symptoms listed in VA's general rating formula for mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).

According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions and the Veteran's capacity for adjustment during periods of remission must be considered.  38 C.F.R. § 4.126(a) (2012).  In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination.  Id.  Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment.  38 C.F.R. § 4.126(b).

Global Assessment of Functioning (GAF) scores are a scale reflecting the 'psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness.' Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) [citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), p. 32].

GAF scores ranging from 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).  Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in the Veteran's social, occupational or school functioning (e.g., no friends, unable to keep a job).  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).  See 38 C.F.R. § 4.130 [incorporating by reference the VA's adoption of the DSM-IV, for rating purposes].

Factual Background and Analysis

The Veteran underwent a psychological assessment for Social Security disability purposes in November 2001.  The diagnosis was adjustment disorder with depressed mood with an assigned GAF score of 50.

In a March 2008 letter from G. G., PsyD., the Veteran's treating VA psychologist reported that the Veteran has been diagnosed with and continues to be treated for PTSD.  He participates in a weekly psychotherapy group, and was admitted to the PTSD program in October 2005 subsequent to an evaluation and diagnosis of PTSD.  It is believed that his chronic PTSD has interfered and continues to interfere significantly with his ability to function in social and occupational roles. 

In a June 2008 VA progress note, the examiner noted that the Veteran was alert and oriented with good personal hygiene.  He also had good eye contact, pleasant mood, appropriate affect, fluent speech, and good insight and judgment without any evidence of psychotic manifestations, suicidal or homicidal ideation or intentions, or perceptual disturbances.  The examiner noted that his thoughts were well organized and goal directed.  The diagnoses were cocaine dependence, and rule out PTSD with an assigned GAF score of 35.  

In a subsequent June 2008 VA progress note, the Veteran reported flashbacks that led to paranoia and psychosis.  He reported he dealt with it in the past, but that in January 2008 the symptoms worsened and he was having severe flashbacks of seeing and hearing gunfire, which caused paranoia. 

During an August 2008 VA examination, the examiner found the Veteran was oriented and clean and casually dressed, with cooperative attitude, constricted affect, spontaneous and coherent speech, anxious and irritable mood, and intrusive thoughts of combat.  He had no delusions, but endorsed intermittent auditory and visual hallucinations.  The examiner noted that he did not display inappropriate behavior or obsessive/ritualistic behavior.  The Veteran complained of irritability or outbursts of anger, difficulty concentrating, hypervigilance, exaggerated startle response, and difficulty falling or staying asleep.  The examiner found that the Veteran's disturbance causes clinically significant distress or impairment in social, occupational and other important areas of functioning.  The examiner further found that the Veteran's symptoms are most days and are moderate and at times severe.  He has never been able to sustain a relationship with women and he displays poor social skills due to mistrust.  Intrusive thoughts, nightmares, flashbacks, anxiety, irritability, and mistrust have caused significant impairment in quality of life.  The diagnosis was PTSD with an assigned GAF score of 50. 

In a December 2008 VA progress note, the Veteran reported that he has occasional flashbacks where he sees his dead parents and his dead comrades.  He denied perceptual disturbances, thoughts of self harm, and homicidal ideations.  The examiner noted mild paranoid delusions appeared to be at baseline.  The assigned GAF score was 55. 

VA progress notes dated from January 2009 to August 2010 indicate ongoing treatment for PTSD with medication and group therapy.  Examiners noted that his hallucinations and delusions had decreased.  GAF scores were assessed at 40 to 50.

In a  February 2010 VA nursing admission assessment, the nurse noted that the Veteran's thought process was disorganized at times, and content evidence paranoid ideations.  The Veteran reported he does not trust anyone and hears voices at times whispering "kill, kill, kill."  He also endorsed PTSD symptoms such as sleep disturbances, nightmares, flashback, intrusive thoughts, anxiety, irritability, anger, hostility, impatience, and paranoia.  An addendum included diagnoses of cocaine dependence and PTSD, and included an assigned GAF score of 40. 

In a March 2010 letter, T. P., PsyD., reported that the Veteran has symptoms consistent with a diagnosis of PTSD including recurrent nightmares and intrusive thoughts related to war experiences, flashbacks, increased irritability, difficulty managing anger, avoidance, isolation, emotional detachment, impaired concentration, hypervigilance, insomnia, and low frustration tolerance.  Furthermore, the psychologist felt that the Veteran's PTSD symptoms significantly impair the Veteran's social and occupational functioning. 

In May 2010, the Veteran was admitted for substance abuse residential rehabilitation treatment.  The diagnoses on discharge were cocaine dependence, alcohol abuse in remission, and PTSD with assigned GAF score of 50.  Upon admission he complained of difficulties with anxiety, flashbacks, nightmares, occasional auditory hallucinations, difficulties with anger management and irritability, avoidance of trauma related stimuli and an increased startle reflex.  He denied mania or current thoughts of harm to himself or others.  Upon discharge, the Veteran was calm, cooperative, well groomed, and casually dressed with no abnormal involuntary movements and only a rare facial tic.  His mood was euthymic.  He displaced appropriate affect with full range of emotions.  His speech was fluent and unremarkable.  His thought processes were organized and goal directed.  Thought content was primarily concerned about staying clean and sober.  He denied suicidal and homicidal ideation.  Ideation and judgment were good as were attention and concentration.  Memory was unimpaired.   

During a July 2010 VA examination, the Veteran complained of worsening irritability, slightly improved sleep, more nightmares of combat, and slightly less intrusive thoughts during treatment.  He related he was estranged from his son due to irritability, and mostly estranged from siblings as he claims they do not believe his Vietnam experiences.   He reported he plays dominoes with a friend every day, watches television, and spends time with his dog.  He lives alone and withdraws, avoiding crowds and noisy places.  Upon mental status examination, the examiner found he was clean, neatly groomed, and casually dressed with limited eye contact.  The Veteran was fatigued and tense with spontaneous, coherent speech which was at times with slurred and stuttering quality.  The examiner also found cooperative attitude, blunted affect, irritable and dysphoric mood, attention disturbance, unremarkable thought process, intrusive thoughts most days, no delusions, average intelligence, and sleep impairment.  There were no hallucinations or inappropriate behavior, though the Veteran endorsed some obsessive/ritualistic behavior including repeatedly checking doors and windows for safety concerns.  The examiner noted he has panic attacks once or twice a month and that he cannot function well when present.  He had no persistence of homicidal or suicidal thoughts.  He had poor impulse control with episodes of violence including easily lost temper.  Memory was normal.  The examiner noted that symptoms are daily or most days of moderate intensity but at times severe with irritability lasting from minutes to all day.  The diagnosis was PTSD with an assigned GAF score of 51. 

During an April 2011 VA examination, the examiner noted symptoms of anxiety, suspiciousness, panic attacks that occur weekly or less soften, chronic sleep impairment, flattened affect, impaired impulse control, and difficulty in adapting to stressful circumstances, including work or a worklike setting.  The Veteran also endorsed night time auditory hallucinations of marines moaning related to events in Vietnam, anxiety in public, and referential thoughts leading to confrontation with others and at times with violence.  The examiner noted that his irritability with very easy loss of temper and potential for violent acting out would grossly impair his ability to perform work involving interaction with other people; low stress work, with minimal interaction with others that does not require significant concentration would be possible on the basis of PTSD.  

In an April 2011 letter, G. H., M.D, reported that the Veteran is unable to secure to maintain employment due to his psychiatric problems.

A private vocational assessment dated in September 2012 indicated that what appears to be the permanency of the Veteran's psychiatric and emotional difficulties resultant of his service-connected PTSD, he has not been able to engage in any substantial gainful occupation since January 2001.  It was the assessor's opinion that the Veteran is unemployable. 

The Board recognizes that the evidence of record is not entirely consistent regarding the severity of the Veteran's PTSD.  Nevertheless, the Board ultimately concludes that the Veteran's service-connected PTSD more nearly approximates total occupational and social impairment for the entirety of the claims period.  The Board finds there is ample evidence that the Veteran's PTSD renders him totally occupationally impaired as found by the letters from G. H., M.D, and the private vocational assessor.  Further, the Board notes that VA psychologists G. G., PsyD., and T. P., PsyD., as well as the August 2008 VA examiner reported the Veteran's chronic PTSD has interfered significantly with his ability to function in social and occupational roles.  VA examinations and additional treatment records include on-going problems with intermittent auditory and visual hallucinations, irritability or outbursts of anger, difficulty concentrating, paranoia, anxiety, referential thoughts leading to confrontation with others and at times violence. 

Based on the evidence, the Board concludes that the Veteran's service-connected PTSD more nearly approximates total occupational and social impairment for the entirety of the claims period.  

Since the Veteran has been awarded the maximum schedular rating of 100 percent due in part to his unemployability, there is no need for extraschedular consideration or basis to recognize an implied claim for TDIU under Rice v. Shinseki, 22 Vet. App. 447 (2009).  There is also no additional service-connected disability which would serve to support an award of TDIU separate and distinct from his PTSD so as to potentially provide a basis for entitlement to special monthly compensation under 38 U.S.C.A. § 1114(s) (West 2002).  See Bradley v. Peake, 22 Vet. App. 280 (2008).  Thus, there is no benefit for obtaining TDIU in addition to the newly assigned total rating.


ORDER

A 100 percent rating for PTSD is granted, subject to the regulations and statutes governing the payment of monetary benefits.



____________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs