Citation Nr: 1305155	
Decision Date: 02/12/13    Archive Date: 02/21/13

DOCKET NO.  04-14 437	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey


THE ISSUES

1.  Entitlement to increases in the ratings for post-traumatic stress disorder (PTSD), currently assigned "staged" ratings of 50 percent prior to March 26, 2008, and 70 percent from that date.

2.  Entitlement to an effective date prior to March 26, 2008 for a total disability rating based on individual unemployability (TDIU) due to service connected disability.


REPRESENTATION

Appellant represented by:	Robert V. Chisholm, Attorney at law


WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

D. Schechner, Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from December 1965 to September 1967.  These matters are before the Board of Veterans' Appeals (Board) on appeal from a December 2002 rating decision of the Newark, New Jersey RO.  In September 2007, a Travel Board hearing was held before the undersigned; a transcript of the hearing is included in the claims file.  In January 2008, the Board remanded the matters to afford the Veteran a new VA examination.  An interim [May 2008] rating decision granted a 70 percent rating for PTSD effective March 26, 2008, and awarded TDIU effective the same date.  An October 2008 Board decision denied increased ratings for PTSD.  An October 2009 Court order remanded the matter to the Board for readjudication, pursuant to a Joint Motion for Remand.  In April 2010, the Board remanded the matters for further development.  In December 2012, the Board sought a VHA advisory medical opinion on the matters.


FINDINGS OF FACT

1.  It is reasonably shown that, throughout, the Veteran's PTSD has been manifested by symptoms productive of total occupational and social impairment, causing him to be unemployable.

2.  This decision grants a 100 percent schedular rating for PTSD for the entire remainder of the evaluation period for consideration with respect to the matter of entitlement to a TDIU rating.  



CONCLUSION OF LAWS

1.  A 100 percent schedular rating is warranted for the Veteran's PTSD throughout the appeal period.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.130, Diagnostic Code (Code) 9411 (2012).  

2. The claim for an earlier effective date for the award of TDIU is rendered moot by the award of a 100 percent schedular rating for PTSD for the entire period under consideration.; there is controversy remaining for the Board to consider regarding the rating assigned for that period.  38 U.S.C.A. §§ 7104, 7105 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).

Inasmuch as the full benefit sought is being granted, there is no reason to belabor the impact of the VCAA on the matter; any notice defect or duty to assist oversight is harmless.

Legal Criteria, Factual Background, and Analysis

The Board notes that it has reviewed all of the evidence in the Veteran's claims file, including the evidence available through Virtual VA (VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000)(VA must review the entire record, but does not have to discuss each piece of evidence.)  Hence, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claim.

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  Reasonable doubt as to the degree of disability will be resolved in the veteran's favor.  38 C.F.R. § 4.3.

PTSD is rated under the General Rating Formula for Mental Disorders (General Formula).  A 50 percent rating is warranted when there is 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.  

A 70 percent rating is warranted when 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; 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.

A 100 percent rating is warranted when 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.  38 C.F.R. § 4.130, Code 9411.

The Veteran has been assigned various Global Assessment of Functioning (GAF) scores for his PTSD.  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 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).  A score from 21 to 30 is indicative of behavior that is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or inability to function in almost all areas.  Lesser scores reflect increasingly severe levels of mental impairment.  See 38 C.F.R. § 4.130 [incorporating by reference VA's adoption of the American Psychiatric Association: DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), for rating purposes].

The Veteran's claim for an increased rating for PTSD was received by VA in December 2001.  

On April 2003 VA examination, the Veteran had been in treatment for PTSD for several years, including taking trazodone and sertraline.  He reported nightmares, flashbacks, hypervigilance, and startling easily.  He was separated from his wife and had four sons, and he was close to two of them, living with the older son.  He had a lady friend and talked to his neighbors.  

On mental status examination, the Veteran was casually dressed and cooperative, with a neutral mood and a blunted affect.  His speech was normal, and there were no perceptual problems.  His thought process and thought content were normal, with no suicidal or homicidal ideation.  He was oriented to person, place, and time, his insight and judgment were fair, and his impulse control was fair.  The examiner opined that the Veteran was unable to work mainly because of his back problems.  The diagnoses included PTSD and polysubstance dependence in remission, and a GAF of 55 was assigned to reflect moderate symptoms of PTSD.

On September 2007 VA evaluation, it was noted that the Veteran "continued to have depression" resulting in symptoms including difficulty leaving the house and a lack of a desire to "do anything".

At the September 2007 Travel Board hearing, the Veteran testified that he sought treatment for PTSD about every six weeks.  He testified that he had not worked since 1992, and he was told by his last employer of 30 years that he had a negative attitude.  He testified that he did not see too many people aside from his girlfriend and his two sons, and he was friendly with one neighbor.  Once in a while he went out to the store with his sons, although he rarely socialized.  He testified that he had panic attacks every couple of weeks.  He testified that his memory was not as good as it used to be.  He testified that he could not get motivated to do things and became irritable quickly.

On March 2008 VA examination, the Veteran reported ongoing PTSD treatment including individual psychotherapy and medications including Zoloft, trazodone, and bupropion.  The examiner noted that the last GAF given was 45.  The Veteran reported severe symptoms of PTSD occurring without remission throughout the previous year, including recurrent and intrusive distressing thoughts nearly daily; frequent distressing dreams about past trauma; intense psychological distress when exposed to car backfires, people in uniforms, rotten meat, or rain and heat; persistent avoidance of stimuli associated with his past trauma; avoidance of discussing or thinking about Vietnam; avoidance of activities, places, and people that might bring back memories of the trauma; news about current wars; diminished interest in participating in significant activities, especially social interaction; serious problems with feeling estranged from others; much difficulty showing affection to others; and persistent symptoms of increased arousal, including falling and staying asleep.  He had serious problems with irritability and outbursts of anger, he was excessively hypervigilant, and he had an exaggerated startle response.  He last worked 16 years earlier in a chemical factory and reported that he was fired due to his negative attitude.  He reported serious problems getting along with the people who worked with him.  The examiner noted that, if he were presently in a vocational setting, the Veteran would be overly sensitive, too easily irritable, and too easily angered.  The examiner opined that the serious PTSD symptoms would cause the Veteran to be unable to maintain relationships in a vocational setting.  The examiner opined that, overall, the Veteran's PTSD had made him unemployable for many years, and he continued to be unemployable due to his chronic PTSD.

On mental status examination, the Veteran was apprehensive but cooperative and calm in his motor activity.  His mood was very anxious and his affect was constricted.  His speech was normal, and there were no impairments in his perceptions.  His thought processes were intact, and his thought content was marred by persistent re-experiencing of Vietnam trauma.  He denied any present suicidal ideation or history of past suicide attempts; he denied any present homicidal ideation.  He had a history of assaultive behavior but not in several years.  His short-term memory and concentration were somewhat impaired due to anxiety and preoccupation.  His ability to think abstractly and his remote memory were each intact.  His judgment was seriously compromised by stress, and he had serious problems with anger dyscontrol.  Regarding the diagnosis of PTSD, a GAF score of 45 was assigned, reflecting serious symptoms of PTSD, unemployability due to PTSD, and inability to maintain relationships at work or socially.

Based on these findings, a May 2008 rating decision granted a 70 percent rating for PTSD effective March 26, 2008, and awarded TDIU effective the same date.

An October 2008 Board decision denied increased ratings prior to and from March 26, 2008.  An October 2009 Court order remanded the matter to the Board for readjudication, pursuant to a Joint Motion for Remand.

On December 2009 private vocational assessment, consultant E.J.C. cited several treatment and examination records and summarized a telephone conversation with the Veteran.  The consult opined that the Veteran's PTSD had become progressively worse over time to the point where he found it necessary to stop working in any capacity in March 1992.  The consultant found that the claims file shows a chronological pattern of a worsening of the PTSD symptoms since that time, including GAF scores of 45 to 55, lending validity to the Veteran not being employable.  The consultant opined that the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected conditions in March 1992 and continuing through the period of December 2001 to the present.  The consultant opined that the Veteran's inability to secure or follow a substantially gainful occupation is due primarily to his service-connected PTSD.

In April 2010, the Board remanded the matters to obtain outstanding Social Security Administration (SSA) records and to afford the Veteran a new VA examination.

On June 2010 VA examination, the Veteran reported that he was living in a house with his son and his son's girlfriend; he was unemployed and not looking for work.  He reported that he believed he was fired due to having a negative attitude.  He reported that he had repeatedly refused to train other employees at the request of his supervisors, and he had gotten into arguments with his supervisors.  He reported a history of not getting along with others and stated that after he was fired, he left his wife and moved out of the home they shared with their two teenage children.  He reported having a very limited social network, including only one friend who was his neighbor.  He reported disturbed sleep, difficulty falling asleep despite medications, and decreased appetite resulting in unintentional weight loss in the recent past.  He reported that he tried to forget about Vietnam and refused to join a psychotherapy group as recommended by his mental health providers.  His medications had helped to improve his mood, making him calmer and not verbally or physically violent.  He reported disturbing dreams of combat twice per week, flashbacks once every two weeks, thinking about his "first kill" frequently, causing intrusive thoughts that were difficult to push out of his mind.  He experienced involuntary twitching.  He reported past and current suicidal ideation but had no plan or intent to act on the thoughts.  He reported homicidal thoughts but denied any plan or intent.  He engaged in a number of hobbies, although mainly solitary in nature.  He enjoyed being home alone but also enjoyed riding a motorcycle with a friend.  He reported being good friends with his girlfriend's sister's husband, and they occasionally went out together as a group.  

On mental status examination, the Veteran's mood was generally euthymic with congruent affect.  He was observed twitching during the examination. His remote and recent memory processes were intact, as were his attention and concentration.  His speech was spontaneous, coherent, and at a normal rate, rhythm, and tone.  Perceptual processes were intact, and judgment and insight were adequate.  There was no evidence of psychosis.  The examiner opined that the Veteran's symptoms of PTSD were moderate in severity and had contributed to a decreased level of functioning in various domains.  The examiner opined that the Veteran's PTSD symptoms resulted in deficiencies in work-related functioning, interpersonal functioning, thinking and mood.  The examiner opined that the PTSD had resulted in deficiencies in work-related functioning since 2001.  The examiner assigned a GAF score of 50.

SSA records reflect that the Veteran was found to be disabled beginning in December 1991 due to a primary diagnosis of severe status post lumbosacral laminectomy and a secondary diagnosis of back pain.  The records include a December 1993 report from a neurologist and psychiatrist who concluded that the Veteran was totally disabled due to his PTSD (then rated 30 percent); depression (20 percent); and low back pathology (20 percent).

VA treatment records throughout the appeal period reflect PTSD symptomatology largely similar to the findings on the examinations cited above.

In a January 2013 VHA medical advisory opinion, the consulting psychiatrist noted that GAF scores range from 11 to 100, and a GAF of 50 or below indicates serious symptoms like suicidal thoughts, obsessional rituals, no friends, and inability to keep a job.  The physician opined that, since 2001, the Veteran's assigned GAF scores have not been consistent with the clinical findings noted.  Reviewing the April 2003 VA examination with a GAF score of 55, the physician opined that the GAF score should have been 45 to reflect the blunted affect, lack of job, and limited social relations.  Regarding the June 2010 assessment with a GAF score of 50, the physician opined that the symptoms including sleep disturbances, flashbacks, intrusive and distressing thoughts, nightmares, and passive suicidal and homicidal thoughts should have resulted in a GAF score of 40 or 45, as these are considered severe symptoms.  The physician noted that the Veteran's available GAF scores since 1997 have shown inconsistencies between the given scores and his clinical presentation, noting a gradual decrease in GAF score.  The physician agreed with the March 2008 VA examiner's finding that the Veteran had been unemployable for many years due to his PTSD, and also agreed with the December 2009 opinion from consultant E.J.C. that the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected conditions from March 1992 continuing through the period of December 2001 to the present.  The physician opined on the basis of the record that the Veteran lacked the ability to work from December 2001 to March 2008, as his PTSD symptoms were so severe that his occupational and social functioning were severely impaired, and he therefore could not obtain and maintain any gainful employment.  The physician opined that any type of gainful employment was inconsistent with the service-connected PTSD alone, and no type of gainful employment would remain feasible because of the Veteran's PTSD.  The physician concluded, based on a review of the claims file, that the Veteran's PTSD alone or the combination of his service-connected disabilities rendered him unemployable at any time prior to March 23, 2008.

The Board finds no reason to dispute this opinion as it is laid out with detailed reasoning in support of the finding that the Veteran's PTSD has caused total occupational impairment throughout the appeal period.

The Board finds that, throughout the relevant appeal period, the Veteran, his treating VA mental health personnel, and the VA examiners and consulting VHA psychiatrist have reported he has symptoms associated with PTSD consistent with total occupational and social impairment, due to such symptoms as: grossly inappropriate behavior; persistent danger of hurting himself 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, or other symptoms of similar gravity.  Consequently, the Board finds that the criteria for a schedular 100 percent rating are met throughout during the evaluation period.

The Board finds no reason to question the credibility of the Veteran's own accounts; they are consistent with reports by his treating mental health personnel, and the VA examiners and consulting VHA psychiatrist.  As the symptoms described meet (or at least approximate) the schedular criteria for a 100 percent rating under Code 9411, the Board finds that such rating is warranted throughout the appeal period.  38 C.F.R. § 4.7.

As a 100 percent schedular rating for PTSD is being granted for the entire period for which a TDIU rating is sought, the matter of entitlement to an earlier effective date for a TDIU rating (i.e., a total rating under alternate criteria) is rendered moot by this decision.
ORDER

A 100 percent rating is granted for the Veteran's PTSD throughout the relevant appeal period, subject to the regulations governing payment of monetary awards.

The appeal seeking an earlier effective date for a TDIU rating is dismissed as moot.


____________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs