Citation Nr: 1307774 Decision Date: 03/08/13 Archive Date: 03/11/13 DOCKET NO. 10-02 642 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to a higher rating for post-traumatic stress disorder (PTSD), currently evaluated as 70 percent disabling. 2. Entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. D. Jackson, Counsel INTRODUCTION The Veteran had active service from September 1965 to April 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2009 and April 2010 rating decisions issued by the Providence, Rhode Island, Regional Office (RO) of the Department of Veterans Affairs (VA). In support of his claim, the Veteran testified at a video conference at the RO in January 2013 before the undersigned Veterans Law Judge of the Board. FINDINGS OF FACT 1. The Veteran is service-connected for PTSD (100 percent), tinnitus (rated 10 percent), and bilateral hearing loss (rated 0 percent). 2. The Veteran's psychiatric disorders (including PTSD and depression) are manifested by serious symptoms more nearly approximating total occupational impairment. CONCLUSIONS OF LAW 1. The schedular criteria for a 100 percent rating for PTSD with depression have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2012). 2. The criteria for a TDIU rating have not been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 4.16(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In this decision, the Board is granting a 100 percent rating for PTSD. This award represents a complete grant of the benefit sought on appeal. Thus, any deficiency in VA's compliance is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary for this case. II. Entitlement to an Increased Rating for PTSD Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity in civil occupations. See 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. The General Rating Formula for Mental Disorders provides a 100 percent rating 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. A 70 percent rating is assigned 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. A GAF rating is 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 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). A GAF of 31 to 40 is defined as exhibiting some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or any 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 younger children, is defiant at home, and is failing at school). A GAF of 41 to 50 is defined as serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). In an October 2001 rating action, the RO granted service connection for PTSD, assigning a 50 percent evaluation, effective in June 2001. The evaluation was increased to 70 percent disabling via a July 2004 rating action, effective in May 2004. The Veteran filed his current claim in December 2008. In response, a VA examination was conducted in January 2009. The psychologist noted the Veteran's medical history, citing past VA examination reports. He also reported that the Veteran had been receiving VA counseling and therapy for the past two years from Dr. S. Her clinical notes indicated manifestations of PTSD and major depression to include hypervigilance. The reported GAF scores were 50. On observation, the Veteran was casually dressed with good hygiene. His speech rate, volume, and articulation were within normal limits. The examiner reviewed the Veteran's psychosocial history. The Veteran lived on a farm with his wife of seven years who had multiple myeloma that was in remission at that time. For the most part, he was socially isolated with the exception of his brother-in-law. He also was in contact with his youngest son and grandchild on a weekly basis. However, he no longer interacted with his oldest son due to a past altercation. Occupationally, he was a carpenter that worked as an independent contractor. He worked two to three days a week hours, but only two to three hours. He avoided fellow workers and was no longer able to work on crews. He noted that his irritability had increased. He no longer enjoyed work. His PTSD symptoms included irritability, hypervigilance, difficulty concentrating, startle response, nightmares, intrusive thoughts, avoidance, detachment, emotional distance, general loss of interest in activities, and emotional as well as physical responses to reminders of Vietnam. He also continued to meet the criteria for major depressive disorder. He experienced insomnia, lethargy, loss of energy, decreased memory, passive suicidal ideation, and he felt guilty and worthless due to his physical and emotional limitations. He denied having difficulty conducting daily living skills. He had few hobbies and lacked motivation to accomplish farming chores. He acknowledged that his activities were also limited due to physical reasons. The Axis I diagnoses were PTSD, major depressive disorder, and alcohol use. The GAF score was 45. The examiner went on to comment that the Veteran's PTSD and major depression were more than likely related to his military service. The psychologist indicated that the Veteran's psychiatric stressors had increased, and now significantly interfered with his functioning, as indicated by the GAF score. VA outpatient records dated from January 2008 to April 2010 show that the Veteran continues to undergo counseling and therapy for his psychiatric disorders. His VA psychiatrist, in February and July 2009, noted that the Veteran, at that time, was severely impaired due to his service connected anxiety disorder. He was unable to interact appropriately with his co-workers and supervisors. He was unable to learn new tasks due to his impaired memory and concentration. He was also unable to manage typical work related stress. This examiner found that the Veteran was completely and permanently disabled, thus unable to be gainfully employed on a consistent basis. The Board finds that the Veteran meets the criteria for a 100 percent schedular rating based on impairment from PTSD as well as depression (which has been deemed as related to his military service). In regard to industrial impairment, it has been noted that the Veteran is currently unemployed. His memory and concentration are considered impaired. In considering his social impairment, the Veteran is having significant difficulties in maintaining stable relationships. He was unable to sleep well and intrusive thoughts of Vietnam still occurred. He is socially isolated. He had recurrent bouts of depression accompanied by wishes of being dead. However, he has not had the impulse or plans to harm himself. The GAF scores assigned over the relevant period have ranged from the mid 40's to 50's. GAF scores are not controlling, but must be accounted for as they represent the assessment of trained medical observers. Scores such as the Veteran's show serious social and occupational impairment, "unable to keep a job." In light of the Veteran's primary psychiatric care provider's statements, his GAF scores, and the VA treatment reports, the Board finds that the overall picture more nearly approximates the criteria ("total occupational and social impairment") for a 100 percent rating. The preponderance of the evidence favors the Veteran's claim, and the benefit sought on appeal is granted. III. Entitlement to a TDIU In his January 2010 application for TDIU, the Veteran indicated that he had been self-employed as a carpenter and had last worked in 2009 when he became too disabled to work. He indicated that PTSD was the service-connected disability that prevented him from securing or following substantially gainful employment. Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a) . If the total rating is based on a disability or combination of disabilities for which the Schedule of Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341(a) . The Board has granted a 100 percent schedular disability rating for the Veteran's service-connected PTSD, above. The grant of a 100 percent schedular disability rating was specifically based upon the evidence which showed that the Veteran's PTSD rendered him unable to maintain employment resulting in total occupational impairment and thus warranting a 100 percent disability rating. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. Accordingly, the Veteran's unemployability has already been considered in the 100 percent schedular disability rating assigned. It is acknowledged that the Court has held that the receipt of a 100 percent schedular rating for a service-connected disability does not necessarily render moot any pending claim for a TDIU. Bradley v. Peake, 22 Vet. App. 280 (2008). Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the Court's decision in Bradley recognizes that a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation. The Bradley case, however, is distinguishable from the instant case. In Bradley, the Court found that TDIU was warranted in addition to a schedular 100 percent evaluation where the TDIU had been granted for a disability other than the disability for which a 100 percent rating was in effect. Under those circumstances, there was no "duplicate counting of disabilities." Bradley, 22 Vet. App. at 293. Here, the Veteran's service-connected PTSD is rated at a 100 percent schedular disability rating and it is the only service-connected disability resulting in unemployability. There is no evidence (lay or medical) suggesting that his service-connected hearing loss or tinnitus cause unemployability. Thus, to also award a separate TDIU rating in addition to the schedular 100 percent rating based on the Veteran's service-connected PTSD would result in duplicate counting of the disability. ORDER A 100 percent rating for PTSD with major depression is granted, subject to regulations applicable to the payment of monetary benefits. The claim of entitlement to an award of TDIU is denied. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs