Citation Nr: 1310573 Decision Date: 04/01/13 Archive Date: 04/11/13 DOCKET NO. 10-49 228 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial rating higher than 50 percent for posttraumatic stress disorder (PTSD), prior to October 24, 2003. 2. Entitlement to an extraschedular total disability evaluation, based on individual unemployability, due to service-connected disabilities (TDIU) other than PTSD. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Terrence T. Griffin, Counsel INTRODUCTION The Veteran had active service from March 1974 to February 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2004 decision of the Atlanta, Georgia, Regional Office (RO). The July 2004 RO decision granted the service connection claim for PTSD and assigned an initial 50 percent rating, effective March 27, 1997 (i.e., the date the RO received the claim). The Veteran submitted a timely August 2004 notice of disagreement (NOD) as to the initial rating. In a November 2004 decision the RO assigned a 100 percent schedular rating for PTSD, effective October 24, 2003, and purported to resolve the acknowledged August 2004 NOD. The RO, apparently, determined that the March 1997 claim had been resolved with the 100 percent rating assigned and no Statement of the Case (SOC) was issued. The RO's determination is only correct to the extent that the maximum benefit permitted under law (the 100 percent rating) was assigned from October 24, 2003. However, the rating in effect prior to this date remained in appellate status. See Jones v. Shinseki, 619 F.3d 1368, 1371-72 (Fed. Cir. 2010) (a pending claim that is placed in appellate status cannot be resolved absent appellate adjudication of the matter, or an RO decision granting the full benefit sought on appeal). Notwithstanding a June 2009 rating decision in which the RO denied an earlier effective date for the 100 percent rating, the March 1997 claim, with respect to the rating assigned prior to October 2003 remained pending in appellate status. When an SOC was finally issued in December 2010, the Veteran perfected his appeal to the Board. In accordance with the above, the appeal has been recharacterized on the title page. The Veteran's October 2004 Application for Increased Compensation Based on Unemployability renders the TDIU part-and-parcel of this appeal (and, as part of the initial claim, could potentially have an effective date as early as March 1997). It has been included on the title page. Rice v. Shinseki, 22 Vet. App. 447 (2009). In July 1998, the Veteran testified at a hearing for the Decision Review Officer (DRO) and before the undersigned Veterans Law Judge (VLJ), in March 2012. Service department records note the Veteran as being biologically a woman, but the November 1981 statement of private physician D. Laub, M.D., and other evidence indicates that the Veteran underwent gender reassignment surgery and psychiatric treatment; therefore, the male pronoun will be utilized throughout the decision. The issue of entitlement to an extraschedular TDIU rating, based on disabilities other than PTSD, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Prior to October 24, 2003, the Veteran's PTSD caused total social and occupational impairment. CONCLUSION OF LAW The criteria for an initial 100 percent disability rating for PTSD, prior to October 24, 2003, are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The decision assigns an initial 100 percent schedular rating effective from the date of the claim, which represents a complete grant of the benefit sought on appeal. As such, no discussion of VA's duty to notify or assist is necessary. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Here, the Veteran is appealing the initial assignment of a disability rating, and as such, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, 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. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim, or whether a preponderance of the evidence is against the claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A Global Assessment of Functioning (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 higher GAF score reflects less impairment. Diagnostic Code 9411 provides for a 100 percent rating with 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 ability 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 January 1997 psychological assessment, performed by private psychologist R. Taylor, Ph.D., notes the Veteran's weekly psychiatric treatment since approximately August 1996; his history of having over 19 jobs since 1976; and poor, if at all present, adaptive behaviors attributable to the psychiatric condition. Dr. Taylor also reports that [The Veteran] consistently exhibited isolationist behaviors, paranoia, an unusual degree of non-malignant anger, a poor history of interpersonal relationships, a restricted range of affect as well as inappropriate affect (laughs at times when he would normally be expected to be sad, silent, and/or introspective), and consistent efforts to avoid thoughts/feelings and/or conversations associated with his traumas. Dr. Taylor indicated that the Veteran regularly presents with nightmares, flashbacks, irritability, outburst of anger, hypervigilance, an exaggerated startle response and physiological reactivity (e.g., sweating, heart pounding, etc.). He found that the service-connected psychiatric condition causes a "significant degree of depression, anxiety, [and] bizarre mentation." Impairments associated with sleep, memory, concentration, abstract reasoning and emotional stability are further reported. The Veteran's overall psychiatric manifestations resulted in "marked and severe dysfunction in almost all areas," including performance of activities of daily living, appropriate social and occupational functioning and establishing and maintaining social and occupational relationships. The Veteran's GAF score was 39 and 43 was the highest score in the prior year. A March 1997 Social Security Administrative psychiatric assessment notes the Veteran's psychiatric symptomatology, including a pervasive loss in interest in almost all activities, decreased energy, feelings of guilt or worthlessness, and impairments associated with sleep, concentrating and thinking. The examiner further noted that the Veteran experienced anxiety related to recurrent and intrusive thoughts, resulting in marked distress. The Veteran's psychiatric condition was also noted as resulting in moderate impairment associated with the performance of activities of daily living, as well as extreme, constant and continual social and occupational impairment. Based on these examination findings and the Veteran's report of symptomatology, the SSA examiner indicated the psychiatric condition resulted in the Veteran's complete inability to function independently outside of his home. A March 1997 SSA administrative determination notes that the Veteran was deemed disabled for SSA purposes because of psychiatric and orthopedic conditions, since March 20, 1996. The October 2003 statement of Dr. Taylor, supplementing his January 1997 psychological assessment is also of record. Based on continued regular treatment of the condition, relevant medical evidence and examination findings, Dr. Taylor states "not much has changed in [the Veteran's psychiatric] condition since [the January 1997 assessment] expect that he remarried in December 2001 and has been getting along with his new wife much better than his previous spouse." Some increase in psychiatric symptomatology in the "past few months" is noted with continued isolative behavior, irritability and anger management issues, physiological manifestations and constant sleep impairment and nightmares. The Veteran's GAF score was 37 with a score of 39 being the highest in the past year. Merits The Veteran provides a competent and credible account of psychiatric symptomatology, including social and occupational impairment. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). His account of symptomatology has been generally consistent, including solely for the purpose of seeking and obtaining medical care. The lay statements submitted on his behalf also tend to independently corroborate the nature, extent and severity of the Veteran's psychiatric condition. Together these factors render the Veteran's account competent, credible, and highly probative. The October 2003 statement of Dr. Taylor indicates the Veteran's psychiatric condition manifests in a significant degree of depression and anxiety, as well as impaired/bizarre thought processes, consistent with the findings of a January 1997 psychological assessment. Again referencing the static nature of the Veteran's condition since the January 1997 psychological assessment, Dr. Taylor further indicates that the Veteran psychiatric condition results in "marked and severe dysfunction in almost all areas," specifically to include communication, performance of activities of daily life, thought process and reasoning and his inability to act in a manner that was anything other than grossly inappropriate. The evidence of record clearly demonstrates the Veteran's psychiatric disability picture most closely approximates the level of social and occupational impairment contemplated by a 100 percent disability rating for the entire period under review, beginning in March 1997. ORDER An initial 100 percent rating for PTSD, effective March 27, 1997, is granted. REMAND The Veteran's October 2004 VA Form 21-8940 documents his competent account of PTSD and bilateral knee disabilities rending him unemployable. Service connection is in effect for PTSD, rated at 100 percent; a right knee disability, rated at 20 percent; a left knee disability, rated as noncompensable; a bilateral ankle disability, rated at 10 percent; and diabetes mellitus, type II, with peripheral neuropathy of the lower extremities, rated at 10 percent. Based on the disabilities other than PTSD, the Veteran does not meet the schedular criteria for TDIU consideration. 38 C.F.R. § 4.16(a). However, the record suggests the Veteran may have not been substantially gainfully employed during the period on appeal, and consideration of an extraschedular TDIU rating based on disabilities other than TDIU, must be completed on remand. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008); 38 C.F.R. § 4.16(b). The record suggests the Veteran receives regular VA treatment for his service-connected disabilities other than PTSD, but records dated since November 2007 have not been associated with the claims folder nor are the records available via the Virtual VA system. The record does not reflect any attempt to obtain relevant private treatment records generated since January 2006. The Veteran has provided fully favorable SSA disability determinations, but there is no evidence of any effort by the RO to obtain the medical records used in those determinations. Attempt to obtain these records must be made on remand. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012); see also Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with appropriate notice of the evidence and information needed to establish entitlement to a TDIU, and of VA's and the Veteran's responsibilities to provide evidence and information in support of the claim. Allow an appropriate amount of time for response and associate the notification with the claims file. 2. Ask the Veteran to provide the names and addresses of any private physician(s) and/or facility(ies) where he received any treatment or hospitalization for any service-connected disability other than PTSD, since January 2006 and obtain those records. All development efforts are to be associated with the claims file. 3. Obtain all outstanding VA treatment and/or hospitalization records related to the Veteran's respectively service-connected disabilities other than PTSD, dated since November 2007. Any negative response(s) must be in writing and associated with the claims folder. 4. Attempt to obtain from the Social Security Administration (SSA) the records pertinent to the Veteran's claim for SSA disability benefits, to include medical records and disability determinations. Any records obtained or provided in CD-ROM/digital format must be printed and associated with the claims file. All efforts to obtain the records must be documented, a negative response must be requested if no records are available. 5. Upon completion of the aforementioned development efforts, undertake any addition development deemed necessary to evaluate the TDIU. 6. Then, adjudicate the appeal for a TDIU, based on disabilities other than PTSD, with consideration of all evidence of record. If the benefit sought on appeal remains denied, the Veteran and his representative must be provided with a supplemental statement of the case and an appropriate period of time allowed for response. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs