Citation Nr: 1315002 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 11-28 706 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi THE ISSUE Entitlement to an increased rating (evaluation) for posttraumatic stress disorder (PTSD), in excess of 70 percent prior to July 13, 2010, and in excess of 50 percent on and after July 13, 2010. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD J.B. Freeman, Counsel INTRODUCTION The Veteran (appellant) served on active duty from March 1945 to July 1946. The Veteran has been found incompetent to handle disbursement of funds for VA purposes by a January 2012 rating decision but has independently prosecuted this appeal. See 38 C.F.R. § 20.301 (2012). This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the RO in Jackson, Mississippi, which increased the Veteran's disability rating for PTSD to 70 percent effective December 30, 2009 and assigned a 50 percent rating effective July 13, 2010. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's PTSD has been productive of total occupational and social impairment throughout the period on appeal. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for an evaluation of 100 percent for PTSD are met prior to and on and after July 13, 2010. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The increased rating claim for PTSD has been granted in full, as discussed below. As such, the Board finds that the claim has been more than substantiated, it has been granted, so there is no remaining claim, and no need to explain how VA has fulfilled the duties to notify or assist. See 38 U.S.C. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Mlechick v. Mansfield, 503 F.3d 1340 (Fed. Cir. 2007). Disability Rating The Veteran contends that she is entitled to a rating for PTSD in excess of 70 percent for the rating period from December 30, 2009 and in excess of 50 percent rating for the stage of rating from July 13, 2010. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). PTSD is evaluated (rated) under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase 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). Under the provisions for rating psychiatric disorders, a 50 percent disability rating requires evidence of the following: 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. The criteria for a 70 percent rating are: 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.) The criteria for a 100 percent rating are: 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, Diagnostic Code 9411. After a review of the evidence, the Board finds that the evidence is at least in equipoise as to whether the Veteran has total occupational and social impairment due to PTSD symptoms and impairment as required for a 100 percent schedular disability rating. The Veteran is service connected only for PTSD, but she has been diagnosed with additional neuropsychiatric disabilities. A July 2010 VA examination report indicates that the Veteran was recently diagnosed with vascular dementia and a cognitive disorder. These findings were confirmed in a September 2011 VA examination report. The examination reports both indicate that the Veteran's psychiatric functioning is impaired by these additional, non-service-connected disorders. In those situations where service-connected and non service-connected disabilities affect the Veteran's functioning, the symptoms of each will be separated and the rating shall be based only on those symptoms attributable to the service-connected disability. When it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability. See 38 C.F.R. § 3.102 (2012); Mittleider v. West, 11 Vet. App. 181, 182 (1998). The Board finds that in this case the medical evidence of record does not indicate the possibility of differentiation of symptoms by disability. The July 2010 VA examination report did not attempt to separate out the impact of the non service-connected disabilities from the PTSD. Similarly, the September 2011 VA examination report indicates that the Veteran has multiple psychiatric disabilities, but indicates that differentiation of symptoms by disability is not applicable in this case because of poor memory and cognitive disorder/dementia. The remaining evidence consists of VA treatment records which do not confront the question of differentiation of symptoms. As the September 2011 VA examination report indicates that differentiation is not applicable, the Board will treat all the Veteran's psychiatric symptoms as attributable to the service-connected PTSD. See Mittleider, 11 Vet. App. at 182. The Veteran's VA treatment records indicate that the Veteran has been participating in the Mental Health Intensive Case Management (MHICM) since 2006. The evidence does not include records associated with MHICM participation, except by incorporation, as the July 2010 VA examination report states that the weekly notes show frequent bouts of depression. The RO initiated a claim for an increased rating following a December 2009 psychiatric admission for the Veteran at a VA Medical Center. The Veteran was having suicidal ideation, with a plan of overdosing. She stayed in the hospital for a week and was discharged home. The July 2010 VA examination report indicates that the Veteran no longer handles her own finances, is unaware of the amount of her VA disability benefits, and is not oriented to time. The Veteran's grandson was present for the examination. When he corrected the Veteran regarding her benefits, she argued with him. The report indicates that the Veteran was dependent on her daughter for activities of daily living. The VA examination report also states that the records show the Veteran would be taken to social events by her MHICM providers and that she would frequently decline to participate. The report indicates that the Veteran is unable to work physically and mentally. The Board considers this opinion indicative of total occupational impairment. The September 2011 VA examination report indicates that the Veteran is unemployable due to being age 86 and in poor mental status, that she was unable to drive after crashing into three mailboxes the previous year, and that she went to church with her daughter but does not go out much. The Veteran was assessed to be unable to manage her financial affairs due to memory loss. The Board notes that the July 2010 VA examination report and the September 2011 VA examination report provide specific assessments of the level of occupational and social impairment due to the Veteran's PTSD, and identify underlying symptomatology and impairments that cause the occupational and social impairment. The ultimate determination as to the level of occupational and social impairment is an adjudicative determination. The Board has considered the examination report assessments on this question, but in light of the evidence of record showing that the Veteran is totally occupationally and socially impaired, given that all psychiatric symptomatology is attributable to PTSD because not differentiated from PTSD, the Board finds these overall assessments as to degree of occupational and social impairment are of little probative value. In light of the foregoing, and resolving reasonable doubt in the Veteran's favor, the Board finds that, for the entire rating period, the Veteran's PTSD has been productive of total occupational and social impairment due to suicidal ideation, memory impairment, frequent depression, and disorientation to time. The evidence reflects that the Veteran cannot work due to mental impairment, and that her symptoms cannot be differentiated by disability. Because the symptoms cause occupational and social impairment that more nearly approximates total, the Board concludes that a 100 percent rating is warranted for the entire increased rating period. See 38 C.F.R. § 4.130. Where entitlement to compensation 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. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Consistent with the facts found, the rating may be higher or lower for segments of the time under review on appeal, i.e., the rating may be "staged." Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The RO assigned a 70 percent rating prior to July 13, 2010, and a 50 percent rating on and after that date. Resolving reasonable doubt in the Veteran's favor, the severity of the Veteran's symptoms has not been productive of impairment less than total at any time during the period on appeal; thus, the Board concludes that the criteria for a 100 percent rating have been more nearly approximated for the entire rating period, both prior to and on and after July 13, 2010. Accordingly, "staged" ratings for any period are inapplicable. See id. The assignment of a 100 percent rating represents a maximum benefit based on the disability ratings schedule. See 38 U.S.C.A. § 1155. An extraschedular rating under 38 C.F.R. § 3.321(b) or for a total disability rating based on individual unemployability (TDIU) under 38 C.F.R. § 4.16 cannot result in a greater benefit. See, e.g., Green v West, 11 Vet. App. 472, 276 (1998) (holding that, if a 100 percent schedular rating is granted, a veteran is not also entitled to TDIU for the same period). Any consideration of these theories of entitlement is moot. ORDER An increased rating of 100 percent for PTSD, for the entire rating period from December 30, 2009, is granted. ______________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs