Citation Nr: 1315112 Decision Date: 05/08/13 Archive Date: 05/15/13 DOCKET NO. 09-16 406 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an initial disability rating in excess of 70 percent for posttraumatic stress disorder from November 14, 2005 to March 30, 2008 and from June 1, 2008 to the present. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1977 to February 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which granted service connection for posttraumatic stress disorder (PTSD), assigning a noncompensable evaluation effective November 30, 2005. In September 2008, the Veteran submitted a notice of disagreement and subsequently perfected her appeal in May 2009. Her case is currently under the jurisdiction of the VA RO in Roanoke, Virginia. In December 2009, the Roanoke RO increased the Veteran's disability rating for PTSD to 70 percent, effective November 14, 2005. Because the RO did not assign the maximum disability rating possible, the appeal for a higher evaluation remains before the Board. See AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed an NOD 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 was scheduled for a Travel Board hearing in April 2011. However, she failed to report for this hearing and provided no explanation for her failure to report. Therefore, her hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2012). FINDING OF FACT For the entire period on appeal, the Veteran's service-connected PTSD has resulted in total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication, persistent danger of hurting self, intermittent inability to perform activities of daily living, depression, anxiety, panic attacks, and need for psychiatric hospitalization. CONCLUSION OF LAW For the entire period on appeal, the criteria for the assignment of an initial disability rating of 100 percent for PTSD have been met. 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 The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act of 2000 (VCAA) As to the Veteran's claim for an increased initial rating for PTSD, this claim has been granted in full, as discussed below. Any error related to the VCAA is moot. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Merits of the Claim The Veteran has been assigned a 70 percent initial evaluation effective November 14, 2005 under Diagnostic Code 9411 for her service-connected PTSD. She seeks a higher initial rating. 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 degrees of disability 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. See 38 U.S.C.A. § 1155 (West 2002); 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. See 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3 (2012). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2012). Where the Veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the Veteran is entitled to "staged" ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. See 38 C.F.R. § 4.14 (2012). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Under Diagnostic Code 9411, the General Rating Formula for Mental Disorders is used. The General Rating Formula provides that 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 100 percent rating is assigned 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. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). Although PTSD is rated under the General Rating Formula, the use of the term "such as" in 38 C.F.R. § 4.130 indicates that the listed symptoms are not intended to constitute an exhaustive list. Rather, the symptoms listed under the General Rating Formula for Mental Disorders are to serve as examples of the type and severity of symptoms or their effects that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The symptoms to be considered when rating a Veteran's PTSD are not limited to those listed in 38 C.F.R. § 4.130. Instead, VA shall consider all symptoms of a Veteran's PTSD that affect his level of occupational and social impairment, including, if applicable, those identified in the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). Within the DSM-IV, Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996). A GAF score is, of course, just one part of the medical evidence to be considered and is not dispositive. The same is true of any physician's statement as to the severity of a disability. It remains the Board's responsibility to evaluate the probative value of any doctor's opinion in light of all the evidence of record. A GAF score of 31 to 40 reflects 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 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). A GAF score of 51 to 60 is defined as 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). See Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). The Veteran was first examined in conjunction with her present claim in October 2008. At that time, she reported constant symptoms, including insomnia, nightmares, anger, fear of men, isolation, suicide attempts, and depression, which result in poor daily functioning. She reported a history of six psychiatric hospitalizations, most recently in 2007. She denied having a significant other, but did have two siblings and children with whom she had good relationships. She indicated that she had been unable to work for the preceding seven years due to her PTSD symptoms. The examiner observed abnormal affect and mood with crying and anxiety, abnormal speech that is illogical, obscure, irrelevant, and slow, poor concentration, and mild memory loss. He did not observe any hallucinations or delusions or homicidal or suicidal ideation. He diagnosed the Veteran with PTSD and assigned a GAF score of 48. He concluded that the Veteran was unable to establish and maintain effective work and social relationships, perform activities of daily living (intermittently), maintain effective family role functioning, maintain any long term employment, or perform recreation or leisure pursuits. The Veteran was next examined for her PTSD in October 2009. At that time, she complained of difficulty sleeping, panic attacks, hypervigilance, anxiety, depression, and unstable mood. She reported several psychiatric hospitalizations, most recently in late 2008, and a history of at least six prior suicide attempts. The examiner observed depressed mood and a full range of PTSD symptoms. He diagnosed the Veteran with PTSD, bipolar II disorder, panic disorder with mild agoraphobia, cocaine dependent (in reported 1 year remission), and alcohol abuse (in reported admission) and assigned her a GAF score of 50. He concluded that she was unlikely to be able to manage the stress tolerance and social interaction demands of even simple forms of employment. The Veteran was most recently examined for her PTSD in June 2011. At that time, she complained of depression, weight loss, lack of sleep, lack of energy, panic attacks, and nightmares. She indicated that she occasionally walked her dog and went to church, but had no energy to work or interact with others. The examiner observed that the Veteran was very distressed, tearful, and anxious. She had normal communication, speech, and thought process with no signs of hallucinations or delusions. She reported a past history of suicidal ideation/attempts with psychiatric hospitalizations. The examiner diagnosed the Veteran with PTSD and assigned her a GAF score of 50. He concluded that she had difficulty establishing and maintaining effective work and social relationships and that her prognosis was guarded. In addition to the VA/VA-QTC examinations, the medical evidence includes VA treatment records that are consistent with the findings of the examinations. Notably, the treatment records reflect multiple psychiatric hospitalizations throughout the appeals period and a single romantic relationship that was abusive. Her GAF scores ranged from 40 to 50. The Veteran has also submitted personal statements reflecting her symptoms and history of suicidal ideation and psychiatric hospitalizations. With resolution of reasonable doubt in the favor of the Veteran, the Board finds that her PTSD has resulted in total occupational and social impairment for the entire period on appeal. Specifically, the Veteran has been unable to maintain employment at any point throughout the appeals period. Additionally, her only social relationships have been limited to an abusive romantic relationship. Further, she has been hospitalized for her psychiatric symptoms, including suicidal ideation/attempts, multiple times throughout the appeals period. Her recorded GAF scores reflect severity ranging from some impairment in reality testing or major impairment in several areas to serious symptoms. The Board finds that this level of severity is equivalent to total occupational and social impairment. Accordingly, the Board finds that her symptoms more closely approximate a 100 percent rating for PTSD during the entire appeal period. This 100 percent evaluation is a full grant of the benefits on appeal. As such, any consideration of higher ratings is not relevant. For all the foregoing reasons, the Board finds that a rating of 100 percent for the Veteran's service-connected PTSD is appropriate for the entire period of the appeal. In reaching this conclusion, the Board has applied the benefit-of-the-doubt doctrine. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to a disability rating of 100 percent for PTSD is granted for the entire appeal period, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs