Citation Nr: 1315449 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 10-47 787 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent prior to June 17, 2009, in excess of 50 percent from June 17, 2009, to January 11, 2012, and in excess of 70 percent thereafter for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on unemployability due PTSD (TDIU) prior to January 12, 2012. REPRESENTATION Appellant represented by: Mathew D. Hill, Attorney ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) served on active duty from March 1965 to May 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Appeals Management Center in Washington, D.C.. Ultimately, jurisdiction over the case was transferred to the VA Regional Office (RO) in St. Petersburg, Florida. In the August 2009 rating decision, an initial rating of 30 percent was assigned for PTSD from October 2, 1998, and a 50 percent rating was assigned from June 17, 2009. During the pendency of the claim, the rating for PTSD was increased to 70 percent, effective January 12, 2012. In addition, the Veteran was granted a total rating based on unemployability due to PTSD, effective January 12, 2012. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. FINDING OF FACT Throughout the initial rating period, the Veteran's PTSD has been manifested by occupational and social impairment that more nearly approximates total than deficiencies in most areas. CONCLUSIONS OF LAW 1. The criteria for a 100 percent rating for PTSD have been met throughout the initial rating period. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.125, 4.126, 4.130, Diagnostic Code (DC) 9411 (2012). 2. The grant of an initial 100 percent rating for PTSD renders moot the appeal for entitlement to a TDIU prior to January 12, 2012. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS Duties to Notify & Assist As a preliminary matter, the Board notes that the Veteran has been provided all required notice, to include notice pertaining to the disability-rating and effective-date elements of his claim. In addition, the evidence currently of record is sufficient to substantiate his entitlement to the complete benefit sought on appeal. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012) or 38 C.F.R. § 3.159 (2012). Legal Criteria Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability there from, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder, VA will also consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). PTSD is rated under 38 C.F.R. § 4.130, DC 9411, according to the General Rating Formula for Mental Disorders. Under the General Rating Formula, a 30 percent disability rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent disability 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability 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); and inability to establish and maintain effective relationships. A 100 percent disability 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; and memory loss for names of close relatives, own occupation, or own name. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). On the other hand, if the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443. Factual Background and Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to this disability. In the August 2009 rating decision on appeal, the Appeals Management Center granted service connection for PTSD and assigned a rating of 30 percent from October 2, 1998, and a rating of 50 percent from June 17, 2009. In March 2012 the RO granted a 70 percent schedular rating and a total rating based on unemployability due to PTSD, effective January 12, 2012. The Veteran is claiming that a 100 percent rating is warranted for the entire appeal period. The Board finds that based on the evidence of record, a 100 percent rating is warranted for the entire appeal period. A review of the record shows private treatment for PTSD in 1998. In October 1998 it was noted that the Veteran suffered from PTSD and that his recent surgery caused severe flashbacks and depression. It was noted that he was not able to work. In an undated letter received at the RO in December 1998, a private examiner stated that the Veteran has PTSD and that his PTSD disability was in excess of 70 percent according to his sources. SSA records show that in May 1999, the Veteran was noted to have inappropriate suspiciousness, hostility, passivity, agggresivity and unstable relationships. Anxiety disorder and possible PTSD were noted. The examiner noted that longstanding, significant difficulties getting along both professionally and domestically with employers and girlfriends were well documented. The examiner noted multiple job losses secondary to an inability to get along and failure to complete tasks. In a June 1999 letter a private examiner stated that she had treated the Veteran and that he has moderately severe PTSD. It was noted his symptoms had increased due to his heart surgery. In a June 1999 letter, a private examiner stated that the Veteran had been seen by his predecessor who was of the opinion that the Veteran had PTSD and that he frequently failed to keep appointments and that he had an inability to complete simple applications which were clearly in his best interests. The examiner offered the impression that the Veteran's daily functioning was marginal at best both socially and economically. The Veteran was examined by VA in June 1999. It was noted that he was not able to work on a regular basis and last worked in 1997. He reported difficulty working with others and significant depression, anxiety and paranoia. He also reported problems with sleep disturbance and mistrust of others. It was noted that there was no remission in his condition. His social support system was described as limited. On examination, it was noted that he was rather guarded and appeared to look at others in a paranoid manner. He was reported to have gazed at the receptionist in an inappropriate manner. His mood was anxious and sad with affect that was depressed and constricted in range but appropriate to thought content. He denied suicidal or homicidal ideation or visual/auditory hallucinations. His thinking was logical and linear although it was noted that he showed some tangentiality at times. He was alert and oriented times three. His eye contact fluctuated and he showed some difficulty trusting others. Attention and concentration were weak and insight and judgment were limited. The examiner noted that there was inappropriate behavior and that the Veteran had panic attacks during which he was extremely anxious. He had a very depressed affect that was constricted and his anxiety level was quite high. He had some difficulty with memory for details associated with the Vietnam War, slow speech, and trouble controlling anger and frustration. The examiner diagnosed major depression and assigned a global assessment of functioning (GAF) score of 40. The Board notes that the GAF score is based on 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 (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). The evidence reflects that the Veteran has been assigned GAF scored ranging from 33 to 55. A GAF score of 31-40 indicates some impairment in reality testing or communications or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. Id. A GAF score of 41-50 is assigned where there are, "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)." Id. GAF 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). Id. GAF scores ranging from 51-60 reflect 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). Id. In January 2003, the Veteran was hospitalized at a private facility. He reportedly had had suicidal ideation in the past week and had tried to kill himself twice. It was noted that he also had poor memory and concentration. He complained of sleep problems and panic attacks, hyperarousal and avoidance behavior. It was noted that at the time of admission, his mood was dysphonic and his affect was sad. He had suicidal ideation. His thought process was positive for paranoia. It was noted that he was very unkempt. Major depressive disorder, severe, recurrent, PTSD, and panic disorder were diagnosed. The GAF score was 30. In September 2004, the Veteran underwent a fee-basis examination. It was noted that all through the years he was burdened with episodes of being depressed with nightmares and suicidal thoughts. It was noted that he hardly stayed in a job and stayed away from people. It was stated that a year prior to the examination he wanted to kill himself by smashing the car he was driving. Examination showed he was carelessly groomed, restless and agitated. His mood was depressed. He was highly emotional and stated that he did not think he should be alive currently. He had depressive thoughts and poor sleep. His attention span was poor. Dysthymia was diagnosed as was rule out PTSD. The examiner stated that symptoms of PTSD were observed and she wanted to further examine the Veteran. In October 2004, the Veteran was again seen by the September 2004 fee-basis examiner. His history was documented. Examination showed him to be carelessly groomed. He was restless and agitated. His mood was depressed, and he was highly emotional. He reported flashbacks and sleep problems. He reported considering suicide one year prior. PTSD and dysthymia were diagnosed. The examiner stated that the Veteran has poor social, occupational and psychological functioning. In March 2009, a private examiner noted that the Veteran had PTSD with some signs of depression. His symptoms were noted to include irritability, hypervigilance, feelings of detachment, and negativistic views to others and his circumstances. The examiner stated that this affected both his occupational and social functioning. The impression was PTSD with depression. The Veteran was examined by VA in June 2009. His claims file was reviewed and his history was noted. Examination showed him to be manipulative, contemptuous, irritable and aggressive. His mood was anxious, agitated, dysphoric and labile. He had sleep impairment and poor impulse control. It was noted that he had difficulty falling asleep, irritability and anger, difficulty concentrating and exaggerated startle response. His symptoms were described as chronic. PTSD was diagnosed. The GAF score was 60. VA outpatient treatment records show that in July 2010 the Veteran reported that his depression was worse. In November 2010, the Veteran reported living with his wife and son and having marital discord. His mood was poor and noted to be mildly anxious and dysphoric. His affect was mood congruent. PTSD was diagnosed, and the GAF score was 60. The Veteran was examined by VA in January 2012. The current diagnosis was noted to be PTSD with an Axis II diagnosis of depressive disorder. The GAF score was 55. He was noted to have nightmares, depression, decreased energy, hypervigilance, exaggerated startle response, irritability with aggression as well as concentration difficulties and suicidal/homicidal ideation. The examiner noted that it was not possible to differentiate the symptoms attributable to each diagnosis. The examiner reported that the Veteran had occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking and/or mood. The examiner stated that the primary contributor to his chronic social/occupational impairment from the psychiatric prospective is his PTSD. The Veteran reported that he was fully isolated and had no friends or interests. The examiner found that the Veteran had a depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, mild memory loss, impaired abstract thinking, gross impairment in thought processes or communication, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful situations including work or a work-like setting, an inability to establish and maintain effective relationships, suicidal ideation, and impaired impulse control such as unprovoked irritability with periods of violence. The examiner stated that the Veteran's PTSD was rather debilitating in regards to tolerating interpersonal interactions and would preclude any employment that required interacting with others. In January 2012, the Veteran underwent a private psychiatric evaluation. The evidence in the Veteran's claims files was reviewed and the Veteran was examined. His mood was irritable, anxious and dysphoric. He had spontaneous mood swings. He had an easy startle response, automic hyperactivity and physical symptoms of anxiety. He reported panic attacks and agoraphobia. His thought processes were slowed, confused and inefficient. He had frequent suicidal thoughts and angry thoughts toward his estranged wife. He had insomnia with nighmares three nights a week. He had flashbacks with poor concentration. He was easily distracted, forgetful of facts and events and his insight was limited. PTSD was diagnosed. His GAF score was 40 and was noted to be 40 over the past twelve months. The examiner opined that based on a review of the records as a whole, that the Veteran's psychological condition has been unusually severe since 1997 and clearly indicates that he has been unable to secure or follow a substantially gainful occupation since then due to the magnitude of his PTSD symptoms. The evidence reflects that the Veteran has had employment problems during the course of this appeal and that he has been unable to function socially. As to employment, the SSA records and the private examiner's finding in January 2012 indicate that the Veteran has been incapable of employment since the effective date of service connection in October 1998. In October 1998 it was noted that the Veteran was not able to work. In an undated letter received at the RO in December 1998, a private examiner stated that the Veteran has PTSD and that his PTSD disability was in excess of 70 percent according to his sources. In a June 1999 letter, a private examiner stated that the Veteran's daily function was marginal at best both socially and economically. The Veteran was examined by VA in June 1999, and it was noted that he was not able to work on a regular basis and last worked in 1997. The 2012 VA examiner stated that the Veteran's PTSD was rather debilitating in regards to tolerating interpersonal interactions and would preclude any employment that required interacting with others. A private examiner has opined that based on a review of the records as a whole, the Veteran's psychological condition has been unusually severe since 1997 and clearly indicates that he has been unable to secure or follow a substantially gainful occupation since then due to the magnitude of his PTSD symptoms. As for his social functioning he has had essentially no reported social contacts or relationships. SSA records show that in May 1999, the Veteran was noted to have unstable relationships. In a June 1999 letter, a private examiner stated that Veteran's daily functioning was marginal at best both socially and economically. On VA examination in June 1999, his social support system was described as limited. On VA examination in January 2012, the Veteran reported that he was fully isolated and had no friends or interests. As the evidence above demonstrates, he has been found to have limited insight and judgment, impaired thinking, suicidal ideation, continuous depression, inappropriate behavior, memory loss, impairment in thought processes or communication and intermittent inability to perform activities of daily living during the course of this appeal due to his PTSD. The Veteran has had GAF scores ranging from 30 to 60. At times the Veteran has been given GAF scores and assessed as having only moderate impairment, but the weight of the evidence is to the effect that his complete occupational impairment has continued throughout the period since the effective date of service connection. Notwithstanding the occasional assessments of moderate disability; he has exhibited nearly total social impairment throughout the period since October 1998. The Board notes that the Veteran has been diagnosed with depression and PTSD. When the record does not differentiate or distinguish exactly what measure of the Veteran's symptoms are attributable to his depression versus his PTSD, VA adjudicators must resolve this doubt in his favor according to 38 C.F.R. §§ 3.102 and 4.3 and for all intents and purposes attribute all symptoms in question to the service-connected disability, so in this particular instance to the PTSD. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). The combination of his occupational and social impairment most closely approximates the criteria for a 100 percent rating. Resolving reasonable doubt in the Veteran's favor, a 100 percent rating is granted for the entire appeal period. TDIU VA will grant a TDIU when the evidence shows that a Veteran is precluded, by reason of his service connected disabilities, from obtaining or maintaining "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). A TDIU is provided where the combined schedular evaluation for service-connected diseases and disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16(a). A TDIU is considered a lesser benefit than the 100 percent rating, and the grant of a 100 percent rating renders moot the issue of entitlement to a TDIU for the period when the 100 percent rating is in effect. VAOPGCPREC 6-99; 64 Fed. Reg. 52,375 (1999). The current claim for a TDIU and the appeal for a higher initial rating for PTSD purposes have been recognized as arising at the same time and involving the same evidence. Hence the grant of an initial 100 percent rating for PTSD renders the claim for a TDIU moot. ORDER An initial rating of 100 percent for PTSD is granted, effective October 2, 1998. The appeal for entitlement to a TDIU due to PTSD prior to January 12, 2012, is dismissed. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs