Citation Nr: 1318274 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 08-23 206A ) 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 50 percent for Posttraumatic Stress Disorder (PTSD). 2. Entitlement to an initial rating in excess of 60 percent for coronary artery disease from May 1, 2011 to August 28, 2011 and from October 1, 2011. REPRESENTATION Veteran represented by: Matthew D. Hill, Attorney WITNESSES AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Jennifer R. White, Counsel INTRODUCTION The Veteran served on active duty in the military from August 1967 to September 1969. This appeal to the Board of Veterans' Appeals (Board) is from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted the Veteran's claim for service connection for PTSD and assigned an initial 10 percent rating effective from May 24, 2007, the date of receipt of his claim. He appealed for a higher initial rating. In a July 2008 decision, the RO increased the initial rating for the PTSD from 10 to 50 percent, with the same effective date, but denied a higher rating. The Veteran has since continued his appeal. See AB v. Brown, 6 Vet. App. 35, 39 (1993) (a Veteran is presumed to be seeking the highest possible rating, unless he expressly indicates otherwise). In August 2010, the Board remanded the claim for a Board hearing. The Veteran and his friend testified before the undersigned Veterans Law Judge in December 2010. A transcript of the hearing has been included in the claims file. The Board remanded the claim again in February 2011. The Veteran's claim for TDIU has once again been raised by the record after a final unappealed denial of this issue by the RO in February 2010, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ) since the most recent claim. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of an increased rating for coronary artery disease is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDING OF FACT The Veteran's service connected PTSD has resulted in symptoms sufficient to result in total occupational and social impairment since the May 24, 2007 date of claim. CONCLUSION OF LAW The criteria for a rating of 100 percent for PTSD since May 24, 2007 have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & West Supp. 2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). In this case, the Board finds that the RO has substantially satisfied the duties to notify and assist, as required by the VCAA. To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this issue given the fully favorable nature of the Board's decision. II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2012); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2012); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2012); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10 (2012). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. The Veteran's PTSD is rated under Diagnostic Code 9411. 38 C.F.R. § 4.130. A 10 percent rating is warranted for PTSD where there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. A 30 percent rating requires 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 conversion normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating requires 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 rating requires 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 affected 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 rating is assigned 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; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. The Board notes that in accordance with the General Rating Formula for Mental Disorders, a 100 percent rating is applicable if the manifestations of the service-connected psychiatric disorder result in total occupational and social impairment. Although the Rating Formula lists specific symptoms that are indicative of total impairment, the United States Court of Appeals for Veterans Claims has held that the symptoms listed in the Rating Formula are only examples, and that evidence of those specific symptoms is not required to show that the veteran is totally disabled. In rating a mental disability VA is required to consider all symptoms that affect his social and occupational functioning, and not limit consideration to those symptoms listed in the Rating Formula. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In other words, the primary consideration is whether the manifestations of the service-connected psychiatric disorder result in total social and occupational impairment, regardless of whether the veteran demonstrates those symptoms listed in the Rating Formula. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. One factor for consideration is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM- IV)). A GAF score of 61 to 70 indicates some mild symptomatology (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or social functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, with some meaningful interpersonal relationships. Scores ranging from 51 to 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). 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). Scores ranging from 31 to 40 reflect 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). While the Rating Schedule does indicate that the rating agency must be familiar with the DSM IV, it does not assign disability percentages based solely on GAF scores. See 38 C.F.R. § 4.130 (2012). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran contends he had total occupational and social impairment as of his date of claim for service connection for PTSD. The Board notes at the outset that records from the Social Security Administration (SSA) indicated that he was granted disability as of June 2007 for an affective/mood disorder with a secondary diagnosis of an anxiety disorder. An undated psychiatric evaluation for the purposes of adjudicating his SSA claim indicates that the Veteran's severe PTSD interfere with his ability to function routinely in most work settings. An October 2007 VA psychiatric examination indicates that there is no objective data that the Veteran's PTSD impacted his prior employment as a police officer. The Veteran, through his attorney, has submitted a January 2012 private medical opinion from a psychologist. The psychologist indicates that the Veteran is unable to follow a substantially gainful occupation as a result of his service-connected PTSD since his retirement from the police department in December 2006. The psychologist noted that the Veteran contended in a January 2012 statement that his PTSD symptomatology had worsened since retiring as he no longer had work to occupy his mind. The Veteran also indicated that he rarely left the house and generally stayed in his garage. The psychologist also noted that multiple VA treatment records indicate that the Veteran sleeps approximately three hours per night. Also noted was a March 2009 VA treatment note which indicates that the Veteran's behavior on his return from Vietnam was markedly different. He was described as angry, mean and unable to experience happiness. The Veteran has difficulty concentrating and experiences memory impairment and lapses. He has a low frustration tolerance and a "hair-trigger" temper. The provider also indicated that the Veteran's behavior brought him into conflict with his superiors and fellow police officers but was tolerated due to the circumstances of being a police officer in Miami. A May 2009 VA treatment note indicated that the Veteran had abruptly discontinued participation in at least three (mental health) groups due to feeling challenged, disrespected, taken advantage of, irritated by or unable to get along with other members of the group. The Board notes that there are additional May 2009 and March 2011 VA examination reports of record which indicates that the Veteran is not unemployable due to his PTSD and that there is no objective evidence of record that the Veteran is unemployable. However, there is no rationale for such opinions and thus they are insufficient. Additionally, it's unclear why the examiners did not consider the SSA determinations of unemployability for psychiatric reasons as "objective evidence" of the Veteran's unemployability. The Board finds the most recent private opinion to be more thorough than the VA examiners' opinions with a better reasoned rationale; thus, the private examiner's opinion is more probative than the three VA opinions of record. To conclude, the preponderance of the evidence indicates that the Veteran is totally occupationally impaired due to the manifestations of his PTSD and has been since at least May 2007 by medical evidence. Thus, a 100 percent disability rating is granted from the Veteran's date of claim for service connection for PTSD. ORDER Entitlement to an initial rating of 100 percent for PTSD, from May 24, 2007, is granted, subject to the regulations applicable to the payment of monetary benefits. REMAND Concerning the claim for an increased rating for coronary artery disease, service connection was granted by means of a November 2011 rating decision. In December 2011, the Veteran submitted a notice of disagreement (NOD) concerning the evaluation. The RO ordered an additional VA examination for the Veteran. However, the RO did not promulgate a statement of the case in response to the Veteran's December 2011 NOD. Consequently, the Board must remand this issue for the RO to issue a statement of the case and to give the Veteran an opportunity to perfect an appeal of such issue by submitting a timely substantive appeal. Manlicon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: Issue a statement of the case on the issue of entitlement to an increased initial rating for coronary artery disease. Thereafter, the Veteran will have a 60-day period within which to file a substantive appeal. The Veteran and his representative are advised that they will have sixty days from the date of mailing of the statement of the case to submit a substantive appeal as to that issue. If and only if the Veteran completes his appeal by filing a timely VA Form 9 on the aforementioned issue should this claim be returned to the Board. 38 U.S.C.A. § 7104 . The Veteran has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs