Citation Nr: 1318332 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 10-15 088 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an initial disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1965 to June 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in December 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) located in Columbia, South Carolina that assigned an initial evaluation of 70 percent for the Veteran's PTSD from the effective date of service connection, November 6, 2007. Jurisdiction was subsequently returned to the RO in Cleveland, Ohio. When this case most recently was before the Board in October 2012, it was remanded for additional evidentiary development. The case since has been returned to the Board for further appellate action. In a February 2013 rating decision, the Appeals Management Center in Washington, DC, granted entitlement to individual unemployability. Therefore, the Board finds that this issue has become moot by virtue of the grant. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file was completed to ensure thorough analysis of the case. FINDING OF FACT The occupational and social impairment from the Veteran's PTSD has more nearly approximated total than deficiencies in most areas for the entire evaluation period. CONCLUSION OF LAW The criteria for a disability rating of 100 percent for PTSD have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has determined that the evidence currently of record is sufficient to substantiate the Veteran's claim for a 100 percent schedular rating for PTSD. 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). Disability Rating Criteria Disability evaluations (ratings) 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 the 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. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. Evaluations for PTSD are assigned pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the general formula for rating mental disorders, a rating of 70 percent is assigned where 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 work-like setting); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. A 100 percent schedular evaluation contemplates 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. Id. In assessing the evidence of record, it is important to note that the GAF score 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. (DSM-IV) at 32). A GAF score in the range of 41 to 50 represents "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. A GAF score in the range of 51 to 60 indicates "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 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 therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2012). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. 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 a 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, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). After carefully reviewing the evidence of record, the Board concludes that the occupational and social impairment from the Veteran's PTSD more nearly approximates the total impairment required for a 100 percent rating. The Veteran was afforded a VA examination in March 2008 in which he reported having nightmares and flashbacks, problems with his short term memory, being forgetful, having irritability, anger, avoidance, depressed mood with low energy and motivation, sleep disturbances, momentary suicidal ideation, intrusive thoughts, recurrent dreams and nightmares, visual hallucinations, auditory hallucinations, hyper vigilance, exaggerated startle response, and inability to go to work for short periods of time. The examiner noted moderate psychomotor agitation in the form of fidgetiness and fiddling with this hands and fingers. His affect was constricted in range. Eye contact was at time only intermittent. He was not able to give a clear chronology of events. The diagnosis was PTSD with a GAF of 50. The Veteran stated in his notice of disagreement in December 2008 that he carried a gun in his car, was not able to work, had marital problems because of his behavior and found it hard to just go on with life. The Veteran submitted a statement with his formal appeal in April 2010 that he had sleep disturbances, intrusive nightmares, suicidal ideation, and hyper vigilance. A letter dated in August 2010, submitted from a person who attested to have knowledge why the Veteran was discharged from his employment, stated that the Veteran was unable to communicate effectively with customers, had difficulty concentrating, and failed to perform certain duties routinely accomplished in the past. He added that the Veteran had informed him that he was having trouble sleeping, having nightmares, and flashbacks about events which occurred in Vietnam. The Veteran submitted a statement in October 2010 that he had suicidal or homicidal ideations but that his religious background stopped him from any such action. He noted taking medication to curb his anger and anxiety. The Veteran was afforded a VA examination in December 2012 in which the examiner diagnosed PTSD. The Veteran reported not being able to work due to his PTSD. His symptoms included recurrent and distressing recollections and dreams, acting or feeling as if the traumatic event were recurring (illusions, hallucinations, flashbacks), avoidance, markedly diminished interest in participation in significant activities, difficulty falling or staying asleep, irritability or outbursts of anger, hyper vigilance, and exaggerated startle response. The examiner noted that the symptoms caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. The symptoms that applied to his diagnosis included depressed mood, anxiety, suspiciousness, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationship, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships. The examiner stated that he was unemployable due to this current PTSD. VA treatment records show symptoms to include nightmares, loneliness, depression, anger, little energy, and intrusive thoughts. GAF scores ranged from 50 to 62. The Veteran has also completed two PTSD-related programs at the VA medical center. The Board acknowledges that the medical evidence of record does not reflect that the Veteran experiences all of the symptoms associated with the 100 percent schedular rating. However, the U. S. Court of Appeals for Veterans Claims has held that the symptoms enumerated under the schedule for rating mental disorders 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 disability rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). In determining that the Veteran's PTSD warrants a 100 percent disability rating, the Board has considered the GAF scores assigned for the Veteran. The Board observes that the Veteran has been assigned widely varying GAF scores ranging from different providers over the years. However, the Board notes GAF scores do not correlate to any specific rating. A VA examiner has specifically stated that the Veteran's psychiatric symptoms rendered him unemployable and the record indicates severe social impairment. These findings are consistent with the Board's decision to grant a 100 percent rating. In sum, the evidence of record contains a medical opinion evidencing that the Veteran is unemployable due to his PTSD, and the record also reflects that the Veteran experiences severe social impairment. Thus, the evidence shows that the Veteran's PTSD is productive of occupational and social impairment that more nearly approximates the total impairment contemplated by the criteria for a 100 percent disability rating than the lesser impairment contemplated by lower percentage ratings. Accordingly, the Veteran is entitled to a 100 percent schedular rating for his service-connected PTSD. ORDER A 100 percent disability rating for PTSD is granted throughout the period of this claim, subject to the criteria applicable to the payment of monetary benefits. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs