Citation Nr: 1326065 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 10-07 142 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to October 5, 2011. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran had active service from October 1967 to October 1969. He is a recipient of the Combat Infantryman's Badge and the Purple Heart. 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 St. Louis, Missouri, which denied service connection for PTSD. The Veteran submitted a timely Notice of Disagreement in August 2008 and in December 2008, a Decision Review Officer Decision granted service connection for PTSD at a 50 percent disability rating, effective February 29, 2008. In a February 2012 rating decision, the Veteran was awarded 100 percent disability rating for his PTSD, effective October 5, 2011. Since this grant did not constitute a full grant of the benefits sought on appeal for the period prior to October 5, 2011, the claim remained in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). The Veteran's appeal has subsequently been transferred to the Newark, New Jersey, RO. The Board additionally notes that the Veteran's electronic Virtual VA file has been reviewed in conjunction with the adjudication of the claim currently on appeal. The issue of entitlement to an initial rating in excess of 50 percent for PTSD, prior to January 31, 2010, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT As of January 31, 2010, the Veteran's PTSD has been manifested by total occupational impairment, due to symptoms such as panic attacks, anxiety and social isolation. CONCLUSION OF LAW The criteria for establishing entitlement to a 100 percent disability evaluation for PTSD, as of January 31, 2010, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9411(2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 VA has specified duties to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The Board has considered whether further development and notice under the Veterans Claims Assistance Act of 2000 (VCAA) or other law should be undertaken. However, given the results favorable to the Veteran, further development under the VCAA or other law would not result in a more favorable outcome or be of assistance to this inquiry. The Veteran's appeal arises from his disagreement with the initial disability rating following the grant of service connection. Once service connection is granted, a claim is substantiated and additional notice is not required. Thus, any defect in notice provided to the Veteran is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). As the Board's decision below constitutes a complete grant of benefits, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced by the Board's adjudication of his claim. II. Merits of the Claim Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings will be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7 (2012). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). See also 38 C.F.R. §§ 4.1, 4.2 (2012). As such, the Board has considered all of the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. In the initial assignment of an initial disability rating the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The General Rating Formula for Mental Disorders, including Diagnostic Code 9411, at 38 C.F.R. § 4.130 provides the following ratings for psychiatric disabilities: A 50 percent rating is warranted if it is productive of 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. 38 C.F.R. § 4.130. A 70 percent rating contemplates 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); inability to establish and maintain effective relationships. Id. A 100 percent rating 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. The symptoms recited in the criteria in the rating schedule for evaluating 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 rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. The Global Assessment of Functioning (GAF) is 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) (citing Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV)). GAF scores ranging from 31 to 40 represent 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 younger children, is defiant at home, and is failing at school). Scores ranging from 41 to 50 illustrate serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning. Scores ranging from 51 to 60 reflect more 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 38 C.F.R. § 4.130 (noting and incorporating by reference VA's adoption of the DMS-IV for rating purposes). The Veteran was awarded service connection for PTSD in December 2008, at which time an initial disability rating of 50 percent was assigned, effective February 29, 2008. In February 2012, the RO determined that the Veteran's PTSD warranted the assignment of a 100 percent disability rating, effective as of October 5, 2011. Factual Background The Veteran was afforded a VA examination for his PTSD in November 2009. The examiner reported that the Veteran was employed as an engineering supervisor at the time of the last VA examination in October 2008. The examiner further states that: However, [i]n the past year, the [V]eteran's symptoms have dramatically exacerbated, and he has decompensated on a number of occasions. He has had a number of altercations at work. He has had outbursts at work. Dr. Matin has asked him to resign from his job because it is increasingly risky for him to continue working. The [V]eteran has temporarily refused. He has put in his retirement paperwork but states that he has to stay until January to secure all of his benefit[s]. As a consequence, he has been using all of his sick time and vacation time. He only comes to work approximately once to twice a week. When he does come to work, he has violent outbursts and he has altercations with coworkers. He is also having extreme difficulty discharging his responsibilities. He continues to make mistakes. At the present time he is not able to work, but he does put in the days necessary to qualify for his retirement benefits. The examiner stated that the Veteran continues to experience flashbacks which occur both at work and when he is with his girlfriend. Some flashbacks have led to violent outbursts which have caused his girlfriend extreme discomfort. The Veteran dissociates frequently at work when he spaces out and when he is with his girlfriend, which is caused by sight or sound that trigger his stressors. He has severe sleep disturbances such as the inability to fall asleep, stay asleep, and experiences nightmares. His startle response and hypervigilance have exacerbated. He avoids almost all forms of socialization because of his symptoms. He has increasingly poor mood swings and reactions to any stimulus that evokes memories of his experiences in Vietnam. He is almost totally isolated and his concerned about his relationship with his girlfriend because he is no longer socializes. The Veteran was extremely argumentative, moody, and angry which have caused significant problems in their relationship. He has lost interest in everything. The examiner has noted the Veteran was barely functioning at the time of this examination. At the mental status examination the Veteran was alert and cooperative throughout the evaluation. He was dressed and groomed appropriately. The Veteran's motor activity was calm and his mood and affect were extremely depressed. His speech was normal but he was tearful and crying frequently. The Veteran did not have any perceptual impairment or thought disorder. Thought content was appropriate. He had engaged in suicidal ideation over the past year but had no plans to harm himself. The Veteran also engaged in homicidal ideation towards his coworkers but had no plans to harm anyone. The Veteran had a violent altercation with a coworker which led to his decision to retire prematurely. The Veteran was oriented to time, place, and person. His memory and concentration were intact but he had difficulty concentrating during his daily activities because of his hypervigilence, startle response, and dissociative. The abstract reasoning, judgment, and insight were intact. Impulse control was moderately impairment by history. The Veteran avoids all forms of social interaction and recreational interests. The examiner noted he appeared isolate with no friends and is barely holding onto his relationship which is marked by conflict as a consequence of his isolative and avoidant behaviors. He is able to maintain full independence with regard to all activities of daily living but will often neglect his personal hygiene and has to be reminded by his girlfriend. The examiner confirmed the Veteran's diagnosis of chronic severe PTSD. The Veteran's GAF score was 38 with impaired sleep, isolation, avoidance of recreational and leisure activities, heightened arousal, frequent flashbacks, frequent mood swings with anger outbursts, and memory and concentration deficits. The examiner also determined that the Veteran is unable to work. He is currently using his sick time and is extremely symptomatic and unable to function in his employment situation. The examiner concluded that the Veteran was totally impaired both occupationally and socially at the present time. In a November 2009 letter, the Veteran's girlfriend, J. S., stated that the Veteran is in a "state of total confusion, erratic behavior and a loss of interest." It is hard for him to get out of bed and go to work. He has taken numerous sick days or personal days because he cannot face the normal daily routine of his job. His performance and judgment at his employment is suffering and has difficulty working with Asian co-workers. J. S. stated the Veteran is extremely depressed and hostile. He is unable to sleep and experiences disturbing dreams. Sometimes he wakes up so upset from dreams he will punch the wall. J. S. recalled an incident at the Vietnam Memorial when the Veteran became inconsolable, and hostile and threatening when she suggested going to the hospital. The Veteran is able to "act somewhat normal" when he is on his medication but is hesitant to do so because of his family's past history of drug abuse. He is unable to attend family functions and finds himself alone. He stares at people "as if he is on some kind of guard." J. S. stated the Veteran has difficulty maintaining relationships. In September 2011, the specifically reported that he had last worked full-time and that his disability had affected full-time employment on January 31, 2010. Analysis The above evidence demonstrates that the Veteran is entitled to a 100 percent disability evaluation for his PTSD as of January 31, 2010 - the date he reported he had last worked full-time due to this condition. As previously noted, a 100 percent rating contemplates total occupational and social impairment, due to symptoms such 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. According to the November 2009 VA examination, the examiner opined the Veteran's PTSD resulted in total occupational and social impairment. While the Veteran's overall symptomatology does not seem to meet that reflected in the rating criteria, the end result is in fact the same. The Veteran exhibited symptoms of extreme mood swings, flashbacks, dissociative reactions, and hypervigilence. These findings were more or less confirmed, when the Veteran was found to be unemployed with severe symptoms of PTSD and strongly suggested that he retire as soon as possible. The Board cannot ignore that the VA examiner's conclusion is based on the medical evidence that the Veteran is totally impaired socially and occupationally. In sum, the evidence shows that the Veteran has total occupational and near total social impairment. Therefore, the Board finds that the evidence of record, when viewed in a light most favorable to the Veteran, suggests that this level of disability most closely approximates the criteria for a 100 percent rating as of January 31, 2010, the day the Veteran has said he became unable to work full-time. 38 C.F.R. §§ 4.7, 4.21. This is the maximum benefit available. Furthermore, the rating criteria reasonably describes and contemplates the severity and symptomatology of the Veteran's service-connected PTSD. There are higher ratings available under the diagnostic codes for other manifestations, but those manifestations are not present. Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). Finally, the Board considered whether a claim of total disability based on individual unemployability was inferred in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran has alleged an inability to retain employment due to his service-connected PTSD. In Rice v. Shinseki, the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of his service- connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340 , 3.341, 4.16 (2012). As discussed above, however, the Board is herein granting a 100 percent disability rating for the Veteran's service-connected PTSD, effective January 31, 2010. As the Veteran's assertions regarding his inability to work rely solely on his service-connected PTSD symptomatology, the issue of entitlement to a TDIU since November 23, 2009, raised pursuant to Rice, is rendered moot by the assignment of the 100 percent disability rating assigned herein for the Veteran's service-connected PTSD. See Bradley v. Peake, 22 Vet. App. 280 (2008). ORDER A 100 percent disability evaluation for PTSD, effective January 31, 2010, is granted, subject to the provisions governing the award of monetary benefits. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a) 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2012). As discussed above, the Board has granted a 100 percent rating, effective January 31, 2010, for the Veteran's service-connected PTSD. However, this grant does not constitute a full grant of the benefits sought on appeal as the disability rating prior to November 23, 2009, is at 50 percent. Therefore, the claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 39 (1993). The Board finds additional development is necessary. The documentation in the claims file indicates that Social Security Administration (SSA) records may be pertinent to the Veteran's various claimed disabilities and remain outstanding. The Board notes that in September 2011 the Veteran stated he filed for SSA benefits based on the same disabilities in this current appeal. He further stated that subsequently, he was granted full disability benefits. There is no indication in the claims file that VA has requested the Veteran's social security records. When the evidence indicates that the Veteran is in receipt of social security disability payments, VA's duty to assist requires that it seek the SSA's disability determination and the medical records underlying it, where these records are relevant to the claims at hand. See Golz v. Shinseki, 590 F.3d 1317, 1320-1321 (Fed. Cir. 2010). In this case, based on the Veteran's statements, the Board finds that it is likely that the Veteran's SSA records are relevant to the issues remaining on appeal. Hence, the RO must obtain the Veteran's SSA records, following the current procedures prescribed in 38 C.F.R. § 3.159 as it regards requests for records from Federal facilities. Accordingly, the case is REMANDED for the following action: 1. The Social Security Administration must be contacted, and the Veteran's records (medical and administrative), if available, must be obtained and associated with the claims file. If the search for such records has negative results, documentation to that effect must be included in the claims file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. Any additional treatment records identified by the Veteran must be obtained and associated with the claims. If such efforts yield negative results, a notation to that effect must be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 2. After completion of the foregoing and undertaking any further development deemed warranted by the record, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remains denied, the Veteran and his representative must be issued a Supplemental Statement of the Case. An appropriate period of time must be allowed for response. The appellant 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). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs