Citation Nr: 1326212	
Decision Date: 08/19/13    Archive Date: 08/26/13

DOCKET NO.  10-43 644	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Baltimore, Maryland


THE ISSUE

Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) prior to January 5, 2007. 



REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

William J. Jefferson III, Counsel


INTRODUCTION

The Veteran had active military service from May 1966 to May 1968. 

This appeal to the Board of Veterans' Appeals (Board/BVA) originates from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. In the November 2006 rating, the RO initially granted service connection for PTSD, evaluated as 70 percent disabling, effective from March 26, 2002. In June 2007, the Veteran was awarded a 100 percent rating for PTSD, effective from January 5, 2007. The Veteran disagreed with and has appealed that part of the rating that awarded a 70 percent rating for PTSD prior to January 5, 2007. 

In March 2011, as support for his claim, the Veteran testified at a VA Central Office hearing, before the undersigned Veterans Law Judge of the Board. In April 2011, the Veteran's representative submitted additional evidence in support of the claim, and also waived the right to have the RO, as the Agency of Original Jurisdiction (AOJ), initially consider this additional evidence. 38 C.F.R. §§ 20.800, 20.1304 (2012). 

The Veteran initially filed a TDIU claim in April 2004, which was denied in an August 2004 rating decision along with service connection for PTSD. The Veteran then filed another TDIU claim in January 2007, yet there has been no interim rating on TDIU. In any event, the Veteran has reopened his TDIU claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the reopened TDIU claim is rendered moot since in this decision the Board is granting a 100 percent schedular rating for PTSD effective during the entire period of his claim, that is from March 26, 2002.

Also, consideration of a TDIU pursuant to Bradley v. Peake, 22 Vet. App. 280 (2008), is inapplicable here. In Bradley the Court held that, although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of TDIU predicated on a single disability may form the basis for an award of special monthly compensation. Here, since the Veteran's service-connected PTSD is rated at 100 percent disabling under the schedular criteria for PTSD, 38 C.F.R. § 4.130, Diagnostic Code 9411, during the entire period of his claim for an increase, that is dating from March 26, 2002, and since PTSD is his only service-connected disability, those principles in Bradley would not apply. 

FINDING OF FACT

From March 26, 2002 (effective date of the award of service connection for PTSD), to January 4, 2007 (day before the effective date of the award of a 100 percent schedular rating for PTSD), the Veteran's PTSD was productive of total occupational and social impairment.


CONCLUSION OF LAW

From March 26, 2002 the criteria for a 100 percent rating for PTSD are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.130, Diagnostic Code 9411 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

The Veterans Claims Assistance Act (VCAA) was signed into law in November 2000, and it enhanced VA's obligations in terms of notifying and assisting claimants with claims for VA benefits. The VCAA was codified as amended at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126, and the implementing VA regulations were codified as amended at 38 C.F.R. §§ 3.102, 3.156 a, 3.159, 3.326. 


In this decision the Board is granting the highest possible rating for the PTSD, 100 percent, for all times at issue. The Veteran's appeal therefore is being granted to the fullest extent permissible. The Board therefore need not discuss whether there has been compliance with the duty to notify and assist provisions of the VCAA because even if, for the sake of argument, there has not been, this still ultimately would be inconsequential and therefore amount to no more than nonprejudicial, i.e., harmless error because the claim is being granted, regardless. 38 C.F.R. § 20.1102. 

II. Increased Ratings

Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. See 38 U.S.C.A. § 1155 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. 

In addition, if the Veteran has been diagnosed as having a specific condition and that disability is not listed in the Rating Schedule, the diagnosed condition will be evaluated by analogy to a closely-related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology, are closely analogous. 38 C.F.R. § 4.20. 

After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. See 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). However, the current level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 

The Veteran's claim for a higher rating for his PTSD disability arises from his disagreement with the initial rating assigned for the disability following the granting of service connection. Where an award of service connection for a disability has been granted and the assignment of an initial rating for that disability is disputed, separate ratings may be assigned for separate periods of time based on the facts found. In other words, the ratings may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). In Fenderson, the Court noted the distinction between a new claim for an increased evaluation of a service-connected disability and a case, as here, in which the Veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been service connected. But see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (since expanding this concept even to claims for increased ratings that do not involve initial ratings). 

In accordance with 38 C.F.R. §§ 4.130, the Veteran's PTSD is evaluated under the general rating formula for mental disorders, Diagnostic Code 9411. 

Under Diagnostic Code 9411, a 70 percent evaluation 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 work like setting); and the inability to establish and maintain effective relationships. 

A 100 percent evaluation, the maximum allowable, 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; memory loss for names of close relatives, own occupation, or own name. Id. 

The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the United States Court of Appeals for Veterans Claims (Court) have held that the symptoms listed in 38 C.F.R. § 4.130 are the appropriate rating criteria for evaluating psychiatric disabilities, and that the criteria listed in the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) supplement, but do not replace, the criteria listed in the general rating formula. Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). 

The Court has recognized that a Global Assessment of Functioning (GAF) score is based on a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). The Court has also held that a GAF score is only one factor in determining a Veteran's disability rating. See Brambley v. Principi, 17 Vet. App. 20, 26 (2003); Bowling v. Principi, 15 Vet. App. 1, 14 (2001). As noted below, treatment providers have rendered Global Assessment of Functioning (GAF) scores pursuant to the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV). As indicated in Carpenter v. Brown, 8 Vet. App. 240, 242 (1995), the GAF is a scale reflecting psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. 

A score in the range of 51 to 60 indicates moderate symptoms (e.g., a flattened affect, circumstantial speech, occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (e.g., having few friends or having conflicts with peers or co-workers). A GAF score of 41 to 50 reflects a serious level of impairment (e.g., suicidal ideation, severe obsessive rituals, frequent shoplifting), or serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF score of 31 to 40 signifies some impairment in reality testing or communication, or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., where a depressed man avoids friends, neglects family, and is not able to work). 



III. Background

The Veteran asserts that he is entitled to a rating in excess of 70 percent for PTSD, prior to January 5, 2007, because since he initiated his claim his symptoms have remained the same. 

Review of VA clinical social worker records from early 2002 show that the Veteran was slightly bothered by alcohol problems, and it was reported that that he had not worked in the last 30 days. The Veteran was married and living with his partner. It was reported that he had had significant periods in which he experienced problems getting along with his children. The Veteran reported psychological and emotional problems, and the use of prescribed medication for treatment of those problems. 

In a February 2002 VA trauma recovery consultation, it was reported that the Veteran described recurrent and intrusive recollections, dreams of service events. He also had night sweats, insomnia, flashbacks, distress at exposure to stimuli, avoidance, irritability and anger outbursts, detachment, hypervigilence, and exaggerated startle (response). It was reported that the symptoms had interfered with his life, marriage, work, and contributed to a lifetime of ethanol abuse. A mental status examination showed that the Veteran was well groomed and oriented. His speech was normal and his mood was described as" up and down". The examiner reported that there were no psychotic symptoms except possibly experiencing intermittent dissociative state. The Veteran's memory and mental cognition were intact. His insight was fair and his judgment was good. The Axis I diagnosis was: PTSD; depression most likely due to PTSD, rule out dysthymia; alcohol dependence, full remission. The GAF score was 55.

In a May 2002 VA alcohol dependency treatment evaluation, it was reported that the Veteran had familial problems and domestic problems related to an episode of drinking. The Veteran was living with his mother. It was reported that he attended a PTSD group. He last worked in 1999, and it was reported that he was disabled related to his knee. The diagnoses were alcohol dependence and PTSD. The GAF score was 42.

In a VA psychological examination report in November 2002, it was stated that the Veteran experienced intrusive recollections and dreams of Korea in the severe range several times per week. He became upset when watching Korea-oriented movies or if he was exposed to environmental noises that were piercing in frequency and sudden in onset. There was avoidance/numbing as a defense against intrusive ideation. He had difficulty concentrating most of the time. The diagnosis was PTSD and major depression recurrent and severe, secondary to PTSD. The GAF score was 40. 

In March 2003 a VA PTSD examination was performed. It was reported that the Veteran had recurrent intrusive recollections of combat three times per week. He had emotional numbing, severe hypervigilence, nightmares, and exaggerated startle response. The Veteran's last job as a cook in 1999 was lost due to his temper. The mental status examination showed that the Veteran was irritable and tense. There were no hallucinations or psychotic symptoms. The Veteran denied suicidal or homicidal ideations. His mood was described as mixed, mostly anxious and depressed. The Veteran's cognitive functions, attention, and concentration were impaired, described as moderately. His memory was not abnormal, and his insight and judgment were fair. The diagnoses were PTSD, chronic delay with anxiety features; major depression, linked to PTSD; alcohol dependence alleged remission since April 2002. The GAF score was 50. 

In a May 2005 VA PTSD updated medical report, it was mentioned that the Veteran had continued to receive PTSD treatment, including individual and group therapy. It was reported that he had problems securing employment. The diagnosis was PTSD. The GAF score was 38.

VA mental health treatment records from late 2005 through 2006 show that the Veteran continued to receive group therapy as treatment for PTSD symptoms. It was reported at times that he was stable and without hallucinations. In a September 2006 clinical entry it was noted that the Veteran had reported that his medication was not working. He had rage and anger with his family members and spouse. The Veteran was hypervigilant and he had nightmares that he considered overwhelming. He also had greater isolation from people. 

In March 2011, the Veteran testified at a VA Central Office hearing before the undersigned Veterans Law Judge. The Veteran testified that in March 2002, when he was granted a 70 percent rating for PTSD, his symptoms included nightmares and conflict with his wife and family. Transcript (T) at 3. He stated that he isolated himself and that he had problems finding employment at that time. T. 3. The Veteran testified that he had worked at a meat packing factory and he was terminated because he could not get along with people. T. 4. He reported that he was fired from that job in 1999 or 1998. T. 5. The Veteran testified that during the time frame he received individual and group therapy for PTSD, and he was treated with medication T. 10. He stated that he did not try to seek employment also because his knees were bad; he had arthritis. T. 11. The Veteran stated that he had problems concentrating all the time. T. 15. 

IV. Analysis 

The Board has considered the entirety of the evidence and concludes that from March 26, 2002 the Veteran's PTSD resulted in total occupational and social impairment. 

During this period from March 26, 2002, the medical evidence shows that the Veteran was evaluated for and received ongoing treatment for psychiatric pathology and symptoms associated with his PTSD, which at one point were described as severe. His PTSD included a myriad of symptoms including startle response, recurrent and intrusive recollections, nightmares, flashbacks, distress at exposure to stimuli, avoidance, irritability and anger outbursts, detachment, hypervigilence, and exaggerated startle response. It was also reported that he had difficulty concentrating and his cognitive functioning during this time was impaired according to VA medical records. 

Concerning his social adaptability it was mentioned during this period that the Veteran had rage and anger towards family members and his spouse. The Veteran remained married, but he had domestic and familial problems related to anger, anxiety and irritability. Also, for the most part, he was isolative in terms of his social interactions. Regarding his employment and occupational endeavors, the Veteran reportedly had not been employed since 1999, in part due to his inability to get along with people. A finding of unemployability, alone, is sufficient reason to rate the PTSD as 100-percent disabling. See Johnson v. Brown, 7 Vet. App. 95 (1995). Yet also, it was reported that he had physical limitations affecting his employability. 

Prior to January 5, 2007 VA clinical records show that the Veteran's GAF scores ranged from 38 to 55. And, along with PTSD, depression, major depression, and alcohol dependence were diagnosed. Not even differentiating the PTSD, the lowest GAF score was 38. Combined with the Veteran's ongoing and substantial PTSD symptoms during this timeframe, his lower end GAF scores indicate the impact and severity that those symptoms had on his social and occupational functioning or lack thereof. 

It is apparent from the medical data that some of the Veteran's symptoms are attributable to alcohol dependence which was in remission at times during the period from March 26, 2002. It is not clear the extent to which the symptoms associated with alcohol dependence can be differentiated with the symptoms associated with his PTSD. The Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). 

The Veteran certainly does not meet all of the criteria for a 100 percent rating for the period dating from March 26, 2002. There were no psychotic manifestations reported during the time frame but a report of an episode of possible intermittent dissociative state. However, after review of the evidence during the period, including lay testimony, the Board concludes that the Veteran's PTSD is productive of total social and industrial impairment during this time. The Board concludes that from March 26, 2002, the criteria for a 100 percent disability rating for PTSD, 38 C.F.R. § 4.130, Diagnostic Code 9411, has been demonstrated. 

Since this claim stems from an appeal of a rating decision granting service connection and the Veteran's claim for service connection for PTSD was received on March 26, 2002, the 100 percent rating for PTSD is the effective from March 26, 2002. See 38 C.F.R. § 3.400(b)(2)(i) (2012).  Also, no additional staged ratings are available. Fenderson, supra. 


ORDER

A 100 percent schedular rating for PTSD from March 26, 2002, is granted, subject to the statutes and regulations governing the payment of VA compensation.




____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs