Citation Nr: 1326636 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 11-17 245 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey THE ISSUE Entitlement to an increased rating for service-connected posttraumatic stress disorder (PTSD), currently evaluated as 70 percent disabling. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The Veteran served on active duty from December 1967 to September 1969. This case comes to the Board of Veterans' Appeals (Board) on appeal from a December 2009 decision by the RO in Newark, New Jersey that denied an increase in a 70 percent rating for service-connected PTSD. Additional pertinent evidence was received from the Veteran in April 2013. As the Veteran has waived initial RO review of this evidence, the Board will consider it. 38 C.F.R. § 20.1304 (2012). The Board notes that in April 2013, the Veteran's representative raised a claim for entitlement to a total disability compensation rating based on individual unemployability (TDIU), asserting that the Veteran was unemployed and unable to work due to his service-connected PTSD. A TDIU claim is considered reasonably raised when a Veteran submits medical evidence of a disability, makes a claim for the highest rating possible, and submits evidence of service-connected unemployability. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001); Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009). The Board finds that the record reasonably raises the question of whether the Veteran is unemployable due to service-connected disability. See Roberson, supra; Rice v. Shinseki, 22 Vet. App. 447 (2009). The issue of entitlement to a TDIU is part and parcel of the appeal for an increased rating. Rice, supra. However, the Board concludes that the holding in Bradley v. Peake, 22 Vet. App. 280 (2008) is inapplicable and the Veteran's TDIU claim is moot. Specifically, the veteran in Bradley was in receipt of a 100 percent schedular rating for service connected disabilities other than his PTSD, which was rated at 70 percent. As such, the Court concluded that the PTSD on its own could potentially result in a TDIU in and of itself. Conversely, here, the Veteran is in receipt of a 100 percent schedular rating for PTSD. His only other service connected disability is rated as noncompensable and there is simply no suggestion in the claims file that erectile dysfunction interferes in any way with the Veteran's employability. Simply put, the Veteran does not have any service connected disabilities, which are evaluated as less than total, that have been suggested to cause any unemployability. As such, Bradley is inapplicable, and the grant of a total schedular rating for PTSD renders the Veteran's TDIU claim moot. Finally, the Board notes that in April 2013, the Veteran's representative submitted a copy of a July 2012 award letter from the Social Security Administration (SSA), showing that the Veteran was awarded SSA retirement benefits. There is no suggestion that these benefits were awarded based on erectile dysfunction, or in fact, based on disability. Accordingly, the Board finds that these records are not relevant and there is no duty to obtain these SSA records, particularly in light of the Board's finding that the TDIU claim is moot. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (in uncertain cases or where there is a reasonable possibility that records are relevant to a claim, VA must assist the claimant in obtaining the records). FINDING OF FACT Resolving all reasonable doubt in his favor, the Board finds that throughout the rating period on appeal, the Veteran's service-connected PTSD has produced total occupational and social impairment due to such symptoms as recurring or intrusive distressing war recollections, anxiety, sleep difficulty, flashbacks, combat nightmares, chronic anger and irritability, intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene), mood swings, frequent panic attacks, impaired impulse control, danger of hurting others, impaired memory and concentration, and occasional homicidal ideation. CONCLUSION OF LAW The criteria are met for a higher 100 percent schedular rating for PTSD throughout the rating period on appeal. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Duties to Notify and Assist As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Here, in light of the entirely favorable disposition, discussion of these duties to notify and assist the Veteran with this claim is unnecessary because the requested benefits have been granted. That is, even were the Board to assume, for the sake of argument, he has not received this required notification and assistance, this ultimately would be inconsequential and, therefore, amount to no more than nonprejudical, i.e., harmless error. 38 C.F.R. § 20.1102. See also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (clarifying that VCAA notice and assistance errors are not presumptively prejudicial, rather, must be determined on a case-by-case basis and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of not only establishing this error but also, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of the claim). There simply is no such possibility in this instance. Analysis The Board has reviewed all of 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 him or obtained on his behalf be discussed in exhaustive 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) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 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; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 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; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; 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; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. (1991). The current level of disability, however, is of primary concern in a claim for an increased rating; the more recent evidence is generally the most relevant in such a claim, as it provides the most accurate picture of the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55 (1994). That being said, given unintended delays during the appellate process, VA's determination of the current severity of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period that the increased-rating claim has been pending. And in those instances, it is necessary to "stage" the rating to compensate the Veteran for this variance. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The RO has rated the Veteran's service-connected PTSD as 70 percent disabling since August 2007. In November 2009, the Veteran filed the instant claim for an increased rating for PTSD. PTSD is evaluated under the General Rating Formula for Mental Disorders found at 38 C.F.R. § 4.130, Diagnostic Code 9411. 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 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 above set of symptoms is not an exclusive or exhaustive list, as evidenced by use of the phrase "such symptoms as," followed by a list of examples. Rather, it serves as merely an example of the symptoms that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In determining whether the Veteran meets the criteria for a higher rating, the Board must consider whether he has deficiencies in most of the following areas: work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11 (2001). One factor for consideration is the Global Assessment of Functioning (GAF) score, which is a scaled rating 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). The higher the score, the higher the overall functioning of the individual is. GAF scores ranging from 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. GAF 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). 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 (i.e., 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; child frequently beats up younger children, is defiant at home, and is failing at school). While the Rating Schedule indicates 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). An examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence bearing on occupational and social impairment. See generally 38 C.F.R. § 4.126; VAOPGCPREC 10-95. In addition to service-connected PTSD, the Veteran also has other non-service-connected psychiatric disorders as shown in his VA treatment records, and has been diagnosed with panic disorder and agoraphobia. When it is not possible to separate the effects of the service-connected disability from a non-service-connected disability, such signs and symptoms must be attributed to the service-connected disability. 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). VA medical records dated from 2007 to the present reflect psychiatric treatment, including medication, primarily for PTSD. On VA examination in February 2008, the Veteran reported that he had been married for more than 25 years to his second wife, and had two adult children. The examiner indicated that the Veteran had severe panic disorder. He worked in the banking industry for 36 years. He said that for the first 29 years, his supervisor was another Vietnam Veteran, who made allowances for his panic and anxiety symptoms, but that the supervisor had retired, and he was let go by the company. He said that in the past six to seven years he had five jobs. The examiner diagnosed chronic PTSD, and panic disorder with agoraphobia. The examiner noted that the Veteran had daily anxiety, and any breach of his safe territory, attempt at socialization or work to travel beyond safe territory caused panic disorder and anxiety. The GAF was 50, and the examiner opined that the only reason he was given a rating of 50 was because he was capable of maintaining a job. However, his job status was precarious, as it appeared that his job might be in jeopardy due to having to challenge his safe territory and having to confront his anxiety symptoms. The Veteran had many jobs in the past five or six years as a consequence of his severe anxiety. The current functional impairments included severe panic disorder with agoraphobia, difficulty socializing, difficulty with work and travel, and inability to shop, and an inability to engage in productive recreation as a result of severe and debilitating anxiety symptoms including his panic disorder. The examiner stated that the effects of the diagnosis on social and occupational functioning would be a difficulty in impaired socialization, limited travel, inability to shop or take care of any chores or responsibilities that were beyond his safe territory, and an inability to engage in productive recreation. The examiner opined that these symptoms were causally related to his time in service, and were severe with daily and regular occurrence. An October 2009 VA outpatient treatment record reflects that he had good eye contact, spontaneous coherent and relevant speech, anxious and sad mood, and appropriate affect. He had no gross thought disorder or symptoms of psychosis. He had no suicidal or homicidal ideations, plans or intent currently. He had good reality testing and intact abstracting and calculating abilities. He had average fund of knowledge, good insight and judgment, and good past and recent memory. He was oriented times three. Similar findings were noted in VA outpatient treatment records dated from 2009 to 2011. On VA PTSD compensation examination in December 2009, the Veteran reported that he had been having increasing problems at work, and his personnel file was filled with complaints of harassment. He was often out in the field examining loans and doing loan investigation, and that on a number of occasions if the person he was investigating had been there when he knocked on the door he might have gone into a homicidal rage or may have attacked him. He provided letters to the examiner showing the disciplinary actions taken against him and a letter of complaints he was receiving at work. He was not able to discharge his work responsibilities, forgot his assignments, and was angry, aggressive and hostile with customers. The examiner stated that he was in danger of a violent outburst at work, and that the Veteran was unable to work effectively. The Veteran reported that his nightmares were exacerbated by his medication. He had been married for 26 years and lived in the same town for 27 years. He drove independently to his examination. The examiner stated that the symptoms noted in his previous VA examination had been greatly exacerbated. He was very disheveled, had continual flashbacks, significant sleep problems, heightened startle response, and was extremely hypervigilant. He had become totally isolative and had difficulty at work due to an inability to relate to others. His relationship with his wife was significantly impaired, he had habitual mood swings ranging from anxiety to depression, and had difficulty with concentration. The examiner said he was totally impaired, with extreme symptoms. He had panic attacks at least once every two days, and the panic attacks were secondary to his severe PTSD. On examination, he was tearful, and extremely disheveled. He was dressed appropriately, but his grooming was poor and he had neglected his personal hygiene. Attitude was cooperative, motor activity was anxious, he had tremors throughout the examination, and he wept throughout the examination. Mood and affect were anxious and severely depressed. Speech was normal. There was no evidence of perceptual impairment and no evidence of thought disorder. Thought content was appropriate to the examination. He denied suicidal and homicidal ideation. He was oriented to time, place and person. Memory and concentration were impaired. He had difficulty remembering his assignments, as well as recent and remote milestones. He was extremely troubled by his anxiety, which appeared to impact dramatically on his social and occupational capacity. Abstract reasoning, judgment, impulse control, and insight were intact for the interview, but at work he had been having problems with impulse control and had numerous disciplinary actions taken against him when he had been accused of harassing employees and customers. He was worried that he would be fired, and had almost daily panic attacks. He was currently estranged from his family due to his severe symptoms. He said he and his wife no longer shared a bed and their relationship was severely impaired, as his wife had difficulty coping with his symptoms and he barely talked to her. He had a good relationship with one son, and a strained relationship with the other. He had no hobbies or personal interests and no friends. The examiner indicated that the Veteran was suffering from extremely severe symptoms of PTSD which had been exacerbated since the severe symptoms noted in his last examination by this examiner. Current symptoms included recurring intrusive thoughts, recurrent distressing dreams, reliving the event via flashbacks, and experiencing intense distress and physiological reactivity upon exposure to cues that reminded him of his experiences. He avoided thoughts and activities associated with his experiences. He had significantly decreased interest and participation in formerly enjoyable activities. He felt detached and estranged from others and exhibited restricted affect. He had sleep difficulty, irritability, difficulty concentrating, hypervigilance and an exaggerated startle response. The Axis I diagnoses were extremely severe PTSD, and severe panic disorder as a consequence of his PTSD. The GAF was 37. The examiner stated that the Veteran had a severe increase and exacerbation of symptoms, and he found that the Veteran was totally disabled. He opined that the Veteran was unable to work based upon the severity of his symptoms. He opined that the effects of his diagnosis on social and occupational functioning had resulted in total occupational and social impairment as a direct consequence of his isolation, impaired sleep, heightened arousal, avoidance of recreational and leisure activities, flashbacks, mood swings, memory and concentration deficits and frequent panic attacks. He recommended that the Veteran be referred to an inpatient PTSD program. In correspondence submitted during the course of the appeal, the Veteran contended that his PTSD has worsened. In December 2009, he said he had no friends or social life, slept on the couch, did not go anywhere, had worsened nightmares, and his relationship with his wife was rocky. He reported that his job had been terrible, and it was a struggle to hide his problems and function. He said that a customer sent a written complaint to his supervisor because of his behavior. He said his job was in jeopardy and he had a "short fuse." By a letter dated in June 2011, the Veteran's treating VA psychiatrist stated that he treated the Veteran since January 2009, and he had always reported persistent PTSD symptoms that were debilitating. He had recurring or intrusive distressing recollections of the war, distressing dreams, anxiety, and sleep difficulty due to intense and vivid nightmares of combat in Vietnam. He opined that the Veteran's condition had deteriorated and he was unemployable. His chronic feelings of anger and irritability had led to social isolation. His difficulty sleeping and chronic violent nightmares had led to him sleeping in a different bed from his wife. He had difficulty controlling his anger and was potentially explosive if exposed to a stressful situation. His PTSD symptoms were relatively resistant to treatment and were likely to persist. The severity of his symptoms would interfere with his ability to maintain gainful employment. The psychiatrist opined that the Veteran was unable to work due to the severity of his anxiety condition along with his history of panic attacks. He advised him to stop working due to his inability to tolerate anxiety and to prevent potential explosive behavior if exposed to a stressful situation, due to his uncontrollable anger spells. He said that because of his intense anxiety and uncontrollable anger spells, it was his opinion that the Veteran was unable to work. He concurred with the opinion of the December 2009 VA examiner. He opined that the Veteran's symptoms produced total occupational impairment. Socially, he exhibited deficiencies in most areas as a direct consequence of his extreme isolation, avoidance of recreational and leisure activities, as well as his heightened arousal, impaired sleep, and memory and concentration deficits. In a written brief dated in April 2013, the Veteran's representative stated that the Veteran had stopped working in August 2012. The Veteran reported that his job became too overwhelming and he began developing heart palpitations. The last straw came when he threw a baseball at the wall out of anger and realized he was not fit to work. An enclosed July 2012 letter from the Social Security Administration (SSA) reflects that he was awarded retirement benefits beginning September 2012. Evidence prior to his retirement demonstrates that while he appears to have been periodically employed, such employment was essentially fleeting. He was regularly described as wholly ineffective occupationally (i.e. forgetting his assignments, getting into continual arguments with his co-workers and customers, and demonstrating explosive behavior). After a review of all of the relevant evidence of record, and bearing in mind the benefit-of-the-doubt doctrine at 38 C.F.R. § 4.3 as well as 38 C.F.R. § 4.7, the Board finds that throughout the rating period on appeal (i.e., since November 2009), and for the reasons and bases discussed below, a higher 100 percent evaluation more nearly approximates the Veteran's PTSD disability picture, and he is entitled to this increased rating. 38 C.F.R. § 4.7. The pertinent medical evidence collectively reflects that his PTSD and panic disorder are characterized by recurring or intrusive distressing war recollections, anxiety, sleep difficulty, flashbacks, nightmares of combat in Vietnam, chronic feelings of anger and irritability, intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene), mood swings, frequent panic attacks, impaired impulse control, danger of hurting others, and impaired memory and concentration. He has also reported homicidal ideation. As noted, he has been diagnosed with other psychiatric disorders, including panic disorder with agoraphobia, but the December 2009 VA examiner has opined that this disorder is due to his PTSD. Because the effects of his diagnoses have not been distinguished or differentiated (one from another), the Board must resolve this doubt in his favor and, for all intents and purposes, attribute the impairments to his service-connected PTSD. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Two VA examiners, including his treating VA psychiatrist, have opined that he is totally occupationally impaired due to service-connected PTSD. On VA examination in December 2009, the GAF was 37, indicating major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. Therefore, although all of the enumerated symptoms listed for a 100 percent rating are not shown, the Board finds that the severity of the Veteran's PTSD symptoms and the effect of these symptoms on his social life and especially his work situation throughout the rating period on appeal, justify this 100 percent rating. See Mauerhan, supra. The Board finds that his symptoms on the whole more nearly approximate total occupational and social impairment, which is the level of impairment contemplated by the next higher 100 percent rating. A higher 100 percent schedular rating is granted throughout the rating period on appeal. ORDER A higher 100 percent schedular rating is granted for PTSD, subject to the statutes and regulations governing the payment of VA compensation. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs