Citation Nr: 1326730 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 07-06 334 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUE Entitlement to an initial disability rating in excess of 70 percent for service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The Veteran served on active duty from June 1989 to August 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision of RO in Chicago, Illinois, which granted service connection and a 20 percent rating for PTSD. During the pendency of the appeal, an increased 70 percent rating was granted for PTSD in a March 2009 supplemental statement of the case (SSOC). This increase is effective October 6, 2004, the date of the Veteran's claim for service connection. As the highest possible rating was not assigned for PTSD, the issue of entitlement to a higher rating remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (a Veteran is presumed to be seeking the highest possible rating unless he expressly indicates otherwise). The Veteran testified at a March 2009 hearing before a Decision Review Officer (DRO) at the Chicago RO, and testified at a September 2009 Board hearing before the undersigned Veterans Law Judge (VLJ) at the Chicago RO. Transcripts of both hearings have been associated with the claims file. In a January 2010 rating decision, the RO granted entitlement to a total disability compensation rating based on individual unemployability (TDIU) effective April 30, 2009. The Board remanded the claim for a higher schedular rating for PTSD in March 2010, January 2011, and November 2012 for further development, and the case was subsequently returned to the Board. In April 2013, the Board requested a medical expert opinion from a psychiatrist with the Veterans Heath Administration (VHA), and the designee provided this opinion in June 2013. 38 C.F.R. § 20.901(a). The appellant and his representative were not provided with a copy of that opinion pursuant to 38 C.F.R. § 20.903(a). However, in light of the Board's entirely favorable decision in this case, there is no prejudice to the Veteran in proceeding with adjudication. FINDINGS OF FACT 1. The Veteran has a non-service-connected psychiatric disorder, primarily diagnosed as schizoaffective disorder. A VA psychiatrist has stated that it is not possible to separate the effects of the service-connected PTSD from the non-service-connected psychiatric disorder. 2. 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 gross impairment in thought processes or communication, persistent delusions or hallucinations, and intermittent inability to perform activities of daily living. 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); Mittleider v. West, 11 Vet. App. 181, 182 (1998). REASONS AND BASES FOR FINDINGS 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. At this time, the Board also notes that it is cognizant of the ruling in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. § 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. The Board finds that this was done at the March 2009 DRO hearing and the September 2009 Board hearing. Moreover, to the extent possible, VA has obtained the relevant evidence and information needed to adjudicate this appeal. Neither the appellant nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the 2009 hearings. 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). And where, as here, he has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for the disability, separate ratings may be assigned for separate periods of time based on the facts found - a practice known as a "staged" rating. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The Veteran's service-connected PTSD has been rated as 70 percent disabling throughout the rating period on appeal, i.e., since October 6, 2004. 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 schizoaffective disorder, bipolar disorder, and alcohol dependence. 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). The Board notes that the evidence of record is conflicting as to this question. VA treatment records show that the Veteran has a history of psychotic behavior, delusions, racing and paranoid thoughts, marked loosening of associations, circumstantial speech, and difficulty concentrating. See VA treatment records dated in July 2003, April 2004, January 2006, May 2006, June 2008 and September 2008. VA medical records dated from 2003 to 2005 reflect psychiatric treatment, including medication, primarily for schizoaffective disorder and substance abuse. In October 2003 it was noted that the Veteran had been attending college full time, and recently had a psychotic break. In April 2004, he was diagnosed with schizoaffective disorder, last episode manic, and marijuana abuse. The GAF score was 40. A VA inpatient discharge summary reflects that he was hospitalized for psychiatric complaints, and was diagnosed with schizophrenia versus schizoaffective disorder, and cannabis abuse. The GAF on admission was 35, and on discharge was 45. His prognosis was guarded given his significant mental illness and poor insight. In May 2004, he was described as psychotic, with grandiose delusions and pressured, rambling, tangential speech. In an April 2005 note, his treating VA psychiatrist stated that he saw the Veteran and he was in no position to resume schooling until he got a lot more stable. A June 2005 psychiatry attending note reflects that he was treated for schizoaffective disorder and polysubstance dependence. Records from the Social Security Administration (SSA) reflect that the Veteran was found to have been disabled since December 2002, due to a primary diagnosis of schizophrenic, paranoid, and other functional psychotic disorders. A September 2004 psychiatric evaluation performed for the SSA reflects that the examiner diagnosed schizoaffective disorder, bipolar type, anxiety disorder, not otherwise specified (NOS), cannabis abuse, history of alcohol abuse, and history of cocaine abuse. He opined that the Veteran was not able to manage his own benefit funds. He indicated that the Veteran had delusions or hallucinations, incoherence, loosening of associations, illogical thinking or poverty of content of speech with flat or inappropriate affect. At a June 2005 VA PTSD compensation examination, the Veteran complained of frequent intrusive memories and nightmares related to a stressor in service, and said he woke up at night in a state of anxiety, unable to go back to sleep. He said he had not been able to function for a number of years, and as a result had not been able to work. He denied alcohol or drug abuse, and said he was not receiving psychiatric treatment. On examination, he was alert and oriented to time, place and person, was cognitively intact, and had an intact memory. He denied suicidal or homicidal ideation, delusions, hallucinations, or psychosis. Judgment was OK, affect was somewhat depressed, and mood was anxious. The only Axis I diagnosis was PTSD, and that the Global Assessment of Functioning (GAF) Score of 47 was based only on his PTSD symptoms. In an October 1, 2005 addendum, the VA compensation examiner stated that the Veteran's diagnosis was PTSD, and he had symptoms of reliving and avoiding his service-related stressor. He said that all of the Veteran's current symptoms related to his PTSD. In an October 29, 2005 addendum, the same VA compensation examiner revised his original examination report to state that the Veteran was under ongoing psychiatric care. He said that it was clear that the Veteran had a chronic psychiatric problem that started when he was in 7th grade and led to inpatient and outpatient psychiatric treatment including the use of psychotropics. He also developed a PTSD condition. He indicated that the Veteran's past psychiatric problem since the 7th grade did not cause his PTSD. He reiterated that the GAF score of 47 reflected the impact of PTSD alone on his functioning level. A July 2005 psychiatry treatment note reflects that the Veteran was pressured, and mildly delusional regarding the military. He refused to take the recommended psychiatric medication. He was still smoking marijuana. The diagnosis was bipolar disorder. VA psychiatric outpatient treatment records dated from December 2005 to the present primarily relate to schizoaffective disorder, bipolar disorder, and substance abuse/dependence, and demonstrate multiple symptoms due to these disorders. In January 2006, he smelled unbathed, was overtalkative, and his thought processes were very tangential and disorganized. He showed no significant insight into his situation and seemed to be very much in denial. He was sporadically taking his medication and still smoking marijuana. The diagnostic impression was bipolar illness versus schizoaffective disorder in addition to substance abuse. In August 2008 he was diagnosed with alcohol dependence, cannabis abuse, schizoaffective disorder (bipolar type) versus bipolar I with continued alcohol use of two 22 ounce beers daily and cannabis abuse which exacerbated his symptoms. A PTSD screen was negative. In September 2008, he was diagnosed with schizoaffective disorder (bipolar type) manifested by delusions, delusions of control, odd beliefs, marked loosening of associations, circumstantial speech, elevated mood and expansive mood. At a March 2009 DRO hearing, the Veteran testified that he used to work as a train dispatcher, but was unable to perform his prior job due to his psychiatric symptoms. In April 2009, the Veteran filed a claim for a total disability compensation rating based on individual unemployability (TDIU) and said he last worked full-time in December 2002. He worked as a dispatcher for a railroad. He said PTSD and severe memory loss prevented him from working. In an August 2009 statement, his former employer said he last worked there in November 2002. At a September 2009 Board hearing, the Veteran testified that he was formerly a train dispatcher, but became ill and could not remember how to do his job because of his PTSD. He reported difficulty concentrating. He said he worried about everything, hallucinated, and had suicidal thoughts. He said he tried to work in construction but could not remember things. He also said he buried himself at work to cope with his PTSD. He said he had suffered from panic attacks, but not in the past three months. He said he was not able to work. A December 2009 VA compensation examination was performed by the same VA examiner who performed the June 2005 VA examination. The Veteran complained of difficulty with concentration, anxiety, hyperstartle reactions, depression, and anger management issues. He stated that up until last year, he worked part time helping a relative in a construction business. The Veteran was alert and oriented to time, place and person, and his affect was limited in range. His mood was depressed and anxious. He reported no suicidal or homicidal ideations, delusions, or hallucinations. He had difficulty with concentration, judgment was intact, and insight was limited. The examiner stated that there was no impairment of thought processes or social functioning. The only Axis I diagnosis was PTSD. The examiner stated that the GAF Score of 50 was based only on his PTSD symptoms. He opined that the Veteran was unable to obtain and hold gainful employment in the percentage of 50 percent due to PTSD. The rationale for the opinion was that he had difficulty with concentration and maintaining attention due to PTSD, but he had demonstrated the ability to do some more structured or highly structured work such as construction work. The Board previously found that the 2009 VA examination was not sufficient for evaluation purposes as it did not provide specific findings as to the impact of the Veteran's PTSD on his social functioning or clarify whether the examiner was differentiating between the Veteran's symptoms attributable to his nonservice-connected schizoaffective disorder and those symptoms attributable to PTSD. The Board also noted that despite repeated findings in the VA treatment records that the Veteran has thought impairment, the examiner stated that there was no impairment of thought process. A July 2010 VA psychiatry attending note reflects that the Veteran was treated for psychiatric complaints. On mental status examination, he was clean, not excitable or euphoric, not irritable or labile, not dysphoric, speech was not fast, non-intense and soft volume, no suicidal or homicidal ideation, and he was less paranoid. The diagnosis was alcohol dependence, cannabis abuse, schizoaffective disorder (bipolar type) versus bipolar I, with continued alcohol abuse that exacerbated his symptoms. The Board remanded this claim in January 2011 to obtain a VA examination and opinion assessing the impact of the Veteran's PTSD on his occupational and social functioning. A February 2011 VA psychiatric examination was performed by a different VA examiner. On mental status examination, the Veteran was casually dressed, oriented to person, place and time, spoke clearly, his answers were coherent and relevant, and his mood was depressed. He had episodes of hallucinations and paranoid thinking. His memory for recent and remote events was good. He was able to manage his benefits. The examiner diagnosed bipolar disorder, marijuana dependence, and alcohol abuse, found that the Veteran did not meet the diagnostic criteria for PTSD, and said that if the Veteran had PTSD in the past, it was currently in remission. The GAF was 60. While the examiner adequately explained the rationale for finding that the Veteran did not exhibit symptoms consistent with PTSD at the examination, the examiner did not address whether the Veteran's overall clinical history as shown in the VA treatment records and past examination reports supported a finding that he had total occupational and social impairment due to PTSD, irrespective of whether the Veteran's symptoms met the criteria for PTSD on the day of the examination. See 38 C.F.R. § 4.1 (2012) (providing that it is essential in a VA examination and in the rating decision that the disability be viewed in relation to its history); see also 38 C.F.R. § 4.126 (2012) (providing that VA must take into account all of the Veteran's symptoms and resulting functional impairment as shown by the evidence of record in assigning the appropriate rating, and will not rely solely on the examiner's assessment of the level of disability at the moment of examination). The Board remanded this case again in November 2012, in order to determine whether PTSD symptoms result in total occupational and social impairment. VA treatment records show that in December 2012 the Veteran was diagnosed with schizoaffective disorder (bipolar type) versus bipolar I, with alcohol dependence, cannabis abuse (in very early questionable remission), mania and psychoses. In a December 2012 note, a VA compensation examiner indicated that a new VA psychiatric examination was needed to reconcile the different diagnoses and medical opinions, but that the Veteran had failed to report for his scheduled VA examination. In April 2013, the Board requested a VHA medical expert opinion from a VA psychiatrist. In response, in a May 2013 VHA medical expert opinion, a VA psychiatrist stated that the degree of occupational and social impairment due solely to PTSD cannot be clearly determined since June 2004 due to a number of factors, including his concurrent psychiatric condition: schizoaffective disorder, bipolar type. He noted that in the medical record, various symptoms frequently listed include delusions, paranoia, odd beliefs marked loosening of associations, circumstantial speech, elevated and expansive mood, intensity and urgency to mood, which are much more indicative of a mixed mood/psychotic disorder such as schizoaffective disorder, not an anxiety disorder such as PTSD, which would more likely include symptoms of anxiety, depression, irritability, insomnia, nightmares, avoidant behavior, difficulty with short-term concentration, an increased startle response, etc. A second complicating factor is the Veteran's ongoing use of legal and illegal drugs, primarily THC and alcohol. The medical record consistently indicates frequent to regular use of THC and regular to constant use of alcohol, which cause a myriad of symptoms which may even mimic some of the symptoms of schizoaffective disorder or PTSD. He added that another diagnosis to be considered was THC/alcohol-induced mood/psychotic disorder. He opined that based on the ongoing medical records, the most probable GAF would be about 45. He concluded that due to the complicated clinical picture, it is not possible to determine total occupational and social impairment solely due to PTSD, as the additional diagnoses of schizoaffective disorder and THC/alcohol abuse/ dependence are significant confounding factors. The symptoms listed which include gross impairment in thought process or communication, persistent delusions or hallucinations, grossly inappropriate behavior, etc. are much more indicative of a mood/psychotic disorder such as a schizoaffective disorder, not PTSD, an anxiety disorder. 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 October 2004), 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 higher rating. 38 C.F.R. § 4.7. The pertinent medical evidence collectively reflects that his PTSD and other psychiatric disorders are characterized by impairment in thought processes and speech, delusions, mood swings, anger, anxiety, sleep impairment, nightmares, intermittently impaired judgment and insight, and memory difficulties. He has also reported suicidal ideation. As noted, he has been diagnosed with other psychiatric disorders, including schizoaffective disorder and bipolar disorder, but 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). The Board therefore 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 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