Citation Nr: 1327432 Decision Date: 08/27/13 Archive Date: 09/05/13 DOCKET NO. 06-00 631 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an increased rating for posttraumatic stress disorder (PTSD), currently rated as 70 percent disabling. REPRESENTATION Veteran represented by: Daniel G. Krasnegor, Attorney ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The Veteran had active service from August 1969 to June 1971. He also had active service for 8 days in May 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2004 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in San Diego, California. Jurisdiction is currently with the RO in Los Angeles, California. In a March 2008 decision, the Board denied the Veteran's claim of entitlement to a rating in excess of 70 percent for service-connected posttraumatic stress disorder (PTSD). The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In December 2008, the Veteran, through counsel, and the Secretary of Veterans' Affairs, through VA General Counsel, filed a Joint Motion for Remand with the Court. The Court granted that Joint Motion the same month, vacating the March 2008 Board decision and remanding the matter to the Board for compliance with the instructions in the Joint Motion. In March 2009, the Board remanded this case for additional development. The purposes of this remand have been met and the case is ready for appellate consideration. The issue of entitlement to service connection for bilateral hearing loss was originally developed for appellate review; however, service connection for bilateral hearing loss was ultimately granted by the RO in a January 2012 rating action. Therefore, this issue is no longer before the Board. The issue of entitlement to additional benefits based on establishing the Veteran's son, A.G., as a dependent child, has been raised by the record [see statements from the Veteran's attorney-representative, dated in February 2012 and February 2013], but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT The symptoms of the Veteran's PTSD more nearly approximate total occupational and social impairment. CONCLUSION OF LAW The criteria for a 100 percent disability rating for service-connected PTSD have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159 and 3.326(a) (2012). In this decision, the Board grants a 100 percent schedular disability evaluation for the Veteran's service-connected PTSD, which constitutes a complete grant of the benefit sought on appeal. Thus, any deficiency in VA's compliance with the duty to notify and assist or the Board's March 2009 Remand order is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary. In February 2004, the Veteran filed a claim contending that the symptoms of his service-connected PTSD had worsened such that he was entitled to a higher rating. Disability ratings are based on 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. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Although the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. However, because the evidence of record does not demonstrate diverse symptoms meeting the criteria for different ratings, the application of staged ratings is inapplicable in this case. The Veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C.A. § 5107(a). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id. Consequently, 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, although the Board may not ignore such distinctions where they appear in the medical record. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam); see also Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board may only consider independent medical evidence in support of its findings and may not substitute its own medical opinion). The criteria for evaluating PTSD are found at 38 C.F.R. 4.130, Diagnostic Code 9411. A 70 percent evaluation is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 worklike setting); and an inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted where this 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; and memory loss for names of close relatives, own occupation, or own name. Id. Symptoms listed in the VA's general rating formula for mental disorders serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, and are not intended to constitute an exhaustive list. Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). The nomenclature employed in the portion of the rating schedule that addresses service-connected mental disorders is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (also known as the DSM-IV). 38 C.F.R. § 4.130. The DSM-IV contains a Global Assessment of Functioning (GAF) scale, with scores ranging from zero to 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. Higher scores correspond to better functioning of the individual. Under the GAF scale in the DSM-IV, scores from 61 to 70 correspond to 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), with generally good functioning and some meaningful interpersonal relationships. Scores from 51 and 60 correspond to moderate symptoms (e.g., flat affect, circumstantial speech, or occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends or conflicts with peers or co-workers). Scores from 41 and 50 correspond to serious symptoms (e.g. suicidal ideation, severe obsessional rituals, and frequent shoplifting) or serious impairment in social, occupational, or school functioning (e.g., no friends or unable to keep a job). Scores from 31 and 40 correspond to 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, school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). Scores from 21 and 30 correspond to behavior that is considerably influenced by delusions or hallucinations, serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, or suicidal preoccupation), or an inability to function in almost all areas (e.g., stays in bed all day, no job, home, or friends). Scores from 1 to 10 correspond to a persistent danger of severely hurting self or others (e.g., recurrent violence), or a persistent inability to maintain minimal personal hygiene, or a serious suicidal act with a clear expectation of death. According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). In this case, the Veteran had active service from August 1969 to June 1971, including service in Vietnam. His Military Occupational Specialty (MOS) was as a rifleman and he received the Combat Action Ribbon. In a January 1983 rating action, the RO granted service connection for PTSD and assigned a 10 percent disability rating under Diagnostic Code 9411, effective from June 3, 1982. In February 2004, the Veteran requested that his service-connected PTSD be re-evaluated for a higher rating. In April 2004, the Veteran underwent a VA examination which was conducted by QTC Services. He stated that he had participated in combat while in Vietnam. Since his discharge, he had difficulty controlling his thoughts and impulses to kill other people. In 1974, he almost killed his first wife by strangling her and was psychiatrically hospitalized for one year. At present, the Veteran continued to have recurrent recollections of his experiences in Vietnam. He also had recurrent nightmares and would wake up sweating and agitated, and that was very concerning to his second wife. The Veteran often had flashbacks and he endorsed avoidance symptoms. He endorsed a feeling of detachment and estrangement from others and a restricted range of affect. The Veteran was very easily irritated. The Veteran had worked for the US Department of Housing and Development (HUD) since 1982 and had been able to release some of his anger and frustration when he went out into the fields. However, due to the government cutbacks, he had been forced to stay inside the office which was causing him difficulties with anger management. He endorsed exaggerated startle response and hypervigilance. Upon mental status evaluation, the Veteran's speech was of normal rate and rhythm. His mood was "nervous and edgy" and his affect was somewhat blunted at times. The Veteran's thought processes were linear, logical and goal directed. His thought content was significant for flashbacks. He had no suicidal or homicidal ideations. The Veteran was alert and oriented times 4. The Veteran's concentration was poor. The diagnosis was the following: (Axis I) polysubstance dependence in full, sustained remission; PTSD, (Axis IV) psychological stressors were: exposure to trauma, marital problems, and employment problems, and (Axis V) Global Assessment of Functioning (GAF) score of 50 to 55. VA Medical Center (VAMC) inpatient treatment records show that the Veteran was hospitalized for his PTSD from February 22, 2006 to March 1, 2006. Upon admission, he had suicidal ideations, flashbacks, and panic symptoms. He had recently returned from assisting victims from Hurricaine Katrina. The Veteran spent two months working on HUD housing projects, which acutely worsened his PTSD symptomatology. He also noted that his daughter was experiencing a recurrence of bone cancer and he had recently learned that his other daughter had been molested. Upon admission, his GAF score was 35, and upon his discharge, his GAF score was 65. The Veteran was given a letter to excuse him from work until March 17, 2006, with psychological follow-up to occur shortly before that date. In January 2010, a VA PTSD examination was conducted. The examiner stated that following the Veteran's March 2006 hospitalization, he was prescribed medications. He then experienced some strokes which caused him increased distress. In February 2008, the Veteran was disclosing problems with chronic, intermittent suicidal thinking, as well as increased symptoms of PTSD associated with anniversaries of certain battles. The Veteran's stress level also increased over the next year because his mother was diagnosed with terminal cancer and died in November 2009. The Veteran required increasing levels of intervention throughout 2009 from his psychiatric nurse practitioner, his nurse case manager, and his psychologist. At one point, he even had an intervention from the suicide prevention team in terms of a telephone contact. He had chronic suicidal ideation. The Veteran had nightmares and flashbacks about his experiences in Vietnam and guilt feelings associated with having lived through the war when others did not. When exposed to things that reminded him of the war, he experienced psychological and distress and became angry, anxious, and his hands would sweat. He avoided war movies and was detached from people in general. The Veteran had chronic sleep problems, was irritable and prone to arguing. He had problems with concentration and he had to decrease his workload due to stress. The Veteran was chronically hypervigilant and he would always sit with his back to the wall. He estimated that over the past year, he had lost approximately 4 to 5 months of work due to his PTSD. The Veteran's physician decreased his work schedule to less than a full month because of stress and anxiety. The Veteran was a project manager at HUD and for the first time in his career, he had recently been given a bad rating at his job. The examiner noted that the Veteran was having significant problems in his career and was plagued with chronic "waxing and waning" suicidal thoughts. Upon mental status evaluation, the Veteran had good grooming and hygiene. His speech was rapid with occasional word finding problems. He had moderate psychomotor tension. There were no overt delusions, although he did report occasional feelings that people were out to get him. The Veteran had no formal thought disorder. He reported visual hallucinations/illusions of seeing dead bodies, often at nightfall. The Veteran's mood was depressed and his affect was dysphoric and irritable. He described panic attacks. The diagnosis was the following: (Axis I) PTSD, (Axis IV) combat; death of mother; severe illness of daughter; illness of father, and (Axis V) GAF score of 28. The examiner stated that the Veteran had experienced a decline since 2006 when he became suicidal and was hospitalized for PTSD. Since then, he had a decline in his functional status due to the PTSD such that he was currently missing a significant amount of work. His social functioning remained fair. He had developed chronic suicidal thoughts. VAMC inpatient treatment records show that the Veteran was hospitalized from June 8, 2010 to July 2, 2010 for his PTSD. Upon admission, the Veteran had suicidal feelings. According to his wife, he had become very despondent and angry, and was throwing things and frightening others with his anger. He had several stressors from work. The Veteran experienced audio and visual hallucinations with hearing dead soldiers and voices, and seeing images and shadows. He had stopped taking his medications over a year ago, but did not tell anyone. The Veteran had decreased sleep with war-related nightmares. Upon his discharge, his GAF was 50. VAMC outpatient treatment records include a medical statement from C.N., M.D., a VA staff psychiatrist, dated in October 2010. In the statement, Dr. N. indicated that the Veteran had recently been diagnosed with bipolar disorder. In addition, the Veteran had been diagnosed with PTSD. He took four medications for his mental condition. According to Dr. N., while the Veteran was able to perform the essential functions of his job, a stressful work environment may worsen the bipolar and PTSD symptoms. Therefore, reasonable accommodations, including working from home, were necessary to enable the Veteran to perform his duties. The records also include a mental status evaluation wherein Dr. N. assigned a GAF score of 50. In May 2011, the Veteran underwent a VA examination. The diagnosis was the following: (Axis I) PTSD, (Axis IV) combat related war trauma, and (Axis V) GAF score of 61, with moderate mental symptoms and impairment. However, the Board notes that in the May 2011 VA examination report, the examiner made numerous inaccurate statements. For example, the examiner stated that the Veteran had not been hospitalized for psychiatric reasons. Clearly this statement is incorrect as the Veteran has a definite history of psychiatric hospitalizations. In addition, the examiner reported that the Veteran had not lost any time from work due to his PTSD. This statement is also incorrect as the evidence of record clearly shows that the Veteran has lost time from work due to his PTSD. Therefore, since the examiner made numerous inaccurate statements, the probative value of his evaluation of the Veteran's PTSD is of little to no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Hayes v. Brown, 5 Vet. App. 60, 69 (1993) ("[i]t is the responsibility of the BVA . . . to assess the credibility and weight to be given the evidence"). In November 2011, the Veteran filed a claim of entitlement to a TDIU disability rating. He noted that he stopped working at HUD on August 29, 2011. He stated that in 2008, a new management team took over the HUD office where he worked. According to the Veteran, prior to that time, he had received accommodations due to his PTSD that allowed him to perform his duties. However, after the new management team arrived, his accommodations were no longer approved and his PTSD symptomatology worsened. The Veteran indicated that he became depressed and suicidal. He noted that he was having flashbacks at work because his immediate supervisor was Chinese and her accented English sounded like Vietnamese. The Veteran reported that he became more forgetful, his hands would shake and sweat, and he had nightmares. He stated that in the last three years of his employment, he used all of his annual leave, sick leave, and the maximum amount of advance sick leave available. He also took leave without pay. In support of his claim, the Veteran submitted numerous statements from co-workers wherein they confirmed that his PTSD symptoms worsened over the last few years. In one letter, a project manager who had worked with the Veteran stated that from 2009 to 2010, after the Veteran's accommodation requests were denied, he became "extremely frustrated, agitated, stressed, and forgetful." The Veteran appeared "tired" and "minimally interacted with others." In a January 2012 rating action, the RO granted the Veteran's claim for a TDIU disability rating, effective from August 29, 2011, the date of his retirement from HUD. In consideration of all the evidence of record, the Board finds that the overall disability picture for the Veteran's PTSD more closely approximates a 100 percent rating, warranted where 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; and memory loss for names of close relatives, own occupation, or own name. Id. As noted above, the symptoms listed in the VA's general rating formula for mental disorders are only examples of the type and degree of the symptoms that correspond to a particular rating. Mauerhan, 16 Vet. App. at 442-44. Here, the record shows that the Veteran's PTSD has been manifested by symptoms that include irritability, nightmares, difficulty sleeping, intrusive memories, depression, anxiety, flashbacks, hypervigilance, hyperstartle response, social isolation, suicidal ideations, and hallucinations. Although he had worked at HUD until his retirement in August 2011, it is clear from the evidence of record that prior to his retirement, his PTSD symptomatology was interfering with his ability to perform his job. Since he filed his claim in February 2004, the Veteran has been hospitalized twice for his PTSD. Prior to his hospitalization from February to March 2006, he had been working on HUD housing projects in relationship to a hurricane which acutely worsened his PTSD symptomatology. In addition, due to his PTSD, he has chronic suicidal ideations. The Veteran also experiences visual and audio hallucinations. Moreover, although he has a good relationship with his wife, upon his psychiatric hospitalization in June 2010, his wife noted that he was throwing things and frightening others with his anger. Thus, in determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran's claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the higher rating is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). In this case, in affording the benefit of the doubt, the Veteran meets the criteria for a 100 percent rating for PTSD, based on the overall conclusions indicated in the medical evidence, as set forth above. Because a 100 percent rating has been granted for the Veteran's service-connected PTSD, it is unnecessary to address whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(a). ORDER Entitlement to a schedular evaluation of 100 percent for PTSD is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs