Citation Nr: 1327852 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 12-28 421 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES Entitlement to an initial disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Saira Spicknall, Counsel INTRODUCTION The Veteran served on active duty from August 2005 to March 2006 and from February 2007 to August 2009. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision of the Houston, Texas Department of Veterans Affairs (VA) Regional Office (RO). A review of the Virtual VA paperless claims processing system reflects that additional records have been added to the present appeal. These records include VA medical records, which were addressed in the June 2012 rating decision. During the pendency of this appeal, the Veteran raised the issue of entitlement to a TDIU. In light of the ruling in Rice v. Shinseki, 22 Vet. App. 447 (2009) and as the Veteran is seeking the maximum benefit available for his service-connected PTSD on appeal, entitlement to a TDIU may be considered as part of the determination of the appropriate disability rating for the service-connected PTSD on appeal rather than as a separate claim. Significantly, however, the Board points out that a TDIU is assignable only where the schedular rating is less than total. See 38 C.F.R. § 4.16. In this case, as the Board is awarding the Veteran an increased schedular rating of 100 percent for his service-connected PTSD, the issue of entitlement to a TDIU has essentially been rendered moot. See 38 U.S.C.A. § 7105 (the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed); but see Bradley v. Peake, 22 Vet. App. 280 (2008) (holding that, while no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation). FINDING OF FACT The credible and probative evidence of record demonstrates that the Veteran's PTSD is productive of symptoms resulting in total occupational and social impairment. CONCLUSION OF LAW The criteria for an initial disability rating of 100 percent for PTSD have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act (VCAA) The VCAA, codified, in part, at 38 U.S.C.A. § 5103, was signed into law on November 9, 2000. Implementing regulations were created, codified at 38 C.F.R. § 3.159 (2012). The legislation has eliminated the well-grounded claim requirement, has expanded the duty of VA to notify the appellant and the representative, and has enhanced its duty to assist an appellant in developing the information and evidence necessary to substantiate a claim. See generally VCAA. In this case, the Board finds that the RO has substantially satisfied the duties to notify and assist, as required by the VCAA. To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this issue given the fully favorable nature of the Board's decision. Pertinent Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. See 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. When a Veteran is requesting an increased rating for an established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, the most recent examination is not necessarily and always controlling; rather, consideration is given not only to the evidence as a whole but to both the recency and adequacy of examinations. See Powell v. West, 13 Vet. App. 31, 35 (1999). 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, where the question for consideration is the propriety of the initial evaluation assigned after the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged ratings" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found - this practice is known as "staged ratings." See id. at 126. The Veteran's PTSD has been assigned a 70 percent evaluation, effective February 17, 2012 (the date of his claim) under 38 C.F.R. § 4.130, Diagnostic Code 9411, which is evaluated under the general rating formula for mental disorders. Under this general rating formula, a 70 percent rating 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); 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 symptoms recited in the criteria in the rating schedule for evaluating mental disorders are "not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). One factor for consideration is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Richard v. Brown, 9 Vet. App. 266 (1996); Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). A GAF score ranging from 61 to 70 indicates 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, has some meaningful interpersonal relationships. A GAF score ranging from 51 to 60 indicates 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 peer or coworkers). A GAF score of 41 to 50 indicates serious symptoms and serious impairment in social, occupational, or school functioning (e.g., no friends), while a GAF score of 31 to 40 indicates 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). A GAF score of 21 to 30 indicates that behavior is considerably influenced by delusions or hallucinations, or serious impairment in communication or judgment (e.g., sometimes incoherent, acting grossly inappropriately, suicidal preoccupation), or an inability to function in almost all areas (e.g., stays in bed all day; no job, home, or friends). See Diagnostic and Statistical Manual of Mental Disorders, (4th ed. 1994) (DSM-IV). While the Rating Schedule does indicate that 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. Accordingly, GAF scores do not automatically equate to any particular percentage in the Rating Schedule. Rather, they are but one factor to be considered in conjunction with all the other evidence of record. Analysis After a careful review of the record, the Board finds that, resolving all doubt in the Veteran's favor, the credible and probative lay and medical evidence of record supports the assignment of an initial 100 percent disability rating, but no higher, for PTSD. In a February 2012 statement, the Veteran reported that his psychiatric symptoms included: depression; suicidal ideation; anger with violence toward his wife and other family members; destruction of property; conflicts during employment; nightmares; and sleep disturbance. He specified an incident wherein he was arrested for damaging a neighbor's car during a conflict with the neighbor's brother. This incident, noted as occurring in September 2009, was brought to suit in court and the claim was dismissed by the neighbor, provided that the Veteran agreed to fix all damages. See June 2010 Order of Dismissal and attached document. VA outpatient treatment reports from April 2012 to June 2012 reflect that the Veteran's psychiatric symptoms included: anxiety; depression; anger and irritability with outbursts, including domestic violence; paranoia; feelings of helplessness, hopelessness and worthlessness; isolation; nightmares; flashbacks; sleep difficulty; a history of a suicidal attempt and suicidal ideation two to three times a month; difficulty concentrating; fair attention and concentration; and fair insight and judgment. During this period the Veteran began taking psychiatric medication for symptoms. These records also reflect that, while the Veteran currently was employed full time as a youth care worker and working in the graveyard shift, he was fired from two previous jobs due to anger outbursts. VA outpatient treatment reports also indicate that the Veteran abused alcohol due to his psychiatric symptoms. In a May 2012 VA psychiatric examination, the Veteran was diagnosed with PTSD and alcohol abuse. Alcohol abuse was found to be secondary to PTSD. A GAF score of 35 was assigned. In the Axis IV portion of the diagnosis, the examiner noted a history of combat stress, marital discord and difficulty getting along with others at work. The examiner found that the Veteran's psychiatric condition was productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner noted the Veteran had major social function changes since he developed a mental condition, including: conflicts with his wife and episodes of domestic violence; distance from his family, wife, children, siblings and parents; social isolation and withdrawal; a lack of friendships; and difficulty getting along with others. The Veteran reported his current relationship with his wife was rocky and he had distant relationships with his children, parents, and siblings. The Veteran reported that, following active service he worked at a grocery store for five months, during which time he had a poor relationship with co-workers and his supervisor, with frequent conflicts, and he was asked to resign. Thereafter, he worked as a cashier for three months and had poor relationships with his supervisor and co-workers, with frequent conflicts, and he quit this job. The Veteran reported that after service he attempted to attend college but was unable to concentrate and had a lot of anxiety, so he dropped out. He stated he had been working for the past six months as a youth care worker and his relationships with his supervisor and coworkers was poor. He reported having lost time from work wherein he was off work for one day at a time on several occasions due to a lack of sleep and anxiety. The Veteran reported he was not currently receiving treatment for this condition, he had not received psychotherapy in the past year for his mental condition, he had not been hospitalized for psychiatric reasons and he had no emergency room visits for psychiatric problems. Since his discharge from service the Veteran had major changes in his daily activities, such as: social isolation; difficulty going out in public; conflicts on the job; difficulty concentrating and processing information; and a lack of desire to engage in activities he used to enjoy. The Veteran reported having been arrested for destroying a car in 2009, which resulted in the charges being dropped. The examiner found that the Veteran met all the criteria for establishing a diagnosis of PTSD. Current symptoms related to the diagnosis included: depressed mood; anxiety; suspiciousness; panic attacks more than once per week; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; difficulty in understanding complex commands; impaired judgment; disturbances in motivation and mood; difficulty establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work and a work like setting; suicidal ideation; impaired impulse control, such as unprovoked irritability with periods of violence; persistent delusions or hallucinations; and an intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The Veteran was found to be capable of managing his financial affairs. Based on the foregoing evidence, an initial 100 percent disability rating is warranted for the Veteran's PTSD throughout the duration of the appeal from February 17, 2012, the date of the Veteran's claim for service connection for PTSD. The record reflects the Veteran's symptoms are representative of total occupational and social impairment. Since the submission of his claim, the Veteran's PTSD has been productive of total occupational and social impairment due to symptoms such as: 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); and memory loss for names of close relatives, own occupation or own name. While the Veteran need not have all of the particular symptoms listed in the rating criteria in order to warrant a 100 percent evaluation per the Court's finding in Mauerhan, the record reflects that his current PTSD symptomatology demonstrates total occupational and social impairment. See Mauerhan, 16 Vet. App. 436. The evidence reflects that the Veteran's PTSD has been productive of total occupational and social impairment due to symptoms such as: anxiety; depression; anger and irritability with outbursts, including domestic violence; paranoia and suspiciousness; feelings of helplessness, hopelessness and worthlessness; avoidance; isolation and withdrawal; nightmares; flashbacks; sleep impairment; suicidal ideation; panic attacks more than once per week; mild memory loss, such as forgetting names, directions or recent events; difficulty concentrating; fair attention and concentration; impaired judgment; fair insight and judgment; and an intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The evidence also reflects incidents of domestic violence and spousal abuse and an arrest due to damage caused by the Veteran to a neighbor's car, which are supportive of symptoms of grossly inappropriate behavior, and that the Veteran is a persistent danger to himself and others. With a view of the evidence in a light most favorable to the Veteran, the evidence more nearly approximates the 100 percent rating criteria. In addition, the Veteran's GAF scores ranged from 35 at worst, to 45, thereby indicating symptoms ranging from serious or with serious impairment in social, occupational or school functioning to some impairment in reality testing or communication or with major impairment in several areas, such as work or school, family relations, judgment, thinking or mood; however, because the disability ratings are not assigned based solely upon GAF scores, the Board finds it reasonable to conclude that the PTSD symptomatology described in the record more nearly approximates the criteria for a 100 percent rating. The Board observes that the Veteran is competent to report on factual matters of which he had firsthand knowledge, e.g., experiencing psychiatric symptoms. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board finds that the statements provided by the Veteran regarding the effects of his current PTSD symptoms on his daily life are competent and credible. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Baldwin v. West, 13 Vet. App. 1 (1999) (the Board must analyze the credibility of the evidence). Under the circumstances of this case, and with resolution of all reasonable doubt in the Veteran's favor, the Board finds that the criteria for an initial disability rating of 100 percent for PTSD under Diagnostic Code 9411 are met. 38 C.F.R. §§ 3.102, 4.3, 4.71a (2012). See also 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Extra-schedular Consideration As the Veteran has been granted a 100 percent disability rating, the maximum allowable for his PTSD, for the entirety of the appeal period, a referral for extra-schedular consideration is considered moot. See 38 C.F.R. § 3.321. ORDER An initial disability rating of 100 percent for PTSD is granted, subject to the regulations applicable to the payment of monetary benefits. ______________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs