Citation Nr: 1328477 Decision Date: 09/06/13 Archive Date: 09/16/13 DOCKET NO. 10-08 396 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his daughter ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1971 to December 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision in March 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia that assigned an initial rating of 70 percent for PTSD, effective June 4, 2008. The Veteran and his daughter testified at a Central Office Board hearing before the undersigned Veterans Law Judge (VLJ) in June 2013. A transcript of the hearing is of record. The Board notes that, in addition to the paper claims file, there is an electronic "Virtual VA" file associated with the record. Both files were reviewed to ensure thorough analysis of the evidence of record. FINDINGS OF FACT 1. The occupational and social impairment from the Veteran's PTSD has more nearly approximated total than deficiencies in most areas for the entire evaluation period. 2. The Veteran has been unable to maintain any form of substantially gainful employment as a result of his service- connected PTSD throughout the period of this claim. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 100 percent for PTSD have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2012). 2. The criteria for a TDIU have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter, the Board notes that the Veteran has been provided all required notice, to include notice pertaining to the effective-date element of his claims. In addition, the evidence currently of record is sufficient to substantiate the Veteran's entitlement to a 100 percent rating throughout the period of this claim and entitlement to a TDIU. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012) or 38 C.F.R. § 3.159 (2012). General Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2012). Additionally, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2012). Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the Veteran's service-connected PTSD. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Evaluation of PTSD PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. The rating criteria are as follows. A 10 percent rating is warranted for occupational and social impairment due to mild or transient symptoms that decrease work efficiency and ability to perform occupational tasks only during periods of significant stress; or, symptoms controlled by continuous medication. A 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing effective work and social relationships. A 70 percent rating is warranted for 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted for 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. Service connection for PTSD was granted in the March 2009 rating decision on appeal. At that time, the Veteran was assigned a 70 percent rating, effective from June 4, 2008. The Veteran appealed. The Veteran submitted a statement in October 2008 that he still had dreams about Vietnam, fireworks or a car backfiring still scared him, and he could not be around a lot of people without being nervous or scared. The record also shows that the Veteran completed a VA PTSD program. The Veteran was afforded a VA examination in January 2009 in which he reported avoidance behavior, nervousness, sleep disturbances to include dreams and night sweats, anxiety, homicidal thoughts that he would not act upon, anger, crying spells, and hallucinations. He reported being fired for different things since leaving the military. He indicated that he had a good relationship with his children and family, was divorced, and did not have any friends. The Veteran reported that he recently got in a big fight with his father. The examiner noted that the Veteran isolates and was capable of basic activities of daily living. The examiner opined that the Veteran's employment was moderately to severely affected by his PTSD symptoms. Mental status examination showed no impairment of thought process or communication, appropriate behavior, the presence of suicidal thoughts, an ability to maintain his personal hygiene and basic activities of living (although noting that he neglects his personal hygiene), orientation to person/ place/ time, problems with concentration, no presence of obsessive or ritualistic behavior, normal speech, no panic attacks, depression and anxiety, and no impaired impulse control. The examiner diagnosed PTSD and assigned a Global Assessment of Functioning (GAF) score of 55. The Veteran submitted lay statements from C.L. and J.L. in July 2009 in which they attested to his unusual behavior to include faking his death, extended periods of silence and unresponsiveness, roaming aimlessly, appearing disoriented, speaking rapidly, and demonstrating extreme anxiety, especially becoming emotional around bright lights and sirens. In his formal appeal, VA Form 9, in March 2010 the Veteran noted his memory problems included reporting to the January 2009 VA examiner that he recently had a big fight with his father when his father had been dead for 20 years. The record also contains VA mental health treatment records that show reports of hallucinations, emotional withdrawal, poor insight, sleep disturbances, anxiety, anger problems, depressed mood, suicidal ideation, and a diagnosis of PTSD with a GAF score of 52. The Veteran was afforded a VA examination in February 2012 in which he reported being single and living with his daughter. He reported symptoms to include sleep disturbances, memory problems, recurrent and distressing recollections and dreams, a sense of reliving the experience with illusions or hallucinations, avoidance, markedly diminished interest or participation in significant activities, feelings of detachment or estrangement, restricted range of affect, irritability or outbursts of anger, hypervigilance, depressed mood, anxiety, near- continuous panic or depression, difficulty in understanding complex commands, difficulty in establishing and maintaining effective work and social relationships, suicidal ideation, impaired impulse control, persistent delusions or hallucinations, and persistent danger of hurting self or others. The examiner diagnosed PTSD and assigned a GAF score of 52. The Veteran and his daughter testified as to living together and to his symptoms of isolation, visual and auditory hallucinations, irritability, outbursts of anger, sleep disturbances, and emergency preparedness training in the home. The Veteran testified as to his nightmares, night sweats, an inability to work due to his lack of sleep, lack of concentration, and how he reacts to people. He also reported his symptoms of suicidal ideation, weekly hallucinations, depression, crying spells. He stated that he went to college and had a degree in Special Education; however, he did not think he could be in a setting with a group of children in school. The Board acknowledges that the medical evidence of record does not reflect that the Veteran experiences all of the symptoms associated with the 100 percent schedular rating. However, the Court has held that the symptoms enumerated under the schedule for rating 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 disability rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The record confirms that the Veteran persistent delusions or hallucinations; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); and memory loss to include that his father had passed away. In determining that the Veteran's PTSD warrants a 100 percent disability rating, the Board has considered the GAF scores assigned for the Veteran. GAF scores are based on a scale 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 the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), p. 32. 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). The GAF scores do not correlate to any specific rating. The Board has found the examination findings and the actual assessments of the Veteran's occupational and social functioning to be more probative than the GAF scores. Accordingly, the Board concludes that the Veteran is entitled to an evaluation of a 100 percent throughout the period of this claim. Entitlement to a TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate, "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a) (1), 4.15 (2012). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a). A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disability if the service-connected disability is rated at 60 percent or more. 38 C.F.R. § 4.16(a). A claim for a total disability rating based upon individual unemployability, "presupposes that the rating for the [service-connected] condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In evaluating a veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). The Veteran's PTSD was evaluated as 70 percent disabling, but has been increased herein to a 100 percent evaluation. He accordingly meets the schedular criteria for a TDIU, and the Board's consideration thus turns to whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his PTSD. The Veteran has reported that he has a college education with a degree in Special Education but did not think he could work with a group of children in a school setting. On review of the evidence outlined above, to specifically include the reports of the VA examinations and lay statements and testimony in regards to the Veteran's observable behavior, the Board finds the evidence shows the Veteran's service-connected PTSD renders him unemployable. To this point, the Veteran's symptoms include avoidance, isolation, outbursts of anger, auditory and visual hallucinations, homicidal and suicidal ideation, near- continuous panic or depression, difficulty in understanding complex commands, difficulty in establishing and maintaining effective work and social relationships, impaired impulse control, and persistent danger of hurting self or others. Therefore, the Board does not believe that it is realistic to expect the Veteran to qualify for employment. The Board finds that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his PTSD. Accordingly, the criteria for a TDIU are met throughout the period of the claim. ORDER Entitlement to a disability rating of 100 percent for PTSD is granted, subject to the criteria applicable to the payment of monetary benefits. Entitlement to a TDIU is granted throughout the period of this claim, subject to the criteria applicable to the payment of monetary benefits. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs