Citation Nr: 1329460 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 08-08 218 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to a higher initial disability rating for posttraumatic stress disorder (PTSD), currently rated as 50 percent disabling effective September 16, 1993 and 70 percent beginning November 3, 2009. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD C. D. Simpson, Counsel INTRODUCTION The Veteran had active service from April 1968 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. This RO decision implemented the Board's May 2006 service connection grant for PTSD and assigned a 50 percent disability evaluation beginning September 16, 1993. TDIU was subsequently denied in a rating decision dated March 2007. The Veteran had a September 1996 RO hearing. A hearing transcript is of record. The Board remanded the appeal in April 2012 and found the claim of entitlement to total disability rating based upon individual unemployability (TDIU) benefits was also on appeal for the entire claims period. Roberson v. Principi, 251 F.3d 1378, 1384 (2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). As explained below, the favorable action taken in the instant decision renders this issue moot. It is removed as a separate issue on the title page. In November 2012, the RO awarded a 70 percent rating beginning November 3, 2009. As a total schedular rating is available, the issue remains on appeal. A review of the Veteran's Virtual VA electronic folder shows that updated VAMC treatment records were obtained. The RO/AMC considered these newly generated records in the April 2013 Supplemental Statement of the Case. FINDINGS OF FACT 1. The Veteran filed his current claim on September 16, 1993. 2. The Veteran has been incapable of gainful employment throughout the entire claims period due to service connected PTSD and related psychiatric symptoms. CONCLUSION OF LAW The criteria for a total rating for service connected PTSD have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.7, Diagnostic Codes 9411 (November 7, 1996) and 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Briefly, the Board notes its duty to notify and assist. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). However, given the fully favorable determination in the instant decision, no further discussion of VA's duty to notify and assist is necessary. Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). A Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Because the Veteran is challenging the initially assigned disability rating, it has been in continuous appellate status since the original assignment of service connection. The evidence to be considered includes all evidence proffered in support of the original claim. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's PTSD is currently rated under Diagnostic Code (DC) 9411. During the pendency of this appeal, the rating criteria for evaluating mental disorders were amended (effective November 7, 1996). Where a law or regulation changes during the pendency of a claim for increased rating, the Board should first determine whether application of the revised version would produce retroactive results. In particular, a new rule may not extinguish any rights or benefits the claimant had prior to enactment of the new rule. VAOPGCPREC 07-03. However, if the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C.A. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C.A. § 5110 (West 2002); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Here as detailed below, the Veteran met the total (100 percent) rating criteria under the old schedular rating criteria for the entire claims period. The "old" DC 9411 provided that a 100 percent evaluation required that attitudes of all contacts except the most intimate be so adversely affected as to result in virtual isolation in the community and there was totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes (such as fantasy, confusion, panic, and explosions of aggressive energy) associated with almost all daily activities resulting in a profound retreat from mature behavior; and that the individual was thereby demonstrably unable to obtain or retain employment. 38 C.F.R. § 4.132, DC 9411 (1996). Of critical importance, the Court has accepted the VA Secretary's determination that each criteria for a 100 percent rating under 38 C.F.R. § 4.132 was an independent basis for awarding a total rating. Johnson v. Brown, 7 Vet. App. 95, 97- 99 (1994). As a total rating is being granted pursuant to the old regulations, further discussion of the amended rating criteria is not necessary. For historical purposes, the Board granted service connection for PTSD in a May 2006 decision. The decision determined that the Veteran was shown to have combat service in Vietnam and currently had a PTSD diagnosis relating to combat stressors. The RO implemented the Board's grant in the June 2006 rating decision that is the subject of the current appeal. VA treatment records from January 1973 reflect that the Veteran was recently married and had an infant son. He left his job as an automobile mechanic due to "uncontrollable nervousness." In August 1972, he was assessed as having a mild anxiety reaction. He continued to be unemployed and received a Social Security Administration (SSA) pension. Mental status examination showed the Veteran to be very restless, impatient, irritable, and distressed over his recent unemployment. He was verbally and physically abusive towards his wife. He had crying spells, mood lability, and auditory hallucinations. The examiner diagnosed schizophrenic reaction, undifferentiated type. In September 1993, a private psychiatric examination showed that the Veteran was chronically unemployed. He had difficulties "getting along" with his superiors due to intrusive Vietnam memories and related sleeping difficulties. Although he described himself in usually "good spirits" he admitted that he occasionally felts like attacking someone. Notably, he physically attacked a lady. He described having "spellbinding" hallucinations related to violence or Vietnam. He had severe anxiety attacks. Mental status examination showed him to be cooperative and present with an appropriate appearance. His facial expressions reflected sadness and anxiety which added to his psychomotor agitation. He had intrusive thoughts about his Vietnam experiences and identified memory triggers. However, he denied hallucinations or delusion. The examiner reported that the Veteran was generally lucid and had good knowledge. However, he observed transportation and concentration problems in his immediate memory. The examiner diagnosed PTSD and associated severe anxiety. The Veteran had a VA psychiatric examination in August 1994. He stated that he had a difficult transition after service. He was chronically unemployed and received SSA disability benefits. He had anger outbursts and had been taken to the police stations on occasion, but was never arrested. He occasionally had auditory hallucinations. Mental status examination showed the Veteran to present well. He did not display a thought disorder, but had floating anxiety. His memory was preserved. The examiners noted his auditory hallucination reports, but declined to characterize it as delusional or hallucinating. They noted that "[the Veteran] seems to tolerate little." They diagnosed dysthymia with strong anxiety features and schizophrenia by record. Although a GAF score was not given, they characterized his "highest level of adaptive functioning" as fair to poor. VA treatment records from August 1993 through 1996 reflect that the Veteran had periodic mental health treatment and received psychiatric medication. The Veteran had a September 1996 RO hearing. He declined to provide testimony, but his treating physician (Dr. R.G.) reported on his behalf. Although his reports focused primarily on supporting a PTSD diagnosis, Dr. R.G. provided some description of the Veteran's current symptoms. He reported that the Veteran did not have psychosis or schizophrenic type symptoms. He described the Veteran as having moderate depression symptoms with severe acute episodes. In April 1997, the Veteran's treating physician provided a description of treatment to SSA. He had been treating the Veteran since August 1993. The Veteran's initial complaints were about sleep disturbances, violent ideations, fear of war and violent movies, hypnogogic hallucinations with references to the war or Vietnam memories. The Veteran lived with his wife and children. He stated that after his mother's death he developed homicidal ideas. He had generalized fear and could not be left alone. He had individual and family therapy, pharmacotherapy, group therapy, and marital therapy. The physician commented that the Veteran functions regularly with use of medication; however he had episodes of aggression towards his sons and wife. The Veteran acknowledged losing control. The physician noted that the Veteran was causing unspecified problems with his neighbors. The Veteran also had an April 1997 SSA psychiatric examination. The examiner noted that the Veteran had been recognized by SSA as "disabled due to an emotional condition" since 1971. The Veteran denied any changes in his symptomatology since service. He believed his overall emotional condition had worsened after the recent death of his mother. Currently, he was in a depressive state with accompanying insomnia, lethargy, crying spells, indecisiveness, isolative behavior, auditory hallucinations, and irritability. He continued mental health treatment and medication. He denied any history of inpatient treatment or substance abuse. He currently lived with his wife. He felt very poorly since his mother's death. He endorsed feelings of suicide ideation, but denied intent citing his marital relationship. He denied any recreational or community activities. Mental status examination showed him to have an appropriate appearance. He exhibited psychomotor retardation and cried. He displayed a facial expression of severe depression. His thought pattern was coherent, logical, and relevant. He had suicidal ruminations, but denied homicidal ideas. He had poor immediate and short term memory from rote memory testing. The examiner characterized the Veteran's judgment as poor, but his introspection capacity as good. He diagnosed severe major depression with psychotic features. He listed the Veteran's prognosis as poor and commented that the Veteran was unable to manage his resources. The Veteran had a VA PTSD examination in June 1997. He reported that he lived with his wife and adult son. He exclusively had outpatient psychiatric treatment. He reported episodes characterized by hyperactivity, restlessness, anxiety, and aggression. He primarily had verbal aggression, but recalled instances where he was physically aggressive with his wife and children. He reported trying to control himself to avoid inpatient treatment. He noted anxiety attacks accompanied by shortness of breath and chest pain. He occasionally was taken to the hospital for his anxiety attacks and treated with tranquilizers. Mental status examination showed the Veteran to be adequately groomed. He was initially hyperactive, anxiety and defensive at the beginning of the interview, but later became more cooperative. He was greatly affected by his mother's recent unexpected death. He had crying spells while talking about it. He exhibited anxiety with psychomotor retardation. He was irritable. He described feeling helpless because of his inability to control his behavior. He did not report hallucinations or delusions. His mood was very anxious and somewhat depressed. Judgment was fair and insight was superficial. The examiner diagnosed generalized anxiety disorder, chronic with depression. She assigned a GAF of 50 to 55. In April 1999, the Veteran reported that he had been in psychiatric treatment since separation. He alluded to unspecified intrusive memories of Vietnam that were related to his depression. In January 2000, the Veteran stated that he had many intense intrusive thoughts from his Vietnam experiences. His wife reported that the Veteran returned from Vietnam with many psychological problems. His PTSD symptoms interfered with his relationship with his sons. In December 2003, the Veteran's younger son submitted a statement. He described the Veteran "as easily depressed and changes his mood with everybody." His mental state became more complicated when he developed additional medical problems. The Veteran's older son provided a similar report. In November 2004, two VA examiners opined that the Veteran did not have PTSD based upon review of his medical history and prior clinical interviews. They primarily based their opinion on the absence of any detailed narrative given by the Veteran about a combat stressor. VA mental health clinic (MHC) records from 2003 through 2006 reflect that the Veteran presented with a depressed affect and near tearful. He denied homicidal or suicidal ideations. His concentration was poor and he had superficial insight. VA treatment records from January and March 2006 reflect that the Veteran had cognitive problems without a known etiology. In January 2007, the Veteran had a brief psychiatric admission. He reported having auditory and visual hallucinations encouraging violence. The Veteran had suicide ideations and feared losing control of his emotions. He cited a recent instance where he grabbed his wife by the neck and threatened to choke her. Later in January 2007, the Veteran had a VA PTSD examination. The Veteran reported having severe depressive episodes with crying spells on a daily basis. He had suicide ideations and sleep disturbances. All of these symptoms were long standing. He reported that they improved with medication. He continued to live with his wife. He denied having any friends. Mental status examination showed him to have a clean appearance. His speech was spontaneous and he was cooperative. He displayed a constricted affect and dysphoric mood. Thought process and content were unremarkable. Delusions or hallucinations were not found. Similarly, panic attacks, obsessive/ritualistic behaviors, homicidal thoughts, and suicidal thoughts were not observed. The examiner assessed his impulse control as good. Memory was normal. However, the examiner later noted suicidal ideations as associated PTSD. She diagnosed PTSD and listed a GAF of 60. She did not find total social and occupational impairment. She stated that his PTSD symptoms are controlled with continuous medication. She further commented that the Veteran's ability to work is "seriously compromised" due to lack of occupational related skills. VA treatment records from 2007 show that the Veteran regularly sought VA MHC treatment. His general symptoms included irritability, crying spells, anxiety, and depression. On numerous reports, his GAF was listed as 55. Notably, an August 2007 entry was positive for suicide ideation. In March 2008, the Veteran's wife reported that the Veteran has been completely disabled since 1972 due to PTSD. He repeatedly had suicidal and violent ideations for many years. His PTSD disability picture had been complicated by the development of additional physical disabilities. In April 2008, the Veteran reported having passive homicidal and suicidal ideations. He worried that if he discontinued his medication, he might act on these ideations. In March and October 2008, the Veteran had inpatient treatment for stabilization from suicidal behaviors. Both episodes were triggered by domestic stressors. The Veteran had a VA PTSD examination in November 2009. The PTSD symptoms consisted of moderate concentration difficulties, severe irritability, and moderate sleeping difficulties. He had occasional suicide ideation over the past several years. He reported having a good relationship with his wife and children. Mental status examination showed him to present with a clean appearance and cooperative behavior. His speech was spontaneous, but psychomotor activity was noted to be restless. He displayed a constricted affect and depressed mood. Attention was intact and he was fully oriented. Thought process and content was unremarkable. He did not experience delusions or hallucinations. He denied suicidal or homicidal thoughts. The examiner assessed impulse control as fair. She noted his recent memory was normal, but immediately memory was mildly impaired. She diagnosed PTSD and listed a GAF of 57. She listed his prognosis as guarded. She did not find total social and occupational impairment, but noted that there were deficiencies in family relationships and work. She cited his mood instability and irritability. VA treatment records from 2011 and 2012 show the Veteran generally denying suicide ideation, but endorsing auditory hallucinations. He had memory problems. GAFs ranged from 55-60. Notably, the Veteran had another inpatient admission for stabilization from suicidal behaviors in April 2012. The episode was triggered by marital problems and learning about a critical injury sustained by his cousin. In February 2013, VA reexamined the Veteran to assess any changes in his PTSD symptomatology. The examiner assessed the Veteran as having PTSD with a GAF of 60. She believed his symptoms were productive of occupational and social impairment with reduced reliability and productivity. She noted the Veteran had a depressed mood and anxiety. He also had recurrent and intrusive memories about Vietnam, avoidant behaviors, sleep difficulties, exaggerated startle response. He was currently more anxious than usual due to upcoming surgery. She believed his PTSD was controlled with medication and assessed his symptoms as moderate. Regarding employability, she reported that the Veteran presented as coherent, logical, and relevant during clinical interview. She opined that the Veteran did not have a decrease in functionality since the November 2009 VA examination. Since the Veteran had not been employed in 40 years, his employability capabilities were limited due to absence of skills. She believed his PTSD would not preclude a part time, repetitive, or stressless job. In April 2013, the Veteran's wife reported that the Veteran's irritability resulted in mistreatment of her and their children for many years. He had numerous suicide ideations and several episodes resulting in inpatient treatment. He had numerous additional medical conditions and was losing his memory. The Veteran contends a higher rating is warranted. His initial PTSD rating is 50 percent disabling effective September 16, 1993 and 70 percent beginning November 3, 2009. As explained below, the Board finds that total rating is warranted beginning September 16, 1993 based upon inability to obtain or retain employment. Johnson, 7 Vet. App. at 97; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 4.132, DC 9411 (1996). The Veteran has had longstanding psychiatric treatment. His psychiatric symptoms have not always been characterized as PTSD. (See VA treatment records from January 1973; VA examination reports from August 1994, June 1997 and November 2004). However, no clinician has provided an adequate basis to distinguish the non-PTSD symptoms as a wholly separate psychiatric disorder. When service and non-service symptoms are indistinguishable, all such symptoms will be attributed to the service connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). From the beginning of the claims period, the Veteran has demonstrated PTSD or related psychiatric symptoms productive of total occupational impairment. Since approximately 1971, SSA recognized him as disabled due to his psychiatric disability. He has remained chronically unemployed throughout the claims period because of his various psychiatric symptoms. (Compare June 1997 and January 2007 VA examinations). He had inpatient treatment in January 2007, March 2008, October 2008, and April 2012 for suicidal stabilization. Nonetheless, VA examiners on occasion have characterized the Veteran's overall disability picture as moderate and the February 2013 examiner even suggested modified employment was possible. (VA examination reports from January 2007 and February 2013). The Board disagrees. Although the Veteran has exhibited some periods of relatively stable psychiatric symptoms, his April 2012 inpatient treatment suggests that severe symptoms persist. (See CAPRI VA treatment records from May 2011 to February 2013). Overall, his PTSD symptoms continue to be productive of deficiencies in occupational function which would preclude gainful employment. See id. In other words, the overall PTSD disability picture has not appreciably improved from the symptoms demonstrated in middle 1990s and does not suggest he is capable of sustained gainful employment. For these reasons, a total rating is granted beginning September 16, 1993 based upon inability to obtain or retain employment due to service connected PTSD symptoms. Johnson, 7 Vet. App. at 97; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 4.132, DC 9411 (1996). Extraschedular considerations The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board finds that the severity of the Veteran's service-connected PTSD is fully contemplated by the rating criteria regardless of whether such symptoms are considered as part of an individual disability or based upon the combined effects of all service connected disabilities. Mittleider, 11 Vet. App. at 181. The symptoms are productive of labile mood, irritability, and hallucinations, among others and result in total occupational impairment. The degree of disability exhibited for PTSD is contemplated by the rating schedule as a total schedular rating is given. Thus, the Board finds that the threshold test is not met for referral for extraschedular consideration for the Veteran's initial increased rating claim. 38 C.F.R. § 4.16(b); Thun v. Peake, 22 Vet. App. 111 (2008). TDIU A TDIU is provided where the combined schedular evaluation for service connected diseases and disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16(a). Here, the Veteran has been in receipt of a total disability (100 percent) rating beginning on the date of his service connection claim for PTSD. VA had previously determined that a TDIU is considered a lesser benefit than the 100 percent rating, and the grant of a 100 percent rating would render moot the issue of entitlement to a TDIU for the period when the 100 percent rating is in effect. VAOPGCPREC 6-99; 64 Fed. Reg. 52,375 (1999); DVA Sum. Op. Gen. Counsel Prec., 75 Fed. Reg. 11229 -04 (March 10, 2010) (withdrawing VAOPGCPREC 6-99, 64 Fed. Reg. 52375 (1999)). However, in Bradley v. Peake, 22 Vet. App. 280, 294 (2008), the Court held that VA must still consider a TDIU claim despite a total disability rating being in effect in order to determine the Veteran's eligibility for SMC under section 1114(s). 38 U.S.C.A. § 1114(s). Unlike Bradley, the Veteran's other service connected disability is a single non-psychiatric disability rated as totally disabling since its effective date. The Veteran is not eligible for TDIU given his total disability ratings. For these reasons, the Board considers entitlement to TDIU to be moot. Id.; see also DVA Sum. Op. Gen. Counsel Prec., 75 Fed. Reg. 11229 -04 (March 10, 2010) (withdrawing VAOPGCPREC 6-99, 64 Fed. Reg. 52375 (1999)); See also Johnson, 7 Vet. App. at 97- 99 (indicating the former 38 CFR 4.16(c) was superfluous in light of the fact that, whenever unemployability was caused solely by a service-connected mental disorder, regardless of its then current disability rating, a 100 percent schedular rating was warranted under the former 38 C.F.R. § 4.132). ORDER A total initial disability rating for service connected PTSD is granted. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs