Citation Nr: 1329574 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 12-29 175 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an initial disability rating in excess of 50 percent for the posttraumatic stress disorder (PTSD) and major depressive disorder (MDD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his daughter ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1942 to December 1945. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which granted service connection for PTSD and MDD, and assigned an initial disability rating of 50 percent, retroactively effective from July 19, 2010, the date of the Veteran's service connection claim. The Veteran filed a Notice of Disagreement (NOD) in March 2011, appealing the initial disability rating assigned. The RO issued a Statement of the Case (SOC) in September 2012. In October 2012, the Veteran filed his Substantive Appeal. Thus, the Veteran perfected a timely appeal of this issue. In July 2013, the Veteran was afforded his requested Board videoconference hearing before the undersigned Acting Veterans Law Judge (AVLJ). A copy of the hearing transcript has been associated with the claims file. The RO certified this appeal to the Board in April 2013 and, in July 2013, the Veteran submitted additional evidence. However, he waived his right to have the RO initially consider this evidence in a statement from his representative dated that same month. 38 C.F.R. §§ 20.800, 20.1304 (2013). The Veteran's Virtual VA records were also reviewed and considered in preparing this decision. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT Throughout this appeal, the Veteran's PTSD and MDD have been manifested by total occupational and social impairment. CONCLUSION OF LAW The criteria are met for a higher 100 percent disability rating for the PTSD and MDD. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.21, 4.130, Diagnostic Code (DC) 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance The Board's decision to grant a 100 percent disability rating for the Veteran's PTSD and MDD herein constitutes a complete grant of the benefits sought on appeal. Thus, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and the implementing regulations. 38 U.S.C.A. § 5100 et seq (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Analysis Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from a disability. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2013). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4 (2013). Specific diagnostic codes will be discussed where appropriate below. The United States Court of Appeals for Veterans Claims (Court) has held that an appeal from an initial disability rating is a separate and distinct claim from a claim for an increased rating. Fenderson, 12 Vet. App. at 119. When assigning an initial disability rating, the rule from Francisco v. Brown, 7 Vet. App. 55, 58 (1994), that the present level of disability is of primary importance, is not applicable. Therefore, at the time of an initial disability rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson, 12 Vet. App. at 126. 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 for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. All reasonable doubt is resolved in the Veteran's favor. 38 C.F.R. § 4.3. The Veteran's service-connected PTSD and MDD is currently evaluated as 50 percent disabling under 38 C.F.R. § 4.130, DC 9411, which refers to the General Rating Formula for Mental Disorders. Under the General Rating Formula, 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; and, difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, DC 9411. A 70 percent rating requires 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); and, inability to establish and maintain effective relationships. Id. A higher 100 percent rating requires 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 or minimal personal hygiene); disorientation to time or place; and, memory loss for names of close relatives, own occupation, or own name. Id. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). On the other hand, if the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). Psychiatric examinations frequently include assignment of a GAF score. According to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) (adopted by VA at 38 C.F.R. §§ 4.125 and 4.126 (2013)), a GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." There is no question that the GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See, e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). Throughout his appeal, the Veteran's GAF score has been 41. A GAF score of 41-50 contemplates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). See DSM-IV at 44-47. However, the GAF score assigned in a case, like an examiner's assessment of the severity of a disability, is not dispositive of the evaluation issue; rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disability, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). Initially, the Board notes that the Veteran has been diagnosed with Alzheimer's disease, as shown in a private examination in November 2007. The Veteran is not currently service-connected for his Alzheimer's disease. The Board recognizes that the Alzheimer's disease may have overlapping symptoms with the PTSD and MDD. The claims file does not contain a medical opinion differentiating the Veteran's service-connected PTSD and MDD symptoms from his non- service-connected Alzheimer's disease symptoms. The Veteran, however, submitted treatise evidence indicating a link between Veterans with PTSD and the subsequent development of dementia. Giving the Veteran the benefit of the doubt, the Board will attribute any overlapping symptoms to the service-connected PTSD and MDD. See Mittleider v. West, 11 Vet. App. 181 (1998) (holding that when a claimant has both service-connected and nonservice-connected disabilities, the Board must attempt to discern the effects of each disability and, where such distinction is not possible, attribute such effects to the service-connected disability). In this regard, the Board will now proceed to rate the Veteran's service-connected PTSD and MDD based on the evidence of record. The Board finds that the symtomatology required for a 100 percent disability rating for the Veteran's PTSD and MDD is established by the evidence. The 100 percent rating will be applied to the entire rating period. 38 C.F.R. § 4.130, DC 9411. Specifically, the Veteran was afforded a VA psychiatric examination in November 2010. The Veteran's daughter also attended the examination with him due to his memory problems. The Veteran resided with his daughter. At the examination, the Veteran reported the following symptoms: memory problems; sleep problems; nightmares about the war; frequent memories of the war; crying spells; refusal to talk about the war; avoidance of the war; hypervigilance; emotionally detached and withdrawn; and, "extremely depressed" and "very sad." The Veteran's daughter indicated that the Veteran mainly stays to himself. Following a physical examination of the Veteran and a review of the claims file, the VA examiner determined that the Veteran's PTSD and MDD symptoms are frequent and severe. The examiner found that the Veteran's PTSD and MDD symptoms have impaired him in all areas of functioning. The examiner assigned a GAF score of 41, indicating serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). See DSM-IV at 44-47. These symptoms are consistent with a 100 percent disability rating under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9411. Additionally, at his May 2011 Board hearing, the Veteran and his daughter testified that the Veteran currently experiences the following symptoms due to his PTSD and MDD: depression; memory loss; crying spells; sleep problems; enjoys being alone; hypervigilance; difficulty in adapting to stressful situations; change in spatial disorientation; periods of unprovoked irritability one to two times per month; and, not relative to the current date or time. These symptoms are consistent with a 100 percent disability rating under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9411. The Federal Circuit has held that lay evidence is one type of evidence that must be considered, and that competent lay evidence can be sufficient in and of itself. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The Veteran and his daughter have asserted his symptoms have remained frequent and nearly constant. The Veteran and his daughter are competent to describe these symptoms. They are uniquely suited to describe the severity, frequency, and duration of the Veteran's psychiatric symptoms, as these symptoms are capable of lay observation. Their testimony is also credible, particularly inasmuch as it is substantiated by the medical evidence of record. These symptoms are consistent with a 100 percent disability rating under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9411. Furthermore, in a December 2012 rating decision, the RO determined that the Veteran was no longer competent to handle the disbursement of his funds. Under VA regulations, a mentally incompetent person is defined as one who, because of injury or disease, lacks the mental capacity to control or manage his or her own affairs, including disbursements of funds without limitation. 38 C.F.R. § 3.353 (2013). This RO finding further supports the 100 percent rating for the Veteran's PTSD and MDD, as it shows an inability to perform activities of daily living (one of the enumerated suggested symptoms for the 100 percent rating). 38 C.F.R. § 4.130, DC 9411. The VA treatment records contained in the claims file do not provide contrary evidence, and only support the aforementioned evidence. Therefore, the Board finds that the medical and lay evidence, combined with the Veteran's relatively low GAF score, indicates the Veteran's PTSD and MDD result in total occupational and social impairment. In giving the Veteran the benefit of the doubt, the Board finds that a 100 percent disability evaluation is warranted for the Veteran's PTSD and MDD for the entire rating period on appeal. 38 C.F.R. § 3.102 (2013). The appeal is granted. ORDER A higher 100 percent disability rating is granted for the PTSD and MDD, retroactively effective from July 19, 2010, subject to the laws and regulations governing the payment of VA compensation. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs