Citation Nr: 1330040	
Decision Date: 09/19/13    Archive Date: 09/25/13

DOCKET NO.  11-06 170	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUES

1. Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD).

2. Entitlement to a disability rating in excess of 70 percent for PTSD.

3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Cheryl E. Handy, Associate Counsel


INTRODUCTION

The Veteran, who is the appellant, served on active duty from July 1970 to December 1971, including service in the Republic of Vietnam, for which he earned the Combat Infantry Badge.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in April 2010 of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, which granted service connection for PTSD and assigned a 50 percent disability rating.

In September 2011, the Veteran appeared at a Board hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is in the claims file.

The Court has ruled that, where there is evidence of a Veteran's unemployability, the issue of entitlement to TDIU is implicitly raised as part of a claim for a higher disability rating.  See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a total rating based on individual unemployability, due to service-connected disability (TDIU) claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran).  As the Veteran has been unemployed for the duration of the claim, the Board has included the issue of TDIU in the decision below.

The issue of entitlement to a disability rating in excess of 70 percent is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if further action is required.


FINDINGS OF FACT

1. Throughout the rating period on appeal, the Veteran's PTSD has been productive of a disability picture characterized by occupational and social impairment, with deficiencies in most areas, with specific symptoms of suicidal ideation; near-continuous panic or depression affecting the ability to function effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; and, difficulty in adapting to stressful circumstances (including work or a worklike setting).

2. The evidence shows that the Veteran has been unable to obtain and maintain reasonably gainful employment due to his service-connected PTSD throughout the entire appeal period.


CONCLUSIONS OF LAW

1. The criteria for an initial disability rating of 70 percent for PTSD have been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2013).

2. The criteria for TDIU have been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.  The VCAA applies to the instant claim.  However, inasmuch as this decision grants the benefit sought on appeal, there is no reason to belabor the impact of the VCAA on this matter; any notice error or duty to assist failure as to this claim is harmless.  The Board acknowledges that the benefit granted herein is only a partial grant, but notes that the remainder of the issue on appeal is remanded for further development.  As such, this decision does not result in any prejudice to the Veteran.

Facts and Analysis

A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule).  38 C.F.R. Part 4.  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.

The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides that a 70 percent disability rating is warranted for psychiatric disabilities characterized as follows:  

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.  38 C.F.R. § 4.130.

On the February 2010 VA examination, the Veteran was found to have mild memory loss, difficulty concentrating, flat affect, apathy, loss of interest in pleasurable activities, abuse of alcohol, tearfulness, lethargy, and withdrawal.  The examiner assigned a Global Assessment of Functioning (GAF) score of 40, which indicates major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g. depressed person avoid friends, neglects family, and is unable to work).

A private psychiatric evaluation in January 2011 showed a GAF score of 33 based on the fact that he was not working, he maintained minimal personal hygiene, could behave violently or aggressively at times and had the potential to harm himself.  He engaged in no household chores, did not socialize, had problems with memory and sleep, loss of interest, and general gloomy mood.  He reported thoughts of suicide, feelings of worthlessness, and possible transient psychotic episodes.  The provider described the Veteran's condition due to PTSD as chronic and severe.

In light of the symptoms identified by the Veteran and the assessments of the VA and private providers, including the GAF scores assigned, the Board finds that the Veteran meets the criteria for assignment of a disability rating of at least 70 percent.  The noted GAF scores of 40 and 33 are indicative of serious impairment, with deficiencies in most areas.  In addition, the Veteran has identified symptoms consistent with the 70 percent disability rating, including suicidal ideation, near-continuous panic or depression affecting the ability to function effectively, impaired impulse control (such as unprovoked irritability with periods of violence), spatial disorientation, and neglect of personal appearance and hygiene.  Assignment of the higher, 70 percent, disability rating for PTSD is thus warranted.

TDIU

As noted above, the issue of entitlement to TDIU is implicitly raised as part of a claim for a higher disability rating where the record shows that the Veteran is or may be unemployable.  See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a total rating based on individual unemployability, due to service-connected disability (TDIU) claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran).  TDIU is granted where a Veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him.  38 C.F.R. § 4.16 (2013).

VA regulations establish objective and subjective standards for an award of total rating based on unemployability.  When the Veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned provided that if there is only one service-connected disability, this disability shall be rated at 60 percent or more.  When there are two or more disabilities, at least one disability must be ratable at 40 percent or more, and any additional disabilities must result in a combined rating of 70 percent or more, and the disabled person must be unable to secure or follow a substantially gainful occupation.  See 38 C.F.R. § 4.16(a).

In this instance, the record shows that the Veteran began having difficulty working because of his PTSD and associated problems with concentration in about 2000.  The record is not entirely clear at what point he ceased working, but it does show that he last worked no later than 2008, prior to the filing of the claim of service connection for PTSD.

The opinions of the Social Security examiner and of the private mental health provider both indicate that the Veteran is unable to obtain and maintain reasonably gainful employment as a result of his mental health disability of PTSD.  

In light of these facts and the grant of 70 percent disability rating for PTSD herein, the Veteran is entitled to receive TDIU benefits as well, based on unemployability relative to his PTSD.


ORDER

Entitlement to an initial disability rating of 70 percent for PTSD is granted, subject to the laws and provisions governing the award of monetary benefits.

Entitlement to TDIU is granted, subject to the laws and provisions governing the award of monetary benefits.


REMAND

While the Board has awarded a 70 percent initial disability rating and entitlement to TDIU, the Veteran is entitled to consideration of entitlement to a still higher or 100 percent disability rating for his mental health disability of PTSD.  A claimant is presumed to be seeking the maximum benefit allowed by law and regulation, and a claim remains in controversy where less than the maximum available benefit is awarded.  See AB v. Brown, 6 Vet. App. 35 (1993).  Therefore, the claim for a higher disability rating remains on appeal.  

The claims file includes a copy of a benefits award letter from Social Security showing that the Veteran has been determined to be disabled.  An accompanying document shows that the Veteran's wife applied to be his representative payee for benefits because of his mental disability.  Together, these documents indicate that the Social Security Administration may possess relevant documents with respect to the severity of the disability on appeal here.

VA has a duty to attempt to obtain relevant SSA records when it has actual notice that the Veteran is in receipt of SSA disability benefits.  See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009); Murincsak v. Derwinski, 2 Vet. App. 363 (1992).  As there is no evidence of record to suggest that the RO made an effort to obtain these records, that oversight should be remedied on remand.


Accordingly, the case is REMANDED for the following action:

1.  The RO/AMC should request copies of all Social Security Administration records pertaining to the Veteran's disability claim, to include a copy of the decision and the medical records on which the claim was decided.  If the records are no longer retained by the Social Security Administration, the RO/AMC should request a letter so indicating.  If the records cannot be obtained, the Veteran and his representative must be notified in accordance with 38 C.F.R. § 3.159(e).  

2.  The RO should also undertake any other indicated development suggested by the development ordered above, to include arranging for a new VA psychiatric examination if necessary to assess the severity of the Veteran's mental health disability of PTSD.

3.  On completion of the foregoing, the claim should be adjudicated.  If the decision remains adverse to the Veteran, then provide him and his representative a supplemental statement of the case and return the case to the Board.


The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).



_________________________________________________
Eric S. Leboff
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs