Citation Nr: 1331489 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 09-43 720 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to July 1, 2009. 2. Entitlement to a rating in excess of 70 percent for PTSD from July 1, 2009. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Joseph R. Moore, Attorney ATTORNEY FOR THE BOARD Adrian D. Jackson, Counsel INTRODUCTION The Appellant is a Veteran who served on active duty from October 1968 to October 1970. This matter comes before the Board of Veterans' Appeal (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied a rating in excess of 30 percent for service-connected PTSD. In a June 2011 rating decision, the RO assigned a 50 percent disability rating for PTSD effective January 13, 2011. In April 2012, the Board granted a 70 percent rating from July 1, 2009, and continued the 30 percent rating prior to July 1, 2009. The Veteran appealed the Board's decision regarding a rating higher than 30 percent prior to July 1, 2009, and a rating higher than 70 percent since July 1, 2009, to the United States Court of Appeals for Veterans Claims (Court), and in September 2012, the Court vacated the Board's decision pursuant to a Joint Motion for Remand and remanded the case for additional reasons and bases. The Veteran's attorney in arguments to the Board, in essence claims that the Veteran is unemployable. The Board has jurisdiction to consider entitlement to a TDIU in an appealed claim for an increased rating when the issue is raised by assertion or reasonably indicated by the evidence, regardless of whether the RO expressly addressed the issue. See VAOPGCPREC 6-96 (Aug. 16, 1996). See also Caffrey v. Brown, 6 Vet. App. 377, 382 (1994); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). However, the question of TDIU entitlement may be considered a component of an appealed increased rating claim only if the TDIU claim is based solely upon the disability or disabilities that are the subject of the increased rating claim. VAOPGCPREC 6-96. Therefore the Board will consider this issue. Lastly, in September 2013, the Board received additional private and VA treatment records from the Veteran's attorney. This was accompanied by a waiver of review of the newly submitted evidence by the agency of original jurisdiction (AOJ). See 38 C.F.R. § 20.1304(c). Thus, the Board will consider such evidence in the adjudication of this appeal. FINDINGS OF FACT 1. Since January 2008, the Veteran's PTSD has been manifested by serious symptoms more nearly approximating total occupational impairment. 2. The Veteran is service-connected for PTSD (100 percent), tinnitus (rated 10 percent), and bilateral hearing loss (rated 0 percent). CONCLUSIONS OF LAW 1. The schedular criteria for a 100 percent rating for PTSD have been met, effective January 5, 2008. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2012). 2. A TDIU rating is not warranted. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 4.16(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In this decision, the Board is granting a 100 percent rating for PTSD. This award represents a complete grant of the benefit sought on appeal. Thus, any deficiency in VA's compliance is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary for this case. II. Entitlement to an Increased Rating for PTSD Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity in civil occupations. See 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, this doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). The General Rating Formula for Mental Disorders provides a 30 percent rating 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). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is assigned 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. Id. A 70 percent disability rating is assigned 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 that is 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); and inability to establish and maintain effective relationships. Id. A 100 percent disability rating is assigned 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; and memory loss for names of close relatives, or for the Veteran's own occupation or name. Id. A Global Assessment of Functioning (GAF) rating is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). GAF scores from 71 to 80 reflect transient symptoms, if present, and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family arguments); resulting in no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind school work). DSM-IV at 46-47. GAF scores from 61 to 70 reflect 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, with some meaningful interpersonal relationships. Id. 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). Id. Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsession rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, inability to keep a job). Id. GAF scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech which is at times illogical, obscure, or irrelevant) or major impairment in several areas such as work or school, family relations, judgment, thinking, or mood (e.g., a depressed patient who avoids friends, neglects family, and is unable to do work). Id. In a March 2006 rating action, the RO granted service connection for PTSD assigning a 30 percent evaluation, effective May 4, 2005. The RO also denied entitlement to TDIU. In January 2007, the Veteran noted disagreement with the initial 30 percent rating as well as the denial of TDIU. A statement of the case (SOC) was issued in March 2008. However in letters received in April 2008 the Veteran and his representative withdrew his appeal. The RO received the Veteran's claim for an increased rating for PTSD on January 5, 2009. In March 2009, the RO denied a higher rating. In a June 2011 rating decision, the RO assigned a 50 percent disability rating for PTSD effective January 13, 2011. In April 2012, the Board granted a 70 percent from July 1, 2009, and continued the 30 percent prior to July 1, 2009. VA treatment records show that the Veteran's wife, for the most part, has to closely monitor the Veteran and his environment to keep him safe. The Veteran has reported needing medication in order to sleep, and had bad dreams about his experiences in Vietnam. He also had problems with irritability and confusion. News of the Iraq War reminded him of his own experiences. He did not like to be around crowds. When people came over to his house, he isolated himself in the bedroom. He sat with his back against a wall at restaurants. He has denied any drug or alcohol use. He assisted with cleaning and laundry. He also performed yard work in the summer. He also helped with cooking and shopping. He enjoyed hunting and fishing. He spent time with a friend who served with him in Vietnam. Findings from a VA April 2008 Reitan-Indiana Aphasia Screening Test revealed significant bilateral cognitive impairment. Private treatment records include a neuropsychological evaluation from December 2008. The Veteran did not put forth a good effort to perform the tasks that were presented to him. Attention and concentration appeared to be voluntarily poor. Neuropsychological test results were not valid due to the Veteran's unwillingness or inability to put forth an adequate effort. VA treatment records dated in July 2009 show symptoms that include nightmares, intrusive memories, flashbacks, avoidance of stimuli that reminded him of Vietnam, diminished interested in activities such as fishing and hunting, and frequent outbursts of anger at home and at work. On examination, the Veteran allowed his wife to do most of the talking. He added only minimal information in a low, monotonous voice. Occasional auditory or visual hallucinations were present. He denied any paranoia, delusional thinking, or suicidal or homicidal ideation. His GAF score was 42. On a VA examination in February 2009, the Veteran was casually dressed and groomed. His speech was clear but hesitant, and he was slow to respond to questions. He appeared apprehensive at the start of the examination, but became more animated as it progressed. He was oriented to date, year, month, and place, but not to day. He had no difficulty with immediate recall but could not remember any of the 3 words on the delayed recall test. He was unable to complete a serial 7's test and could not spell "world" backwards. There was no indication of hallucinations, delusions, or suicidal or homicidal ideation. The Veteran's GAF score was 55. The Veteran and his wife submitted a statement through his representative in October 2009. With respect to current symptoms, his wife stated that the Veteran has great difficulty with traveling, and she had given up on attending family reunions. When relatives visited their home, the Veteran hid in the back bedroom. He reported thinking about suicide 4 to 5 times per week. His wife hid their guns over fear he might kill himself. He experienced nightmares and woke up several times per night. He sometimes woke up "fighting," and had punched his wife several times in the process. His short term memory was bad, and his wife had to remind him of everything, including when to take his medication. Triggers for his symptoms included helicopter noises, diesel fuel odors, fireworks, and people of Asian descent. He became nervous when trying to talk to people, and sometimes started a sentence and forgot what he wanted to say. His wife stated that anything that was not part of his daily routine caused a lot of anxiety. He was very irritable and had no self-confidence. She also stated that he had panic attacks all the time. He wanted to drive six hours to meet with his VA representative rather than "messing up" over the phone. He rated his depression as 8/10 in severity. He had very little energy. His wife had some health issues that were not life-threatening, but the Veteran worried about the prospect of living without her. He slammed doors, threw objects, broke windows, and punched holes in the wall. He yelled and cursed at his wife. He got angry from driving or waiting in line at the grocery store. He constantly lost items like his keys or wallet. His wife had to remind him to shave or shower. The Veteran underwent a VA examination in January 2011. On examination, the Veteran was appropriately dressed and groomed. The examiner noted that the Veteran tended to put his hand on his head and close his eyes when answering questions. Speech was notably slow in rate and low in volume. The Veteran was cooperative during the interview but had poor eye contact. Responses were slow and hesitant, and the Veteran tended to look to his wife for reassurance. His affect was blunted, and his mood was depressed and anxious. He was oriented to time, place, and person, but was easily distracted. He was unable to perform serial 7's, but was able to spell "world" forward and backward. His thought process was limited to the questions posed. He denied any delusions or hallucinations. He reported having thoughts of suicide without any intent or plan. He often felt like his future was hopeless. Judgment and insight were normal. Immediate memory was normal, while recent and remote memory was mildly impaired. The examiner indicated that there was reduced reliability and productivity due to symptoms of PTSD. He retired 5 years ago after being with the company for 33 years. He had difficulty completing tasks, interacting with new staff, and performing his assigned duties, so they let him retire. The Veteran's GAF score was 55. VA treatment records show the Veteran continued psychotropic medication therapy and periodic brief psychotherapy. His GAF scores ranged from 55 to 62. A private psychiatrist conducted a two hour interview of the Veteran in July 2013. This examiner reviewed the record and indicated that he disagreed with the January 2011 VA examiner who concluded that there was no total occupational and social impairment due to PTSD. He stated that his interview with the Veteran did not suggest that he was socially capable, able to enjoy recreational activities, or capable of full engagement with his wife, family, friends, and acquaintances. He found the Veteran to be profoundly socially isolated as well as completely occupationally impaired. He described the Veteran as living on the edge of basic functionality. He found that the Veteran had been one hundred percent disabled for a long time and certainly since 2005. He went on to state that the Veteran clearly met the criteria for PTSD. He described his manifestations to include intrusive memories, recurrent distressing dreams, dissociative reactions, intense prolonged psychological exposure and marked physiological reactivity. He stated that the diagnosis should be PTSD with dissociative symptoms and delayed expression. The examiner went on to review specific VA examination reports, noting disagreements with the VA examiners assessments. For instance, he disagreed with the 2009 VA examiner who determined that the Veteran's cognitive disorders are unrelated to his PTSD. He stated that there is no indication of formal neuropsychological testing, or evidence that the Veteran has dementia, neurological illness, or other medical illness separate from PTSD. He stated that it is a well-known fact that major depressive disorder has symptoms that include "pseudo dementia" that can mimic signs and symptoms of dementia and cause significant cognitive disturbance. The combination of PTSD and major depression were sufficient to account for the Veteran's decreased capacity to focus, concentrate, and these two diagnoses fully explain his cognitive deficits. He found that the examination report reiterated all the classic symptoms of PTSD. He disagreed with the January 2011 VA examiner's assessment of a GAF score of 55. He stated that people who have persistent suicidal ideation are closer to 40 and he even considered this as an optimistic assessment. He noted that this report emphasized that the Veteran indicated that "things were pretty good." However, he pointed out that the terms were, in essence, relative. "Pretty good" meant that he was not assaulting his wife but he continued to throw things around the house and caused damage to property. He went on to state that the Veteran was socially isolated and by no means led a robust or even minimum social life. The examiner came to several conclusions to include: that the Veteran met the criteria for PTSD; that he was disabled by PTSD for a significant period of time and before 2005; he has been occupationally disabled since 2005; he is socially isolated; he did not have interactions with his spouse; he was unable to enjoy recreational pursuits since 2005; he has suicidal thoughts as well intermittent moments of disassociation; and has cognitive impairments are associated with PTSD and major depression. The diagnoses included PTSD with disassociate symptoms with delayed onset; major depression, recurrent severe with psychotic features; and alcohol use disorder in sustained remission. After review of the record and in resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran meets the criteria for a 100 percent schedular rating based on impairment from PTSD as well as depression since January 2008 (a year before his claim for benefits). 38 C.F.R. § 3.400 (2012). In regard to industrial impairment, it has been noted that the Veteran is currently retired. However, his employer has indicated that he was unable to function in a satisfactory manner prior to his retirement. His memory and concentration are considered impaired. In considering his social impairment, the Veteran is having significant difficulties in maintaining stable relationships. He was unable to sleep well and intrusive thoughts of Vietnam still occurred. He is socially isolated. He had recurrent bouts of depression accompanied by suicidal ideations. However, he has not had the impulse or plans to harm himself. The GAF scores assigned over the relevant period have ranged from the mid 35 to 62. GAF scores are not controlling, but must be accounted for as they represent the assessment of trained medical observers. Scores such as 35 show serious social and occupational impairment, "unable to keep a job." In light of the private evaluation, his GAF scores, and the VA treatment reports, the Board finds that the overall picture more nearly approximates the criteria ("total occupational and social impairment") for a 100 percent rating. Reasonable doubt favors the Veteran's claim, and the benefit sought on appeal is granted. As a side note, the Board has reviewed the argument by the Veteran's attorney as well as the clinical notations of the private examiner which indicates that the Veteran has had total occupational impairment since 2005. While his symptoms may have increased in 2005, as reported above, the record shows that the Veteran filed his current claim in January 2009 (after filing a valid withdrawal of appeal with respect to a prior claim for a higher rating for PTSD in April 2008). See 38 C.F.R. § 20.204(c) (2012) (withdrawal does not preclude filing a new notice of disagreement and, after a statement of the case is issued, a new substantive appeal, as to any issue withdrawn, provided such filings would be timely under these rules if the appeal withdrawn had never been filed); see also April 2008 letter from RO to Veteran acknowledging his request to withdraw his notice of disagreement received in January 2007). In this case, the January 2009 filing is not a timely notice of disagreement or substantive appeal as to the prior March 2006 rating decision. As such a 100 percent rating is granted, effective January 5, 2008 (a year prior to his formal claim in January 2009). III. Entitlement to a TDIU In his arguments to the Board, the Veteran indicated that he had been employed as a porter and stock person at a car dealership and had last worked in 2005 when he became too disabled to work. He indicated that PTSD was the service-connected disability that prevented him from securing or following substantially gainful employment. Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). If the total rating is based on a disability or combination of disabilities for which the Schedule of Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341(a). The Board has granted a 100 percent schedular disability rating for the Veteran's service-connected PTSD, above. The grant of a 100 percent schedular disability rating was specifically based upon the evidence which showed that the Veteran's PTSD rendered him unable to maintain employment resulting in total occupational impairment and thus warranting a 100 percent disability rating. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. Accordingly, the Veteran's unemployability has already been considered in the 100 percent schedular disability rating assigned. It is acknowledged that the Court has held that the receipt of a 100 percent schedular rating for a service-connected disability does not necessarily render moot any pending claim for a TDIU. Bradley v. Peake, 22 Vet. App. 280 (2008). Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the Court's decision in Bradley recognizes that a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation. The Bradley case, however, is distinguishable from the instant case. In Bradley, the Court found that TDIU was warranted in addition to a schedular 100 percent evaluation where the TDIU had been granted for a disability other than the disability for which a 100 percent rating was in effect. Under those circumstances, there was no "duplicate counting of disabilities." Bradley, 22 Vet. App. at 293. Here, the Veteran's service-connected PTSD is rated at a 100 percent schedular disability rating and it is the only service-connected disability resulting in unemployability. There is no evidence (lay or medical) suggesting that his service-connected hearing loss or tinnitus cause unemployability. Thus, to also award a separate TDIU rating in addition to the schedular 100 percent rating based on the Veteran's service-connected PTSD would result in duplicate counting of the disability. ORDER A 100 percent rating for PTSD is granted, effective January 5, 2008, subject to regulations applicable to the payment of monetary benefits. The claim of entitlement to an award of TDIU is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs