Citation Nr: 1332576	
Decision Date: 10/21/13    Archive Date: 10/24/13

DOCKET NO.  10-09 058	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to an increased evaluation for PTSD, currently evaluated as 50 percent disabling.


REPRESENTATION

Appellant represented by:	Blinded Veterans Association


ATTORNEY FOR THE BOARD

McBrine, M., Counsel


INTRODUCTION

The Veteran served on active duty from October 1964 to October 1968.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, that continued the Veteran's evaluation for his service connected PTSD at a 50 percent evaluation.

The Board also notes that, during the pendency of this appeal, the Veteran initiated a TDIU claim; however, since the Board is granting entitlement to a 100 percent evaluation, any further discussion of a TDIU claim to be moot at this time.  In this regard, the Board has considered the holding of Bradley v. Peake, 22 Vet. App. 280 (2008), wherein the United States Court of Appeals for Veterans Claims (Court) found that, although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of a TDIU predicated on a single disability (perhaps not ratable at the schedular 100 percent level) when considered together with another disability separately rated at 60 percent or more may warrant payment of special monthly compensation (SMC) under 38 U.S.C.A. § 1114(s).  The Court reasoned that it might therefore benefit the Veteran to obtain or retain a TDIU rating even where a 100 percent schedular rating is already in effect.  Here, however, service connection is only in effect for PTSD, which is being awarded a 100 percent evaluation, and degenerative joint disease of the knee, which has been evaluated as 10 percent disabling.  The Veteran has never asserted that his knee disability rendered him unemployable, and there is no evidence suggesting that is the case.  Therefore, the rationale of Bradley is not applicable to this appeal, and the TDIU claim raised in the record is moot.


FINDING OF FACT

There is at least an approximate balance of positive and negative evidence as to whether, throughout the appeal period, the Veteran's PTSD symptomatology has resulted in total social and occupational impairment. 



CONCLUSION OF LAW

Resolving doubt in favor of the Veteran, the criteria for a 100 percent rating for PTSD has been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  Furthermore, had VA erred in complying with such provisions, the Board finds that any such error would be harmless in light of the full grant of benefits herein.

Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity.  See 38 U.S.C.A. § 1155  (West 2002); 38 C.F.R. Part 4 (2013).  Separate rating codes identify the various disabilities.  See 38 C.F.R. Part 4 (2013).  When 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.  See 38 C.F.R. § 4.7 (2013).  Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran.  See 38 C.F.R. § 4.3 (2013).

In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58   (1994).  When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim.  See Fenderson v. West, 12 Vet. App. 119 (1999).  However, staged ratings are also appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."  Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).

Separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25  (2013); see also Esteban v. Brown, 6 Vet. App. 259, 261   (1994).  Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities.  See 38 C.F.R. § 4.14 (2013).

In general, after the evidence has been assembled, it is the Board's responsibility to evaluate the entire record.  See 38 U.S.C.A. § 7104(a)  (West 2002).  When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the Board resolves the benefit of the doubt for each such issue in favor of the claimant.  See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2013).

The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b).  Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 

The Board must determine the value of all evidence submitted, including lay and medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is credible, or worthy of belief.  See Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)  (2013).  However, in ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183 (1997).

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1) (2013).

After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54).

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 (2013). 

Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2013). 

When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission.  The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination.  38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment.  38 C.F.R. § 4.126(b).

The criteria for rating psychiatric disability are contained in the General Rating Formula. 38 C.F.R. § 4.130.  Under rating criteria for rating PTSD, a 50 percent rating is assigned when there is 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, Diagnostic Code 9411.

A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood, due to such symptoms as: suicidal ideations; 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); and the inability to establish and maintain effective relationships.  38 C.F.R. § 4.130, Diagnostic Code 9411. 

A 100 percent rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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.  38 C.F.R. § 4.130, Diagnostic Code 9411.

Taking into account all relevant evidence, the Board finds that the criteria for a 100 percent evaluation, for the Veteran's PTSD, have been met.  In this regard, the Board finds that there is at least an approximate balance of positive and negative evidence as to whether the Veteran's PTSD is currently manifested by total social and occupational impairment.  

Reviewing the relevant evidence of record, a May 2008 letter from a VA physician indicated that she had treated the Veteran since September 2006 for depression and PTSD.  She indicated that both these disabilities caused the Veteran to have severe symptomatology including obsessional thought process, suicidal and/or homicidal ideations, auditory/visual hallucinations, and paranoid delusional content.

A letter dated June 2008 is of record from the Veteran's VA social worker.  It indicated that the Veteran has severe symptomatology to include flashbacks, nightmares, social isolation, avoidance of crowds/social situations, shortened future, inability to sleep, depression, and paranoia.  The social worker also noted that the Veteran had severe concentration problems.  He indicated that because of the Veteran's inability to concentrate, it would be difficult for the Veteran to sustain gainful employment.

The Veteran first had a VA examination during this appeal in July 2009.  At that time, the examiner indicated that the Veteran's inability to maintain employment or achieve a higher level of employment has been related to his PTSD symptoms.  In support of this opinion, the examiner noted that the Veteran has some interference in performing activities of daily living because he requires assistance from his nephew to run errands and go to appointments.  He is unable to establish and maintain effective work/school and social relationships because he gets suspicious and paranoid around others.  He is unable to maintain effective family role functioning because he cannot get along with others.  He has intermittent inability to perform recreational or leisurely pursuits he cannot be around others.  

An October 2012 clinical records indicates that the Veteran reported ongoing mood symptoms due to lack of activity, social contact, and loneliness.  It was noted that he had a daughter who lived close by, but that they were not close.  It was also noted that he had been attending church, but was not finding the "fellowship" he needed there.

The Veteran most recently had a VA fee basis examination in November 2012.  While, during the course of that examination, the examiner indicated that the Veteran only had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational task, although generally functioning satisfactorily, the examiner clearly stated during the conclusion of that examination that in his opinion, the Veteran was unable to perform physical and sedentary activities of employment at present, due to clinically significant symptoms affecting his ability to get along with people, anger, irritability, loss of interest, and motivation.

Also of record is a letter from a VA psychiatrist, dated April 2013, who has been treating the Veteran since January 2012, to the present.  She indicated that the Veteran is being treated for PTSD and depression, and was relatively stable overall.  He continued to have intrusive memories of his military service, paranoia, and avoidance, detachment, and apathy that affect his relationships and overall functioning.  The physician indicated that the Veteran would likely not be able to work at a steady job given these ongoing symptoms.  

Considering all evidence of record, the Board finds that the evidence is at least in equipoise as to whether he suffers from total social and occupational impairment.  As such, the Board finds that the Veteran would be more properly rated as 100 percent disabled for this service connected disability.

The Board recognizes that there is some evidence indicating that the Veteran is currently working or was working at least part of this appeal, as a meat cutter, and that this evidence might prepond against a finding that the Veteran is incapable of employment.  The Board however, notes an August 2008 letter from the Veteran's employer.  He indicated that he had been the Veteran's supervisor for approximately 10 or 11 years.  He stated that in the past the Veteran had been a hard worker, and had come to work on time and worked well with the public, however, over time, his mental condition appeared to have changed and he now had issues being able to work full time.  During the past 5 years, he had increasing mood swings and was sometimes absent from work due to this.  He has trouble focusing on his job and now works only part time.  He schedules the Veteran for 4 to 5 hours at a time, but, due to his mental stated he is sometimes not able to do his job, and has several times cut himself accidentally while working.  He has good days at work, but sometimes he comes in and has to go home because he is unable to function.  This employer indicated that he continued to schedule the Veteran to work all he could to try and help him financially.  In light of this statement, the Board finds that the Veteran's recent employment has clearly been marginal and unstable in nature, and does not weight against a finding of total occupational impairment.

The Board also recognizes the fact that the Veteran has been found to have both service connected PTSD, and nonservice connected psychiatric diagnoses, to include substance abuse and depression.  The Board has considered whether an attempt should be made to schedule the Veteran for a further VA examination to determine whether the symptomatology pertaining to these different diagnoses may be, however, in the Veteran's most recent examination in November 2012, he was diagnosed with both PTSD and polysubstance abuse, in partial remission, and the examiner noted that, while the Veteran had different diagnoses, it was found by the VA examiner to be impossible to differentiate what portion of each symptoms was attributable to each diagnosis because the symptoms were interrelated.  Thus, as these cannot be differentiated, the Board finds that the entirety of the Veteran's psychiatric symptomatology should be considered, and remand for a further examination to differentiate symptomatology is unnecessary.

In summary, having resolved doubt in favor of the Veteran, the Board finds that the Veteran is entitled to a 100 percent rating for this disability and the benefit sought on appeal is granted.


ORDER

Entitlement to a 100 percent rating for PTSD is granted, subject to the regulations governing the payment of monetary benefits.



____________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs