Citation Nr: 1335623 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 08-31 577 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a disability rating higher than 50 percent for service-connected posttraumatic stress disorder (PTSD), beginning on January 31, 2008. REPRESENTATION Appellant represented by: James Fausone, Esq. ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran had active service from September 1965 to August 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), located in Atlanta, Georgia, that granted service connection for PTSD, and assigned an initial 50 percent disability rating, effective September 15, 2005. Jurisdiction of this matter is currently with the RO located in Nashville, Tennessee. This matter was previously before the Board in March 2012 at which time it was remanded for a hearing before a Decision Review Officer at the Agency of Original Jurisdiction (AOJ) and a Board hearing. In a March 2012 letter, the Veteran, through his attorney, withdrew both requests. See 38 C.F.R. § 20.702(e)(2013). In April 2012, the Board denied the Veteran's claim of an initial disability rating higher than 50 percent for PTSD prior to January 31, 2008, and remanded the issue of a disability rating higher than 50 percent for PTSD, beginning on January 31, 2008, for further development. The Board finds that the AOJ substantially complied with the remand orders, and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). During the pendency of this appeal, by rating action dated in April 2012, the RO determined that the Veteran's PTSD warranted an increased disability rating of 100 percent, effective February 3, 2012. Applicable law provides that absent a waiver, a claimant seeking a disability rating greater than assigned will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and that a claim remains in controversy where less than the maximum available benefits are awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran has not withdrawn the appeal as to the issue of a disability rating greater than assigned between January 31, 2008, and February 3, 2012. Therefore, the issue remains in appellate status. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT Beginning on January 31, 2008, the Veteran's PTSD symptoms have resulted in total occupational and social impairment due to symptoms such as suicidal thoughts, violent ideation, difficulty maintaining personal hygiene, impaired judgment, and impaired impulse control. CONCLUSION OF LAW The criteria for a 100 percent disability rating for PTSD, from January 31, 2008, have been met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board awards a 100 percent rating for PTSD from January 31, 2008. This represents a complete grant of the benefit sought on appeal. As such, no further notice or assistance is required to assist the Veteran in substantiating this claim. Service connection for PTSD was granted by rating action of the RO dated in April 2007, wherein an initial 50 percent disability rating was assigned effective September 15, 2005. In April 2012, the Board denied an increased disability rating for the PTSD for the period prior to January 31, 2008, and remanded the issue for the remaining period on appeal for further development. In April 2012, the RO determined that the Veteran's PTSD warranted a 100 percent disability rating, effective as of February 3, 2012. As 100 percent is the maximum rating available, the remaining question for the Board is whether the Veteran is entitled to a rating higher than 50 percent for PTSD, from January 31, 2008, to February 3, 2012. Increased disability ratings Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating 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. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2013). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Veteran is appealing the initial assignment of a disability rating, as such, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See 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, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Words such as "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. 4.6 (2013). Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2013). It is possible for a Veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); 38 C.F.R. § 4.14 (2013) (precluding the assignment of separate ratings for the same manifestations of a disability under different diagnoses). The Veteran's PTSD is rated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. Under that General Rating Formula, a 50 percent disability 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; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. The next higher 70 percent disability rating is warranted 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 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. Id. A 100 percent disability rating is warranted for 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; memory loss for names of close relatives, own occupation, or own name. Id. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a Veteran's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). Id. While a Veteran's rating on the Global Assessment of Functioning (GAF) scale is not dispositive, the Board notes that this scale reflects the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994). The GAF Scale score is based on all of the Veteran's psychiatric impairments. A GAF Scale score of 21 to 30 indicates behavior is considerably influenced by delusions or hallucinations, or serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation), or inability to function in almost all areas (e.g., stays in bed all day; no job, home, or friends). A GAF Scale score of 31 to 40 indicates some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant), or an major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). A GAF Scale score of 41 to 50 indicates 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). A GAF Scale score of 51 to 60 represents 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 coworkers). In a January 31, 2008, VA psychological assessment, the social worker noted that the Veteran's mood was depressed; his sensorium was cloudy; he was paranoid, suspicious, fearful, and distrustful of authority; and dependent on others for care. The Veteran was alert, oriented times three, and neatly dressed. His speech was coherent and relevant. He denied suicidal ideation, homicidal ideation, and hallucinations, but he did misinterpret noises in his home and was already ready for an attack. His symptoms included problems sleeping, nightmares, flashbacks, night sweats, anxiety, depression, and grief. His GAF score was 45. Another VA record from that day noted that the Veteran was tremulous. He felt that he was unable to care for himself (i.e., cook, clean, do laundry) and reported recently marrying a woman, "to help care for me." He had been lonely and enjoyed company. He had last been married twice previously, last in 1993, and had been dependent on his daughter for care since then. He reported having a very negative response to the World Trade Center attacks in 2001 and the following year became increasingly preoccupied with hurting mideasterners, anyone who got in his way, and others generally. He also began to have suicidal ideations with a plan to use a gun. He still kept firearms in his home. He had ongoing nightmares of Vietnam and heard Viet Cong talking. He had no visual hallucinations. He had rats in his home and was terrified by the noises they made at night. The accompanying mental status examination described the Veteran as neat but disheveled. His speech was pressured. His behavior was inappropriate but cooperative. His mood was labile. His affect was blunted. His thought content was paranoid and obsessional. Hallucinations were not evidence. He denied current suicidal and homicidal ideation. His concentration, insight, judgment, and abstraction were impaired. This time, his GAF score was found to be 40. A March 2008 VA psychiatry note shows that the Veteran was alert and oriented times three and denied homicidal or suicidal ideation. His depression was improved. The Veteran was described as being in a state of confusion, extremely tremulous, and very apprehensive. His appearance was neat and clean. The Veteran's cognitive ability was questioned as he appeared confused as to the correct dosage of his medications, despite clear labels on each. The Veteran did not appear to have the cognitive ability to put together an appeal letter. A June 2008 VA psychiatry note shows that the Veteran continued to report difficulty falling asleep and was having a lot of dreams. He reported anxiety in the afternoon. His depression was improving. His mood was dysthymic and his affect was congruent to his mood. He was alerts and oriented times three. He made limited eye contact. His speech was normal in rate and rhythm. No involuntary motor activities were noted. His thought process was linear and his thought content was non-delusional and focused. He denied suicidal and homicidal thoughts or plans. There was no evidence of hallucinations. His attention and concentration were adequate. His insight and judgment were intact. His GAF score was 40. A September 2008 VA psychiatry note shows that the Veteran reported nightly nightmares, fighting in his sleep, hollering, kicking, and saying bizarre things. He was alert and oriented times three and denied homicidal or suicidal ideation. A mental status examination from that date also shows that the Veteran was appropriately attired and cooperative. No involuntary motor activities were noted. His eye contact was good. His speech was normal in rate and rhythm. His mood was anxious and "frustrated." His affect was congruent to his mood. His thought process was goal directed. His thought content was non-delusional and focused on his joint pains, his relationship with his wife, and limitations in his activities. There was no evidence of auditory or visual hallucinations during the interview. His attention, concentration, insight, and judgment were adequate. A March 2009 VA psychiatry record notes that the Veteran was alert and oriented times three without suicidal or homicidal ideation. His speech was halting, and he was focused on the past, particularly Vietnam. His sleep pattern was good, and his appetite was unchanged. His GAF score was 55. A June 2009 VA psychiatry record notes the Veteran reported nightly dreams about war that "get me down mentally." He was alert and oriented times three without suicidal or homicidal ideation. A July 2009 VA psychiatry note shows that the Veteran was depressed due to his old and new medical problems and his pain. He had no suicidal ideation or attempts. The Veteran was appropriately attired and cooperative with good eye contact. There were no involuntary motor activities noted. His speech was normal in rate and rhythm. His mood was anxious and nervous. His affect was congruent to his mood. He denied homicidal or suicidal thoughts, plans, means, and intent. His thought process was goal directed. His thought content was focused on his physical symptoms. There was no evidence of auditory or visual hallucinations during the interview. His attention, concentration, and insight were adequate. His GAF score was 55. A Vet Center treatment record dated December 9, 2009, notes the Veteran's scores on a battery of PTSD assessments. Based on the Mississippi Scale for Combat Related PTSD, the Veteran's score of 172 is in the "Very High PTSD [Symptom] severity" range. PTSD Symptom Severity is listed as 77, which is the upper limit of the "Moderate to high severity" range. His Beck Depression score was 44, which is in the severe range. Other testing results confirmed his PTSD diagnosis. This counselor noted that the Veteran had severe PTSD symptoms and severe depression secondary to his PTSD. In a lay statement received in January 2010, the Veteran reported that his depression had been worse ever since the death of a fellow service member in August 2006. In October 2006, he had also lost his mother and, in October 2008, his oldest brother. He reported increased symptoms of depression around the holidays (October through January). He remarried in October 2007. His wife made him move his gun from the nightstand to a chest of drawers further from the bed. She would occasionally have to sleep in another room because of his nightmares. He reported having a gun stolen from his car and neighborhood homes had been burgled. He had been waking up in the middle of the night to check on the house and his car. He had set up booby traps around the house to alert him to any would-be burglars. He stated that he did not leave the house often. A February 2010 VA psychiatry record notes that the Veteran was alert and oriented times three without suicidal or homicidal ideation. A July 2010 VA psychiatry record notes that the Veteran was dysthymic with congruent affect. He had no homicidal or suicidal ideation and no psychosis. He was alert and oriented times three. His attention and concentration were adequate. His GAF score was 55. A September 2011 VA psychiatry note found the Veteran alert and oriented times three with no suicidal or homicidal ideations. The Veteran reported that it "seems like everything I do goes wrong for me. I don't know what to do. My wife is mad at me and I don't know what to do." A November 4, 2011 VA psychiatry note shows the Veteran reported a worsening of symptoms. Specifically, he had more difficulty sleeping and was more aggravated and irritable as a result. He had difficulty getting along with people. He had not worked since 2004, when he was fired from his job of 10 years. He was living with his wife of three years. Prior to that, he was living with his daughter for 20 years. The Veteran's attire was casual and sloppy. He had a persistent resting tremor of his right arm and leg. He said this was chronic. The Veteran was alert, restless, and cooperative. His sensorium was grossly clear although he appeared to have trouble with memory functions. His speech was rather halting. His affect was tense. He denied suicidal and homicidal ideations. He denied psychotic symptoms. He was perseverative. He was otherwise appropriate in all interactions. His GAF score was 55. VA treatment records from November 15, 2011, show a GAF score of 53. The Veteran had residual symptoms of a rather vague nature, but not clearly changed from before. He seemed more depressed, particularly about his financial situation, and stated that he made people mad at him. He wished that his wife did not have to work so that she could be home more to take care of him. He attended a group at the Vet Center every other week and had started in the MOVE group. He acknowledged suicidal thoughts at times, but denied intent or plan. His daily routine was to work on his flowers on the patio, take care of his dog, read the newspaper, and watch television. He was dressed sloppily and unshaven. He had a persistent resting tremor of right arm and right leg. He was alert, restless, and cooperative. His sensorium was grossly clear. His speech was hesitant. His affect was tense, almost frightened. He had no acute suicidal ideations, no homicidal ideations, and no gross psychosis. In a claim for a total disability rating based upon individual unemployability (TDIU) dated in January 2012, the Veteran stated that he was officially laid off from his last job in July 2004 but "the choice was lay off or get fired due to the problems I was having with supervisors and coworkers." A VA examination report dated in March 2012 shows that the Veteran was found to be totally occupationally and socially impaired due to his PTSD. With regard to his employability, the examiner found: His prevalent nervousness, agitation, poor frustration tolerance, tendency to be suspicious of the motives of others, and significant propensity for PTSD related arousal preclude his ability to secure and maintain any viable (physical or sedentary) employment effort. His symptoms included depressed mood; anxiety, suspiciousness; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; mild memory loss; flattened affect; impaired judgment; disturbances in motivation and mood; difficulty establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances; inability to establish and maintain effective relationships; and suicidal ideation. The examiner elaborated that the Veteran had significant anxiety, agitation, and mood variability in the context of his PTSD. A November 2012 letter from the Veteran's Vet Center counselor noted an increase in the Veteran's PTSD symptoms during the course of his treatment beginning in October 2008. Unfortunately, this letter did not provide specifics regarding the additional symptoms and their onsets. Based on the above and resolving all reasonable doubt in the Veteran's favor, his PTSD symptoms most nearly approximate the criteria for a 100 percent disability rating. In order to warrant a 100 percent disability rating, the Veteran's PTSD must be characterized by 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; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. The Veteran's PTSD symptoms include paranoia, hypervigilance, difficulty maintaining personal hygiene, impaired judgment, and impaired impulse control. While not specifically noted, the Board finds evidence that the Veteran is a danger to himself and others based on his reported intermittent suicidal thoughts (despite his repeated denial of suicidal ideation), his violent ideation directed specifically in the record towards thieves (including reference to a newly purchased firearm), and his allusion to booby-traps set around his home. The record also show some evidence of intermittent involuntary motor activities. The Veteran has been unemployed since 2004. He has reported that he seldom leaves the house and his social interactions appear to be limited to him wife and treatment at the VA and Vet Center. Based on the March 2012 VA examiner's findings, these symptoms have resulted in total occupational and social impairment due to PTSD symptoms. His GAF score has ranged from a low of 40 in the beginning of this date range to a high of 55 towards the end of this date range, which suggests at least moderate symptoms with the low GAF score of 40 suggesting a period of major impairment in several areas at the beginning of this appeals period with some improvement in approximately March 2009. This improvement in GAF score is contradicted by the Vet Center counselor's letter that said the Veteran's symptoms had increased during this period. As the evidence is at the very least in equipoise as to whether there was a period of improvement during this appeal period, staging is not appropriate and the higher rating is applied throughout. Therefore, the symptoms most nearly approximate the criteria for a 100 percent disability rating from January 31, 2008, to February 3, 2012. This represents a full grant of the benefit sought. As the Veteran is now in receipt of a total schedular disability rating, consideration of an extraschedular rating is unnecessary. ORDER A 100 percent disability rating for service-connected PTSD, from January 31, 2008, to February 3, 2012, is granted, subject to the applicable criteria governing the payment of monetary benefits. ____________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs