Citation Nr: 1338773 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 13-03 158A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. J. N. Driever INTRODUCTION The Veteran served on active duty from May 1966 to April 1969. This claim comes before the Board of Veterans Appeals (Board) on appeal of a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada, that awarded an increased rating of 50 percent for PTSD. The Veteran testified in support of this claim during a hearing held at the RO before the undersigned Veterans Law Judge (VLJ) in May 2013. In March 2012, the RO also denied entitlement to a compensable rating for erectile dysfunction. The Veteran submitted a notice of disagreement in October 2012, and the RO issued a statement of the case that same month. In his April 2013 substantive appeal, the Veteran indicated that he only wanted to appeal the issue of entitlement to an increased rating for PTSD. Although his representative included the claim for an increased rating for erectile dysfunction in a May 2013 VA Form 646, the Veteran clarified at his hearing before the Board that he did not want to appeal that claim. Therefore, it is not on appeal at this time. According to the Veteran's electronic file (Virtual VA), there is additional pertinent evidence of record not in the claims folder, which the RO did not consider in support of the claim being decided. Given the disposition below, however, a remand for such consideration is unnecessary. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004); Bernard v. Brown, 4 Vet. App. 384 (1993). FINDING OF FACT The record includes a medical opinion that the Veteran is totally disabled due to PTSD. CONCLUSION OF LAW The criteria for a 100 percent rating for PTSD are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.10, 4.130, Diagnostic Code (DC) 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is tasked with satisfying certain procedural requirements outlined in the Veterans Claims Assistance Act of 2000 (VCAA) and its implementing regulations. Specifically, VA is to notify the claimant of the information and evidence not of record that is necessary to substantiate his or her claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Here, the Board need not discuss whether VA complied with these requirements. Rather, due to the favorable disposition in this case, the Board's decision to proceed in adjudicating this claim is harmless, not prejudicial to the Veteran or affecting the essential fairness of the adjudication. Conway v. Principi, 353 F.3d at 1374; Bernard v. Brown, 4 Vet. App. at 384. II. Analysis The Veteran seeks an increased rating for his service-connected PTSD. According to written statements he submitted during the course of this appeal and his May 2013 hearing, since 2001, when he was laid off, his PTSD has affected his ability to work, rendering him unemployable. This disability allegedly disturbs his mood and results in panic attacks every few weeks, problems with anger, sleeping difficulties and nightmares. The Veteran requests a 100 percent rating based on records from his VA psychologist reportedly supporting such a rating. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2013). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2013). The RO has rated the Veteran's PTSD as 50 percent disabling under DC 9411, according to the General Rating Formula for Mental Disorders (formula). Under this formula, a 50 percent rating is assignable when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: a 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 (2013). As the Veteran asserts, his PTSD disability picture more nearly approximates the criteria for a 100 percent rating. A 100 percent rating is assignable when there is 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, own occupation, or own name. 38 C.F.R. § 4.130, DC 9411 (2013). The Veteran initially began seeking treatment for mental health complaints in July 2004 and during that year and 2005, a VA psychologist assigned the Veteran's psychiatric disability, not yet diagnosed as PTSD, Global Assessment of Functioning (GAF) scores in the 60s. In 2006, the Veteran began seeing his current VA psychologist, who diagnosed PTSD, characterized that disability as severe, noted that the Veteran could no longer maintain gainful employment or sustain effective social relationships, assigned him a GAF score of 45, and indicated that his disability should be considered permanent. In 2007 and 2008, this psychologist assigned the Veteran GAF scores of 35 and 45. VA examinations conducted during this time period, including in June 2007, December 2008 and September 2009, note PTSD of slightly less severity, but confirm that, in 2001 or 2003, upon retiring, the Veteran began having problems with this disability. VA examiners assigned GAF scores of 45 and 50 and indicated that the disability had been worsening since 2001. According to the Board-adopted Diagnostic and Statistical Manual of Mental Disorders, 4th ed., American Psychiatric Association (DSM-IV), a GAF score of 31-40 indicates some impairment in reality testing or communication (e.g., speech 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., depressed man avoids friends, neglects family and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). A GAF score of 41-50 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). Since 2009, in December 2011 and August 2012, the Veteran has undergone two additional VA examinations, the reports of which include higher GAF scores of 53 and 55, indicative of less severe PTSD. These reports confirm severe to total impairment occupationally (one notes that, given the nature of the Veteran's previous employment as a banker and the social interactions such work required, the Veteran's PTSD makes employment unmanageable), but less than total impairment socially. However, because the Veteran's VA psychologist has continued to find the Veteran totally disabled due to his PTSD, both occupationally and socially, the Board finds such a rating assignable. The serious manifestations of the PTSD, to which the VA psychologist and various VA examiners agree, are so significant as to render the Veteran totally disabled. ORDER A 100 percent rating for PTSD is granted. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs