Citation Nr: 1340751 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 10-32 250 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to a disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability evaluation based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: Heather Van Hoose, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Higgs, Counsel INTRODUCTION The Veteran served on active duty from March 1989 to September 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in July 2010 and February 2012 by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The July 2010 rating decision granted an increased rating of 70 percent for PTSD, effective from February 9, 2009. The February 2012 rating decision continued the denial of a rating in excess of 70 percent for PTSD and denied the Veteran's claim for a TDIU as part and parcel of the appealed claim for an increased rating for PTSD. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (TDIU claim is part of an increased rating claim when such claim is raised by the record; when evidence of unemployability is submitted at the same time that the Veteran is appealing the rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability). The Virtual VA paperless claims processing system contains electronic copies of records of VA treatment of the Veteran from October 2010 to December 2011. The Veterans Benefits Management System does not contain electronic documents pertinent to the matter appealed to the Board. The Veteran provided testimony at a July 2012 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. FINDINGS OF FACT 1. In written correspondence dated in July 2012, submitted on behalf of the Veteran, the Veteran's representative withdrew the Veteran's claim for an increased disability rating for PTSD. 2. The evidence is at least in equipoise to show that for the full pendency of the Veteran's claim for an increased disability rating for PTSD, from February 9, 2009 forward, the Veteran is rated as 70 percent disabled due to PTSD and has been unable to secure or follow a substantially gainful occupation as a result of his PTSD. CONCLUSIONS OF LAW 1. The appeal as to the issue of entitlement to a disability rating in excess of 70 percent for PTSD is dismissed. 38 U.S.C.A. § 7105 (West 2002); C.F.R. §§ 20.101(d), 20.204 (2012). 2. The criteria for entitlement to a TDIU are met for the full pendency of the Veteran's claim for a higher disability rating for PTSD. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.16(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Claim for Increased Disability Rating for PTSD Dismissed In written correspondence dated in July 2012, the Veteran's representative, acting on behalf of the Veteran, withdrew the Veteran's claim for an increased disability rating for PTSD. Accordingly, the appeal as to the issue of entitlement to a rating in excess of 70 percent for PTSD is dismissed. An appeal may be withdrawn in writing or on the record at a hearing, by an appellant or the appellant's authorized representative. See 38 C.F.R. § 20.204(a),(b). Withdrawal of an appeal will be will be deemed a withdrawal of the notice of disagreement and substantive appeal as to all issues to which the withdrawal applies. 38 C.F.R. § 20.204(c). Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), defines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. In this matter, the Veteran has withdrawn his claim for an increased disability rating for PTSD, and the Board grants the Veteran's claim for a TDIU for the full pendency of his claim to the extent it remains on appeal. This constitutes a complete grant of the benefit sought on appeal. Thus, no discussion of VA's duty to notify or assist is necessary. Claim for TDIU A TDIU is warranted where the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating may be assigned where the schedular rating is less than total and when the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided, however, that if there is only one such disability, it must be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Board is to consider the Global Assessment of Functioning (GAF) scores that have been reported in recent years. GAF scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (4th ed.), p. 32). GAF scores from 51 to 60 represent moderate symptoms, such as flat affect and circumstantial speech, and occasional panic attacks, or moderate difficulty in social, occupational, or school function (such as few friends, conflicts with peers or co-workers). GAF scores ranging from 41 to 50 reflect 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). Scores ranging from 31 to 40 reflect 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 other children, is defiant at home, and is failing at school). Id. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth at 38 U.S.C.A. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). In September 2010, the RO received the Veteran's formal application for a TDIU based on his PTSD, which the Board finds was part of his appealed February 9, 2009 claim for an increased rating for PTSD. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In an extended and detailed September 2010 private report of mental status examination from a private licensed psychologist, it was indicated that the Veteran sought a TDIU in addition to the increase to 70 percent for his rating for PTSD. It was noted that the Veteran had a high school education with below average marks. It was noted that the Veteran had an employment history of construction work, welding, and other types of work and that since employment ten years prior he had left jobs because of emotional or behavioral factors. The Veteran was noted to have a short attention span, ability to abstract was moderately impaired, and affect was flat and diminished. The examiner diagnosed the Veteran as having schizo-affective disorder, depressed type, and PTSD. A Global Assessment of Functioning score of 40 was assigned for the past year. The examiner opined that the Veteran's impairments were "fairly profound." An August 2011 private report of vocational evaluation discusses extensively the Veteran's educational and employment history and the extent of his impairment due to PTSD. It was noted by history that the Veteran had held three jobs in the past two years, the last one only for one week or less due to depression and paranoid thoughts. It was further noted that the Veteran had been hospitalized three times for psychiatric symptoms in the past two years. The August 2011 vocational specialist opined that taking into account the deficiencies upon which the 70 percent rating for PTSD is based, the Veteran clearly, and to a reasonable extent of vocational certainty, could not engage in any kind of gainful employment due to the residual effects of PTSD. The vocational specialist noted that the Veteran had graduated from high school with C's and B's in 1983; that the Veteran had past experience as a welder/fitter, and no skills that would transfer to light or sedentary employment; and that he had no supervisory experience or office or computer skills. The vocational specialist demonstrated a thorough review of the relevant medical records in this matter and noted that in September 2010 a licensed psychologist had assigned a Global Assessment of Functioning of 40. The vocational specialist opined that the Veteran's symptoms of PTSD "negate gainful employment." The specialist's opinion was well-reasoned and based on an accurate history, and therefore is of a high probative weight and value. At a VA examination in August 2011 the examiner diagnosed the Veteran as having PTSD and assigned a GAF score of 60. Compared to the September 2010 private psychologist's opinion and the August 2011 vocational specialist opinion, the August 2011 opinion is not as well explained and does not take into account as detailed a discussion of the Veteran's psychiatric symptoms and educational and vocational history. It is therefore afforded a lower probative value than the September 2010 private psychologist's opinion and the August 2011 private report of vocational evaluation. With consideration of the above, the Board finds the evidence at least in equipoise to show that the schedular rating for which meets the criteria for a TDIU from February 9, 2009, the date of receipt of the claim for an increased rating for PTSD, results in his being unable to secure or follow a substantially gainful occupation as a result of service-connected PTSD. See generally 38 U.S.C.A. § 5110 (unless specifically provided otherwise, the effective date of an award based on a claim for increase of compensation shall be fixed in accordance with the facts found, but shall not be fixed earlier than the date of receipt of application therefor). Accordingly, the Board finds that entitlement to a TDIU is warranted for the full pendency of the Veteran's claim for an increased rating for PTSD, see 38 C.F.R. § 4.16(a), a period for which a disability rating of 70 percent has been assigned and the Veteran's appeal for a higher disability rating has been withdrawn. This constitutes a full grant of the benefits sought on appeal with respect to those aspects of the Veteran's claim that remain within the Board's jurisdiction. ORDER The appeal for a higher disability rating for PTSD is dismissed. Entitlement to a TDIU is granted. ______________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs