Citation Nr: 1340988 Decision Date: 12/12/13 Archive Date: 12/20/13 DOCKET NO. 11-29 466 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE 1. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) with major depressive disorder. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD A. Dean, Associate Counsel INTRODUCTION The Veteran had active military service from March 1966 to November 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal of a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Board has reviewed the physical claims file and the Virtual VA electronic claims file. During his September 2009 VA examination, the Veteran reported having to retire early due to his PTSD symptoms. The Board thus finds that the issue of entitlement to a TDIU has been raised by the record of evidence as an included claim within the Veteran's currently pending increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, this issue has been added as an additional subject for current appellate consideration. The issues of entitlement to a schedular rating in excess of 70 percent for PTSD and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT The Veteran's PTSD with major depressive disorder causes occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for entitlement to a 70 percent rating for PTSD with major depressive disorder have been met. 38 U.S.C.A. §§ 115, 5107(b) (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9411 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2012). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2012); 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. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. This diagnostic code uses the general rating formula for mental disorders, which provides that a 70 percent disability rating is warranted for a mental disorder when there is 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 work-like setting); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. In September 2009, the Veteran was afforded a VA examination for his initial claim of entitlement to service connection for PTSD. At that time, the Veteran reported symptoms of anger, anxiety, loss of memory, desire to isolate, nightmares of combat, startle response with noises, hypervigilance, mistrust, recurrent thoughts of combat, and flashbacks and intense distress with reminders of Vietnam. He said the symptoms were constant and affected his total daily functioning, resulting in him retiring early since he "couldn't stand people" and was short-tempered. He also reported sleeping trouble that had lasted forty years, primarily manifested by trouble falling asleep and staying asleep and nonrestorative sleep. He further reported symptoms of depression that included suicidal thoughts at times, hopeless and helpless feelings, scared feelings, sleep disturbance, and impaired concentration. He said the symptoms were constant and affected his total daily functioning, resulting in him isolating himself and not having motivation to do much. He reported taking medication to help with his symptoms, with various effectiveness, as well as receiving psychotherapy up to five times per week. Upon mental status examination, the Veteran's orientation was noted to be within normal limits; his appearance, hygiene, and behavior were all appropriate; he had poor eye contact during the examination; and his affect and mood showed findings of irritability and near-continuous depressed mood that did not affect the ability to function independently. The examiner noted that the Veteran cried many times during the interview. His communication and speech were within normal limits and his concentration was subjectively impaired. He reported trouble with sustained concentration, as well as panic attacks that occurred more than once per week. He reported that he did not trust anyone; he further reported not letting others get close to him and not turning his back to people. He did not have a history of delusions, and no delusions were observed; however, he did report intermittently present hallucinations in the form of distant voices. The Veteran also said he had obsessional rituals that were not severe enough to interfere with routine activities. The examiner noted that the Veteran did not have slowness of thought and did not appear confused. His judgment was not impaired, his abstract thinking was normal, and his memory was within normal limits. Suicidal and homicidal ideation were both absent, although the Veteran reported having suicidal thoughts prior to attending a treatment program. The examiner found that the Veteran's symptoms caused occupational and social impairment with reduced reliability and productivity. The examiner also assigned a Global Assessment of Functioning (GAF) score of 50. The Board notes that GAF scores are based on 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: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), p. 32). The GAF score is based on all of the Veteran's psychiatric impairments. 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 a 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 score of 41-50 indicates some 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 score of 51-60 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). A GAF score of 61-70 represents 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, and has some meaningful interpersonal relationships. While particular GAF scores are not contained in the VA schedule of ratings for mental disorders, 38 C.F.R. § 4.130, they are a useful tool in assessing a Veteran's disability and assigning disability evaluations. However, they are just one of many factors considered when determining an evaluation. More recently, in March 2012, the Veteran was afforded another VA examination for his PTSD. At that time, the Veteran reported taking continuous medication for his symptoms. He also reported receiving inpatient hospitalization for his PTSD since his previous September 2009 VA examination. He described his typical mood as depressed and not happy. He said he had more difficulty with bringing up and re-stirring memories of Vietnam. He also reported difficulty trusting people, especially strangers; avoiding crowds and congested places; avoiding watching the news; and feeling on guard and watchful. He reported having a dog and alarms, checking the perimeter, and having weapons in and around the house. He reported nightly dreams with themes where "something is going to kill me and I'm waiting to die." He expressed guilt about things he did in Vietnam. He also reported wishing it was easy to kill himself, but noted that if he did commit suicide, "it will hurt the people I leave behind." Upon mental status examination, the examiner noted that the Veteran was appropriately groomed, cooperative, and maintained appropriate eye contact during the evaluation. His thoughts were logical and goal directed with no evidence of hallucinations or delusions. His speech was noted to be coherent and his activity level was anxious/restless. His mood was depressed/tearful and his affect was restricted. He reported current passive suicidal ideation with no plan or intent and denied current homicidal ideation, plan, and intent. The Veteran was oriented to time and place and his judgment good. At that time, the examiner noted that the Veteran's symptoms caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood, and he assigned a GAF score of 50. The Veteran's VA treatment records are also on file, and indicate that he has received treatment for his PTSD since approximately July 2009. Treatment notes indicate that the Veteran has had difficulty with anger management, suicidal ideation, and risky behavior such as reckless driving of his motorcycle. Upon review of all of the evidence, the Board finds that the Veteran meets the criteria for a 70 percent rating for his PTSD. In particular, the Veteran has chronic PTSD symptoms, particularly involving nightmares and intrusive PTSD thoughts. His GAF scores reflect some serious symptoms or serious impairment in social, occupational, or school functioning. While the September 2009 VA examiner used the language in the criteria for a 50 percent rating to describe the impact of the Veteran's symptoms, the more recent March 2012 examiner used the language in the criteria for a 70 percent rating. The higher 70 percent rating seems to more accurately reflect the Veteran's symptoms. In conclusion, after considering the totality of the evidence of record, the Board finds that the competent evidence shows the Veteran meets the criteria for a higher 70 percent rating for PTSD. 38 C.F.R. §§ 4.7, 4.130, DC 9411. Every reasonable doubt has been resolved in the Veteran's favor. See 38 U.S.C.A. § 5107(a); Gilbert, supra. ORDER Entitlement to a 70 percent rating for PTSD with major depressive disorder is granted, subject to the law and regulations governing the payment of monetary benefits. REMAND Entitlement to a rating in excess of 70 percent for PTSD and to a TDIU The Veteran was scheduled for a hearing in Texas before a member of the Board in October 2013. He failed to appear for the hearing. However, in November 2013 he contacted the RO and requested that his hearing be rescheduled. He stated that he just received notice of the hearing because he was temporarily living in Colorado. He requested that his hearing he held at the Denver RO. Therefore, he should be scheduled for an appropriate hearing, as set forth below. Accordingly, the case is REMANDED for the following action: Schedule the Veteran for a hearing at the Denver RO before a traveling Veterans Law Judge. Thereafter, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs