Citation Nr: 1343214	
Decision Date: 12/30/13    Archive Date: 01/07/14

DOCKET NO.  10-45 282	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to November 2, 2009.


REPRESENTATION

Appellant represented by:	Missouri Veterans Commission


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Adrian Jackson, Counsel


INTRODUCTION

The Appellant is a Veteran who served on active duty from April 1966 to November 1977.

This matter comes before the Board of Veterans' Appeal (Board) on appeal from a an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which granted service connection for PTSD and assigned a 50 percent rating, effective October 23, 2007 (the date of the claim).

In a November 2009 rating decision, the RO assigned a 100 percent disability rating for PTSD effective November 2, 2009.

The Veteran appealed the Board's decision regarding a rating higher than 50 percent prior to November 2, 2009.  However, simultaneously on January 14, 2010, the Veteran withdrew his appeal for a higher rating for PTSD and also claimed an earlier effective date for the assignment of the 100 percent rating.  

Although the Veteran expressed a desire to withdraw his claim for a higher rating for PTSD, his new claim essentially sought the same thing, namely, a higher rating for the already service-connected psychiatric.  When viewed liberally it is clear that from the time service connection was established the Veteran was seeking a higher rating.  His attempt to withdraw a claim at the same time he attempts to raise essentially the same claim demonstrates a desire to continue the appeal.  For these reasons, the Board has characterized the issue on the title page to reflect the current appeal for a higher initial rating rather that a claim for an earlier effective date.  See Fenderson v. West, 12 Vet. App. 119, 126-7(1999). 

A videoconference hearing was held before the undersigned Veterans Law Judge (VLJ) in November 2011.  A hearing transcript is associated with the claims file.



FINDING OF FACT

Since October 23, 2007, the Veteran's PTSD has been manifested by serious symptoms more nearly approximating total occupational impairment.


CONCLUSION OF LAW

The schedular criteria for a 100 percent rating for PTSD have been met, effective October 23, 2007.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2013). 


REASONS AND BASES FOR FINDING AND CONCLUSIONS

I. Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  In this decision, the Board is granting a 100 percent rating for PTSD.  This award represents a complete grant of the benefit sought on appeal.  Thus, any deficiency in VA's compliance is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary for this case.

II. Entitlement to a Higher Rating for PTSD

Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity in civil occupations.  See 38 U.S.C.A. § 1155.  Separate diagnostic codes identify the various disabilities.

The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10.

If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation 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.  When reasonable doubt arises as to the degree of disability, this doubt will be resolved in the Veteran's favor.  38 C.F.R. § 4.3.

Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria.  See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment).

The General Rating Formula for Mental Disorders provides a 30 percent rating for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events).  38 C.F.R. § 4.130, Diagnostic Code 9411.

A 50 percent rating is assigned 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; and difficulty in establishing and maintaining effective work and social relationships.  Id.

A 70 percent disability rating is assigned 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 that is 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 inability to establish and maintain effective relationships.  Id.

A 100 percent disability rating is assigned 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, or for the Veteran's own occupation or name.  Id.

A Global Assessment of Functioning (GAF) rating is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness.  Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994).

GAF scores from 71 to 80 reflect transient symptoms, if present, and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family arguments); resulting in no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind school work).  DSM-IV at 46-47. 

GAF scores from 61 to 70 reflect some 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, with some meaningful interpersonal relationships.  Id.   

GAF scores ranging from 51 to 60 reflect 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 peers or co-workers).  Id.   

Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsession rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, inability to keep a job).  Id.   

GAF scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech which 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., a depressed patient who avoids friends, neglects family, and is unable to do work).  Id.  

In an April 2008 rating action, the RO granted service connection for PTSD assigning a 50 percent evaluation, effective October 23, 2007.  In November 2009, the RO granted a 100 percent from November 2, 2009, and continued the 50 percent prior to November 2, 2009.  

VA treatment records dated in October 2007 show that the Veteran sought treatment for sleep impairment, nightmares, flashbacks, affective liability, depression, and survival guilt.  He reported his social, medical, and service history.  On evaluation his appearance, thought process, and speech were considered normal.  His concentration, immediate recall, and memory were good.  There were no delusions, hallucinations, suicidal ideations, obsessive behavior, or compulsive behavior.  He was oriented times 3.  His eye contact, motor activity (agitated easily), mood, and affect (crying, emotional talking about combat) were all considered abnormal.  The examiner noted that the Veteran had clinical presentation suggestive of PTSD and depression.  A GAF score of 60 was assigned.  The Veteran was referred for follow-up appointment for psychotropic medication evaluation and psychotherapy.  

On a VA examination in March 2008, the Veteran was casually dressed and adequately groomed.  He reported symptoms that included nightmares, guilt, flashbacks, irritability, agitation, decreased concentration, emotional numbness, periods of sadness, loss of interest in sex, indecisiveness, fatigue, self-dislike, loss in appetite, and sleep impairment.  He cried through the entire session.  His affect was congruent with mood.  He was alert and oriented to person, place, and time.  Eye contact was poor and he appeared to have problems with concentration, which was considered mildly impaired.  Mental control was considered adequate.  Immediate and delayed recall tasks were performed accurately but not efficiently.  His ability to describe similarities between various objects and activities was at an appropriate level of abstraction.  His ability to interpret proverbs was very good.  He was able to manage his finances without difficulty.  There was no evidence that his ability to perform his daily activities was compromised.  The examiner noted that the Veteran's depression in part appeared to be functionally related to PTSD.  Therefore, the GAF score reported was not assigned separately.  The Veteran's GAF score was 45.  On the Axis IV diagnosis the examiner noted that he had occupational problems with primary support group.  The examiner considered the severity of the symptoms as moderate to severe.  

VA outpatient records dated between December 2007 and November 2008 show that the Veteran continued his psychotherapy on an outpatient basis.  It was noted in clinical records dated in February 2008 that he had lost his job. 

Based on the foregoing, the Board concludes that the evidence of record reflects total social and occupational impairment as a result of the Veteran's PTSD since the filing of his claim.  In this regard, the Board notes that the evidence of record reveals subjective complaints of nightmares, guilt, flashbacks, irritability, agitation, decreased concentration, emotional numbness, periods of sadness, loss of interest in sex, indecisiveness, fatigue, self-dislike, loss in appetite, sleep impairment, and social isolation.  The record also indicates that the Veteran received ongoing treatment for his PTSD symptoms, including sleep problems and social isolation.  In regard to industrial impairment, his concentration was considered impaired.  In considering his social impairment, the Veteran was having significant difficulties in maintaining stable relationships.  He has lost all intimacy in his marital life.  He was unable to sleep well and intrusive thoughts of Vietnam still occurred.  He had recurrent bouts of depression accompanied by wishes of death in combat.  

Besides his symptoms psychiatric manifestations, the Board considered his GAF scores.  GAF scores are not controlling, but must be accounted for as they represent the assessment of trained medical observers.  Only two GAF scores of 45 and 60 were assigned over the relevant period.  Although the score of 60 was assigned at the initial VA psychiatric in October 2007, on more detailed psychiatric evaluation in March 2008, the score of 45 was assigned.  Scores such as 45 show serious social and occupational impairment, "unable to keep a job."  Also in this regard, the Board cannot ignore the fact that the RO assigned a 100 percent rating in the November 2009 rating action based on VA examination in November 2009 where a GAF score of 45 was also assigned.  

The Board acknowledges that the medical evidence of record does not reflect that the Veteran experienced all of the symptoms associated with the 100 percent schedular rating for the period prior to November 2, 2009.  However, the Court has held that the symptoms enumerated under the schedule for rating mental disorders 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 disability rating.  See Mauerhan v. Principi, 16 Vet. App. 436 (2002).  In the Board's opinion, the evidence for the period prior to November 2, 2009, shows that the social and industrial impairment due to PTSD was better described as total rather than representative of that productive of deficiencies in most areas.  As such a 100 percent rating is granted, effective October 23, 2007 (the effective date of the award of service connection and date of his claim).  

Since the Veteran has been awarded the maximum schedular rating of 100 percent due in part to his unemployability, there is no need for extraschedular consideration or basis to recognize an implied claim for a total rating based on individual unemployability due to service-connected disability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009).  There is also no additional service-connected disability which would serve to support an award of TDIU separate and distinct from his PTSD.  See Bradley v. Peake, 22 Vet. App. 280 (2008).  His only remaining service-connected disability is the residuals of a shell fragment wound to the left great toe, which is rated as noncompensably disabling.  Thus, there is no benefit for obtaining a TDIU in addition to the newly assigned total rating.


ORDER

A 100 percent rating for PTSD is granted, effective October 23, 2007, subject to regulations applicable to the payment of monetary benefits.  



____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs