Citation Nr: 1343377 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 09-39 811 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an initial rating for posttraumatic stress disorder (PTSD) in excess of 30 percent for the period of April 13, 2005 to June 8, 2009; and in excess of 70 percent for the period of June 9, 2009 to October 25, 2011. 2. Entitlement to an effective date earlier than June 9, 2009, for the grant of a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from April 1966 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the March 2009 and April 2010 rating decisions of the Department of Veterans Affairs Regional Office (RO) in Philadelphia, Pennsylvania. In the March 2009 rating decision, the RO granted service connection for PTSD and assigned an initial rating of 30 percent effective April 13, 2005, the date of the Veteran's claim for service connection. The Veteran filed a notice of disagreement in May 2009. In a subsequent rating decision, the RO granted a 70 percent disability rating for PTSD effective June 9, 2009 and granted a 100 percent rating effective October 26, 2011. As such, the Board will consider whether a higher initial rating in excess of 30 percent is warranted for the period of April 13, 2005 to June 8, 2009; and in excess of 70 percent for the period of June 9, 2009 to October 25, 2011. A discussion as to a higher rating from October 25, 2011 to the present is not warranted as the Veteran has been granted a 100 percent disability rating beginning October 25, 2011. As to the claim for a TDIU, the RO granted a TDIU in an April 2012 rating decision and assigned an effective date of June 9, 2009 (the date the Veteran's PTSD disability was rated as 70 percent disabling). See 38 C.F.R. § 4.16(a) (2013). As will be discussed in further detail below, a total schedular rating for PTSD is warranted from April 13, 2005; therefore, the claim of entitlement to an effective date earlier than June 9, 2009 for the grant of TDIU benefits is moot. The Veteran testified before the undersigned in an April 2013 Travel Board hearing. A transcript of the hearing is included in the Virtual VA electronic claims file. FINDINGS OF FACT 1. For the entire initial rating period on appeal, the Veteran's PTSD has been characterized by an inability to establish and maintain effective relationships, social withdrawal, hypervigilance, sleep impairment, mood disturbance, suicidal ideation, difficulty adapting to work and tasks, and has more nearly approximated total occupational and social impairment. 2. Since a total schedular rating is warranted from April 13, 2005, the claim of entitlement to an effective date earlier than June 9, 2009 for the grant of TDIU benefits is moot. CONCLUSIONS OF LAW 1. The criteria for a 100 percent disability rating for PTSD have been met for the entire initial rating period effective April 13, 2005. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.3, 4.126, 4.130, Diagnostic Code 9411 (2013). 2. There is no legal entitlement to an earlier effective date for the grant of a TDIU because a total schedular evaluation for PTSD has been granted effective from April 13, 2005. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2013); Bradley v. Peake, 22 Vet. App. 280 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2013). As the Board is granting 100 percent rating for the Veteran's PTSD for the entire initial rating period and dismissing the remaining TDIU claim as moot, there are no further VCAA duties in this case. Wensch v. Principi, 15 Vet App 362, 367-368 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Disability Rating Criteria 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 ; 38 C.F.R. §§ 4.1 , 4.2, 4.10 (2013). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1 , 4.2, 4.10. 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. See 38 C.F.R. § 4.7 (2013). In view of the number of atypical instances 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, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2013). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The schedular criteria, effective as of November 7, 1996, incorporate the American Psychiatric Association 's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). 38 C.F.R. §§ 4.125 , 4.130 (2013). A rating of 30 percent is warranted for PTSD if there is 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, or mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130 , Diagnostic Code 9411. A 50 percent rating is warranted if it is productive of 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 compete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating, may be 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 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. The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). A 100 percent schedular evaluation contemplates 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. In assessing the evidence of record, it is important to note that the Global Assessment of Functioning (GAF) score 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 DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). 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)." Id. A GAF score of 51-60 indicates "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. A GAF score of 61-70 indicates "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, has some meaningful interpersonal relationships." Richard 9 Vet. App. at 267. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. If the evidence shows that the veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). The U.S. Court of Appeals for the Federal Circuit has embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). Initial Disability Rating for PTSD Service connection for PTSD was granted effective April 13, 2005, and an initial 30 percent rating was assigned. The rating was increased to 70 percent effective June 9, 2009, and was increased to 100 percent, effective October 26, 2011. Upon review of all the evidence of record, both lay and medical, the Board finds that the Veteran's PTSD symptoms more nearly approximate the criteria for a total disability rating (100 percent) throughout the entire rating period. In a September 2005 VA PTSD examination, the Veteran reported sleep problems, hypervigilance, irritability, periods of violence, depression, and anxiety. Specifically, the Veteran described that when his wife leaves for work, he will lock up the house and carry a gun for protection. The Veteran described his house as a bunker. The Veteran reported wanting to place razor wire around the house, but his wife has not allowed him to do so. As for sleep problems, the Veteran stated that he is unable to fall asleep without medication. He has nightmares and generally sleeps only 3 to 4 hours a night. He also reported irritability and being short-tempered. The Veteran reported occasional problems at work in 2003 where he pulled a knife on a co-worker and was involved in fist-fights. The Veteran stated that he experiences depression, anxiety, and did not care whether he lived or died. Upon mental status examination, the September 2005 VA examiner noted that the Veteran was anxious and depressed. The examiner further stated that the Veteran's hands were trembling throughout the interview, which was noted as indicative of anxiety. The VA examiner diagnosed the Veteran with Axis I PTSD and assigned a GAF score of 48, demonstrating serious PTSD symptoms or serious impairment in social, occupational, or school functioning. In a following August 2009 VA PTSD evaluation, the VA examiner noted that the Veteran had significant lack of sleep and kept a pistol in hand for security. The Veteran again reported irritability, being short-tempered, and difficulty getting along with people. Since returning from Vietnam, the Veteran reported having 35 different jobs in which he was either fired or quit. The Veteran reported depression, withdrawing for days or weeks at a time and suicidal ideation, although no plan or intention was reported. He also stated that he experiences anxiety and panic attacks. Upon mental status examination, the August 2009 VA examiner noted that the Veteran did experience some suicidal ideation, with no plan or intention of carrying it out. The examiner diagnosed PTSD and noted that symptoms included significant sleeping difficulties, nightmares, hypervigilance, irritable mood and temperament, significant startled response to loud noises, difficulty maintain personal relationships, problems getting along on the job, loss of jobs, being volatile on the job, avoidance of crowds, periods of depression with occasional suicidal ideation, anxiety, and intrusive thoughts and memories of his time in the war zone. A GAF score of 48 was noted, indicative of serious PTSD symptoms or serious impairment in social, occupational, or school functioning. VA treatment record reflect continued treatment for PTSD and related symptoms. In a June 9, 2009 VA treatment record (used as the basis for the 70 percent disability rating increase), the Veteran reported that over the past month he had experienced multiple episodes of near-panic level anxiety with increased heart rate, nausea, and concern about losing behavioral control. The Veteran also acknowledged fleeting thoughts of suicide during these times, but no intent to act upon them. In a subsequent October 2011 VA examination report, the examiner noted the following PTSD symptoms: sleep impairment, hypervigilance, difficulty concentrating, irritability and anger, restrictive range of affect, markedly diminished interest in activities, exaggerated startled response, depressed mood, anxiety, suspiciousness, panic attacks occurring more than once a week, mild memory loss, difficulty in establishing or maintain effective work and social relationships, suicidal ideation, persist delusions or hallucinations, persistent danger or hurting self or others, and neglect of personal hygiene. Upon mental status examination, the October 2011 VA examiner noted that the Veteran appeared anxious throughout the examination. Concentration, memory, and judgment were fair. The Veteran reported some suicidal ideation and that there had been a time when he put a gun in his mouth and played Russian roulette. The examiner noted a GAF score of 45, reflecting serious PTSD symptoms or serious impairment in social, occupational, or school functioning. Social Security Administration (SSA) disability records also reveal that the Veteran was awarded SSA disability benefits in 2003, in part for PTSD and related symptoms. Although SSA determinations regarding unemployability and disability are not binding on VA, they may be relevant in disability determinations. Masors v. Derwinski, 2 Vet. App. 181, 188 (1992). The Board has also considered the Veteran's statements, to include the April 2013 hearing testimony. Although the Veteran maintains that symptoms at times worsen and improve; overall, the Veteran contends that his PTSD symptoms have remained relatively consistent throughout the appeal period. See Hearing Transcript at pgs. 11-12 and 14-15. On review of all the lay and medical evidence above, for the entire initial rating period, the Veteran's PTSD symptoms have been relatively consistent, characterized by social withdrawal, hypervigilance, sleep impairment, mood disturbance (depression and anxiety), difficulty adapting to work and tasks, irritability and anger with period of violence, intermittent suicidal and homicidal ideation, and inability to establish and maintain effective relationships. The Board further finds that the GAF scores assigned in the September 2005, August 2009, and October 2011 VA examination reports (i.e., 48, 48, and 45, respectively) have remained consistent throughout the appeal period, and indicate serious symptoms or serious impairment in social, occupational, or school functioning. In sum, the Board finds that the weight of the probative and competent lay and medical evidence supports the conclusion that symptoms associated with the Veteran's service-connected PTSD more nearly approximate the criteria for a 100 percent rating for the entire rating period beginning April 13, 2005. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. TDIU The record reflects that the Veteran was granted TDIU benefits based on his service-connected PTSD effective from June 9, 2009. See April 2012 RO rating decision. The Veteran contends that an earlier effective date is warranted for the grant of these benefits, as he claimed that he has been unable to sustain gainful employment since at least 2003. As determined above, a total schedular evaluation has been assigned for the entire period on appeal, effective from April 13, 2005. Therefore, the claim for TDIU benefits is moot because an award of a total schedular rating is the greater benefit. In this regard, in a precedent opinion, VA's General Counsel concluded that a claim for a total disability rating based on individual unemployability for a particular service-connected disability may not be considered when, as here, a schedular 100 percent rating is in effect for a service-connected disability. See VAOPGCPREC 6-99, 64 Fed. Reg. 52375 (1999); see also Green v. West, 11 Vet. App. 472, 476 (1998); Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In November 2009 however, VA's General Counsel withdrew VAOPGCPREC 6-99 in light of the decision of the Court in Bradley v. Peake, 22 Vet. App. 280 (2008). In Bradley, the Court stated that it is possible for a Veteran to be awarded TDIU for a single disability and thereafter be awarded disability ratings for other conditions. Under these circumstances, there would be no duplicate counting of disabilities. Bradley, 22 Vet. App. at 293. Additionally, the Board recognizes that the Secretary is required to maximize benefits, see AB v. Brown, 6 Vet. App. 35, 38 (1993) (presuming that a claimant is seeking the maximum benefits allowed by law and regulation); 38 C.F.R. § 3.3103(a) (noting VA's obligation to "render a decision which grants every benefit that can be supported in law"). The Board has done so in this case. The governing regulation, 38 C.F.R. § 4.16, specifically provides that a total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to follow a substantially gainful occupation as a result of service-connected disabilities. In this appeal, since the Board has determined that the Veteran is entitled to a 100 percent schedular rating for his service-connected PTSD for the entire initial rating period on appeal, he is not eligible, under the terms of the regulation, for a TDIU rating. See Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994) ("claim for TDIU presupposes that the rating for the condition is less than 100 percent"); see also Holland v. Brown, 6 Vet. App. 443, 446 (1994) (100 percent schedular rating "means that a Veteran is totally disabled"). As such, the claim for the assignment of an earlier effective date for TDIU is dismissed as moot. ORDER A 100 percent disability rating for PTSD is granted for the entire rating period beginning April 15, 2005. The appeal for an effective prior to June 9, 2009, for the award of TDIU is dismissed as moot. ____________________________________________ D. C. Spickler Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs