Citation Nr: 1400524 Decision Date: 01/07/14 Archive Date: 01/23/14 DOCKET NO. 10-13 893A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to an increased rating in excess of 70 percent for service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from April 1982 to June 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In July 2013, the Board remanded this matter for additional development. The Board is satisfied that there has been substantial compliance with the remand directives set out in July 2013. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT During the appeal period, PTSD was manifested by symptoms that approximate total occupational and social impairment. CONCLUSION OF LAW The criteria for a 100 percent rating for PTSD have been met for the entire appeal period. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4 .16, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist There has been a significant change in the law with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012). In the instant case, the Veteran's claim is being granted. As such, any deficiencies with regard to the VCAA are harmless and nonprejudicial. Increased Rating for PTSD Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2013). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the policy of the VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the claimant's favor. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating was filed until the final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). A March 2005 rating decision granted service connection for PTSD. A temporary total evaluation was assigned from May 2004. A 70 percent evaluation was assigned from July 1, 2004. In this case, the Veteran underwent a VA examination in August 2009 to ascertain his competency to manage funds. The examination was construed as an informal claim for an increased rating for PTSD. Therefore, the appeal period under consideration is from the period one year prior to the receipt of the informal claim, or August 2008 to the present. See 38 38 C.F.R. § 3.400 (2013). PTSD is evaluated (rated) under the general rating formula for mental disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating is assigned 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); inability to establish and maintain effective relationships. A 100 percent rating is assigned 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 and place; memory loss for names of close relatives, own occupation or name. A Global Assessment of Functioning score is a scaled rating reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness." See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed.1994) (DSM-IV). A score in the range of 51 to 60 indicates moderate symptoms (e.g., a flattened affect, circumstantial speech, occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (e.g., having few friends or having conflicts with peers or co-workers). A GAF score of 41 to 50 reflects a serious level of impairment (e.g., suicidal ideation, severe obsessive rituals, frequent shoplifting), or serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A score of 31 to 40 reflects some impairment in reality testing or communication or major impairment in several areas, such as work or school, family relations, judgment, thinking or mood and an inability to work. GAF scores ranging from 21 to 30 reflect behavior that is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or an inability to function in almost all areas (e.g. stays in bed all day; no job, home, or friends). In a written statement dated in March 2009, the Veteran's wife reported that the Veteran was unable to handle his money. In August 2009, the Veteran had a VA examination in order to assess his capacity to manage funds. The Veteran reported that he currently did not experience any significant symptoms of cognitive impairment or any deficits in insight or judgment. The Veteran reported that he continued to experience significant symptoms of PTSD, which were relatively unchanged from his last evaluation. The VA examiner indicated that, consistent with the last compensation and pension evaluation, the Veteran's PTSD was directly related to his service stressors resulting in his psychiatric incapacity, which was severe and resulted in his long-term inability to sustain work. The VA examiner noted that the Veteran's substance abuse history also contributed to those difficulties; however, it continued to be impossible to differentiate the extent to which the Veteran's difficulties were due to substance abuse versus PTSD, as these symptoms overlapped considerably and influenced one another. The Veteran reported that he had recently completed outpatient treatment for substance abuse, which helped him to remain abstinent from substances over the last eight to nine months. Upon mental status examination, the examiner noted that the Veteran was neatly dressed and appropriately groomed. The Veteran denied any hallucinations or delusions and denied any homicidal or suicidal ideation. The Veteran was oriented times three. His speech was spontaneous and within normal limits for rate, rhythm and volume. His thought processes were logical, coherent and goal-directed. His mood was euthymic. His affect was reactive with full range and mood congruent. His insight and judgment were good. The Veteran was noted to be pleasant and cooperative throughout the interview. The VA examiner assigned a GAF score of 50. The VA examiner noted that, at the time of the interview, the Veteran did appear to have the capacity to manage funds, given that he did not display cognitive deficits or deficits in insight or judgment. In June 2011, the Veteran was seen for a VA PTSD intake evaluation. The Veteran cited persistent and unbearable PTSD symptoms as his reason for trying to connect with VA outpatient treatment. The Veteran reported that he had been in and out of inpatient substance abuse programs for the past 10 years or so for cocaine abuse and alcohol, with repeated relapses. He reported relapses of substance abuse every once in a while. He reported that he would go on cocaine binges and then would stop again and remain abstinent for months at a time. The Veteran reported being clean for 7 months currently. He reported that he had put his wife in charge of his VA pension as a means of protecting himself from spending his money. The Veteran reported that he had nightmares every single night for two years. He reported that he would sleep for two hours but would not be able to go back to sleep once he awoke from a nightmare. The Veteran reported that he did not sleep more than 3.5 hours a night. He reported that he had difficulty in maintaining sleep. He reported that he was always on guard, keyed up, anxious and jumpy. He reported that he would get angry at times but would try not to lose control. A VA psychologist indicated that the Veteran met the criteria for PTSD. No GAF score was assigned. A VA psychiatry attending note dated in August 2011 reflects that the Veteran was seen for a medication evaluation. The record noted that the Veteran met the criteria for PTSD, chronic, depression not otherwise specified and cocaine abuse in full remission. The note indicated that the Veteran was not currently suicidal or homicidal. A VA mental health treatment record dated in September 2011 reflects that the Veteran reported a prominent problem with nightmares, which occurred every single night. The Veteran reported that he was always hyper, on alert and hypervigilant. The Veteran reported that he was a loner and did not interact or even socialize with others beyond a minimum level. The Veteran reported having dissociative flashbacks about one every one to two months. The Veteran reported that he was angry often but "promised God not to hurt people" after the killing and violence of the military. The Veteran reported that his mood was depressed. He reported that he was miserable when he first came for treatment but had started to get better. The Veteran reported that he was anxious and nervous much of the time in a hyper and edgy state. He denied panic attacks, except in immediate aftermath of a nightmare. The Veteran reported an exaggerated startle response. The Veteran denied obsessional rituals apart from thinking about service and traumatic events. The Veteran reported periods of obsessive cleaning and reported that he would wash his hands 25 times a day or more. He denied checking or counting compulsions. He denied audio/visual hallucinations, paranoia or other delusions. He denied dissociative blackouts or fugue like states. On mental status examination, the Veteran was alert, oriented and cooperative. His speech was coherent and goal directed. There was no formal thought disorder. His mood was depressed. His affect was full range and mood congruent. There was some lability. There was no suicidal or homicidal thought. The Veteran's thought content was linear. There were no delusions or hallucinations. A VA physician indicated that the Veteran meets the criteria for chronic, severe PTSD. No GAF score was assigned. The Veteran had a VA examination in July 2013. The Veteran reported that he had been unemployed since 2005. He reported that he could not work anymore because he got into arguments on the job. The Veteran reported that he lives with his wife and that things with his wife were "pretty good." He reported that he continued to have problems with his wife related to PTSD. He reported that his relationship with his daughter was "great." The Veteran also reported a longtime friendship since childhood and indicated that he interacted with his cousins and his wife's family. He reported that, beyond those relationships, he preferred to stay away from people. The Veteran reported that he preferred to isolate and spent his days sitting in his home afraid to go out. The VA examiner diagnosed PTSD and polysubstance abuse in full remission. A GAF score of 55 was assigned. The VA examiner indicated that it was possible to differentiate between the symptoms attributable to each diagnosis. The VA examiner indicated that the majority of the Veteran's symptoms were attributable to PTSD because he had not used drugs in over one year. The examination report noted that the Veteran's PTSD symptoms included anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective relationships, difficulty in adapting to stressful circumstances, including work or a work-like setting, impaired impulse control, such as unprovoked violence. The VA examiner indicated that the Veteran is capable of managing his financial affairs. The VA examiner explained that the Veteran's wife was currently his fiduciary because he was deemed incapable of managing funds in the past while he was abusing drugs. The VA examiner explained that, because the Veteran had abstained from drugs in recent years, he is likely capable of managing his financial affairs at this time. The VA examiner commented that the Veteran's history of polysubstance dependence is secondary to his service-connected PTSD. The VA examiner noted that, according to the history in the original compensation and pension report, the Veteran did not begin to abuse cocaine until age 25, which was subsequent to the trauma that he experienced while stationed in Grenada. The VA examiner noted that the Veteran reported that he used drugs to self-medicate many of his symptoms of PTSD following his discharge from the military, and through treatment, he had developed alternative methods of coping. The VA examiner noted that the Veteran's substance abuse was currently in remission. The July 2013 VA examiner opined that is was possible to distinguish the symptoms attributable to polysubstance abuse from those attributable to PTSD. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). The VA examiner opined that the majority of the Veteran's symptoms are attributable to PTSD. The VA examiner opined that the Veteran's polysubstance abuse is secondary to PTSD, and therefore, the Board has also considered the symptoms associated with polysubstance abuse in determining the appropriate rating to be assigned for PTSD. In this case, the Veteran is shown to have total occupational impairment due to his service-connected PTSD. During the appeal period, GAF scores ranging from 50 to 55 were assigned. Such GAF scores are indicative of serious impairment. The Veteran has not worked since 2005, and a TDIU was awarded from July 1, 2004. Thus, total occupational impairment is shown in this case. The Veteran does not have total social impairment, as he has relationships with his wife and daughter and several other family members. However, the Veteran has indicated that he does not socialize beyond those relationships and that he generally prefers to stay away from people and isolates himself. In light of the foregoing, the Board finds that the Veteran's PTSD symptoms more closely approximate total occupational and social impairment. Therefore, the Board finds that the criteria for a 100 percent rating for PTSD have been met throughout the appeal period. Extraschedular considerations In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2013). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. As the Veteran's PTSD has been rated as 100 percent disabling during the entire appeal period, the Board finds consideration of an extraschedular rating unwarranted. ORDER A 100 percent rating is granted for PTSD, subject to regulations governing the payment of monetary benefits. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs