Citation Nr: 1422016 Decision Date: 05/15/14 Archive Date: 05/29/14 DOCKET NO. 09-38 656 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to an increased rating for service-connected posttraumatic stress disorder (PTSD), currently rated 70 percent disabling. 2. Entitlement to an effective date earlier than July 2, 2008, for the grant of a 70 percent disability rating for PTSD. 3. Entitlement to an effective date earlier than July 2, 2008, for the grant of a total disability rating due to individual unemployability (TDIU) as a result of service-connected disabilities. REPRESENTATION Veteran represented by: Joseph R. Moore, Attorney ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from January 1967 to April 1970. He served in the Republic of Vietnam and was awarded a Combat Action Ribbon. These matters came to the Board of Veterans' Appeals (Board) from an October 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied a PTSD rating in excess of 50 percent. In March 2011, the Board issued a decision denying a rating in excess of 50 percent for PTSD. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans' Claims (Court). Before the Court issued a decision, the Veteran and the Secretary of VA agreed to a Joint Motion for Remand (JMR) that vacated the March 2011 Board decision and remanded the issue to the Board for adjudication consistent with the JMR. The Court granted the JMR in September 2011. In September 2012, the Board issued a decision granting a 70 percent rating for PTSD, and granting entitlement to a TDIU, which the Board determined had been raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The Veteran appealed to the Court the portion of the Board decision which effectively denied entitlement to a 100 percent rating for PTSD. Before the Court issued a decision, the Veteran and the Secretary of VA agreed to a Joint Motion for Partial Remand (JMPR) that vacated the portion of the September 2012 Board decision which effectively denied entitlement to a 100 percent rating for PTSD. The issues of entitlement to an effective date earlier than July 2, 2008, for the grant of a 70 percent disability rating for PTSD and the grant of a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's PTSD is manifested by total occupational impairment, and symptoms such as grossly inappropriate behavior, hallucinations, and persistent danger of hurting self or others. CONCLUSION OF LAW The criteria for entitlement to a disability rating of 100 percent for PTSD have been met. 38 U.S.C.A. § 1155, 5107(b) (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION 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). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. A 70 percent rating is currently in effect for PTSD; pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. Under Diagnostic Code 9411, which is governed by a General Rating Formula for Mental Disorders, a 70 percent rating is warranted 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); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. 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 rating is warranted for 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; 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. The symptoms listed in the Rating Formula are only examples, and that evidence of those specific symptoms is not required to show that the Veteran is totally disabled. In rating a mental disability VA is required to consider all symptoms that affect his social and occupational functioning, and not limit consideration to those symptoms listed in the Rating Formula. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002); see also Vazquez-Claudio v. Shinseki 713 F.3d 112 (Fed. Cir. 2013) (veteran may only qualify for a given initial or increased rating based on mental disorder by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration). In other words, the primary consideration is whether the manifestations of the service-connected psychiatric disability result in total social and occupational impairment, regardless of whether the Veteran demonstrates those symptoms listed in the Rating Formula. The United States Court of Appeals for the Federal Circuit (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). One factor for consideration in evaluating mental disorders is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)). A GAF score of 61 to 70 indicates some mild symptomatology (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. 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). 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). The August 2013 JMPR found that the Board did not adequately consider evidence favorable to the Veteran in denying his claim for a PTSD rating in excess of 70 percent. Favorable evidence that was not addressed included reports of hallucinations and evidence that he might be a persistent danger to himself or others. Specifically, a January 2008 VA psychiatric examination reflects the Veteran's report of mild auditory hallucinations including hearing knocking at the door when no one is there and hearing someone calling his name. He rarely leaves his apartment as he is concerned about the possibility of getting into an altercation and hurting someone. A July 2009 treatment record reflects the Veteran's report of experiencing anger problems and violent tendencies. An August 2009 treatment record reflects the Veteran's report that he feels he is not always in control of his actions. An October 2009 treatment record reflects the Veteran's report of occasionally knowing what other people are thinking. In March 2010, the Veteran reported that he is a violent person. A July 2010 VA psychiatric evaluation reported that he "angers through violence." A May 2012 psychiatric evaluation reflects the Veteran's report of experiencing intermittent auditory hallucinations of hearing his name and he described suicidal ideation including sharpening a knife. In an August 2012 private evaluation, the physician noted that the Veteran could not function in an occupational environment and he was described as presenting a danger to himself, the public, his coworkers, and supervisors. The examination reports and treatment records reflect that the Veteran has experienced symptoms such as violent ideations, sleep disturbances, intrusive thoughts, anhedonia, and severe anger management problems. He reported an isolated incident of active suicide ideation during a severe depressive episode. The Board's previous decision recognized that the Veteran had total occupational impairment and granted the TDIU based on that recognition. The evidence then and now does not show complete social impairment. He has maintained a long term relationship with a girlfriend and some of his 13 children as well as the children of his girlfriend. The JMR establishes; however, that the 100 percent rating could be granted on the basis of the symptoms of the disability notwithstanding the Veteran's social functioning. Given the severity of the reported PTSD symptoms and the terms of the JMR, a 100 percent disability rating is warranted for PTSD. A 100 percent rating constitutes the maximum assignable rating per § 4.30 and this constitutes a full grant of the benefit sought on appeal. The RO will assign an effective date and the Veteran will have an opportunity to present argument and evidence at the local level with regard to that question. ORDER Entitlement to an increased, 100 percent, rating for PTSD is granted. REMAND In a November 2012 rating decision, the RO implemented the Board's September 2012 decision which had granted entitlement to a 70 percent disability rating for PTSD and entitlement to a TDIU. In April 2013, the Veteran expressed disagreement with the effective dates of the grants. Remand is necessary for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: Issue a statement of the case with regard to the issue of entitlement to earlier effective dates for the grant of a 70 percent disability rating for PTSD and for the grant of entitlement to a TDIU. This issue should not be certified to the Board, absent a timely substantive appeal. The Veteran and his representative have the right to submit additional evidence and argument on the 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). _____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs