Citation Nr: 1445895 Decision Date: 10/16/14 Archive Date: 10/30/14 DOCKET NO. 08-22 910A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an initial rating in excess of 70 percent for post-traumatic stress disorder (PTSD) for the period beginning August 20, 2002. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD F. Yankey Counsel INTRODUCTION The Veteran served on active duty from May 1967 to November 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. During the pendency of the appeal, by a November 2007 decision, the RO granted an increased rating of 70 percent for service-connected PTSD, effective August 20, 2002. By a December 2012 rating decision, the RO granted an increased rating of 100 percent, effective July 17, 2009. The issue of an initial increased rating for PTSD remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). In January 2012, the Veteran cancelled his request for a Board hearing. He has not requested that the hearing be rescheduled. Therefore, his request for a hearing is considered withdrawn. 38 C.F.R. § 20.702(d) (2013). In May 2012, the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. FINDING OF FACT The Veteran's service-connected PTSD is shown to have resulted in a total occupational and social impairment beginning August 20, 2002. CONCLUSION OF LAW The criteria for a 100 percent rating for PTSD effective from August 20, 2002, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013) defined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 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"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that 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). In view of the Board's favorable decision, further assistance is unnecessary to aid the Veteran in substantiating his claim for an initial increased rating for his service-connected PTSD. Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2013). 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. § 4.1 (2013). Each disability must be considered from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2 (2013). 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. 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, 12 Vet. App. at 126. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2013). However, § 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). A 30 percent rating is warranted for PTSD if the evidence reveals that 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 for PTSD 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 complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. 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 worklike setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 100 percent evaluation 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; 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 Codes 9411. In assessing the evidence of record, it is important to note that the Global Assessment of Functioning (GAF) score is based on 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 (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). 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; child frequently beats up other children, is defiant at home, and is failing at school)." Id. A score of 41 to 50 is indicated where there are "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 score of 51-60 is appropriate where there are, "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 score of 61-70 is indicated when there are, "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, has some meaningful interpersonal relationships." Id. In accordance with 38 C.F.R. §§ 4.1, 4.2 (2007) 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 at issue. 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. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to this disability. Analysis In a March 2003 rating decision, the Veteran was granted service connection for PTSD. A 30 percent rating was assigned, effective August 20, 2002, the date the Veteran filed his claim. The Veteran appealed this initial rating. In a November 2005 rating decision, the RO granted an increased rating of 50 percent for the service-connected PTSD, effective August 20, 2002. The Veteran continued to appeal, and in a November 2007 rating decision, the RO again increased the rating for the service-connected PTSD to 70 percent, effective August 20, 2002. Finally, following a VA examination in July 2009, the Veteran was granted a 100 percent rating for his service-connected PTSD, effective July 17, 2009. The evidence of record shows that since he filed his claim for service connection on August 20, 2002, the Veteran's PTSD has been manifested by symptomatology consistent with total social and occupational impairment. In this regard, since July 2002, due to his PTSD, the Veteran endorsed symptoms such as extreme social isolation (living like a hermit), fear of crowds, short temper, increased irritability, exhibiting poor impulse control, emotional outbursts, and verbally and sometimes physically (throwing chairs in public places, pulling a gun on wife, fighting co-workers) abusive behavior. As a result, he did not appear to have any friends or people he associated with on a regular basis, reporting that he preferred to stay at home and be alone; his family relationships had deteriorated to the point that family members, including his children and grandchildren, no longer wished to spend time with him, due to his anger and irritability; and although he was still married, his relationship with his wife was very strained, due to all the symptoms noted above. See treatment records from the Columbus VA Clinic dated July 2002 and September 2002, January 2003 VA examination report, June 2003 VA examination report, treatment records from the Columbus VA Clinic dated from April 2004 to April 2005, February 2005 Vocational/Psychological Comprehensive Examination, and June 2005 VA examination report. On VA examination in January 2003, the Veteran received a GAF score at that time of 60, indicative of moderate to mild symptoms consistently causing disruptions with work or home life. On VA examination in June 2003, he received a GAF score of 50, and he received a GAF score of 45 on VA examination in June 2005, both indicative of serious impairment in social and occupational functioning. Furthermore, a former employer of the Veteran reported in a March 2006 statement that they would not hire the Veteran because, due to his PTSD, he was not able to work with others. In addition, the record reflects that the Veteran was granted a TDIU for his service-connected PTSD in August 2004. Accordingly, resolving all reasonable doubt in the Veteran's favor, the Board finds that as of August 20, 2002, the Veteran's PTSD has resulted in total occupational and social impairment. Therefore, an increased 100 percent rating for PTSD is warranted from August 20, 2002. The appeal, to this extent, is granted. Total Rating for Compensation Based on Individual Unemployability (TDIU) The Court has held that TDIU is an element of all claims for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is granted where a Veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2013). Here, the Veteran has indicated in a recent statement, dated in March 2013, that he feels he should be rated as either TDIU or 100 percent on a scheduler basis for his PTSD from August 2002. Therefore, while TDIU is technically still for consideration for the period from August 2002 to August 2004, with the assignment of a 100 percent scheduler rating from August 2002, the Board finds that the Veteran's statement may reasonably be interpreted to mean that the 100 percent rating for PTSD now assigned from August 20, 2002, satisfies the entire claim on appeal, to include an implied claim for TDIU. ORDER A 100 percent rating for PTSD from August 20, 2002, is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs