Citation Nr: 1550434	
Decision Date: 12/02/15    Archive Date: 12/10/15

DOCKET NO.  11-00 700	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUES

1.  Entitlement to a higher initial rating for posttraumatic stress disorder (PTSD) with a depressive disorder and polysubstance, methamphetamine, and alcohol abuse, evaluated as 50 percent disabling from April 24, 2006.

2.  Entitlement to a total rating based upon individual unemployability due to service-connected disabilities (TDIU).

3.  Entitlement to special monthly compensation (SMC) at the housebound rate.


REPRESENTATION

Appellant represented by:	Dana Shank, Attorney


ATTORNEY FOR THE BOARD

D. J. Drucker, Counsel


INTRODUCTION

The Veteran had verified active service from September 1994 to March 1995, from May 1997 to November 2000, from February 2003 to August 2004, and from March 2005 to April 2006.

This case comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.

An October 2006 rating decision granted service connection for PTSD and assigned an initial 50 percent rating, effective April 24, 2006, the day after the Veteran's discharge from active duty.  As new medical evidence was added to the record, September and November 2007 and June 2008 rating decisions continued that rating.

On June 25, 2008, the Veteran submitted a statement evidencing a claim for an increased rating, essentially indicating a worsening of his disability.  New and material evidence received within the appeal period after a VA decision is considered to have been received in conjunction with the claim that gave rise to that decision.  38 C.F.R. § 3.156(b) (2015).

Even in increased rating claims, when VA receives new and material evidence within one year of a rating decision, 38 C.F.R. § 3.156(b) requires any subsequent decision to relate back to the original claim.  Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010).  The Veteran's June 25, 2008 statement constitutes new and material evidence.  38 C.F.R. § 3.156(b).  Thus, the October 2006 rating action is the decision on appeal.

A May 2011 rating decision denied entitlement to a TDIU.  TDIU is part of the initial rating for PTSD.  See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  This issue was included in a June 2015, supplemental statement of the case.

The Veteran failed to appear for a scheduled Board hearing to be conducted by video conference on October 28, 2015.  A September 28, 2015 letter advised him of the hearing date and location and indicates that the RO had no record of his appointing a service organization or representative to assist him.  The Veteran appointed an attorney in his case on appeal in March 2010.  See Appointment of Individual as Claimant's Representative (VA Form 21-22a), March 2, 2010.  VA regulations require notice of the date and time of the hearing to the Veteran and his representative.  See 38 C.F.R. § 19.76 (2015).  This was not done.  Nevertheless, the Board is granting the full benefit sought with regard to the PTSD rating and he and his representative will have an opportunity to request another healing while the remanded issue is being developed.

The issue of entitlement to SMC at the housebound rate is REMANDED to the agency of original jurisdiction (AOJ) and is discussed in the REMAND section of this decision.


FINDINGS OF FACT

1.  PTSD has effectively resulted in total social and occupational impairment since the initial grant of service connection.

2.  A TDIU is a lesser benefit than a 100 percent rating for PTSD, and the claims for a TDIU and a higher rating for PTSD arose at essentially the same time and are essentially premised on the same evidence; the Veteran's other service connected disabilities have a combined rating of 10 percent.


CONCLUSIONS OF LAW

1.  Since April 24, 2006, the schedular criteria for a rating of 100 percent for PTSD have been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 4.125, 4.130, Diagnostic Code 9411 (2015).

2.  The grant of a 100 percent rating for PTSD renders moot the appeal for TDIU.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. PTSD

Disability ratings 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 (2015).  Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes.  38 C.F.R. § 4.27 (2015).

Where the question for consideration is propriety of the initial rating "staged ratings" that contemplate variations in the disability since the effective date of service connection are for consideration.  Fenderson v. West, 12 Vet. App. 119, 126 (1999).

Where there is a question as to which of two evaluations is to 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 (2015).

The General Rating Formula for Mental Disorders, including Diagnostic Code 9411, which pertains to PTSD, at 38 C.F.R. § 4.130, provides a 100 percent rating 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 ability 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

Evidence

From May 2006 to March 2009, W.Y., M.D., a psychiatrist at a VA medical facility, treated the Veteran in both individual appointments and group sessions, according to the physician's undated statement received in March 2010.  Dr. W.Y. opined that the Veteran suffered total occupational and social impairment as a result of his PTSD.  The Veteran was unable to maintain employment because he had severe problems with authority and did not interact well with other people.  He often displayed inappropriate behavior and poor impulse control.  Dr. W.Y stated that the Veteran was permanently and totally disabled.

A July 2006 VA examiner diagnosed the Veteran with chronic PTSD, moderate and severe, and a depressive disorder, as likely as not partially due to PTSD and drug abuse.  The examiner assigned a Global Assessment of Functioning (GAF) score of 55 for PTSD, and 53 including the depressive disorder, commensurate with moderate symptoms.  The examiner opined that the Veteran was employable from a psychiatric standpoint.  She thought he would do best in settings in which he had little contact with the public and very loose supervision secondary to his anxiety level, due to PTSD. 

VA hospitalized the Veteran from May 30 to June 19, 2008 for treatment of a major depressive disorder.  He reported homicidal and suicidal ideation from multiple stressors to a non-VA psychiatrist.  At admission, a GAF score of 35 was reported, denoting major impairment in several areas or some impairment in reality testing or communication.  At discharge, a score of 50 was assigned, commensurate with serious symptoms, and a psychiatrist observed that the Veteran may find it difficult to maintain committed employment due to his current psychiatric condition.

The Veteran was hospitalized by VA from August to October 2008 for treatment of PTSD.  A GAF score of 40 was assigned at admission, denoting major impairment in several areas.  At discharge, in October 2008, a score of 45 was assigned, reflecting serious symptoms, and a psychiatrist noted that the Veteran felt that he was unable to maintain employment.  According to the psychiatrist, it was unclear whether the Veteran might be capable of being employed but certainly the range of employment options would be limited.  He would have difficulty in dealing with the general public and would do best in an employment where he had maximum control over his work schedule and minimal contact with the general public.

In January 2009, the VA examiner (who had also evaluated the Veteran in July 2006) assigned a GAF score of 53, denoting moderate symptoms.  The examiner noted the Veteran's reports of homicidal dreams of doctors who did not help him and that he enjoyed the dreams, and inappropriate behavior in the past due to irritability and argumentativeness.  The examiner found the Veteran employable in a limited setting with little or no contact with the public and loose supervision.

In March 2009, the Veteran was hospitalized by VA for homicidal ideation in the setting of increased anger possibly related to increased pain.  At admission, a GAF score of 30 was reported, commensurate with an inability to function in almost all areas or serious impairment in communication or judgment.  At discharge, a GAF score of 50 was assigned, denoting serious symptoms.  

In April 2011, the Veteran was reevaluated by the VA examiner who assigned a GAF score of 50, commensurate with serious symptoms.  The psychiatrist noted that, in March 2009, the Veteran had been hospitalized due to homicidal ideation toward his primary care clinician who discontinued his pain medications due to suspicion of opiate abuse.  The Veteran had not worked since May of 2008 and stated, "I'm not allowed to work, because I threatened a coworker with a screwdriver to his neck."

The VA examiner stated that the Veteran retained the cognitive and emotional capacity to work in a limited setting but also stated that he was not employable due to irritability and lack of anger management. 

In a May 2011 addendum, the examiner recalled "some significant inner debate" over the Veteran's employability, because he had good cognitive skills and presented with the ability to discuss his symptoms in a coherent and somewhat analytic fashion, and was able to manage his funds.  After reviewing information available for the Veteran, the examiner was "more convinced" of his poor adaptability in even limited, stable environments, such as clinic settings, in which he threatened examining clinicians.  The examiner found it difficult to imagine what kind of realistic employment setting this veteran could tolerate without being a risk to others.

The examiner's current opinion was that the Veteran was "unemployable due to poor anger management and history of homicidal threats and violence, related to his service connected PTSD."  According to the examiner, it was unclear if Veteran would improve with ongoing treatment.  The Veteran had very little insight to his behavioral dysregulation.

Analysis

In this case, Dr. W.Y.'s findings are more probative than those of the VA examiner in 2006 and 2009, given the psychiatrist's repeated encounters with the Veteran over the course of several years.  In these circumstances, therefore, the Board finds that a 100 percent evaluation is warranted for the service-connected PTSD.  See 38 C.F.R. § 4.21 (2015) (not all cases will show all findings specified in the rating criteria, but the rating must in all cases be coordinated with actual functional impairment). 

The VA examiner's opinions in 2006 and 2009 are inconsistent with the findings of other mental health professionals and, hence, less probative than the consistent reports by treatment providers over a prolonged period.  More significantly, in 2011, the examiner conceded that the Veteran was unemployable due to poor anger management and a history of homicidal threats and violence caused by service-connected PTSD.

As stated, the level of disability, when the benefit of the doubt is given to the Veteran, is commensurate with the 100 percent rating under Diagnostic Code 9411 under current rating criteria.  38 U.S.C.A. §§1155, 5107; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411.  As the Board has granted the Veteran a 100 percent schedular evaluation herein, it is not necessary to consider whether he is entitled an extra-schedular rating under 38 C.F.R. § 3.321 (2015). 

II. TDIU

The Veteran would not be entitled to a TDIU for the same disability for which a 100 percent rating is in effect.  Buie.  He has other service-connected disabilities, but these have a combined rating of 10 percent and there is no allegation or evidence that they cause unemployability apart from the TDIU.  The appeal as to the TDIU issue is therefore, dismissed as moot.


ORDER

An initial, 100 percent, rating for PTSD is granted, effective April 24, 2006.

The appeal as to entitlement to a TDIU is dismissed


REMAND

The issue of entitlement to SMC at the housebound rate is another potential element of initial ratings.  See Bradley.  It is raised in this case by the Board's grant of a 100 percent rating for PTSD.  Bradley, see also 38 U.S.C.A. § 1114(s) (West 2014).

It appears that there are outstanding records pertaining to the Veteran's claim for Social Security Administration (SSA) disability benefits.

The appeal is REMANDED for the following:

1.  Obtain all decisions of the SSA on the Veteran's claims for disability benefits and all medical records considered in those decisions.

2.  Obtain an opinion as to whether the Veteran's service connected disabilities would prevent him from leaving his home such as would be required to travel to and from a job; and the likelihood that such disability would remain throughout the Veteran's life.  The examiner should provide reasons for the opinion.

3.  Adjudicate whether the Veteran is entitled to SMC at the housebound rate.  If this benefit is not fully granted, issue a supplemental statement of the case and return the appeal to the Board, if otherwise in order.

The appellant has 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.  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 2014).



____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs