Citation Nr: 1604522	
Decision Date: 02/08/16    Archive Date: 02/18/16

DOCKET NO.  12-10 577	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) with depression.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

L. B. Yantz, Counsel

INTRODUCTION

The appellant is a Veteran who served on active duty from April 1967 to March 1970.  This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Houston, Texas Department of Veterans Affairs (VA) Regional Office (RO).  The record is now in the jurisdiction of the Waco, Texas RO.  In October 2015, a Travel Board hearing was held before the undersigned, and a transcript of the hearing is in the record.


FINDING OF FACT

The Veteran's PTSD with depression is shown to have caused total occupational and social impairment.


CONCLUSION OF LAW

A rating of 100 percent for PTSD with depression is warranted.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Code 9411 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  It applies to the instant claim for an increased rating for PTSD with depression.  However, as the benefit sought is being granted in full, there is no reason to belabor the impact of the VCAA on this matter; any notice or duty to assist omission is harmless.


Legal Criteria, Factual Background, and Analysis

In general, disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by a given disability.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.

In evaluating the severity of a particular disability, it is essential to consider its history.  38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (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 importance.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Separate ratings may be assigned for separate periods of time based on the facts found, however.  This practice is known as "staged" ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Veteran's PTSD with depression has been rated under Code 9411 and the General Rating Formula for Mental Disorders, which provide the following criteria:

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); and/or inability to establish and maintain effective relationships.

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; and/or memory loss for names of close relatives, own occupation, or own name.  38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Code 9411.

The list of symptoms in the General Rating Formula for Mental Disorders is not intended to constitute an exhaustive list, but rather provides examples of the type and degree of symptoms, or their effects, that would justify a particular rating.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).  However, "a [V]eteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration."  Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013).   Furthermore, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment.  38 C.F.R. § 4.126.

The Veteran has been assigned Global Assessment of Functioning (GAF) scores for his PTSD with depression during the applicable timeframe.  GAF scores ranging from 71 to 80 indicate that, if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument), with no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork).  Lesser scores reflect increasingly more severe levels of mental impairment.  See 38 C.F.R. § 4.130 (2015) [incorporating by reference VA's adoption of the American Psychiatric Association: DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), for rating purposes].  VA is now required to apply concepts and principles set forth in DSM-5; however, the Secretary of VA has specifically indicated that DSM-IV is still to be applied by the Board for claims certified for appeal to the Board or that are pending before the Board on or before August 4, 2014, as here.  79 Fed. Reg. 45094 (Aug. 4, 2014); see Schedule for Rating Disabilities - Mental Disorders and Definition of Psychosis for Certain VA Purposes, 80 Fed. Reg. 14,308 (March 19, 2015)).

The Board notes that it has reviewed all of the evidence in the record, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim being decided.

The Veteran filed the instant claim for an increased rating for his PTSD with depression in May 2011.  Throughout the entire period of claim, the Veteran's PTSD with depression is shown to have caused total occupational and social impairment.  The evidence of record reflects that this impairment is evidenced by symptoms such as: gross impairment in thought processes or communication (it was noted at his March 2014 VA psychiatric examination that he had difficulty expressing coherent thought processes); persistent delusions or hallucinations (he reported on multiple occasions that he would see blood on himself and had to shower repeatedly to wash it off); grossly inappropriate behavior (he reported at his August 2012 and March 2014 VA psychiatric examinations that he used to wake up from nightmares and find himself choking his ex-wives and ex-girlfriend); persistent danger of hurting himself or others (he reported suicidal thoughts or intent at his July 2011 VA psychiatric examination, he reported at his August 2012 VA examination that he could get physically aggressive if people got too close to him, he noted in a September 2013 statement that it was hard to be around his family because he had feared what he might do to them, and he testified at his October 2015 hearing that he still had suicidal thoughts and thoughts of harming others); intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene (it was indicated at his August 2012 VA psychiatric examination that he neglected his personal appearance and hygiene, and he testified at his October 2015 hearing that he had periods when he was unable to maintain the daily functions of life such as shaving and showering); and memory loss (he noted in a September 2013 statement that it was hard for him to remember people's names).  The evidence of record also reflects that, throughout the entire period of claim, he has been unemployed and has been unable to maintain any romantic relationships or close friendships due to his psychiatric symptomatology; it was also indicated at his August 2012 and March 2014 VA psychiatric examinations that he had an inability to establish and maintain effective relationships.  GAF scores of 50 to 72 have been assigned throughout the period of claim, reflecting a range of mild to severe symptomatology and functional impairment.

Accordingly, the Board finds that a 100 percent rating for PTSD with depression is warranted for the entire evaluation period.  See 38 C.F.R. § 4.130, Code 9411; see also Francisco, 7 Vet. App. at 55, 58; see also Hart, 21 Vet. App. at 505.

[The Board notes that the Veteran is already in receipt of a total disability rating based on individual unemployability (TDIU rating) due to his service-connected PTSD with depression (effective October 2009), as well as special monthly compensation (SMC) under 38 U.S.C.A. § 1114(s) and 38 C.F.R. § 3.350(i) on account of one disability (prostate cancer) rated 100 percent and an additional service-connected disability (PTSD with depression) independently ratable at 60 percent or more (effective April 2014).  The Board also notes that the Veteran cannot receive an effective date earlier than April 2014 for his SMC award because, even with the 100 percent rating now being awarded for PTSD with depression in the instant decision, he was not service-connected for any other disabilities prior to April 2014, at which time the awards of a 100 percent rating for prostate cancer and a 0 percent rating for erectile dysfunction associated with prostate cancer both took effect.]



ORDER

An increased (100 percent) rating for PTSD with depression is granted, subject to the regulations governing payment of monetary awards.



____________________________________________
M. C. GRAHAM
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs