Citation Nr: 1613472 Decision Date: 04/04/16 Archive Date: 04/13/16 DOCKET NO. 10-41 549 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an initial increased rating in excess of 70 percent for posttraumatic stress disorder (PTSD), with alcohol and polysubstance abuse. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD W. Ripplinger, Associate Counsel INTRODUCTION The Veteran served on active duty in the Marine Corps from September 1966 to April 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In an October 2010 VA Form 9, the Veteran requested a hearing before the Board at the local RO (also known as a "travel board" hearing). The Veteran later requested a hearing with a local Hearing Officer (DRO hearing) in place of his travel board hearing. The RO scheduled the Veteran for an April 2013 DRO hearing, and the Veteran canceled this hearing in March 2013. Thus, the Board finds that the request for hearing has been withdrawn and the Board may issue a decision in this case. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, the Veteran's PTSD manifests by total impairment of occupational adaptability and significant impairment of social functioning. CONCLUSION OF LAW The criteria for a 100 percent rating for PTSD are approximated. 38 U.S.C.A. §§ 1110, 1155, 5107 (2014); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code (DC) 9411 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection for PTSD was awarded in an October 2007 rating decision; a 50 percent evaluation was assigned, effective February 26, 2007. The Veteran filed an October 2008 notice of disagreement (NOD) appealing this decision. In a September 2013 rating decision, an increased 70 percent evaluation was assigned, effective February 26, 2007. The Veteran contends that his symptoms warrant a higher evaluation. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code (DC), the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In cases where, as here, the question for consideration is the propriety of the initial disability rating assigned, however, an evaluation of the medical evidence since the grant of service connection and a consideration of the appropriateness of a "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). "When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission." 38 C.F.R. § 4.126(a). A rating evaluation must be based on all the evidence of record that relates to occupational and social impairment, not just on an examiner's assessment of the disability level at the time of examination. 38 C.F.R. § 4.126(a). Although VA must consider the extent of social impairment, it may not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Veteran's PTSD is currently evaluated as 70 percent disabling under DC 9411, in accordance with the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. Under the general rating formula, a 70 percent evaluation is warranted for PTSD if the Veteran exhibits: 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 actives; 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, DC 9411. A maximum 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 the veteran's own name. 38 C.F.R. § 4.130, DC 9411. A total rating is warranted if the Veteran's service-connected PTSD causes total occupational and social impairment, regardless of whether he has some, all, or none of the symptoms listed in the rating formula, and regardless of whether his symptoms are listed in the Rating Schedule. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); see also Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). After review of the evidence, the Board finds that an initial rating of 100 percent is warranted. The January 2013 VA medical examination states that the Veteran has total occupational and social impairment and assigns a global assessment of functioning (GAF) score of 44. This VA medical examination notes that the Veteran experiences depression, anxiety, suspiciousness, chronic sleep impairment, disturbances in motivation and mood, difficulty in establishing and maintaining work and social relationships, and difficulty adapting in stressful circumstances. An April 2011 VA medical center (VAMC) psychiatric assessment assigns a GAF score of 55 and reports daily thoughts of service in the Republic of Vietnam and daily flashbacks. In addition, the Veteran has not worked since 2000 and was granted Social Security Administration (SSA) disability benefits in September 2007 as a result of his PTSD and depression. A September 2007 SSA functional capacity assessment found the Veteran's mental diagnoses precluded him from performing even simple routine tasks, adapting to changes associated with simple routine work activities, and completing a normal workday. The Veteran has also received schedular benefits for a total disability based on individual unemployability (TDIU) effective February 26, 2007, due to his PTSD and coronary artery disease. With regard to the impact of the Veteran's PTSD on his social functioning, the record demonstrates significant impairment. He has been divorced three times but maintains a relationship with his children. Throughout the pendency of the claim, he has played cards two to three times a week with friends. The January 2013 VA medical examination classifies the Veteran's social impairment as total and states that the Veteran has difficulty establishing and maintaining social relationships; the April 2011 VAMC psychiatric assessment notes that the Veteran typically isolates himself from others. Considering the VA examination finding of total disability, the lack of employment history since 2000, the SSA and TDIU benefits based on PTSD, and the Veteran's significant social impairment, the Board finds sufficient evidence to resolve any reasonable doubt in the Veteran's favor and grant a 100 percent disability based on the Veteran's total occupational impairment and significant social impairment. See 38 C.F.R. § 4.3. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. In this case, the record does not establish that the rating criteria are inadequate for rating the Veteran's PTSD, which manifests symptoms such as sleep impairment, depression, isolation, irritability, hypervigilance, suicidal ideation without intent or plan, and total occupational impairment. These manifestations are contemplated in the rating criteria and the rating criteria are therefore adequate to evaluate the Veteran's disability. As the Veteran's condition is contemplated by the rating criteria, a referral for consideration of an extraschedular rating is not warranted. The record also does not demonstrate an exceptional circumstance where the evaluation of the condition fails to capture all the symptoms of the service-connected disability. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). As a final matter, the Board finds that VA has substantially satisfied its duties to notify and assist the Veteran. To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this appeal given the Board's decision to grant the claim in full. ORDER Entitlement to an initial rating of 100 percent for PTSD, with alcohol and polysubstance abuse, is granted ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs