Citation Nr: 1751470 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 09-37 153A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to March 21, 2009. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran had active military service from March 1986 to July 1986, December 1990 to August 1991, and May 1993 to August 1993 in the United States Air Force, and from October 2003 to March 2005 in the United States Army. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In the November 2007 rating decision on appeal, service connection for PTSD was granted and a 30 percent rating was assigned, effective December 20, 2006. In May 2008, the RO awarded a temporary total rating from January 10, 2008 until March 1, 2008, when a 50 percent rating was awarded. In September 2009, the RO awarded a higher rating of 70 percent from March 21, 2009. As these were not full grants of the benefit sought on appeal, and the Veteran did not indicate that he agreed with the increased ratings, his claim remained on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). In August 2015, the Board adjudicated the claim. The Board granted a 50 percent disability rating prior to January 10, 2008, denied a rating in excess of 50 percent from March 1, 2008 to March 21, 2009, and granted a 100 percent rating from March 21, 2009 onward. The Board also remanded four service connection claims for further development. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In February 2016, the RO granted service connection for each of the four claims remanded by the Board. They are no longer in appellate status and will not be addressed below. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). In a February 2017 Memorandum Decision, the Court vacated the Board's August 2015 decision to the extent that a rating higher than 50 percent prior to March 21, 2009 had not been awarded. FINDINGS OF FACT 1. Prior to March 21, 2009, the Veteran's PTSD was manifested by total occupational and social impairment with such symptoms as a gross impairment in thought processes or communication, persistent hallucinations, a persistent danger of the Veteran hurting himself, an intermittent inability to perform activities of daily living, and disorientation. 2. In addition to the 100 percent schedular rating for PTSD awarded herein, for the period from February 29, 2008, to March 20, 2009, the Veteran was also receiving other separate and distinct ratings involving different anatomical segments or bodily systems, which, under the combined ratings table, combined to 60 percent. CONCLUSIONS OF LAW 1. Prior to March 21, 2009, the criteria for a rating of 100 percent for PTSD were met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code 9411-9434 (2016). 2. For the period from February 29, 2008, to March 20, 2009, the criteria for special monthly compensation at the housebound rate were met. 38 U.S.C. § 1114(s) (2017); 38 C.F.R. § 3.350(i) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disability specified is considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Staged ratings are appropriate for an increased rating claim if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has reviewed all of the evidence in the Veteran's electronic files. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the United States Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Once a veteran has been diagnosed with a service-connected psychiatric disability, VA reviews his medical history to determine how significantly the disorder has disrupted the veteran's social and occupational functioning. The level of disability is rated according to a General Rating Formula for Mental Disorders, codified at 38 C.F.R. § 4.130 ("General Rating Formula"), which provides for ratings of zero, 10, 30, 50, 70, or 100 percent. VA compensates Veterans beginning at 10 percent disability, and compensation increases at each level. Pursuant to 38 C.F.R. § 4.130, a100 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; 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. When determining the appropriate disability evaluation to assign, the Board's primary consideration is the veteran's symptoms, but it must also make findings as to how those symptoms impact the veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. In determining the appropriateness of the evaluations assigned to the Veteran's disability, the GAF scores assigned by medical providers will be discussed. A GAF score of 31 to 40 indicates 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 younger children, is defiant at home, and is failing at school). A GAF score of 41-50 contemplates 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). See DSM-IV at 44-47. A GAF score of 51-60 contemplates 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 GAF score of 61-70 contemplates 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. The procedural history of the claim has been described above, and the matter at hand is entitlement to a rating in excess of 50 percent prior to March 21, 2009. As noted, the Veteran was assigned a temporary total rating from January 10, 2008 until March 1, 2008 when a 50 percent rating was resumed. Evidence dated from this period will not be considered in adjudicating the claim below since the Veteran was already receiving the maximum evaluation possible at that time. In the February 2017 Memorandum Decision, the Court found the Board's reasons and bases for not assigning a rating higher than 50 percent prior to March 21, 2009 to be inadequate. In doing so, the Court provided a detailed discussion of evidence supportive of a higher rating. The Board will incorporate this evidence into the below analysis, in support of the award of a 100 percent rating prior to March 21, 2009. On the matter of total occupational impairment, a September 2007 VA examiner noted that the Veteran was unemployed for a significant length of time after military discharge. He eventually obtained a job but in February 2007, after a confrontation with his superior, he was fired. His job had involved bridge repair and he was foreman, but he could not tolerate the noise of the equipment and spent most of the time in his truck instead of supervising his workers. At the time of the September 2007 examination he had just started a new job and reported it was going well to the examiner. However, records dated subsequent to the VA examination report showed that he was only employed at that job for two months. Thereafter, a December 2007 VA treatment record noted he was "unable to work in his chosen field due to the noise level." On discharge from his February 2008 inpatient psychiatric hospitalization, the consensus of the Veteran's medical team was that the Veteran was not reasonably expected to sustain employment for the foreseeable future because his employment would be a "predictable and contributing factor in the worsening of his psychiatric condition." In a later determination from the Social Security Administration (SSA), the Veteran was found to have been disabled since December 1, 2007 due to his psychiatric disability. As for total social impairment, on VA examination in September 2007 the Veteran reported multiple past divorces. He had begun a new romantic relationship but had so much difficulty in social situations or in places with unexpected noises that he was unable to attend events with her, such as the county fair. The VA examiner noted he had no significant friendships and had a lack of social support. In September 2007, the Veteran disappeared for 3 days and did not contact anyone regarding his whereabouts or answer calls. When he returned, he was tired, withdrawn, and quiet. In a December 2007 VA treatment record the Veteran noted he had not seen or talked to his children in 4 months. In a December 2007 report from the SSA, the Veteran was noted to have agoraphobia. In March 2008, the Veteran again disappeared for 4 days, withdrawing completely from his girlfriend, children, and his PTSD group. In a number of 2008 private treatment records, including a June 2008 report, the Veteran was again diagnosed with agoraphobia. The record prior to March 21, 2009 also demonstrated many of the symptoms contemplated by a 100 percent rating. As for a gross impairment in thought processes or communication, an April 2008 psychologist diagnosed the Veteran with "frank psychosis," and aberrant thinking. The Veteran reported that his soul sometimes left his body, that someone was trying to poison him, that someone was following him, and that someone was hypnotizing him. The psychologist noted that his symptoms indicated substantial psychological turmoil. Persistent hallucinations were also documented. In March 2008, a psychological record noted the Veteran heard voices calling "Doc," as when he was in the service. In a March 2008 county Presentence Investigation report for theft charges, a psychiatric assessment was conducted and hallucinations were noted. In April 2008, he reported seeing objects or animals and hearing voices that others did not perceive. The SSA records also noted hallucinations. Grossly inappropriate behavior was shown by multiple legal problems, including theft charges in 2003, 2004, and 2007. The Veteran also reported an instance in 2007 wherein he startled easily and "grabbed a coworker out of his seat in anger," and documented in a subsequent VA examination report of 2013. A persistent danger of the Veteran hurting himself was shown by suicidal ideation on a number of occasions. Suicidal thoughts were noted in a February 2006 VA treatment record. The Veteran reported that in June 2007, he hiked 12 miles into the woods, consumed a lot of alcohol, and never wanted to come back. A December 2007 VA treatment record noted suicidal feelings with one instance of plotting suicide. He reported suicidal thoughts during treatment in March 2008 and April 2008. In the April 2008 record, the Veteran stated he had thought a lot about killing himself. An intermittent inability to perform activities of daily living and disorientation was also noted in the record. In a May 2007 record from the SSA, it was reported that the Veteran had trouble with his activities of daily living because he was disoriented at times. In addition to this symptomatology, low GAF scores were assigned prior to March 21, 2009. In December 2007 records from the SSA, a GAF score of 30 was assigned. At inpatient discharge in February 2008, the Veteran's GAF score was noted to have been 30 over the course of the past year. To the extent there is inconsistent evidence, to include that discussed in the Board's August 2015 decision, doubt is resolved in favor of the Veteran. While dated after the appeal period in question, the March 21, 2009 VA examiner specifically stated the "Veteran has had no period of remission," indicating no discernable difference from his symptomatology as of the date of the examination, when the Board assigned a 100 percent rating, or prior to that date. For all of the above reasons, the Board finds the Veteran's disability picture prior to March 21, 2009 most closely approximated that contemplated by a 100 percent rating. The Board has considered whether an inferred claim for a total disability based upon individual unemployability has been raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). While the Veteran is in receipt of a TDIU, his award does not cover the entirety of the appeal period here, as his TDIU is effective from March 1, 2008. However, the 100 percent rating awarded herein renders moot a claim for a TDIU. Locklear v. Shinseki, 24 Vet. App. 311, 314, n. 2 (2011) (citing Herlehy v. Principi, 15 Vet. App. 33, 35 (2001)). In this regard, the Board has considered the Court's decision in Bradley v. Peake, 22 Vet. App. 280 (2008) in which the Court held that, although no additional disability compensation may be paid when a total schedular disability evaluation is already in effect, a separate award of a TDIU rating predicated on a single disability (perhaps not ratable at the schedular 100 percent level) when considered together with another disability separately rated at 60 percent or more might warrant payment of special monthly compensation (SMC) under 38 U.S.C.A. § 1114(s). See also Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). Here, the Veteran has been awarded SMC(s), but not for the entirety of the appeal period; his award is effective from March 21, 2009. For the period prior to March 21, 2009, his other compensable service-connected disabilities consisted of pes planus (50 percent disabling), hearing loss (10 percent disabling), and tinnitus (10 percent disabling). Those three ratings are separate and distinct from the 100 percent rating for PTSD, involve different anatomical segments or bodily systems, and, under the combined ratings table, combine to 60 percent as of February 29, 2008. 38 C.F.R. §§ 3.350(i)(1), 4.25 (2017). As such, SMC at the housebound rate for the period from February 29, 2008, to March 20, 2009 is warranted. 38 U.S.C. § 1114(s) (2012); 38 C.F.R. § 3.350(i) (2017). ORDER A disability rating of 100 percent for PTSD prior to March 21, 2009 is granted. For the period from February 29, 2008, to March 20, 2009, special monthly compensation at the housebound rate is granted. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs