Citation Nr: 1755079 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 10-09 489 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an initial disability rating greater than 70 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Hammad Rasul, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1968 to November 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office in St. Oakland, California (RO). In that decision, the RO granted service connection for PTSD and assigned an initial 50 percent rating, effective the November 10, 2004 date of claim. The Veteran timely appealed the initial rating assigned. In February 2010, the RO increased the initial rating to 70 percent, also effective November 10, 2004. As this was not the maximum benefit sought, the claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 39 (1993) (a veteran is presumed to be seeking the maximum possible rating unless he indicates otherwise). In July 2016, the Board remanded the Veteran's claim for further evidentiary development. The Veteran's VA claims file has been returned to the Board for further appellate proceedings. The Veteran was scheduled to appear for a hearing in September 2016. The Veteran notified the Board that he would be unable to attend the hearing. His hearing request is thus deemed withdrawn. 38 C.F.R. § 20.704(d) (2017). FINDING OF FACT For the entirety of the period on appeal, the symptoms and overall impairment caused by the Veteran's service-connected PTSD most closely approximated total social and occupational impairment. CONCLUSION OF LAW The criteria for an initial 100 percent rating for PTSD are met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.1-4.7, 4.10, 4.21, 4.125, 4.126, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist To the extent the actions taken herein below are favorable to the Veteran and considered a full grant of benefits requested with respect to the only issue decided herein (given that an initial total schedular rating for PTSD is being granted), further discussion of the VCAA is not necessary at this time. Merits Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which allows for ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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 order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In this appeal, the Veteran is challenging the initially assigned disability rating. The appeal has been in continuous appellate status since the original assignment of service connection. The evidence to be considered includes all evidence proffered in support of the original claim. Fenderson v. West, 12 Vet. App. 119 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran is service-connected for PTSD, rated under 38 C.F.R. § 4.130, DC 9411, according to the General Rating Formula for Mental Disorders. The schedular criteria for rating psychiatric disabilities incorporate the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). See 38 C.F.R. §§ 4.125, 4.130 (The Board recognizes that the Veterans Benefits Administration now utilizes DSM-5; however, the VA Secretary has indicated that the change does not apply to claims pending before the Board, such as this one. 79 Fed. Reg. 45094 (Aug. 4, 2014)). Under the General Rating Formula, a 70 percent disability rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relationships, 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); inability to establish and maintain effective relationships. A 100 percent disability 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 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. Id. The list of symptoms under the rating criteria are intended to serve as examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). The Global Assessment of Functioning (GAF) score is 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). Notably, a GAF score of 31 to 40 indicates some impairment in reality testing or communications or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. A GAF score ranging from 41 to 50 reflect 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). A GAF score of 51 to 60 indicates 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. The Federal Circuit has also held that evaluation under § 4.130 is "symptom-driven" and that "a veteran may only qualify for a given disability rating under [these criteria] by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that § 4.130 "requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). Turning to the evidence of record, in an October 2004 statement, the Veteran's family member stated that prior to joining the military, the Veteran was a happy person with no major problems. The family member further stated that the Veteran met his wife when he was stationed in California and described the Veteran and his wife as a very happy young couple. The family member then described that after the Veteran returned from Vietnam, he was a very angry, emotional, and violent person. The family described that the Veteran turned to drugs and alcohol for help. She further described that the Veteran was afraid of the dark and unable to sleep because of his nightmares. She described that the Veteran's fear of individuals of Asian descent has affected him the rest of his life. She also described that the Veteran isolates himself from his wife and two children. During the November 2009 VA examination, the Veteran reported that he is very frustrated and depressed because his marriage is falling apart and that he was really worried about that. The Veteran also reported that he is unable to sleep unless he exercises a lot to tire himself out. The Veteran admitted to having suicidal thoughts but stated that those thoughts were not serious. However, the Veteran admitted that he came close to following through on his suicidal thought a long time ago when he was in prison. The Veteran also reported that he has been married to his wife for 39 years and has two adult children. The Veteran also noted that he likes to isolate himself and does not do anything else socially. The examiner noted that the Veteran has intrusive thoughts on a daily basis and nightmares two to three times a week. The examiner also noted that the Veteran has periodic psychological and physiological reactions to such things as seeing an individual of Asian descent. The examiner also noted that the Veteran does everything he can to avoid thoughts, feelings, and conversations that will cause him to think about the war. The examiner noted that the Veteran has had various manual labor jobs throughout his life, however, the Veteran has had a real difficulty performing his job as his symptoms are triggered anytime he has an interaction at work with a person of Asian descent. The examiner further noted that the Veteran's therapist has recommended that he quit his job. The examiner noted that the Veteran was casually dressed and appropriately groomed. The Veteran's mood was depressed and anxious with an affect congruent with his mood. Speech was logical and spontaneous. A GAF score of 40 was assigned. The examiner concluded that he agreed with the Veteran's therapists' assessments that he should quit his job given the severity of his PTSD symptoms. In an April 2010 VA treatment record, the Veteran was evaluated for a routine medication follow-up visit for his PTSD. The Veteran reported that he was having more frequent and severe nightmares relating to his combat in Vietnam. He further reported his continued exacerbation of PTSD symptoms being triggered upon interactions with individuals of Asian descent. The clinician noted that the Veteran is very hypervigilant during the day and that he tries to stay away from people. The Veteran also reported that he is having severe marital problems and that his wife is threatening to leave him. The clinician noted that the Veteran was alert and oriented. The Veteran was neatly and casually dressed and groomed. The clinician noted that the Veteran was significantly agitated and anxious. The examiner also noted that the Veteran was hypervigilant with some scanning behavior due to sounds coming from outside of the room. The Veteran had trouble making eye contact and sat still. The Veteran stated that he does not have any overt suicidal or homicidal ideation, intent, or ban, however, the Veteran stated that he was afraid of losing control and "losing it" at work if someone pushed him too much. The clinician noted that the Veteran seemed to have a sense of being overwhelmed at times and wondering if "it's all worth it." A GAF score of 45 was assigned. The VA clinician concluded that the Veteran was unemployable because of the severity of his PTSD symptoms and expressed his belief that the Veteran should not be working due to his PTSD triggers upon seeing individuals of Asian descent. In the January 2013 VA examination report, the examiner noted that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The Veteran reported that he has not worked since 2010 because of the repeated triggers he was experiencing at work. The examiner noted that the Veteran has recurrent and distressing recollections of the event, including images, thoughts or perceptions, recurrent distressing dreams of the event, intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event. The Veteran displays persistent avoidance due to his efforts to avoid thoughts, feelings, or conversations associated with the trauma, efforts to avoid activities, places, or people that arouse recollections of the trauma, feeling detached or estranged from people, and having restricted range of affect. The Veteran had persistent symptoms of increased arousal as indicated by problems with his sleep, hypervigilance, and exaggerated startle response. The examiner noted that the Veteran exhibited a depressed mood, anxiety, suspiciousness, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or work like setting, inability to establish and maintain effective relationships. The examiner concluded that the Veteran's ability to work is very impaired due to the continued symptoms of PTSD because the Veteran is easily triggered into an emotional rage at the sight of a person with Asian descent. The examiner noted that the Veteran becomes suspicious, hypervigilant, and takes on a cognitive, emotional, and physical state that prepares him for combat and that the Veteran stays in combat ready rage for several hours even after being separated from the trigger. The examiner also noted that when the Veteran is triggered, his risk of further psychiatric distress and violence significantly increases. Based on the above, an initial 100 percent rating for the service-connected disability is warranted. The Veteran's symptoms have remained constant since he filed his claim for service connection. The Veteran's therapists and VA examiners, to include November 2010 VA examiner and April 2010 VA clinician, all found the Veteran unemployable. The Veteran has been unemployed since 2010. The January 2013 VA examiner found that the Veteran's ability to work is very impaired due to his continued PTSD symptoms. Although the Veteran has been married for over four decades, he has continuously expressed deep concerns over his marriage. The Veteran's family member stated that the Veteran was very distant with his wife and children. The Veteran has also socially isolated himself and did not interact with people outside of work when he was employed. Multiple VA examiners discussed the Veteran's hypervigilance and scanning his environment. Additionally, multiple VA examiners have noted that the Veteran's symptoms are triggered and heightened by individuals of Asian descent. The January 2013 VA examiner noted that the Veteran enters into a combat ready rage when his symptoms are triggered and that those symptoms last for several hours and risk the Veteran to further psychiatric distress and violence. Further, GAF scores of record are 40 and 45, indicating major impairment in several areas. This evidence reflects that the symptoms and overall impairment caused by the Veteran's PTSD have throughout the pendency of the claim more nearly approximated total social and occupational impairment. For the above stated reasons, an initial rating of 100 percent for service-connected PTSD is warranted. Discussion of an extraschedular rating is therefore not required. Cf. Colayong v. West, 12 Vet. App. 524, 537 (1999) ("Hence, on remand the Board is required to address an extraschedular rating for the veteran's service-connected Pott's disease if it is not rated 100% as a schedular matter") (emphasis added). ORDER An initial rating of 100 percent for service-connected PTSD is granted, subject to controlling regulations governing the payment of monetary awards. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs