Citation Nr: 1817289 Decision Date: 03/19/18 Archive Date: 03/30/18 DOCKET NO. 12-10 543 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial increased rating in excess of 30 percent from September 8, 2006 and in excess of 70 percent from January 27, 2011 to September 10, 2016. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J. Acosta, Associate Counsel WITNESS AT HEARING ON APPEAL Veteran INTRODUCTION The Veteran served on active duty in the U.S. Air Force from September 1987 to September 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2009 rating decision of the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2016, the Veteran presented sworn testimony during a Central Office Board hearing in Washington, D.C., A transcript of the hearing has been associated with the Veteran's claims file. FINDING OF FACT The Veteran's acquired psychiatric disability from September 8, 2006 has led to total occupational and social functioning. CONCLUSION OF LAW The criteria for an initial rating of 100 percent for an acquired psychiatric disability have been met from September 8, 2006. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1-4.14, 4.125, 4.130, Diagnostic Code (DC) 9432 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Since the Board is granting the Veteran's appeals for a 100 percent rating for an acquired psychiatric disability there is no need to discuss whether the Veteran has received sufficient notice or assistance with regard to this, given that any error would be harmless. Increased Rating for Psychiatric Disability - Law 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 degrees of disability specified by the schedule are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). 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. See 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3 (2017). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2017). Where the Veteran timely appeals the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the Veteran is entitled to "staged" ratings to compensate his for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). When evaluating a mental disorder, the Board 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). The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. The extent of social impairment is to be considered, but neither the Board nor the RO shall assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). Merits The Veteran contends that his psychiatric disability warrants a higher evaluation. Th Board agrees, and finds a 100 percent disability rating is warranted for the entirety of the appeal period. Upon review, the Board finds that the evidence supports the Veteran's contention and a 100 percent rating from September 8, 2006 is warranted. Turning to the evidence of record, the Board finds the September 17, 2005 VA treatment notes to be highly probative on the issue of the Veteran's rating. In this note, the Veteran in seeking treatment requested to be admitted for psychiatric care because he was having intrusive suicidal and homicidial ideation. He continued to state that "he talks to himself and sees objects in the periphery." He later explained to the clinician overseeing his care that he cannot function with his mental disorder and voices. The clinician in the discussion noted that it was hard to follow at times what the Veteran was discussing. In an April 2011 private mental examination, the private examiner noted that the Veteran stopped working in 2004 citing, in part, the magnitude of the Veteran's psychiatric disability. He further explained that the Veteran attempted suicide most recently in 2004 and has a history of auditory hallucination with a confused thought process with loose associations. He continued to comment that the Veteran's concentration is poor; he was easily distracted and was forgetful of fact and events with poor short term memory. Moreover, in conclusion the examiner found that the Veteran has had severe psychological symptoms with gross impierment of thought process, a persistent suicidal thought representing a danger to himself, with an intermittent inability to perform simple activities of daily living and self-care. (Emphasis added.) In a May 2011 private examination, the examiner concluded upon reviewing his medical record and letter from his relatives and friends that his acquired psychiatric disability resulted in profound limitation of social function as to result in virtual isolation in the community. The Board upon reviewing this evidence finds that it is clear that the Veteran's psychiatric disability has led to a total loss of occupational and social functioning. In particular, the Board finds the May 2011 examination to be highly probative and rating the Veteran's prior mental health status as it is corroborated by contemporaneous medical records form September 2005 wherein the Veteran exhibited the same symptoms as reported and analyzed by the examiner in May 2011. Considering the foregoing, the Board finds that the Veteran is entitled to a 100 percent rating for his acquired psychiatric disability for the totality of the period on appeal. ORDER Entitlement to a 100 percent rating from September 8, 2006 to September 10, 2016 is granted. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs