Citation Nr: 1736626	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  07- 39 971	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	Jewish War Veterans of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J. Baker, Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 1967 to December 1970. 

This appeal comes before the Board of Veterans' Appeals (Board) from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection and a 10 percent rating for PTSD.  An August 2009 rating decision increased the Veteran's rating for PTSD to 70 percent for the entire period on appeal, from July 15, 2005.  The matter was previously before the Board in June 2010, when it was remanded for further development.  The matter now returns to the Board for appellate consideration.  The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in May 2017.  A transcript of that hearing is of record.


FINDING OF FACT

Throughout the appeal period, the Veteran's PTSD was manifested by symptoms productive of functional impairment which more nearly approximates total occupational and social impairment. 


CONCLUSION OF LAW

The criteria for a 100 percent initial schedular rating for PTSD are met for the entire appeal period.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2015).



REASONS AND BASES FOR FINDING AND CONCLUSION

VA's Duty to Notify and Assist

With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). 

Legal Criteria

The Veteran contends that his PTSD symptomatology more closely approximates the severity contemplated by a higher rating.  He seeks a rating in excess of 70 percent for the entire period on appeal, from July 15, 2005.

Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002).

Further, a disability rating may require re-evaluation in accordance with changes in a veteran's condition.  The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not.  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007).

The Veteran's PTSD has been rated at 70 percent under the criteria in 38 C.F.R. § 4.130, Diagnostic Code 9411.  The VA General Rating Formula for Mental Disorders reads, in pertinent part:

70 percent - 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); inability to establish and maintain effective relationships.

100 percent - 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.

The general rating formula for mental disorders is meant to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms.  Vasquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013).  Symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating, and a Veteran may only qualify for a given disability rating under 38 C.F.R. § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.  Id.  When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating.  Otherwise, the lower rating will be assigned.  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 psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings.  Mauerhan, 16 Vet. App. at 436.  Accordingly, consideration is given to all symptoms of the Veteran's PTSD that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV).  38 C.F.R. § 4.125.

Global Assessment of Functioning (GAF) is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness.  See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DSM-IV).  According to the pertinent sections of DSM-IV, a GAF score of 61 to 70 indicates the examinee has some mild symptoms or some difficulty in social or occupational functioning, but generally functions pretty well with some meaningful interpersonal relationships.  A GAF score of 51 to 60 indicates the examinee has moderate symptoms or moderate difficulty in social or occupational functioning.  A GAF score of 41 to 50 indicates the examinee has serious symptoms or a serious impairment in social or occupational functioning.  A GAF score of 31 to 40 indicates some impairment in reality testing or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood.

Although GAF scores are important in evaluating mental disorders, the Board must consider all the pertinent evidence of record and set forth a decision based on the totality of the evidence in accordance with all applicable legal criteria.  See Carpenter, 8 Vet. App. at 242.  Accordingly, an examiner's classification of the level of psychiatric impairment, by word or by a GAF score, is considered but is not determinative of the percentage VA disability rating assigned.  The percentage evaluation is based on all the evidence that bears on occupational and social impairment.  Id.; see also 38 C.F.R. § 4.126; VAOPGCPREC 10-95, 60 Fed. Reg. 43186 (1995).

The Board notes that the Veteran has also been diagnosed with bipolar disorder, in remission.  This diagnosed psychiatric disability has not been service connected.  Where it is not possible to distinguish the effects of a service-connected disability from the effects of any nonservice-connected disability, the reasonable doubt doctrine dictates that all symptoms in question be attributed to the Veteran's service-connected disability.  See Mittleider v. West, 11 Vet. App. 181 (1998) (regulations require that when examiners are not able to distinguish the symptoms and/or degree of impairment due to a service-connected versus a nonservice-connected disorder, VA must consider all symptoms in the adjudication of the claim).  Accordingly, in this case all of the Veteran's psychiatric symptoms will be attributed to his service-connected PTSD.

Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence.  The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant.  Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000).  The Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000).

Analysis

The Veteran was hospitalized in February 2005 for several days with bizarre thinking and suicidal ideation.  April 2005 VA treatment notes show markedly tangential thinking, limited judgment and insight, and the Veteran not wanting treatment for his cancer.  He had a GAF score of 40.  April 2007 VA treatment records show that he presented to a dental appointment at with homicidal ideation, and was charged with possession of a weapon and disorderly conduct.  He was sent to the emergency room, but refused medications and was angry.  His thoughts were tangential, with poor judgment and insight.  A May 2007 mental health follow-up showed the Veteran unable to provide a coherent history.

The Veteran was afforded a VA examination in June 2007.  At the examination, the Veteran reported nightmares, flashbacks, increased arousal, insomnia, anxiety, and irritability.  The Veteran had good insight and judgment, and was noted to be able to carry out activities of daily living.  He was focused with normal memory and cognitive function.  However, he had high anxiety, and reported occasional brief thoughts of suicide, without plan.  He had a GAF score of 46.  

VA treatment records from October 2007 show that he was living with his brother, went to the gym and was not depressed.  However, he was noted as irritable and refusing treatment for cancer.  Records from November 2008 showed the Veteran as loud, agitated, using expletives, tangential, and angry, but without suicidal ideation.  He had a GAF score of 40.  A December 2008 note showed the Veteran as generally belligerent.

VA treatment records from May 2009 showed the Veteran seeing his family weekly, meditating, and going to the gym, without auditory hallucination.  However, he was angry, labile, talked loudly, and had circumstantial and tangential in thought.  He is noted to have a thought disorder and is easily enraged.  

At another examination in July 2009, the Veteran reported social isolation, interference with completion of normal daily activities, insomnia, hyperarousal, anxiety, mild memory loss, intrusive memories, nightmares, and detachment.  The examiner found that the Veteran had flight of ideas, pressured speech, psychomotor restlessness, and occasional loosening of associations.  The Veteran noted an increase in severity of symptoms since his last exam in June 2007.  The Veteran stated that he is anxious all the time.  The Veteran had one friend, but he did not see any family or attend social occasions.  The Veteran reported that he spent most of his time in his home.  The Veteran was alert and oriented to his place and person, but showed frequent psychomotor agitation.  The Veteran's speech was rambling, and he had tangential thought content.  The Veteran was adequately groomed and had an intact memory.  The Veteran had poor judgment and insight, but denied recent suicidal or homicidal ideation.

An April 2011 treatment record showed the Veteran reported giving away his possessions.  He was noted as ranting and having compulsions to shower.  However, in December 2012, he stated he was doing better, walking in the park, and reading more.  In December 2013, he presented with a fluctuating mood, but was alert and oriented.  His thoughts were mildly tangential, and denied hallucinations or suicidal ideation.  

The Veteran presented to the emergency room in December 2014 with what was thought to be acute psychosis.  However, he was released, after his symptoms were determined to be long standing paranoia and delusions from PTSD, rather than acute psychosis.  The Veteran was noted as very aggressive and belligerent in a March 2015 urology consult.  The Veteran was treated for suicidal thoughts, without plan in June 2016.  The Veteran presented disheveled, but was alert and oriented, had good memory, and no hallucinations.  The Veteran reported feeling safe in his building, and he had a mostly linear thought process, fair judgment, and good eye contact.  The Veteran was discharged after four days of treatment. 

The Veteran attended another VA examination in February 2017.  There, the VA examiner opined that his occupational and social impairment showed deficiencies in most areas, such as school, work, family relations, and social impairment.  The Veteran noted that he had been fired from most prior jobs due to an inability to get along with people, and that he had not worked since 2000.  The Veteran said he did not have any friends, all family are dead, and he has never been in a relationship.  The Veteran had a hard time giving clear factual responses.  The Veteran required repetition of questions and instruction to provide clear answers.  The Veteran reported intrusive thoughts related to Vietnam, which lead to detachment.  The Veteran stated he no longer remembers the names of people he knew who died in Vietnam.  He was irritable, had impaired concentration, and was hypervigilant.  There was no evidence of psychosis or disorientation.  The Veteran denied current hallucinations, suicidal ideation, or delusions.  The Veteran reported attending to hygiene and showering daily.  He also cooked and exercised at home.  The Veteran reported marijuana use.  The Veteran was noted to have difficulty in establishing and maintaining effective work and social relationships, adapting to stressful circumstances, and an inability to establish and maintain effective relationships.

After considering all of the objective medical and other credible evidence of record, and resolving any doubt in favor of the Veteran, it is the judgment of the Board that the schedular criteria for a 100 percent rating are met for the period on appeal, as the Veteran's PTSD effectively resulted in total occupational and social impairment due to gross impairment in thought process or communication, persistent delusions, and intermittent inability to perform activities of daily living. 

The record demonstrates that the Veteran fluctuates from, at best, being able to live with a family member for a brief period of time, with continued irritability, nightmares, tangential thought, anger, and intrusive thoughts.  At worst, and more often than not, the Veteran isolates himself, and does not participate in any social activity.  The Veteran reported being fired from most jobs, and having not worked since 2000.  The Veteran reported a difficulty with dealing with people that would interfere with work in a group setting or under supervision.  The Veteran has periods of suicidal and homicidal ideation, coupled with delusions requiring hospitalization.  He lives alone, has never been married, and does not speak to any family.  The multiple VA examiners noted their difficulty in communicating with the Veteran due to tangential thinking.  The Veteran is noted as loud and belligerent, and frequently reports insomnia, hypervigilance, flashbacks, and anxiety.

It is significant that the Veteran's psychiatric symptomatology does not precisely mirror the symptoms illustrative of a 100 percent evaluation under Diagnostic Code 9411.  For example, the record does not show that the Veteran is a persistent danger to himself or others; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name.  However, it is apparent that the Veteran's chronic PTSD symptoms, especially his impaired thought, flashbacks, nightmares, paranoia, avoidance, anxiety, social isolation, hypervigilance, and irritability, have essentially totally impaired his social and occupational functioning by severely reducing his reliability and productivity.  In these circumstances, the Board finds that a 100 percent evaluation is warranted for the Veteran's service-connected PTSD.  See 38 C.F.R. § 4.21 (not all cases will show all findings specified in the rating criteria, but the rating must in all cases be coordinated with actual functional impairment).

The Board recognizes that the February 2017 VA examiner found that the Veteran's impairment resembled the criteria for a 70 percent disability rating based on occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.  However, the Board affords less probative weight to the examiner's opinion, because while indicating that the entire record was reviewed, he did not acknowledge any past diagnoses for the Veteran's mental health conditions.  Further, there is no evidence that the examiner considered an occupational or social impairment more severe than that reflected in the 70 percent rating.  Moreover, as explained in Carpenter v. Brown, an examiner's classification of the level of psychiatric impairment should be considered, but it is not determinative of the percentage disability rating assigned.  8 Vet. App. 240, 242 (1995).  Thus, the Board affords less probative weight to the February 2017 VA examiner's opinion, and bases its judgment on the complete disability picture presented by the record.

In view of the foregoing, the Board concludes that the evidence is at least in relative equipoise as to the level of psychiatric disability, and as to whether it is reasonable to conclude that the Veteran's disability picture is comparable to a 100 percent evaluation.  Overall, the current level of disability arguably, but not clearly, approximates the criteria for a 100 percent evaluation.  Thus, in view of the above, and resolving reasonable doubt in the Veteran's favor, the Board concludes that the criteria for the assignment of a 100 percent rating for PTSD have been satisfied.  As stated, the level of disability, when the benefit of the doubt is given to the Veteran, most closely approximates symptoms productive of a 100 percent rating.  See 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Accordingly a 100 percent rating is warranted for the Veteran's service-connected PTSD.

The Board notes that the issue of entitlement to a TDIU was raised by the record in a July 2005 Veteran statement.  See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (holding that a claim for a TDIU due to a service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating).  The RO has not yet adjudicated the issue of entitlement to a TDIU as it relates to the Veteran's PTSD, however, as the Veteran is already in receipt of special monthly compensation under 38 U.S.C.A. § 1114 (s), the issue of entitlement to a TDIU is moot, and is therefore not for further appellate consideration.  


ORDER

Entitlement to an initial rating of 100 percent for PTSD is granted.



____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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