Citation Nr: 1807834 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 13-30 991A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD), from March 23, 2011 to August 5, 2014. REPRESENTATION Appellant represented by: George J. Singley, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Abrams, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1968 to June 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In that rating decision, the Veteran was granted service connection for PTSD, evaluated as 50 percent disabling effective March, 23, 2011, the original date of claim. In a January 2015 rating decision, the RO increased the Veteran's PTSD disability rating from 50 percent to 100 percent, effective August 5, 2014. The Veteran since has continued to appeal for even higher ratings. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (it is presumed a claimant is seeking the greatest possible rating for a disability unless he/she specifically indicates otherwise). In October 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ) via videoconference. A copy of the hearing transcript is of record and has been reviewed. FINDING OF FACT Affording the Veteran the benefit of the doubt, from March 23, 2011, the Veteran's PTSD has more nearly been characterized as total occupational and social impairment. CONCLUSION OF LAW Affording the Veteran the benefit of the doubt, from March 23, 2011, the criteria for a disability rating of 100 percent for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.7, 4.130, Diagnostic Code 9411, General Rating Formula for Mental Disorders (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). The Board will thus proceed to the merits of this case. II. Legal Criteria Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. With initial evaluations, as here, separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). 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. See 38 C.F.R. § 4.7. III. Analysis The Veteran asserts that his PTSD warrants a rating higher than the initial 50 percent assigned from March 23, 2011. Under the General Rating Formula for Mental Disorders, a 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-term and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted for 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 affection 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 worklike setting); inability to establish and maintain effective relationships. Id. The maximum 100 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 person hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. In an October 2011 VA examination report, the Veteran was diagnosed with PTSD and assigned a Global Assessment of Functioning (GAF) score of 50. The VA examiner reported that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The examiner noted that the Veteran had symptoms of depressed mood, anxiety, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, suicidal ideation, and impaired impulse control, such as unprovoked irritability with periods of violence. In an August 2014 VA examination report, the Veteran's diagnosis of PTSD was confirmed, and he was assigned a GAF score of 43 to 45. The VA examiner reported that the Veteran had total occupational and social impairment. The examiner noted that the Veteran had symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, impairment of short and long term memory, circumstantial, circumlocutory, or stereotyped speech, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work-like setting, impaired impulse control, such as unprovoked irritability with periods of violence, intermittent ability to perform activities of daily living, including maintenance of minimal personal hygiene, and disorientation to time or place. The VA examiner opined that he believed that the Veteran suffered from severe PTSD. In an October 2017 hearing, the Veteran testified that there had been no changes to his PTSD between when he was assigned a 50 percent rating in 2011 and when he was assigned a 100 percent rating in 2014. He stated that his PTSD had not gotten worse and that his symptoms had remained the same for that entire time period. The Veteran further testified that he received VA treatment once or twice a month. The Board notes that the Veteran's claims file contains mental health treatment from the VA Gloucester Community-Based Outpatient Clinic from 2011 to 2014. However, these treatment records are cursory at best and do not go into detail about the severity of the Veteran's PTSD. In an October 2017 letter, the Veteran's former VA psychologist wrote that the Veteran had been his patient since June 2014. The psychologist noted that when he first saw the Veteran in 2014, the Veteran exhibited a near continuous pattern of mood disturbances. The Veteran struggled with severe mood swings from periods of deep depression to periods of high anxiety. The psychologist noted that the Veteran's symptoms were severe at their first meeting. He reported that the Veteran's symptoms never increased in severity, but remained at the same level. The psychologist wrote that in his opinion, the VA erred when it initially assigned the disability level of the Veteran's PTSD. The psychologist opined that it was "within a strong degree of psychological certainty" that the Veteran's current 100 percent evaluation of PTSD began long before the VA increased the percentage. The psychologist wrote that since returning from Vietnam, the Veteran struggled with substance abuse. The Veteran had several jobs, but was fired from them because of his substance abuse and because he exhibited anger and low tolerance for the public. The psychologist noted that the Veteran had nightmares of war violence, which began almost immediately after his return from Vietnam and he continued to re-experience the death of his friend in flashbacks on a regular basis. The psychologist noted that these experiences and dysfunctions began years before the Veteran first sought help. The Veteran's wife reported that the Veteran would socially isolate himself from people and would become inappropriately angry over what other people would say for no reason. She recalled that he would drift off and become tearful "out of the blue." The Veteran's wife referred to him as "sad." She recounted times when he would pack up to go fishing but never left the driveway of their home. He would make plans to meet someone but cancel at the last minute. The Veteran's wife reported that this had been going on for many years and that her husband had been dealing with his severe PTSD symptoms for most, if not all, of their marriage. The psychologist noted that the Veteran struggled with any form of social interaction and experienced nightmares and flashbacks. The Veteran "sabotaged" many jobs due to his inability to interact effectively with the public. The Veteran struggled with near-continuous mood disturbances. The psychologist opined that these were not new conditions and that the severity of the Veteran's PTSD was also not new. The psychologist opined that the current severity of the Veteran's PTSD had been going on for many years prior to VA's acknowledgement of the condition. This opinion was based on what the Veteran and his spouse reported and the psychologists treatment of the Veteran. The psychologist concluded that he had "no doubt within a significant degree of psychological certainty" that the Veteran's 100 percent level of PTSD had been in place "for many years prior to his application for VA benefits [in 2011] and continued, without significant change, from his initial disability rating of 50 percent, in 2011, to the time VA finally acknowledged his 100 percent disability, effective 2014." Based on the above analysis, and affording the Veteran the benefit of the doubt, the Board determines that the Veteran's PTSD more nearly approximates a 100 percent disability rating from March, 23, 2011, the date of claim. The Veteran and his wife are competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Additionally, the Board finds them credible as well. Id. Their statements, the Veteran's testimony, and the October 2017 letter from the Veteran's psychologist lead the board to conclude that it is at least as likely as not that the Veteran's PTSD has been characterized by total occupational and social impairment since March 23, 2011. The Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), 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. In this case, the Veteran is now in receipt of a 100 percent evaluation for PTSD for the entire appellate period and has not specifically argued, and the record does not otherwise reflect, that his other service-connected disabilities render him unable to secure or follow a substantially gainful occupation. See Bradley v. Peake, 22 Vet. App. 280 (2008). Accordingly, the Board concludes that a claim for TDIU has not been raised. The Veteran certainly may raise this claim in the future, should he choose to do so. ORDER An initial disability rating of 100 percent is granted for PTSD, effective March 23, 2011, subject to the laws and regulations governing monetary benefits. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs