Citation Nr: 0007865 Decision Date: 03/23/00 Archive Date: 03/28/00 DOCKET NO. 98-13 759 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an increased disability evaluation for post traumatic stress disorder (PTSD), currently evaluated as 50 percent disabling. 2. Entitlement to a total rating based upon individual unemployability due to a service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Trueba-Sessing, Associate Counsel INTRODUCTION This case comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a January 1998 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied the benefits sought on appeal. The veteran served in active service from December 1939 to August 1945 and from November 1946 to July 1958. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's PTSD symptomatology is currently productive of total occupational and social impairment. The veteran's PTSD is deemed to be chronic and severe, and has been assigned a global assessment of functioning (GAF) score of 50, which equates to 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). CONCLUSIONS OF LAW 1. The criteria for a 100 percent evaluation for PTSD have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1-4.14, 4.125-4.130, Diagnostic Code 9411 (1999). 2. The requirements for a total evaluation based on individual unemployability due to a service-connected disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.18 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Entitlement to an Increased Disability Evaluation for PTSD. The veteran's claim for an increased disability evaluation is "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). That is, he has presented a claim which is not implausible when his contentions and the evidence of record are viewed in the light most favorable to the claim. The Board is also satisfied that all relevant facts have been properly and sufficiently developed. Accordingly, no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a) (West 1991). Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1999). Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). If two evaluations are potentially applicable, 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 (1999). In this case, in a December 1988 rating decision, the veteran was awarded service connection and a 30 percent disability evaluation for PTSD, under Diagnostic Code 9411, effective May 1988. Subsequently, in a January 1998 rating decision, such award was increased to a 50 percent evaluation, effective August 1997. At present, the veteran is seeking an increased disability evaluation in excess of 50 percent. With respect to the applicable law, as of November 1996, the schedular criteria incorporate the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition. See 61 Fed. Reg. 52695-52702 (October 8, 1996), effective November 7, 1996, (codified at 38 C.F.R. §§ 4.16, 4.125-4.132). Under the current schedular criteria, a 10 percent schedular evaluation for mental disorders, including PTSD, contemplates occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress; or, symptoms controlled by continuous medication. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (1999). A 30 percent schedular evaluation contemplates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). See id. A 50 percent schedular evaluation contemplates reduced reliability and productivity in occupational and social situations due to such symptomatology as: flattened affect; circumstantial, circumlocutory, or stereotypical speech; panic attacks that occur more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. See id. A 70 percent evaluation now envisions 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 worklike setting); and an inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted when there is 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 of names of close relatives, own occupation, or own name. Id. With respect to the evidence of record, the evidence shows the veteran has been diagnosed with and treated for various psychiatric disorders since his discharge from the service, including for a diagnosis of PTSD since the late 1980s. In this regard, a March 1987 letter from Joseph J. Nannarello, M.D., notes the veteran resigned from his job in February 1986 due to emotional illness, but that he was substantially disabled many years before 1986. And, upon examination, Dr. Nannarello diagnosed the veteran with paranoid schizophrenia in partial remission, inadequately controlled with medication. Dr. Nannarello's impression at this time was that the veteran had been partially disabled for many years, but that at the time of this examination he was totally disabled. Medical records from the Greenville and Columbia VA Medical Centers dated from April 1980 to July 1998 describe the treatment the veteran received for various psychiatric diagnoses, including PTSD. Specifically, the Board notes these records include February 1988 notations indicating the veteran was diagnosed with PTSD with depression. In addition, August 1997 notations indicate the veteran was hospitalized for psychiatric symptomatology during his service and was totally disabled for many years due to paranoid schizophrenia, as noted by Dr. Nannarello's letter. However, it was this VA examiner's opinion that the veteran had been disabled from all employment since 1989 due to his PTSD symptomatology, although he believed the veteran presented evidence of both schizophrenia and PTSD since his discharge from the service. June 1987 and August 1988 VA examination reports note the veteran was diagnosed with episodic alcoholism, schizotypal personality and PTSD causing mild to moderate disability. Furthermore, an October 1997 VA examination report notes the veteran complained of irregular sleep and nightmares involving his service about three to four times per week. During the daytime, he reported thinking about specific war events he experienced while in the service and re-living those events. At the time of the examination, he was 73 years old, and retired since the age of 62. He noted that, during the last 13 years of his employment as a construction worker, it was difficult to keep his job due to his irritability and tendency to pick fights with co-workers. And, upon examination, he was well groomed, oriented to time, person and place, and angry at the Army as he felt he was treated unfairly; he denied hallucinations or delusions. The veteran's diagnosis was PTSD with moderate symptoms, although the examiner noted it was hard to determine the specific level of severity for his PTSD as he was fairly isolated and had a good deal of subjective discomfort. However, it was certain that the veteran's work career was limited by his symptoms. Lastly, a July 1998 statement from Mario Galvarino, M.D., indicates the veteran reported he did not do anything at home, although at times went to the grocery store when there was nobody around. He also reported he thought about the war all of the time and had flashbacks and nightmares, although he denied hallucinations, delusions or illusions. He further noted he had very intrusive thoughts and difficulty with his sleep secondary to these thoughts. At that time, Dr. Galvarino found the veteran was very shaky, anxious, apprehensive, suspicious and guarded. And, at times, he appeared potentially explosive and quite aggressive. Dr. Galvarino diagnosed the veteran with chronic and severe PTSD, noted he would have difficulty handling the stressors posed by a job, and assigned the veteran a global assessment of functioning (GAF) score of 50/50 which, according to the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, equates to 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). After a review of the evidence, the Board finds that the evidence above described supports the conclusion that the veteran has been found to have total occupational and social impairment due to his PTSD symptomatology. As described above, the medical records from the Greenville and Columbia VA Medical Centers contain August 1997 notations indicating the veteran was deemed to be totally disabled from performing any type of employment due to his PTSD symptomatology. And, the July 1998 statement from Dr. Galvarino shows the veteran was assigned a GAF score of 50, which equates to 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). As such, the Board finds the evidence supports the award of a 100 percent disability evaluation for the veteran's PTSD. See 38 C.F.R. § 4.132, Diagnostic Code 9411 (1999). In reaching such a determination, the Board considered whether the veteran's service connected psychiatric disability alone was of sufficient severity to produce unemployability, and determined that that was the case here. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993); See 38 C.F.R. § 4.16 (1998)(noting that consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities). II. Entitlement to TDIU. As noted above, the Board has awarded the veteran a 100 percent disability evaluation for his PTSD, which renders moot the issue of entitlement to TDIU. See Green v. West, 11 Vet. App. 472, 476 (1998) (holding that a claimant with a 100 percent schedular rating for a service connected disability is for that reason not eligible for a TDIU evaluation). As such, the veteran's claim is without legal merit and must be denied on that basis. See Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER A 100 percent disability evaluation for the veteran's PTSD, is granted; this award is subject to the provisions governing the payment of monetary benefits. Entitlement to a total rating based upon individual unemployability due to a service-connected disability is denied. WARREN W. RICE, JR. Member, Board of Veterans' Appeals