ptsd Earlier Effective Date For Tdiu

[BlakePaigeStone]

I just saw ...yesterday, (on the VA's eBenefits web-site), that my claim has been moved, from the 'decision-phase,' to the 'closed-phase.' Is it unusual for a claim to skip the 'notification-phase?' Is this an indication of anything 'negative?'

I filed the claim on May 20, 2010; and ...it was for an award of retro-active TDIU benefits ...due to CUE. I've been rated at '70%/TDIU' ...for PTSD, since 2002. I was service-connected in 1995, at 30% ...however, I received all of my ratings at the same time ...in 2002. So, the VA rated me from 1995, to 2002, at 30%; then, raised/increased my rating to 70% in 2002 ...plus, awarded me TDIU - P&T. This was all done at the very same time; and ...I received everything in the very same envelope ...in May, 2002.

I claimed that the CUE was made because of all of the 'informal claims' for TDIU, that were ignored, between 1995 and 2002; including my VA Medical Center doctor's diagnosis, (inpatient PTSD program), of 'PTSD-Chronic - w/Unemployable' ...upon my discharge from the hospital, in December of 1995.

I claimed CUE since the claim had been 'closed' since June of 2003. However, the regional office followed-up with a request for me to complete a 'TDIU form,' and send it back. So, the CUE issue was by-passed ...right?! Could they have re-opened my old claim ...because of 'new and material evidence' ...instead? I was also awarded SSDI, very shortly after my VA award.

Does this smell like it could result in 'bad news' for me ...when I get my decision, in a couple of weeks? Does it look like I should prepare for an appeal?

Will '...anyone,' please advise. Thank you!

[broncovet]

Hoppy

I should clarify the Veteran mentioning to his doctor that he is unemployed is only ONE part of the 3 part Brokowski test to determine if an Informal claim has been filed. The test says the claim 1)has to be written 2) It has to show an intent to apply for benefits and 3) It has to specify the benefit sought.

However, the courts are required to liberally intertpret the Veterans filings, and the Veteran does not have to say, "I want to apply for the benefit of TDIU". He can say he cant get a job (due to SC conditions), and that will suffice if he meets the other two parts of the Brokowski test.

I am not at home and wont be supplying case law to support my position at this time, but "a liberal" interpretation of the Veterans filings is not in dispute. However, the VA decides "how liberal", and they seem to want that to mean "every I dotted and every T crossed".

As I have mentioned elsewhere, however, there is a gap between how the courts interpret the laws and how the RO interprets them, so that often means you have to appeal the case to get the RO strict interpretation overturned.

That being said, if the Veteran meets the 3 part test, summarized above, this should qualify for an informal claim, establishing the effective date, remembering that would only apply if the formal claim has already been filed.

I am not pretending to be a great case researcher.

If a Veteran wants to research case law, I am probably not the best person to ask. However, I think CAVC case law is more applicable than BVA..as if it is a "panel" or "en banc) CAVC decision it establishes a precedent, while BVA cases do not.

[Berta]

One has to consider this too-

Every vet in the 21 day inhouse PTSD program is considered unemployable for that month as a temporary medical determination.

As Broncovet said US CAVC precedent decisions set VA case law.

BVA decisions don't.

[BlakePaigeStone]

Hoppy

I should clarify the Veteran mentioning to his doctor that he is unemployed is only ONE part of the 3 part Brokowski test to determine if an Informal claim has been filed. The test says the claim 1)has to be written 2) It has to show an intent to apply for benefits and 3) It has to specify the benefit sought.

However, the courts are required to liberally intertpret the Veterans filings, and the Veteran does not have to say, "I want to apply for the benefit of TDIU". He can say he cant get a job (due to SC conditions), and that will suffice if he meets the other two parts of the Brokowski test.

I am not at home and wont be supplying case law to support my position at this time, but "a liberal" interpretation of the Veterans filings is not in dispute. However, the VA decides "how liberal", and they seem to want that to mean "every I dotted and every T crossed".

As I have mentioned elsewhere, however, there is a gap between how the courts interpret the laws and how the RO interprets them, so that often means you have to appeal the case to get the RO strict interpretation overturned.

That being said, if the Veteran meets the 3 part test, summarized above, this should qualify for an informal claim, establishing the effective date, remembering that would only apply if the formal claim has already been filed.

I am not pretending to be a great case researcher.

If a Veteran wants to research case law, I am probably not the best person to ask. However, I think CAVC case law is more applicable than BVA..as if it is a "panel" or "en banc) CAVC decision it establishes a precedent, while BVA cases do not.

Thanks for all of your input.

I've just written my 'Notice of Disagreement;' which follows, in partial form:

Please be advised that I am writing this 'Notice of Disagreement,' (NOD), letter to inform your office of my desire for appellate review, concerning your rating-decision of May 3, 2011; which denied my claim for… 'entitlement to an earlier effective date, for the grant of individual unemployability.' (which I'd, personally, felt …was a claim for 'CUE' in awarding me the initial '30%'…instead of '70%/TDIU' from January, 1996 …after my December, 1995 discharge from the hospital/VAMC-Lyons, with a corroborating diagnosis from my VA doctors & medical staff)

In addition, I'd like to make my desire, for a 'de novo review' of the adverse decision, by a local 'Decision Review Officer' …perfectly clear. I'd also request that the 'DRO' pre-schedule, with me, an informal phone-conference, if possible …between the hours of 8am and 12-noon. (Hawaii time-zone)

My personal communications; my attorney's letters; and …my VAMC & Vet Center reports, should be considered 'informal claims' for increases, (and service-connection), during that 'seven-year period,' (1995 to 2002), when I wasn't, yet '…service-connected.' It's my contention that the adjudication of my claim should have considered the fact that I couldn't file for TDIU …if I wasn't service-connected, therefore…the VA doctor's diagnosis of 'unemployability,' and all subsequent VAMC & Vet Center reports, should have prompted a 'much higher initial scheduler rating' …in lieu of waiting for a formal TDIU claim-form! That was a clear and unmistakable error, ('CUE'), by the adjudication department at the awarding VAROIC-Philadelphia. The unspoken fact is… "like many victims of the condition of PTSD, (with the VA's medication-treatment side-effects), after 7-years of waiting, I was in 'no conducive mental-state' to… file a 'formal NOD' against the 30% retroactive award period!"

*Maybe my claim, (above), should have been directed, specifically, to the 'CUE' in awarding a retroactive 30% …instead of 70%, for my 'initial' rating, which covered the period between December 29, 1995 and May 30, 2002. Then, appeal the effective date of my TDIU award.

I had, up to the point of receiving my 'first' notice of service-connection, (rating-decision dated July 26, 2002), been unable to even consider a TDIU claim, since I didn't know that I was service connected, until after July 26, 2002! In fact, I'm not so sure, at this juncture, if 'I' was the one who filed the TDIU claim. I sure don't remember doing it. All I know, is… one day, in July, 2002, the VA letter arrived, with 'all' the rating decisions, from September, 1995 …up to May 30, 2002 TDIU award.

I'm, currently, awaiting a copy of 'my C-file' …to determine if I, or the VAROIC-Philadelphia adjudication department, was the one who automatically submitted the TDIU claim-form. I certainly don't remember doing so!

*All of these rating decisions arrived, after a 'seven-year' wait; but '...within 30-days' of my filing a 'Writ of Mandamus' with the U.S. Court of Appeals for Veterans Claims.

I had become unemployed, homeless, and suffering from my service-connected PTSD …long, long before I received that rating-decision, in July, 2002. Many of the communications from me, my attorney, various VAMCs, and the Vet Center-Philadelphia/Center City, (between January, 1996; and July, 2002), in my C-file, could be construed as an 'informal, and/or, inferred' claim for a 'scheduler increase,' ('which is factually ascertainable'), without having to 'wait' for another VA examination, to increase my initial 30% to a 70% rating…in 2002. (in order to file a TDIU claim-form after I became service-connected) Remember that… my initial rating of 30% goes back to 1995; but …in reality, 'I didn't/couldn't know …until 2002! My 'inferred claims,' for TDIU, became moot …because of that initial 30% rating 'CUE.'

My CUE claim has, also '…strangely,' been turned into a claim for an increase for 'earlier TDIU benefits.' (most-likely due to my not making myself clear …as to, exactly what I was claiming) That was the first form that was sent to me …in response, after my submission of the 'CUE-claim,' of May 20, 2010. I don't know 'why else' the VARO-Honolulu would have sent me the TDIU-form. 'Please advise.'

Broncovet: Thanks for 'your ear;' and ...I'm almost sure that my 'NOD' will not be responded-to, before I'm able to get my C-file delivered. That way, I'll be in a much better position to state the facts. Remember that... '1995-thru-2002, is a long time ago; and ...difficult, at best, for an old-man like me, to recall actual events ...precisely.' -- Thanks ...again!

Edited May 16, 2011 by BlakePaigeStone

[BlakePaigeStone]

One has to consider this too-

Every vet in the 21 day inhouse PTSD program is considered unemployable for that month as a temporary medical determination.

As Broncovet said US CAVC precedent decisions set VA case law.

BVA decisions don't.

Thanks ...Berta, for all of your input.

I understand what you're saying about the 21-day, in-house, PTSD program; however ...remember that I was hospitalized from 'the last week of August, 1995 ...to the 29th of December, 1995. (...about '127-days!')

I also agree with what you said about 'CAVC vs. BVA precedent-setting.' If you can recall, it was my decision to file the 'Writ of Mandamus' that broke-up my seven-year log-jam; as ...I had a favorable rating-decision, (including a TDIU award), within 'less than 30-days' of filing it. That's why I think the TDIU was automatically implemented, by the VAROIC-Philadelphia ...somehow. I'll know more after I get my C-file; as ...2002 was a long time ago, for my old memory-banks!

[BlakePaigeStone]

Fellow 'HadIt.Com' Members;

The more I research my particular situation, with my 'claim/NOD,' the more I'm thinking that my CUE should not be for an earlier effective date; but ...for an increase of, at least, 70%, (instead of 30%), for my initial rating decision. To make this clear, how would I amend my 'claim/NOD?'

I made mention of the fact, in my NOD, that I'd felt as if my original claim, for CUE, was against the assignment of the initial 30% rating-decision ...instead of a 70% rating-decision. Then, I could have been eligible to file for TDIU at an earlier date.

*(instead of my original statement, seeking an 'earlier effective date for TDIU')

Will I still need to file another claim? Or, will my NOD-statement be enough ...to clear-up my original intentions?

I'm reading/researching cases everyday; and ...today, I came across this one; so ...please advise:

Citation Nr: 1040139

Decision Date: 10/26/10 Archive Date: 11/01/10

DOCKET NO. 04-42 140 ) DATE

)

)

On appeal from the

Department of Veterans Affairs Regional Office in St. Petersburg,

Florida

THE ISSUE

"Entitlement to an initial rating greater than 50 percent for

PTSD for the period prior to January 25, 1999."

REPRESENTATION

Appellant represented by: Disabled American Veterans

ATTORNEY FOR THE BOARD

L. Crohe, Counsel

INTRODUCTION

The Veteran served on active duty from May 1968 to December 1961.

This matter comes before the Board of Veterans' Appeals (BVA or

Board) on appeal from a rating decision issued by the Department

of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg,

Florida.

Because the parties have revised the issue before the Board on

appeal, a discussion of the case's procedural history is

necessary. A March 8, 2000 rating decision granted service

connection for post-traumatic stress disorder (PTSD) and assigned

a 50 percent disability rating effective December 30, 1992, the

date on which the claim was filed. The Veteran was so notified

by a letter dated March 10, 2000. As noted on page 4 of the

rating decision, a VA examination was scheduled immediately to

ascertain the current level of disability; it was conducted in

March 2000. On the basis of the examination report and

outpatient treatment reports from June 22, 2000, the RO continued

the 50 percent rating in a July 2000 rating decision. In a VA

Form 21-4138 dated in August 2000, the Veteran expressed

disagreement with the rating decision dated July 24, 2000. A

statement of the case (SOC) issued in June 2001 identified the

July 2000 rating decision as the action appealed. In a January

2003 decision, the Board granted a 100 percent disability

evaluation for PTSD; the Veteran did not appeal this decision to

the United States Court of Appeals for Veterans Claims (Court).

The RO implemented the Board's January 2003 decision by a January

2003 rating decision that, in pertinent part, assigned a 100

percent disability evaluation for PTSD from January 25, 1999.

The Veteran was notified of the RO's action by letter in March

2003, and in October 2003 his representative submitted the

Veteran's VA form 21-4138 expressing disagreement with the

effective date of the 100 percent rating and requested that it be

used "as supporting documentation for earlier effective date

for PTSD rating." (emphasis and bold in original) The RO

issued a SOC in July 2004, which identified the January 2003

rating decision as the action appealed and the issue as

"Entitlement to an earlier effective date, prior to January 25,

1999, for the 100 percent evaluation of post traumatic stress

disorder." The revised SOC issued in October 2004 also did the

same. The Veteran's representative also did the same in argument

submitted in January 2005 and in April 2007. Neither the Veteran

nor his representative argued for the assignment of an

intermediate rating of 70 percent. In a June 2007 decision, the

Board denied an effective date earlier than January 25, 1999 for

the grant of a 100 percent rating for PTSD. The Veteran appealed

this decision to the Court.

In a joint motion for remand granted by order of the Court in May

2009, the Veteran's attorney and the attorney for the Secretary

of Veterans Affairs agreed that the characterization of the issue

in the Board's June 2007 decision was incorrect. Accordingly,

the Board has characterized the issue as the parties did on page

3 of the motion. Having re-characterized the issue before the

Board on appeal, the parties also agreed that the Board failed to

address whether a claim for total disability due to individual

unemployability (TDIU) had been reasonably raised by the evidence

of record prior to January 1999 and, thus, remand to the Board

was required. The parties agreed that the Veteran had filed a

notice of disagreement to the March 2000 rating decision, rather

than to the July 2000 rating decision, on the basis of an October

2000 letter from the RO that acknowledged receipt of the

Veteran's "written disagreement with the [VA] decision of

3/16/00." Also, on the basis of the recharacterized issue on

appeal, the parties agreed that the Board's analysis in its 2007

decision was not sufficient to address why the evidence of record

did not support a 70 percent rating, and that the Board should

address consideration of entitlement to a higher rating under the

criteria in effect both before and after the November 7, 1996

amendment of the rating criteria, as well as whether staged

ratings should be assigned. The parties stated that when the

Board addresses whether the Veteran is entitled to an initial

rating greater than 50 percent for his PTSD for the period from

November 7, 1996 to January 24, 1999, the Board should do so in

keeping with the Court's precedent in Mauerhan v. Principi, 16

Vet. App. 436, 442 (2002), "and not treat the list of examples

in the Diagnostic Code as an exhaustive or limited list,"

apparently referring to the examples given in the General Rating

Formula for Mental Disorders, 38 C.F.R. § 4.130.

As the Board is granting a 100 percent disability evaluation on a

schedular basis for the Veteran's PTSD for the period from

December 30, 1992 to January 24, 1999, this decision represents a

full grant of the benefit sought, and the Board finds that any

claim for TDIU is, therefore, moot. 38 C.F.R. § 4.16(a) (2010)

(TDIU may be assigned only where the schedular rating is less

than total). See also VAOGCPREC 6-99 (June 7, 1999); Vettese v.

Brown, 7 Vet App. 31 (1994) ("claim for TDIU presupposes that the

rating for the condition is less than 100 percent"); Holland v.

Brown, 6 Vet App. 443 (1994); Green v. West, 11 Vet. App. 472,

476 (1998).

FINDINGS OF FACT

1. All relevant evidence necessary for an equitable disposition

of the Veteran's appeal has been obtained.

2. From December 30, 1992 and prior to January 25, 1999, the

Veteran was unable to obtain or retain employment and had total

occupational impairment due to his service-connected PTSD.

CONCLUSION OF LAW

Resolving all doubt in favor of the Veteran, the criteria for an

initial 100 percent evaluation for PTSD have been met for the

period from December 30, 1992 to January 24, 1999. 38 U.S.C.A.

§§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159,

3.321, 4.1-4.14, 4.130, 4.132, Diagnostic Codes 9400 through 9411

(effective prior to November 7, 1996) and 9411 (effective from

November 7, 1996).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Criteria

Disability ratings are determined by applying the criteria set

forth in the VA Schedule for Rating Disabilities, found in 38

C.F.R., Part 4. The rating schedule is primarily a guide in the

evaluation of disability resulting from all types of diseases and

injuries encountered as a result of or incident to military

service. The ratings are intended to compensate, as far as can

practicably be determined, the average impairment of earning

capacity resulting from such diseases and injuries and their

residual conditions in civilian occupations. 38 U.S.C.A. § 1155;

38 C.F.R. § 4.1. 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 for that rating. 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 the veteran's condition. Schafrath v. Derwinski, 1

Vet. App. 589, 594 (1991). Multiple (staged) ratings may be

assigned for different periods of time during the pendency of the

appeal. Fenderson v. West, 12 Vet. App. 119 (1999). Staged

ratings are appropriate in any increased-rating claim in which

distinct time periods with different ratable symptoms can be

identified.

As previously noted, the Veteran's PTSD is currently assigned a

50 percent rating for the period from December 30, 1992 to

January 25, 1999. As noted by the parties in the motion granted

by the Court, VA issued new regulations for rating disabilities

for mental disorders that became effective November 7, 1996. The

Board notes that consideration under the revised schedular

criteria should not be undertaken before such criteria became

effective. The effective date rule in 38 U.S.C.A. § 5110(g)

prevents the application of a later, liberalizing law to a claim

prior to the effective date of the liberalizing law. That is,

neither the RO nor the Board can apply the revised rating

schedule for any date prior to November 7, 1996.

Under the criteria in effect prior to November 7, 1996,

psychiatric disorders were evaluated pursuant to 38 C.F.R. §

4.132, which provided ratings from 0 to 100 percent based on the

level of disability. As pertinent here, a 50 percent evaluation

was warranted for considerable impairment of social and

industrial adaptability. A 70 percent rating was warranted for

psychoneurotic disability when the ability to establish and

maintain effective or favorable relationships with people was

severely impaired and the psychoneurotic symptoms were of such

severity and persistence that there is severe impairment in the

ability to obtain or retain employment. A 100 percent rating was

warranted when the attitudes of all contacts except the most

intimate were so adversely affected as to result in virtual

isolation in the community; there were totally incapacitating

psychoneurotic symptoms bordering on gross repudiation of reality

with disturbed thought or behavioral processes associated with

almost all daily activities, such as fantasy, confusion, panic

and explosions of aggressive energy, resulting in profound

retreat from mature behavior; or the veteran was demonstrably

unable to obtain or retain employment.

Under the previously applicable regulation, the finding of only

one of the criteria listed for a 100 percent rating in Diagnostic

Code 9400 may be sufficient to support the assignment of that

rating. Johnson v. Brown, 7 Vet. App. 95, 97 (1994).

Under the revised criteria, a 50 percent evaluation is for

assignment when there is occupational and social impairment with

reduced reliability and productivity due to such symptoms as:

flattened affect; circumstantial, circumlocutory, or stereo-typed

speech; panic attacks more than once a week; difficulty in

understanding complex commands; impairment of short- 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.

A 70 percent disability evaluation is assigned 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 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 worklike setting); inability to establish and maintain

effective relationships.

A 100 percent evaluation is warranted when there is evidence of

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 use of the term "such as" in the general rating formula for

mental disorders in 38 C.F.R. § 4.130 demonstrates that the

symptoms after that phrase are not intended to constitute an

exhaustive list, but rather are to serve as examples of the type

and degree of symptoms, or their effects, that would justify a

particular rating. See Mauerhan, supra. It is not required to

find the presence of all, most, or even some, of the enumerated

symptoms recited for particular ratings. Id. The use of the

phrase "such symptoms as," followed by a list of examples,

provides guidance as to the severity of symptoms contemplated for

each rating, in addition to permitting consideration of other

symptoms, particular to each veteran and disorder, and the effect

of those symptoms on the claimant's social and work situation.

Id.

The global assessment of functioning (GAF) score reflects the

psychological, social, and occupational functioning on a

hypothetical continuum of mental health illness. See Carpenter v.

Brown, 8 Vet. App. 240, 242 (1995).

A GAF score of 41 to 50 is defined as serious symptoms (e.g.,

suicidal ideation, severe obsessional rituals, frequent

shoplifter) or any serious impairment in social, occupational, or

school functioning (e.g., no friends, unable to keep a job). A

GAF of 51 to 60 is defined as 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). See QUICK REFERENCE TO THE DIAGNOSTIC CRITERIA FROM

DSM-IV, 46-7 (1994).

II. Analysis

The Board concludes that the Veteran is entitled to a total

disability rating for his PTSD for the appeal period from

December 30, 1992 and prior to January 25, 1999.

The November 1992 psychosocial and combat stress assessment from

the St. Petersburg Vet Center indicates that the Veteran had more

than 50 jobs since he left the military. His longest job was

almost a year; he was fired because he didn't get along with the

supervisor. He was not currently employed.

The Veteran's mother reported in a December 1993 statement that

he could not hold a job.

VA treatment records included a December 1992 record that noted

that the Veteran's symptoms were comprised of a sleep disorder

with frequent and intense nightmares, agitated depression, and

extreme social isolation and distrust of others. The treating

psychologist noted that the Veteran was unemployed and it was

unlikely that he would be able to obtain and maintain employment

due to his profound psychopathology. The Veteran was diagnosed

with chronic and severe PTSD. A November 1993 record noted that

he could not hold a job. A February 1994 record specifically

noted that he was not employable due to irritability, and

decreased attention, concentration, and memory. On mental status

examination, he had nervousness, anxiety, flashbacks,

hallucinations of artillery, stress intolerance, avoidant

behavior, obsessive thoughts, decreased sleep, decreased insight,

decreased social judgment, and increased irritability in that he

was argumentative without even realizing it. An August 1994

record noted that he was depressed, irritable, and avoidant, and

had occasional suicidal thoughts, decreased attention and

concentration, obsessive and intrusive thoughts, and decreased

judgment and insight. Treatment records dated from 1994 through

1997 continued to diagnose the Veteran with severe PTSD and

described him as not employable.

On August 1994 VA examination, the Veteran reported that he had

difficulties with remembering Vietnam, difficulties with trusting

people, and periods of isolation. He also withdrew from social

activities. On mental status examination, he became somewhat

agitated, his content of thought indicated confusion at times in

that he jumped from subject to subject in an explosive manner.

His mood was considered to be on the depressed side. His

feelings about the future were negative; he felt that he had to

live by himself because he didn't trust anybody. When he started

to trust people, he would become panicky and be brought back to

the Vietnam era. His thought content indicated a continuous

preoccupation with the Vietnam conflict. He felt that he was not

given the right treatment since he returned and that nobody tried

to help him. Since then, he felt that everybody was his enemy

and he tried to stay away from people for fear of his reactions.

There were no visual or auditory hallucinations. When he heard

sudden noises, it sometimes took him back to when he was being

shot at in Vietnam. His insight appeared to be superficial. He

was diagnosed with PTSD by history with social maladaptation

since then. He was assigned a Global Assessment of Functioning

Score (GAF) "around 60."

The Board finds that the evidence is in equipoise concerning

whether the Veteran was unable to obtain or retain employment and

had total occupational impairment due to his service-connected

PTSD for the period from December 30, 1992 and prior to January

25, 1999 under both the old and revised criteria. As previously

noted, it is not necessary that all of the particular symptoms

described in the rating criteria for a particular degree of

disability be present; with resolution of reasonable doubt in the

Veteran's favor, it may be said that the medical evidence of

record supports a conclusion that the level of impairment more

nearly approximates a 100 percent evaluation. Mauerhan, 16 Vet.

App. at 442.

The Board acknowledges that the clinical evidence does not show

that the Veteran has gross impairment in thought processes or

communication or behavior, or that he is so impaired or divorced

from reality that he is disoriented to time, person, or place,

and to such an extent that he cannot recall names of family or

his own name. Nor does it show that he was or is in persistent

danger of hurting himself or others. He is not shown to have

persistent delusions or hallucinations. Likewise, severe PTSD

symptoms bordering on gross repudiation of reality are not shown.

He has not demonstrated suicidal ideation; obsessional rituals;

illogical, obscure, or irrelevant speech; or spatial

disorientation. Nonetheless, the Veteran has demonstrated

difficulty in performing activities of daily living, such as

maintaining adequate personal hygiene and obtaining and

maintaining gainful employment. His primary, persistent symptoms

have been paranoia, irritability, anxiety, anger, and intrusive

thoughts about Vietnam. He has significant difficulty trusting

people. His symptoms do significantly impair his ability to

maintain interpersonal relationships, although he is not shown to

have been so impaired that he is virtually isolated from all

social contact. Nonetheless, as long as the evidence may be said

to be in equipoise concerning whether his symptoms result in

either virtual isolation in the community or demonstrable

inability to obtain or retain employment, or concerning evidence

of total occupational and social impairment, a 100 percent rating

may be assigned.

The GAF score assigned at the VA examination in April 1993 was

50, and was 55 for the past year. The GAF score assigned at the

August 1994 VA examination was 60. These scores would reflect

moderate to serious symptoms. The Board notes, however, that GAF

scores are only one indication of the severity of a given

service-connected mental disorder. 38 C.F.R. § 4.130; see also

Carpenter, supra. In contrast, the Board notes that, on January

25, 1999, a clinical nurse specialist assigned the Veteran a GAF

score of 45. In October 2000, a VA doctor assigned a GAF score

of 45 based on his continuous experience with the Veteran, having

seen him on a regular basis since October 26, 1998. Similarly, a

GAF score of 40 was assigned by the Vet Center assessment in

December 1992.

Regardless of the Veteran's GAF score and reported symptoms, it

is clear from the record that the Veteran did not work during the

period from December 30, 1992 to January 24, 1999, and that some

have attributed his unemployment to his psychiatric disability.

Accordingly, although the Veteran's GAF score has varied

significantly during the period in question, with resolution of

reasonable doubt in the Veteran's favor, the Board will give

greater weight to the notations supporting a higher, rather than

a lower, level of psychiatric disability and find that the

severity of the disability at issue is more appropriately

reflected by a 100 percent for the period from December 30, 1992

and prior to January 25, 1999. See 38 U.S.C.A. §§ 1155, 5107; 38

C.F.R. § 4.97, Diagnostic Codes 9400 through 9411 (effective

prior to November 7, 1996) and 9411 (effective from November 7,

1996).

III. Duties to Notify & Assist

The VCAA, in part, describes VA's duties to notify and assist

claimants in substantiating a claim for VA benefits. See 38

U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R.

§§ 3.102, 3.156(a), 3.159, 3.326(a). Although the VCAA now

applies to the instant claim, there is no reason to belabor the

impact of the VCAA on this matter inasmuch as the determination

above constitutes a full grant of that portion of the claim and

any error in notice is, therefore, harmless.

ORDER

Subject to the provision governing the award of monetary

benefits, an initial 100 percent disability evaluation for PTSD

is granted from December 30, 1992 and prior to January 25, 1999.

______________________________________________

MARY GALLAGHER

Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

Any, and all, input is certainly welcome; as ...I can see that I've got a long, uphill, battle facing me on this appeal. Thanks ...again!

Regards,

Sonny

Edited May 16, 2011 by BlakePaigeStone

[john999]

You should have gotten you c-file within a month or two. This wait of 8 months is crazy. Asking for a copy of your c-file is not a claim. If I was you I would go get a lawyer to take this claim. Just send in a generic NOD and then get a lawyer. If no lawyer will take the case then you pretty much know this is going to be a very hard battle. The VA is not going to roll over on this.