Citation Nr: 1113348
Decision Date: 04/05/11 Archive Date: 04/15/11
DOCKET NO. 09-28 402
On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina
Entitlement to an evaluation in excess of 30 percent for service-connected post-traumatic stress disorder (PTSD).
The Board presently grants the Veteran's claim in part, and assigns a 70 percent rating for PTSD. Also of record is a January 2009 VA examination report indicating that the Veteran reported leaving employment as a truck driver due to PTSD. Given these factors, a claim for a total rating based on individual unemployability is raised and REFERRED to the RO for appropriate action. Editor's note: The Court later overturned this referral and held that the Board should have remanded or granted the unemployability issue. The veteran was granted unemployability in February 2012.
"The Veteran contends that PTSD is more severely disabling than is reflected by the currently assigned rating. Having carefully considered the Veteran's contentions in light of the evidence of record and the applicable law, the Board finds that the weight of such evidence is in approximate balance and the claim will be granted on this basis. 38 U.S.C.A. § 5107(b) (West 2002); Alemany v. Brown, 9 Vet. App. 518 (1996); Brown v. Brown, 5 Vet. App. 413 (1993) (Under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the claimant shall prevail upon the issue).
"After review of the evidence, the Board finds that the Veteran's service-connected PTSD approximates the criteria for a higher rating of 70 percent. According to a December 2007 support statement from a friend of the Veteran, the Veteran's symptoms include moodiness, auditory hallucinations, and irritability.
"According to a November 2007 psychiatric diagnostic assessment, the Veteran complained of auditory and visual hallucinations with combat-related content, intrusive memories, nightmares, isolation, exaggerated startle response, hyper vigilance, insomnia, irritability, and difficulty concentrating. Although the Veteran did not report present suicidal or homicidal ideation, a previous notation indicated such thoughts as to suicide. It was noted that the Veteran displayed "under control of anger expression" as a limitation or barrier to symptom improvement. The diagnosis was chronic combat-related PTSD. A GAF score of 32 was assigned.
"The Veteran noted on VA evaluation in December 2007 that he worked as a truck driver but did not work on a regular basis. He had symptoms similar to those reported in November 2007. The Veteran reported that he had flashbacks while driving; that he was hyper vigilant to unexpected and loud noises and that he was easily irritated. He reported "limited" social functioning and that he slept most of the day and was only able to sleep at night for approximately two hours. On mental status evaluation, he was adequately groomed, he was alert and oriented, his speech was coherent and goal directed, and no delusions were reported. Short-term memory and concentration were somewhat impaired; his mood was dysphoric. He was described as hypervigilant. PTSD was diagnosed. The Veteran's GAF score was 50. The Veteran's PTSD was noted to interfere to a moderate degree with social and occupational functioning.
"VA treatment records for September 2008 reveal that the Veteran was oriented, his mood was stable, his thought process was logical and goal directed, he was not suicidal or homicidal, and he did not complain of hallucinations. It was also noted that the Veteran was undergoing active treatment and counseling for PTSD.
"During a January 2009 VA examination, it was noted that while the Veteran was undergoing treatment for PTSD and was improving, he could not then or in the "foreseeable future" return to the workforce. The Veteran reported that he was unemployed because his PTSD prevented him from safely performing work as a driver. The Veteran stated that he had been married three times, and lived with his mother. He reported increasing social isolation and that he did not attend church, except for once attending a funeral where he experienced increased anxiety. He reported that he had stopped hunting and rid himself of firearms - the report also indicating that the Veteran had previously made a suicidal gesture with such a firearm.
"While on mental status evaluation, he was oriented, his speech pattern was described as inconsistent and rambled. He had occasional thoughts of suicide. The examiner noted the Veteran had chronic intense hyper arousal in various forms from a moderate to serious degree, and that he had exaggerated startle responses to loud and or unexpected noises and sudden and/or unexpected movements which occurred regularly. The examiner noted the Veteran had "complex sleep disturbances," which included sleeping for short periods of time and trouble returning to sleep.
"The examiner noted that the Veteran experienced an array of symptoms consistent with serious PTSD, including intrusive memories and nightmares, hyper arousal, hyper vigilance, insomnia, social isolation, and psychic numbing. PTSD was diagnosed, and GAF was 50.
"There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim. However, under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994).
The mandate to accord the benefit of the doubt is triggered when the evidence has reached such a stage of balance. In this matter, the Board is of the opinion that this point has been attained. Because a state of relative equipoise has been reached in this case, the benefit of the doubt rule will be applied. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993).
"Although the Veteran lives with his mother, the record developed since submission of the claim indicates that the Veteran does so in essential social isolation. While he reportedly shops with his mother, it appears that the Veteran's PTSD nonetheless results in social isolation - he does not attend church, did not report having friends, and indeed while once attending a funeral experienced discomfort. Further, the Veteran appears to have had suicidal ideation, although not persistent. These factors, as well as the Veteran's report that he stopped working as a truck driver due to PTSD symptoms while driving, generally approximate the diagnostic criteria for the assignment of a 70 percent rating as they indicate the Veteran has occupational and social impairment in "most" areas.