Citation Nr: 0914580 Decision Date: 04/17/09 Archive Date: 04/24/09 DOCKET NO. 04-13 110 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent for post-traumatic stress disorder (PTSD) prior to September 23, 2008. 2. Entitlement to an evaluation in excess of 50 percent for PTSD from September 23, 2008. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD R. Kessel, Associate Counsel INTRODUCTION The Veteran had active military service from August 1962 to August 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In May 2008, the Board remanded the Veteran's claims for additional development. While the case was in remand status, the Muskogee RO increased the rating for PTSD to 50 percent (from 30 percent) by an October 2008 rating decision. The rating was made effective as of September 23, 2008. Because less than the maximum available benefit for a schedular rating was awarded and because the increase was not made effective throughout the pendency of the claim, the claim remains before the Board. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); AB v. Brown, 6 Vet. App. 35 (1993). Consequently, the Board will address whether the Veteran is entitled to an evaluation in excess of 30 percent for PTSD prior to September 23, 2008, and whether he is entitled to an evaluation in excess of 50 percent for PTSD from September 23, 2008. By the May 2008 decision, the Board remanded an issue of whether the creation of an overpayment was proper. The agency of original jurisdiction (AOJ) was to prepare a statement of the case (SOC) for the issue. A SOC for the issue was sent to the Veteran and his representative in November 2008. No substantive appeal was made a part of the record before the case was re-certified to the Board in February 2009. Inasmuch as an appeal of the overpayment issue has not been made a part of the record, the Board will not address the issue. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.202 (2008). FINDINGS OF FACT 1. During the pendency of the claim, the Veteran's service- connected PTSD has been manifested by symptoms that include anxiety, depression, irritability, anger, intrusive thoughts, hypervigilance, avoidant behavior, startle response, nightmares, flashbacks, sleep impairment, questionable judgment, occasional panic attacks, limited concentration, and tangential and digressive speech, which have resulted in occupational and social impairment with reduced reliability and productivity. 2. The Veteran's service-connected disabilities do not preclude him from securing and following a substantially gainful occupation. CONCLUSIONS OF LAW 1. Prior to September 23, 2008, the criteria for a 50 percent rating for service-connected PTSD were met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2008). 2. During the pendency of the claim, the criteria for a rating in excess of 50 percent for service-connected PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2008). 3. The criteria for assignment of TDIU have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2008). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2008). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23353-56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the veteran to provide any evidence in the veteran's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1).) The Board finds that all notification and development action needed to render a decision as to the claims on appeal has been accomplished. Through April 2006 and July 2008 notice letters, the RO notified the Veteran and his representative of the information and evidence needed to substantiate the Veteran's increased rating and TDIU claims. The notice letters informed the Veteran that the evidence must show an increase in severity of PTSD. Additionally, the Veteran was told to submit medical evidence and lay statements showing how PTSD impacts his employment and daily life. The July 2008 letter also set forth the general criteria for assigning disability ratings and listed the applicable diagnostic code for evaluating PTSD. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). The RO provided the Veteran with the general criteria for assigning effective dates in the July 2008 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Although the complete notice was not provided until after the RO initially adjudicated the Veteran's claims, the claims were properly re-adjudicated in October 2008, which followed the July 2008 notice letter. See Prickett v. Nicholson, 20 Vet. App. 370, 376-77 (2006). The Board also finds that the April 2006 and July 2008 notice letters satisfy the statutory and regulatory requirement that VA notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). In those letters, the RO notified the Veteran that VA was responsible for obtaining relevant records from any Federal agency and that the RO would make reasonable efforts to obtain relevant records not held by a Federal agency, such as from a state, private treatment provider, or an employer. Consequently, a remand of the increased rating and TDIU claims for further notification of how to substantiate the claims is not necessary. There is no indication that any additional action is needed to comply with the duty to assist in connection with the issues on appeal. The Veteran's service treatment records have been obtained and associated with the claims file, as have treatment records from the VA Medical Centers (VAMCs) in: North Little Rock, Arkansas; Oklahoma City, Oklahoma; and Dallas, Texas. Available records from the Social Security Administration were also requested and obtained. Additionally, in July 2006 and September 2008, the Veteran was provided VA examinations in connection with his claims, the reports of which are of record. Furthermore, the Veteran was afforded a hearing before the Board in April 2008, the transcript of which is also of record. Significantly, the Veteran has not otherwise alleged that there are any outstanding medical records probative of his claims on appeal that need to be obtained. Thus, VA has properly assisted the Veteran in obtaining any relevant evidence. II. Analysis A. PTSD The Veteran asserts that his service-connected PTSD is more disabling than what is indicated by the ratings assigned during the rating period of the claim. Disability evaluations are determined by comparing a veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2008). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher of the two evaluations 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 (2008). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2008). The veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1 (2008); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established, VA must address the evidence concerning the state of the disability from the time period one year before the claim for an increase was filed until VA makes a final decision on the claim. The United States Court of Appeals for Veterans Claims has held that consideration of the appropriateness of a staged rating is required. See Hart, 21 Vet. App. at 509-10. PTSD is evaluated under Diagnostic Code 9411. A 30 percent rating is assigned for 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; mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned when there is 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- 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 evaluation is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relationships, 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); inability to establish and maintain effective relationships. Lastly, a 100 percent evaluation 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 ability 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. 38 C.F.R. § 4.130 (Diagnostic Code 9411) (2008). A review of the evidence of record reveals that the Veteran was first diagnosed with PTSD at the Dallas VAMC in April 2005. He underwent VA psychiatric examination in connection with the current claim in July 2006. The Veteran complained of flashbacks, intrusive thoughts, problems sleeping, nightmares, depression, and suicidal thoughts. He reported several suicide attempts in the 1970s and 1980s and he stated that he experienced suicidal ideation at least once per week. Regarding employment, the Veteran worked for 20 years in the aircraft industry before retiring in 1999 and had not worked since that time. The Veteran had been married four times and was currently married since 2003. He described the current marriage relationship as wonderful. The Veteran had several close friends he saw once per week. On examination, the Veteran appeared unkempt with a depressed mood. His affect was constricted and angry. The Veteran denied hallucinations and there was no evidence of delusional thinking. He reported suicidal and homicidal ideation with no intent or plan. The Veteran was fairly well oriented with long-term memory intact and good short-term memory. Attention and concentration was fair. The Veteran's reasoning was concrete but his judgment appeared questionable. Compulsive or ritualistic behavior was denied. His speech had normal rate and rhythm but he was tangential and digressive. No panic attacks were reported. The Veteran's thought processes were tangential and somewhat disorganized which the examiner related to a history of substance abuse. The Veteran's irritability and insomnia caused moderate occupational impairment. Past family relationships were impaired as a result of his substance abuse. The examiner provided a diagnosis of chronic, mild to moderate, PTSD; moderate major depressive disorder; and substance abuse, in remission. He assigned a GAF (global assessment of functioning) score of 50. Pursuant to the Board's remand, the Veteran was scheduled for another VA examination in September 2008 to address the level of severity of the Veteran's PTSD. The Veteran had subjective complaints of intrusive thoughts, nightmares, avoidant behavior, startle response, hypervigilance, and depression. The Veteran was not employed. The examiner noted that the Veteran appeared at the examination with dark glasses and soiled clothing. The Veteran was oriented quite well and his mood was within normal limits. He had reasonably good short-term memory although the Veteran indicated he had increasing memory problems. Cognitive testing showed limitations in concentration. There was no evidence of thought disorder in the sense of derailment, tangentiality, or circumlocution. The Veteran did not have hallucinations or delusions. He also did not have suicidal or homicidal ideation. The Veteran was diagnosed with PTSD and a depressive disorder not otherwise specified. A GAF score of 55 was assigned. The examiner stated that the Veteran has moderate dysfunction with respect to social and occupational activities as a result of his PTSD. When the RO awarded an increased rating to 50 percent, the effective date was set as September 23, 2008. That is the date that the second VA examination was conducted. The Board finds that the Veteran experienced similar PTSD-related symptoms prior to that examination. Based on the evidence in the July 2006 VA examination report, it appears that the Veteran's PTSD has resulted in occupational and social impairment with reduced reliability and productivity throughout the pendency of the claim and not merely since September 23, 2008. The Veteran exhibited and complained of many of the same symptoms at the July 2006 examination, the examiner characterized the impairment to be as much as moderate in nature, and the Veteran was actually assigned a lower GAF score. During his April 2008 hearing, the Veteran testified to experiencing similar symptoms, as well as panic attacks. Given the level of severity of the Veteran's PTSD, the criteria for a 50 percent rating were met prior to September 23, 2008. See 38 C.F.R. § 4.130 (Diagnostic Code 9411). Although a 50 percent rating is warranted throughout the pendency of the claim, the criteria for a 70 or 100 percent rating for PTSD have not been met. Obsessional rituals and spatial orientation were not found. The Veteran exhibited tangential and digressive speech, but it was never characterized as illogical, obscure, or irrelevant. He reported experiencing panic attacks and depression, but not to a near-continuous level. The Veteran had irritability, but periods of violence were not noted. He exhibited abnormal personal appearance and hygiene, but the examiners did not characterize it as neglect. The Veteran has impaired relationships, but he has not been unable to establish and maintain them as evidenced by his current marriage. Although suicidal ideation was reported at the July 2006 examination, the Veteran denied experiencing suicidal ideation during VA treatment and at the September 2008 VA examination. In light of the VA examiners' characterization of the Veteran's PTSD severity as moderate, the Board does not find the report of suicidal ideation as representative of the severity of his PTSD in light of the other evidence of record. Even more severe symptoms representative of total impairment, such as gross impairment of thought process or communication, delusions or hallucinations, or a danger of hurting self or others have not been evident during the rating period. Consequently, an evaluation in excess of 50 percent is not warranted for PTSD. The above determinations are based upon consideration of applicable rating provisions. It should also be pointed out that there is no showing that the Veteran's PTSD has reflected so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (2008). The symptoms of his disability have been accurately reflected by the schedular criteria. Without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral for a determination of whether the Veteran's disability picture requires the assignment of an extra-schedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). For all the foregoing reasons, the Board finds that the Veteran is entitled to a 50 percent rating for PTSD prior to September 23, 2008; however, a higher rating is not warranted at any time during the pendency of the claim. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against a higher rating, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). B. TDIU A total disability rating for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of service- connected disability. See 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2008). This is so, provided the unemployability is the result of a single service-connected disability ratable at 60 percent or more, or the result of two or more service- connected disabilities, where at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In the Veteran's case, he has been awarded service connection for PTSD, currently rated as 50 percent disabling; type II diabetes with bilateral peripheral neuropathy of the lower extremities, rated as 20 percent disabling; hypertension, evaluated as 10 percent disabling; and erectile dysfunction, evaluated as noncompensably (zero percent) disabling. The combined rating for the service-connected disabilities is 60 percent. As such, the Veteran does not meet the criteria for consideration for entitlement to TDIU on a schedular basis because neither the single 50 percent rating for PTSD or the combined 60 percent rating satisfies the percentage requirements of 38 C.F.R. § 4.16(a). Nevertheless, a veteran may be entitled to TDIU on an extra- schedular basis if it is established that he is unable to secure or follow substantially gainful employment as a result of the effect of his service-connected disability. 38 C.F.R. § 4.16(b). Consequently, the Board must determine whether the Veteran's service-connected disability precludes him from engaging in substantially gainful employment (work that is more than marginal, which permits the individual to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). The fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether a veteran, because of service- connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). An inability to work due to advancing age may not be considered. 38 C.F.R. §§ 3.341(a), 4.19 (2008). In making its determination, VA considers such factors as the extent of the service-connected disability, and employment and educational background. See 38 C.F.R. §§ 3.321(b), 3.340, 3.341, 4.16(b), 4.19. The evidence indicates that the Veteran worked for approximately 20 years in the aircraft industry until he retired in 1999. The Veteran last worked full time in February 2003 when he was a fork lift operator. His education consists of high school with two years of college. In July 2006, the Veteran underwent a VA examination that addressed his physical disabilities. The examiner considered the Veteran's service-connected disabilities of type II diabetes, hypertension, and erectile dysfunction, and provided an opinion regarding the Veteran's employability. He gave the opinion that the disabilities would not prevent the Veteran from working in any job. Even with consideration of the Veteran's non-service-connected disabilities (lumbar disc disease, sacroiliac joint dysfunction, and right eye problems), the examiner determined that the Veteran could perform sedentary tasks. Pursuant to the Board's remand, a VA examiner was to provide an opinion regarding the combined effects of the Veteran's service-connected disabilities-both physical and mental. The September 2008 VA examiner who assessed the Veteran's PTSD also provided an opinion regarding the Veteran's employability. The examiner found that, on the basis of PTSD alone or with his other service-connected ailments, the Veteran would have moderate to occasional work dysfunction. The Veteran's attitude, getting along with other people, general depression, reduced energy, and hypervigilance would primarily affect his ability to work. However, the examiner reiterated that the combined work dysfunction is moderate. Although the evidence indicates that the Veteran is not currently employed, it is not shown that he is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. Based on the VA examination reports, the combined impairment produced by both the Veteran's physical and mental service-connected disabilities do not render him unemployable. Therefore, submission for a total disability on an extra-schedular basis is not warranted and the claim must be denied. See 38 C.F.R. § 4.16(b). ORDER A 50 percent rating for PTSD is granted prior to September 23, 2008, subject to the laws and regulations governing the payment of monetary awards. An evaluation in excess of 50 percent for PTSD is denied. Entitlement to TDIU is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs