Citation Nr: 0810061 Decision Date: 03/26/08 Archive Date: 04/09/08 DOCKET NO. 05-09 768 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial evaluation in excess of 50 percent for post-traumatic stress disorder (PTSD). 2. Entitlement to a total rating based on individual unemployability due to service-connected disability. ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The veteran served on active duty from December 1968 to July 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision of the Regional Office (RO) that granted the veteran's claim for service connection for PTSD, and assigned a 30 percent evaluation for it, effective February 2004. The veteran disagreed with the assigned rating. In a March 2005 rating action, the RO denied a total rating based on individual unemployability due to service-connected disability. This case was previously before the Board in February 2007, at which time it was remanded to ensure due process and for additional development of the record. Based, in part, on the receipt of additional evidence, the RO assigned a 50 percent evaluation for PTSD effective February 2004, by rating decision dated in November 2007. FINDINGS OF FACT 1. The veteran's PTSD is manifested by nightmares, intrusive thoughts and flashbacks, but there is no evidence of panic attacks, delusions, obsessional rituals, or neglect of personal appearance and hygiene. 2. The veteran's only service-connected disability is PTSD, for which a 50 percent evaluation has been assigned. 3. The veteran completed eight years of schooling and has work experience in a mill. He last worked full time in 1989. 4. His service-connected PTSD is not so severe as to prevent him from engaging in employment consistent with his education and occupational experience. CONCLUSION OF LAW 1. An initial evaluation in excess of 50 percent for PTSD is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2007). 2. A total rating based on individual unemployability due to service-connected disability is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). The notice requirements of the VCAA require VA to notify the veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; what subset of the necessary information or evidence, if any, the VA will attempt to obtain; and a general notification that the claimant may submit any other evidence he has in his possession that may be relevant to the claim. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule); see also Sanders, supra. In this case, in a November 2004 letter, the RO provided notice to the veteran regarding what information and evidence is needed to substantiate the claims for service connection and for a total rating, as well as what information and evidence must be submitted by the veteran, what information and evidence will be obtained by VA, and the need for the veteran to advise VA of or submit any further evidence in his possession that pertains to the claim. A February 2007 letter informed the veteran of the evidence needed to substantiate a claim for an increased rating, and reiterated the information pertaining to the distribution in obtaining such evidence. The Board also notes that the February 2007 letter advised the veteran of the evidence needed to establish a disability rating and effective date, to include submitting or advising VA of any evidence that concerns the level of disability and the impact of his symptoms on employment. See Vazquez-Flores v. Peake, No. 05-0355, (U.S. Vet. App. January 30, 2008). The case was last readjudicated in November 2007. Nevertheless, the veteran in this case is challenging the initial evaluation assigned following the grant of service connection. In Dingess, the Court held that in cases in which service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. See generally Turk v. Peake, No. 06-69 (U.S. Vet. App. Jan. 31, 2008) (where a party appeals from an original assignment of a disability rating, the claim is classified as an original claim, rather than as one for an increased rating); see also Fenderson v. West, 12 Vet. App. 119 (1999) (establishing that initial appeals of a disability rating for a service- connected disability fall under the category of "original claims"). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the veteran. Specifically, the information and evidence that have been associated with the claims file include VA outpatient medical records, and VA examination reports. As discussed above, the VCAA provisions have been considered and complied with. The veteran was notified and aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. VA treatment records have been obtained, and there is no indication that the veteran receives any private treatment. The veteran has been informed as to the types of evidence to submit, including specific examples of such, was provided with the rating criteria in the statement of the case, and has been advised that he can submit statements from himself or others to show the severity of his disability and its impact on his functioning. There is no additional notice that should be provided, and there has been a complete review of all the evidence. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. Thus, any such error is harmless and does not prohibit consideration of this matter on the merits. See Sanders, supra; Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). I. Increased rating-PTSD Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). As the veteran takes issue with the initial rating assigned when service connection was granted for PTSD, the Board must evaluate the relevant evidence since the effective date of the awards; it may assign separate ratings for separate periods of time based on facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). PTSD is evaluated pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411, in pertinent part, as follows: Total occupational and social impairment, due to such 100% symptoms as: gross impairment in thought processes or communication; persistent delusions of 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. Occupational and social impairment, with deficiencies 70% 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); inability to establish and maintain effective relationships. Occupational and social impairment with reduced reliability 50% 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 effective work and social relationships. On factor for consideration is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the "psychological, social and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) [citing the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM IV), page 32]. A GAF score of 11 to 20 indicates that there is some danger of hurting oneself or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement), or an occasional failure to maintain minimal personal hygiene, or gross impairment in communication. A GAF score of 21 to 30 indicates that behavior is considerably influenced by delusions or hallucinations, or serious impairment in communication or judgment (e.g., sometimes incoherent, acting grossly inappropriately, suicidal preoccupation), or an inability to function in almost all areas (e.g., stays in bed all day; no job, home, or friends). A GAF Score of 31 to 40 indicates some impairment in reality testing or communication (e.g., speech at times illogical, obscure, or irrelevant), or where there is major impairment in several areas such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). A GAF of 41 to 50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., few friends, unable to keep a job). A GAF of 51 to 60 indicates moderate symptoms (e.g., flattened 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). A GAF of 61 to 70 indicates some mild symptomatology (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or social functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, with some meaningful interpersonal relationships. See DSM-IV; see also 38 C.F.R. § 4.125 (2007). While the Rating Schedule does indicate that the rating agency must be familiar with the DSM IV, it does not assign disability percentages based solely on GAF Scores. See 38 C.F.R. § 4.130 (2007). The veteran asserts that an initial rating in excess of 50 percent is warranted for PTSD. During the course of his claim, the veteran has been afforded two VA psychiatric examinations, and he has also received treatment at a VA outpatient treatment clinic. The evidence supporting his claim includes some findings recorded in these records. In this regard, the Board observes that on the August 2004 VA psychiatric examination, it was noted that the veteran had daily intrusive thoughts and nightmares several times per week. He only slept four hours a night. It was also noted that he acknowledged, reluctantly, periods of suicidal thinking. The examiner stated that he was quite reluctant to acknowledge any type of emotional distress. The veteran described feelings of hypervigilance, and he was noted to be somewhat withdrawn. VA outpatient treatment records dated from 2005 to 2007 have been associated with the claims folder. It was noted in March 2006 that the veteran had intrusive memories and flashbacks. He also endorsed hypervigilance, increased startle and irritability. He also had occasional homicidal ideation when upset, although he had no plan or intent. On mental status evaluation, his affect was anxious and his mood depressed. He had what the examiner characterized to be illusions related to hypervigilance, and some visual hallucinations on waking in the middle of the night. The examiners assessments were severe PTSD and major depressive disorder. The GAF score was 50. It was noted in May 2006 that the veteran had passive thoughts of suicide, but without any plan or intent. The examiner commented that the veteran had significant symptoms of PTSD, marked by intrusive thoughts, nightmares, night sweats, flashbacks, avoidance, hypervigilance, anhedonia and severe startle reaction. When seen in March 2007, it was indicated that the veteran had experienced a number of difficult events, including the death of his mother-in-law, injuries he sustained when he was run over by a tractor, and wrecking his truck. An examination revealed that the veteran was tearful at times when relating stories of previous traumas. The assessment was PTSD, and the examiner stated that the events had stimulated an increase in his PTSD symptoms. It was further noted that he had experienced a fair response to medication prior to the events. The veteran was most recently examined by the VA in August 2007. He reported nightmares, distressing recollections, avoidance of physical and emotional reminders of his trauma and increased arousal. On mental status evaluation, the veteran displayed some psychomotor agitation and he struggled to fight off tears at times. The diagnosis was PTSD, and the GAF score was 50. The evidence against the veteran's claim includes the medical findings of record. The Board notes that at the time of the August 2004 VA psychiatric examination, the veteran was appropriately groomed. He was alert and cooperative, and his affect was normal. He had no hallucinations or delusions and his thought content was rational. He had no psychomotor agitation. While he said he had friends, he indicated that he stayed to himself. The GAF score was 55. The VA outpatient treatment records reflect that the veteran was consistently described as being well-groomed. It was noted consistently from November 2005 to early 2006 that his thought processes were intact, and he had no hallucinations or delusions. The only abnormal findings were that his affect was constricted and his mood was depressed. It was reported in May 2006, that the veteran was better on new medication, but was still irritable when triggered. He had no suicidal or homicidal ideation or audio and visual hallucinations. It is significant to point out that the Global Assessment of Functioning scores ranged from 50 to 55. The Board observes that the veteran reported in November 2005 that he had been married for 37 years and that he had a good relationship with his children. Similarly, the most recent VA psychiatric examination reveal that the veteran's thought content was free of delusions or suicidal or homicidal ideation. There were no audio or visual hallucinations, and the veteran was fully oriented to person, place and purpose, but he had the wrong date. The examiner stated that the veteran had a significant degree of social impairment, and would be constrained in securing and maintaining employment, particularly at his stage in life. The extensive medical evidence of record fails to demonstrate that an initial rating in excess of 50 percent is warranted for PTSD. There is no clinical evidence that the veteran has any panic attacks (let alone near continuous ones), impaired impulse control, spatial disorientation, or neglect of personal appearance and hygiene, as would be required to assign a higher rating. The Board concludes that the medical findings of record are of greater probative value than the veteran's statements regarding the severity of his disability. The Board finds, accordingly, that the preponderance of the evidence is against the claim for an initial rating in excess of 50 percent for PTSD. II. Total rating VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. A TDIU rating for compensation purposes 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 a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided 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 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the above purpose of one 60 percent disability or one 40 percent disability, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a)(1). For a veteran to prevail on a claim for a TDIU rating, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes if difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See 38 C.F.R. 4.16(a). Van Hoose v. Brown, 4 Vet. App. 361 (1993). In determining whether appellant is entitled to a total disability rating based upon individual unemployability, neither appellant's non-service-connected disabilities nor advancing age may be considered. The veteran has been granted service connection for PTSD, evaluated as 50 percent disabling. In Fisher v. Principi, 4 Vet. App. 57 (1993), the Court held that in a claim for a total rating based on individual unemployability due to service-connected disability, where the disability rating did not entitle the appellant to a total disability rating under 38 C.F.R. § 4.16(a), the rating board must also consider the applicability of 38 C.F.R. § 4.16(b), and that the decision or non-decision by the RO whether to refer a case to the Director for extra-schedular consideration is an adjudicative decision subject to review by the Board and the Court. In this case, the veteran does not meet the schedular standards under 38 C.F.R. § 4.16(a), and there is no competent evidence that he is unemployable due solely to his service-connected disabilities. The record discloses that the veteran has completed eight years of schooling and he has work experience in a mill. The most recent VA examination noted the veteran had a small tobacco farm until 2000 when it went out of business. The record reflects that the only comment in the record regarding the veteran's employability was made following the VA psychiatric examination in August 2007. At that time, the examiner stated that the veteran's PTSD symptoms had constrained his options for securing and maintaining employment, particularly at his stage in life. Although this statement clearly suggests that the veteran's employment prospects were limited, there is no basis on which it may be concluded that the veteran was precluded from employment due to the severity of his PTSD. In this regard, the Board points out that there is no indication in the record that the veteran has even attempted to obtain employment, but been rejected due to his PTSD. Moreover, the statement reflects that the veteran's age was a factor, and such cannot be considered when evaluating service-connected disability or determining unemployability for compensation purposes. 38 C.F.R. § 4.19. The issue in this case is whether the veteran is capable of performing the acts required by employment. Clearly, his service-connected PTSD is not shown to be so severe as to preclude all forms of gainful employment. The Board emphasizes that there is no competent medical evidence of record demonstrating that the veteran is unemployable solely due to his service-connected disability. The Board finds that the medical evidence of record is of greater probative value than the statements of the veteran. Thus, the preponderance of the evidence is against the claim for a total rating based on individual unemployability due to service-connected disability. ORDER An initial evaluation in excess of 50 percent for PTSD is denied. A total rating based on individual unemployability due to service-connected disability is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs