Citation Nr: 0810558 Decision Date: 03/31/08 Archive Date: 04/09/08 DOCKET NO. 06-32 638 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to a rating in excess of 30 percent for post- traumatic stress disorder (PTSD) from March 4, 2004, to July 30, 2006. 2. Entitlement to a rating in excess of 50 percent for PTSD from July 31, 2006. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The veteran served on active duty from May 1944 to November 1963. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in June 2005 (PTSD) and February 2006 (TDIU) issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The June 2005 decision granted service connection for PTSD, and assigned a 30 percent disability rating, effective from March 4, 2004. In an August 2006 statement of the case the RO increased the rating assigned for PTSD to 50 percent, effective from July 31, 2006. The United States Court of Appeals for Veterans Claims (Court) has held that a "decision awarding a higher rating, but less than the maximum available benefit...does not...abrogate the pending appeal...." AB v. Brown, 6 Vet. App. 35, 38 (1993). As the veteran has essentially perfected an appeal to the initial rating assigned following the grant of service connection for PTSD the Board has characterized this issue in accordance with the decision of the Court in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (appeals from original awards are not to be construed as claims for increased ratings), which requires consideration of the evidence since the effective date of the grant of compensation. In March 2008, a Veterans Law Judge from the Board granted the veteran's motion to advance the case on the Board's docket. FINDINGS OF FACT 1. For the period from March 4, 2004, to July 30, 2006, the preponderance of the probative evidence shows that the veteran's PTSD was not manifested by 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; disturbance of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 2. From July 31, 2006, the preponderance of the probative evidence shows that the veteran's PTSD has not been manifested by 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; intermittently illogical, obscure, or irrelevant speech; 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 work-like setting); inability to establish and maintain effective relationships. 3. The veteran's service connected PTSD alone does not render him unemployable. CONCLUSIONS OF LAW 1. From March 4, 2004, to July 30, 2006, a rating in excess of 30 percent for PTSD was not warranted. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 4.2, 4.7, 4.10, 4.130, Diagnostic Code (Code) 9411 (2007). 2. From July 31, 2006, a rating in excess of 50 percent for PTSD is not warranted. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.2, 4.7, 4.10, 4.130, Code 9411. 3. The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) due to service- connected disabilities have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.321, 3.340, 3.341, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the veteran is challenging the initial evaluation assigned following the grant of service connection. In Dingess, the Court of Appeals for Veterans Claims held that in cases where 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. The Court in Vazquez-Flores v. Peake, No. 05-0355 (Vet. App. Jan. 30, 2008), spoke only to cases of entitlement to an increased rating. Because there is a distinction between initial rating claims and increased rating claims, Vazquez- Flores is not for application with respect to initial rating claims as notice requirements are met when the underlying claim for service connection is substantiated. Consequently, there is no need to discuss whether VA met the increased duty to notify standard as enunciated in Vazquez-Flores in claims of entitlement to a higher initial rating nor is there a need to remand initial rating claims for remedial notice pursuant to Vazquez-Flores. With respect to the claim of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders the requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the veteran in August 2005 of the information and evidence needed to substantiate and complete the claim, to include notice of what part of that evidence is to be provided by the claimant and notice of what part VA will attempt to obtain. VA has fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. VA informed the claimant of the need to submit all pertinent evidence in his possession, and provided adequate notice of how disability ratings and effective dates are assigned. The record shows that the claimant was afforded a meaningful opportunity to participate in the adjudication of the claim, and the claim was readjudicated. The claimant was provided the opportunity to present pertinent evidence. In sum, there is no evidence of any VA error in notifying or assisting the appellant that reasonably affects the fairness of this adjudication. Factual Background The veteran essentially contends that the severity of his PTSD symptoms warrant the assignment of higher ratings for each of the two respective periods of time at issue. He also claims that a total disability evaluation based on individual unemployability due to service connected disorders benefits should be awarded as he last worked in 1995. See VA Form 21- 8940, dated in July 2005. In January 2004, the veteran was seen by John C. Lindgren, M.D. The appellant reported having daily nightmares, intrusive thoughts, nightly distressing dreams, frequent flashbacks, distress at triggers which reminded him of prior trauma, avoidance, estrangement, severe sleep disturbance, memory problems, hypervigilence, and depression. He endorsed a history of panic, anxiety, and frequent visual hallucinations and illusions. Mental status examination revealed the veteran to be cooperative and pleasant. He dressed normally, and was soft spoken. He was depressed, anxious, and had a restricted and blunted affect. No hallucinations or delusions were noted during the examination. His judgment and insight were judged to be fair. The examiner opined that because of PTSD the veteran was unable to sustain work or social relationships. The examiner considered the appellant to be permanently and totally disabled, and unemployable. The diagnosis was severe PTSD. The veteran was noted to suffer from several other disorders to include cardiac disease, and arthritis. A global assessment of functioning (GAF) score of 30 was assigned. In June 2004, the veteran was afforded a VA PTSD examination. No previous VA psychiatric evaluation was indicated. A notation to a private psychiatric evaluation conducted in January 2004, which included a diagnosis of PTSD with a Global Assessment of Functioning (GAF) of 30 was included. The veteran reported to the examination in causal clothing, and displayed good grooming and personal hygiene. Eye contact, mannerisms, and facial expressions were all normal. His mood was described as euthymic with full effect. Mental status examination showed the veteran to be alert and well oriented, with normal speech. No impairment of thought processes or communication was evident. The examiner also noted that no disturbance in memory or attention. The examiner further commented that the veteran managed activities of daily living independently as well as the taking of certain medications. The veteran was experiencing some social isolation. PTSD, described as mild, was diagnosed. A GAF score of 65 was included. Private psychiatric-based treatment records are on file. A September 2004 treatment record includes clinical findings reflective of normal dress. There was evidence of severe anxiety and depression, and a restricted affect. There were no hallucinations, or suicidal or homicidal ideation. Judgment and insight were judged to be fair. A record dated in October 2004 includes findings of normal dress and speech. There was evidence that the veteran had an anxious mood, restricted affect, and a slightly slowed thought process. There were no hallucinations or delusions, and no suicidal or homicidal ideation. Judgment and insight were opined to range from fair to poor. A December 2004 record included findings similar to that reported in October 2004. A February 2005 treatment record of normal dress, anxious mood, restricted affect, linear thought process, no hallucinations or delusions, no suicidal or homicidal ideation, and fair judgment and insight. A May 2005 private medical record notes complaints of panic attacks one to two times a week, nightmares four to five times a week, and flashbacks one to two times a month. The veteran was also reported to be hypervigilent and to suffer from intrusive thoughts. He was noted to rarely socialize with friends and family. He was noted to be forgetful, and to complain of hallucinations. A GAF score of 35 was provided. A July 2005 private record showed similar findings; a GAF score of 35 was included. The Board notes that some of the private medical records were prepared by a licensed practical nurse. The report of a June 2005 VA PTSD examination shows that the veteran exhibited signs of confusion. PTSD was diagnosed, and a GAF score of 65, like in June 2004, was provided. On July 31, 2006, the veteran was afforded a VA PTSD examination. He complained of nightmares and trouble sleeping. He also reported having intrusive thoughts, and being anxious, easily startled, hypervigilent as well as uncomfortable in crowds. The veteran denied suicide attempts and panic attacks. No inpatient treatment was reported. The appellant reported seeing a private psychiatrist. The veteran reportedly was required to continuously use nasal oxygen. He was noted to have been a minister following his military service and that he retired about 10 years earlier. The veteran had friends, but due to his poor health mostly just stayed around his home. He tried to go to church when he was able. The examiner described the veteran's physical health as poor. He was also able to have social interactions but limited recreational and leisure pursuits. Mental status examination showed the veteran to be alert, cooperative, and pleasant. He used a cane, and nasal oxygen. No loose associations or flight of ideas were present. The veteran's mood was calm and affect appropriate. The veteran did admit to nightmares and intrusive thoughts. No homicidal or suicidal ideation or intent was present. Further, no impairment of thought processes or communication was present. The veteran was noted to be short-tempered. There were no delusions, hallucinations, ideas of reference, or suspiciousness. The veteran was oriented times three. Memory was adequate. Insight, judgment, and intellectual capacity were all described as adequate. PTSD was diagnosed, and a GAF score of 52 was provided. Heart disease, recent congestive heart failure, and glaucoma were also diagnosed. The examiner commented that the veteran's physical health had obviously deteriorated since his last examination. To this, the use of continuous nasal oxygen was again noted. The veteran's nightmares and hypervigilence had similarly increased in frequency and severity. The examiner added that the veteran's increased psychiatric symptoms together with his physical problems would render the veteran incapable of employment (either sedentary or active). Laws and Regulations Disability ratings are based upon the average impairment of earning capacity as determined by a Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate rating codes identify the various disabilities. Id. An evaluation of the level of disability present also includes consideration of the veteran's ability to engage in ordinary activities, including employment, and the effect of symptoms on the functional abilities. 38 C.F.R. § 4.10. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. 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). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Under 38 C.F.R. § 4.130, Diagnostic Code 9411, a 30 percent rating is warranted 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 warranted for 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; disturbance of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted 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; intermittently illogical, obscure, or irrelevant speech; 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 work-like setting); inability to establish and maintain effective relationships. 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 is rated as 100 percent disabling. The global assessment of functioning score reflects the level of psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994). A total rating based on individual unemployability (TDIU) is assigned when service-connected disabilities result in such impairment of mind or body that the average person is so disabled that he is precluded from following a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. If there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be at least 70 percent. 38 C.F.R. § 4.16(a). Total disability ratings for compensation may nevertheless be assigned where the schedular rating for the service-connected disability is less than 100 percent when it is found that the service-connected disabilities alone are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. §§ 3.340, 3.341, 4.16; Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). If a veteran is unemployable due solely to service-connected disabilities, but does not meet the schedular criteria of 38 C.F.R. § 4.16(a), the TDIU claim should be submitted to the Director, Compensation and Pension Service, for consideration of a TDIU on an extraschedular basis. 38 C.F.R. § 4.16(b). The service-connected disabilities must be so severe as to produce unemployability, in and of themselves, without regard to unemployability attributable to age of the veteran or to other disabilities for which service connection has not been granted. 38 C.F.R. § 3.341. That is, a TDIU may not be assigned if unemployability is a product of advanced age, or of other nonservice-connected disabilities, rather than a result of functional impairment due solely to service- connected disabilities. 38 C.F.R. § 4.19. In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Analysis Increased Ratings After considering all of the evidence of record, including the above-referenced VA PTSD examination reports dated in June 2004, June 2005, and July 31, 2006, as well as the above-discussed private medical records, the Board finds that the veteran's PTSD did not warrant a rating in excess of 30 percent at any time from March 4, 2004, to July 30, 2006, nor is a rating in excess of 50 percent warranted from July 31, 2006. In this regard, between March 4, 2004, to July 30, 2006, the medical evidence of record fails to demonstrate that the criteria set out in 38 C.F.R. § 4.130, Code 9411, and necessary for the assignment of a 50 percent or higher rating, were met. Of particular note, review of the June 2004 and June 2005 VA PTSD examination reports reveals that the examiner did not, on either occasion, find that the veteran suffered from any of the above-listed symptoms necessary for the assignment of a 50 percent rating. The examiner indicated that she had fully reviewed the claims file in conjunction with the examinations. Further, a GAF score of 65 was provided on each occasion. A GAF score of from 61 to 70 reflect "some mild symptoms" (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well. Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994). While a private psychiatric provider found the veteran's affect to be restricted in 2004 and 2005, noted the presence of poor judgment in 2004, and provided GAF scores of 35 in both May and July 2005, and while GAF scores ranging from 31 to 40 reflects "some impairment in reality testing or communication," this private medical provider is not shown to have had the opportunity to review the veteran's claims file. Moreover, some of the private medical records are shown to have been prepared by a nurse practioner, and not a psychologist or psychiatrist. An examination that does not take into account the records of prior medical treatment is neither thorough nor fully informed. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Hence, the Board finds that the private GAF scores to be somewhat dubious. Indeed, the GAF scores of 35 appear to be, based on the other medical evidence, to include the two VA examination reports dated during this period of time, at complete odds with the above- discussed evidence of record. Thus, the GAF findings provided by the private physician are not considered by the Board to be either thorough or fully informed. Green. In contrast, the Board finds that the June 2004 and June 2005 VA examination findings are more probative to the evaluation of the severity of the veteran's PTSD than the private medical findings here discussed. As noted above, of the medical providers in question, the VA physician is the only one to have had an opportunity to review the veteran's claims folder. Accordingly, a rating in excess of 30 percent is not warranted for the PTSD for the period from March 4, 2004, to July 30, 2006. The Board also finds that a rating in excess of 50 percent is not warranted for PTSD at any point since July 31, 2006. On review of the findings set out in the VA examination afforded the veteran on July 31, 2006, the Board finds that while the veteran was reported to be short-tempered at that time, the examination fails to show the presence of any of the other PTSD symptoms needed to establish a disability rating of 70 percent. The GAF score of 52 provided by the examiner seemed to accurately reflect the current severity of the veteran's PTSD disorder on the day of that examination. This examiner, like the examiner who conducted the June 2004 and June 2005 VA examinations, had an opportunity to review the veteran's claims file in the course of the examination. A GAF score of 51 to 60 generally reflect "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). This degree of disability does not meet the criteria for a rating in excess of 50 percent. It does not appear that the veteran has been afforded treatment for his PTSD since the VA's July 31, 2006, examination. The veteran has not stated, nor do the medical records indicate, that he has had any subsequent treatment for PTSD. Without medical evidence documenting more severe symptoms of PTSD disability, no more than a 50 percent rating is warranted for the veteran's service-connected PTSD from July 31, 2006. TDIU The veteran is only service connected for PTSD, evaluated as 50 percent disabling. As this single service-connected disability is rated 50 percent disabling, the veteran does not satisfy the minimum percentage requirements for TDIU under 38 C.F.R. § 4.16(a). Still, total disability ratings for compensation may nevertheless be assigned where the schedular rating for the service-connected disability is less than 100 percent when it is found that the service-connected disabilities alone are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. §§ 3.340, 3.341, 4.16. Thus, here, the issue is whether his PTSD alone precludes him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). For a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor, which takes this case outside the norm. The simple fact that a claimant is currently unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). A review of the medical records associated with the claims file indicates there is no medical evidence which indicates the veteran is unemployable solely due to his service- connected PTSD. The Board is mindful of the opinion supplied by the VA examiner in July 2006, at which time he indicated that veteran's psychiatric symptoms, together with his heart disease, recent congestive heart failure, glaucoma, and continuous use of nasal oxygen rendered the veteran incapable of employment. While the veteran may be unemployable due to a combination of factors, when considering the impact of the service-connected PTSD disorder alone, the preponderance of the clinical evidence of record is against the claim. In light of the foregoing, the medical evidence demonstrates the veteran's sole service connected disorder, post traumatic stress disorder, does not preclude him from securing or following substantially gainful employment. Again, the medical evidence indicates functional impairment, which may limit the veteran's employment options, but the record does not support his claim that he is unable to work due solely to his service-connected PTSD. In reaching these decisions, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claims, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER A rating in excess of 30 percent for PTSD from March 4, 2004, to July 30, 2006, is denied. A rating in excess of 50 percent for PTSD from July 31, 2006, is denied. A total disability rating based on individual unemployability due to service-connected disabilities is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs