Citation Nr: 0812858 Decision Date: 04/18/08 Archive Date: 05/01/08 DOCKET NO. 05-03 935 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a rating in excess of 50 percent for post traumatic stress disorder (PTSD) for the period prior to July 14, 2005. 2. Entitlement to a rating in excess of 70 percent for PTSD for the period after July 14, 2005. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Katz, Associate Counsel INTRODUCTION The veteran served on active duty from January 1966 to October 1967. This matter is on appeal from the Nashville, Tennessee, Department of Veterans Affairs (VA) Regional Office (RO). In July 2005, the RO raised the evaluation of the veteran's PTSD to 70 percent, effective July 14, 2005. As such, the Board has identified the veteran's claim as separate issues as set forth on the title page. The issue of entitlement to TDIU is being remanded and is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Since October 17, 2001, the veteran's PTSD has been manifested by social isolation, anger, irritability, problems with memory, mood and concentration that creates occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. For the period prior to July 14, 2005, the criteria for a rating of 70 percent for PTSD, but no higher, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.125-4.130, Diagnostic Code (DC) 9411 (2007). 2. For the period after July 14, 2005, the criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.125-4.130, DC 9411 (2007). REASONS AND BASES FOR FINDING AND CONCLUSIONS This appeal arises from disagreement with the initial evaluation following the grant of service connection for PTSD. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). As to VA's duty to assist, VA has associated with the claims folder the veteran's service records he was afforded a VA psychiatric examination. He also testified at a hearing held before the undersigned Veterans Law Judge. Thus the Board finds that no additional assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. However, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining the level of occupational and social impairment). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran is currently evaluated as 50 percent disabled for PTSD prior to July 14, 2005 and as 70 percent disabled after that date. For the first period on appeal, in order to warrant the next higher rating, a 70 percent rating, the evidence must show the following: occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to symptoms such as: ? Suicidal ideation ? Obsessional rituals which interfere with routine activities ? Speech intermittently illogical, obscure, or irrelevant On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a rating in excess of 50 percent for post traumatic stress disorder (PTSD) for the period prior to July 14, 2005. 2. Entitlement to a rating in excess of 70 percent for PTSD for the period after July 14, 2005. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Katz, Associate Counsel INTRODUCTION The veteran served on active duty from January 1966 to October 1967. This matter is on appeal from the Nashville, Tennessee, Department of Veterans Affairs (VA) Regional Office (RO). In July 2005, the RO raised the evaluation of the veteran's PTSD to 70 percent, effective July 14, 2005. As such, the Board has identified the veteran's claim as separate issues as set forth on the title page. The issue of entitlement to TDIU is being remanded and is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Since October 17, 2001, the veteran's PTSD has been manifested by social isolation, anger, irritability, problems with memory, mood and concentration that creates occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. For the period prior to July 14, 2005, the criteria for a rating of 70 percent for PTSD, but no higher, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.125-4.130, Diagnostic Code (DC) 9411 (2007). 2. For the period after July 14, 2005, the criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.125-4.130, DC 9411 (2007). REASONS AND BASES FOR FINDING AND CONCLUSIONS This appeal arises from disagreement with the initial evaluation following the grant of service connection for PTSD. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). As to VA's duty to assist, VA has associated with the claims folder the veteran's service records he was afforded a VA psychiatric examination. He also testified at a hearing held before the undersigned Veterans Law Judge. Thus the Board finds that no additional assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. However, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining the level of occupational and social impairment). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran is currently evaluated as 50 percent disabled for PTSD prior to July 14, 2005 and as 70 percent disabled after that date. For the first period on appeal, in order to warrant the next higher rating, a 70 percent rating, the evidence must show the following: occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to symptoms such 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 For the next higher rating of 100 percent disability, the evidence must show the following: Total occupational and social impairment due to symptoms such 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 In addition, in evaluating psychiatric disabilities the VA has adopted the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). See 38 C.F.R. §§ 4.125, 4.130. Under DSM-IV, a Global Assessment of Functioning (GAF) 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 Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)). For that first period on appeal, the evidence of records includes VA treatment records and VA examinations undertaken in May 2002 and February 2003. VA treatment records for August 2001 indicate that the veteran was seen for what was initially reported as depression but the diagnosis was changed to PTSD after that initial psychological consult. At that time the veteran was noted to be dressed appropriately, with flat affect, dysphoric mood and somewhat apathetic. He was negative for thoughts of suicide or homicide and stated that he couldn't maintain employment and couldn't handle his personal relationships. He reported difficulty with crowds and isolates himself from people at all times. He was again evaluated in October 2001 with similar symptoms noted and a GAF of 54 assigned. This particular GAF score indicates moderate symptoms or moderate difficulty in social, occupational, or school functioning (i.e. flat affect and circumstantial speech, occasional panic attacks, few friends, conflicts with peers or co-workers). At the VA examination undertaken in May 2002, the veteran again indicated social isolation, unemployment, and irritability. He was noted to be irritable, angry, moderately depressed, and tense. His speech was noted to be pressured at times and he displayed moderate impaired concentration. He displayed no hallucinations or delusions and reported no compulsive or phobic phenomena and no abnormality of movements. His insight and judgment were reported as good and fair, respectively. He was assigned a GAF of 60 which indicates the high end of the moderate symptoms spectrum discussed above. The next VA examination, conducted in February 2003, indicated that the veteran was "a bit disheveled and unshaven, casually dressed and irritable." The veteran was also noted to be moderately depressed and angry. No hallucinations, delusions, obsessive or compulsive phenomena were reported as present. He denied suicidal and homicidal ideations and affect and thought content and mood were all good. Though the veteran did display some impairment as to concentration and attention and the veteran reported some problems remembering names and dates. The veteran was again assigned a GAF of 60. In July 2003, the veteran was again evaluated with similar symptoms but was assigned a slightly lower GAF of 55. Throughout this period on appeal, the veteran's VA treatment records indicate ongoing treatment for PTSD and that his treatment was somewhat hindered because of his insistence on his wife attending the individual therapy sessions, something not allowed by his therapist. For the second period on appeal, that following the VA examination dated July 14, 2005, similar symptoms are noted throughout the veteran's VA treatment records and in the July 2005 examination report. At the July 2005 examination, it should be noted that the veteran was assigned a slightly lower GAF again of 52. And since that examination, the veteran's VA treatment records indicate two more GAF of 55 and finally the most recent GAF of 50 - which is on the high end of what would denote serious symptoms rather than the previous scores which indicated moderate symptoms. Serious symptoms are described as suicidal ideation, severe obsessional rituals, frequent shoplifting, no friends and the inability to keep a job. During the first period on appeal for which he is currently rated as 50 percent disabled, the veteran's symptoms more nearly approximate a 70 percent disability rating as they do not differ so much as to require a lower rating than the period after July 14, 2005. As a result, a rating of 70 percent is granted for the entire period on appeal. A higher rating than 70 percent is not warranted as the veteran has not displayed symptoms that would more nearly approximate a rating in excess of 70 percent at any time during the appeal period. Indeed, the veteran has not displayed total occupational and social impairment. While he does distance himself from others, including family members, and has problems maintaining normal hygiene and with remembering names at times in addition to the many other symptoms described above which would warrant a 70 percent rating, he is able to continue to have a relationship with his wife, has never appeared to have gross impairment of thought processes or communication, never indicated having delusions or hallucinations, has not displayed grossly inappropriate behavior, has not presented as a persistent danger of hurting self or others, has not displayed disorientation to time or place This determination is based on application of pertinent provisions of the VA's Schedule for Rating Disabilities. There is no showing that the veteran's PTSD reflects so exceptional or unusual a disability picture as to warrant the assignment of an evaluation higher than 70 percent on an extraschedular basis. See 38 C.F.R. § 3.321(b)(1). The disability does not result in marked interference with employment (i.e., beyond that contemplated in the assigned evaluation) or frequent periods of hospitalization, or otherwise render impractical the application of the regular schedular standards. In the absence of these factors, the Board is not required to remand the claim to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Subject to the law and regulations governing payment of monetary benefits, a 70 percent rating for PTSD, effective October 17, 2001, is granted. For the period after July 14, 2005, a rating in excess of 70 percent for PTSD is denied. REMAND The veteran also claims entitlement to TDIU. His VA treatment records and examinations have documented a history of problems gaining and maintaining employment since 2000. Some of the evidence of record suggests that the veteran's employment problems may not be solely due to his service- connected disability, PTSD, but may also be due to his chronic pain problems. A further examination must be undertaken in order to determine the effects of his PTSD alone on his employability. Accordingly, the case is REMANDED for the following action: 1. The AMC should schedule the veteran for an appropriate VA examination. The claims folder should be made available to and reviewed by the examiner. All appropriate tests and studies should be conducted. Thereafter, the examiner should opine as to whether, without regard to the veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that his service-connected PTSD renders him unable to secure or follow a substantially gainful occupation. A complete rationale for any opinion expressed and conclusion reached should be set forth in a legible report. After completion of the foregoing, the AMC should readjudicate the claim. If the benefit sought remains denied, the veteran and his representative must be furnished an SSOC and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. All claims remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs