Citation Nr: 0813183 Decision Date: 04/22/08 Archive Date: 05/01/08 DOCKET NO. 05-29 273 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an increased disability rating for post- traumatic stress disorder (PTSD), currently evaluated as 50 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD K.A. Kennerly, Associate Counsel INTRODUCTION The veteran served on active duty from February 1969 to August 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision of the St. Louis, Missouri, Regional Office (RO) of the Department of Veterans Affairs (VA). The Board notes that the veteran originally filed his claim of entitlement to service connection for PTSD in May 1999. A rating decision dated in June 1999 granted service connection and assigned the current 50 percent disability rating. In May 2000, the veteran filed a claim for an increased rating for his PTSD. The 50 percent disability rating was continued in an April 2001 rating decision. The veteran timely submitted a notice of disagreement in March 2002. The RO issued a statement of the case in January 2003, but the veteran did not perfect his appeal. In September 2003, the veteran filed his claim of entitlement to TDIU. As the RO considered the veteran's PTSD his most disabling condition and the veteran claimed an inability to work due to PTSD, the evaluation of this condition was put at issue as an integral part of the TDIU claim. The issue of entitlement to TDIU 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. The veteran will be notified if further action is required on his part. FINDINGS OF FACT 1. The evidence of record indicates that the veteran's PTSD is manifested by symptoms of memory impairment, sleep impairment, some panic attacks, nightmares, disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships. 2. The evidence of record does not demonstrate that the veteran's PTSD is manifested by suicidal ideation, obsessional rituals that interfere with routine activities, illogical speech, near continuous panic or spatial disorientation. CONCLUSION OF LAW 1. The criteria for an evaluation in excess of the currently assigned 50 percent for PTSD have not been met. 38 U.S.C.A. § 1155 ((West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the veteran or on his or her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim decided herein. The veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. The Veterans Claims Assistance Act of 2000 (VCAA) With respect to the veteran's claim decided herein, VA has addressed the statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. The Board notes that when the veteran filed his original claim for entitlement to TDIU, he cited his primary service- connected disability contributing to his inability to work, as PTSD. The veteran did not specifically file a claim for an increased disability rating for PTSD. Though the June 2004 letter did not specifically discuss what was necessary to substantiate a claim for an increased disability rating, it is clear from the evidence submitted by the veteran in the development of his claims that he understood that his current level of severity was in question. He has also had a meaningful opportunity to participate in his increased rating claim. A letter dated in June 2004 addressed the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2007); Quartuccio, at 187. The June 2004 letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-21. The VCAA notice provided to the veteran prior to adjudication failed to provide notice of the fourth element, viz., that the claimant should provide any evidence relevant to the claim in his possession to VA. See Pelegrini II, supra. Failure to provide pre-adjudicative notice of any of the four elements is presumed to create prejudicial error. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The Secretary has the burden to show that this error was not prejudicial to the veteran. Id., at 17. Lack of prejudicial harm may be shown in three ways: (1) that any defect was cured by actual knowledge on the part of the claimant, (2) that a reasonable person could be expected to understand from the notice what was needed, or (3) that a benefit could not have been awarded as a matter of law. Id., at 14; see also Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The June 2004 letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA and provided examples of the types of evidence, both medical and lay, that could be submitted. The Board concludes that a reasonable person could be expected to understand that any relevant evidence should be submitted during the development of the claim. See Pelegrini II, at 120-21. Accordingly, the Board concludes that the failure to provide VCAA compliant notice was harmless error. The Board may proceed with consideration of the claim on the merits. See Sanders, supra; see also Simmons v. Nicholson, 487 F. 3d 892 (Fed. Cir. 2007). As the Board concludes herein that the preponderance of the evidence is against assigning a higher rating for PTSD, there is no question as to an effective date to be assigned for the PTSD claim. No further notice is needed. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also concludes VA's duty to assist has been satisfied. The veteran's service medical records and VA medical records are in the file. Private medical records identified by the veteran have been obtained, to the extent possible. The veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2007). The RO provided the veteran an appropriate VA PTSD examination in 2005. There is no objective evidence indicating that there has been a material change in the severity of the veteran's PTSD since he was last examined. The veteran has not reported receiving any recent treatment specifically for this condition (other than at VA, which records are in the file), and there are no records suggesting an increase in disability has occurred as compared to the prior VA examination findings and VA treatment records. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11- 95. The 2005 VA examination report is thorough and supported by VA outpatient treatment records. There is no rule as to how current an examination must be, and the Board concludes the examination in this case is adequate upon which to base a decision. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. The Merits of the Claim Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. See 38 U.S.C.A. § 1155 (West 2002). After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. See 38 C.F.R. § 4.3 (2007). While the veteran's entire history is reviewed when making a disability determination, 38 C.F.R. § 4.1, where service connection has already been established and increase in the disability rating is at issue, it is generally the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). The Board notes however, if VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. Thus, VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased-rating claim has been pending. Cf. McClain v. Nicholson, 21 Vet. App. 319, 323 (2007) (Board finding that veteran had disability "at some point during the processing of his claim," satisfied service connection requirement for manifestation of current disability); Moore v. Nicholson, 21 Vet. App. 211, 216-17 (2007). In Hart v. Mansfield, __ Vet. App. __ (2007), the Court found no basis for drawing a distinction between initial ratings and increased rating claims for applying staged ratings. Accordingly, it was held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2007). The veteran's service-connected PTSD is evaluated under Diagnostic Code (DC) 9411. The regulations establish a general rating formula for mental disorders. See 38 C.F.R. § 4.130 (2006). Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)). Id. Under the provisions for rating psychiatric disorders, a 70 percent disability rating requires evidence of the following: 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; 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.) The criteria for a 100 percent rating are: 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. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (2007). Within the DSM-IV, Global Assessment Functioning (GAF) scores are 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). While not determinative, a GAF score is highly probative as it relates directly to the veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. See Massey v. Brown, 7 Vet. App. 204, 207 (1994). A GAF score is, of course, just one part of the medical evidence to be considered, but it is not dispositive. The same is true of any physician's statement as to the severity of a condition. It remains the Board's responsibility to evaluate the probative value of any doctor's opinion in light of all the evidence of record. After a careful review of the record and for reasons and bases expressed immediately below, the Board finds that the veteran's demonstrated PTSD symptomatology warrants a continuation of the currently assigned 50 percent rating. See 38 C.F.R. § 4.7 (2007). A GAF score of 31 to 40 indicates "some impairment in reality testing or communication (e.g., speech is at times illogical, obscure or irrelevant) OR 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; child frequently beats up younger children, is defiant at home, and is failing at school)." A GAF score of 41 to 50 shows "serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). Scores ranging from 51 to 60 reflect more 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). GAF scores ranging between 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, and has some meaningful interpersonal relationships. In reviewing the entire body of evidence, the Board notes that the veteran had consistently been assigned GAF scores between 40 and 60 from June 1999 through May 2003. See VA examination reports, June 1999, March 2001 and November 2002; see also VA outpatient treatment records, March 1999, October 2001 and June 2002. However, the Board notes that there is a substantial inconsistency in the veteran's reported GAF scores. Until May 2003, the veteran's GAF scores were fairly consistent, demonstrative of more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social and occupational functioning (e.g., few friends, conflicts with peers or co- workers). Beginning in December 2003, the veteran experienced significant improvement in his symptomatology. In September 2003, the veteran's medication was changed from citalopram to Zoloft. In December 2003, the veteran reported dramatic improvement in mood. He stated that he was much happier and felt much less stressed. It was also noted that the veteran had obtained a part-time job. He felt good about himself and no suicidal or homicidal ideation was noted. His GAF score was reported as 75. See VA treatment record, December 11, 2003. In April 2004, a VA telephone note indicated the veteran had continued benefit on sertraline with no suicidal or homicidal ideation. His GAF score was reported as 70. See VA telephone note, April 14, 2004. In July 2004, the veteran was noted to have fairly severe depression; several dissociative episodes resulting from anxiety; and marked memory impairment. There was no suicidal or homicidal ideation and his GAF score was reported as 70. See VA treatment record, July 15, 2004. In January 2005, it was noted the veteran was currently taking sertraline, olanzapine and clonazapam, which were working exceptionally well for the veteran's symptoms. He was functioning well, was keeping active with his 11 year old son and had a stable marriage. His GAF score was reported as 85. See VA treatment record, January 27, 2005. In July 2005, the veteran reported that when on his medication, he felt good and slept well. He had no suicidal ideation, delusions or hallucinations and his memory was noted to be good. He was assigned a GAF score of 60. See VA treatment record, July 27, 2005. Overall, beginning in December 2003, the veteran's symptoms were mild (e.g., depressed mood and mild insomnia) or some difficulty in social or occupational functioning (e.g., occasional truancy, or theft within the household), but generally functioning fairly well, and had some meaningful interpersonal relationships. Interestingly, during the August 2005 VA examination, it was noted that the veteran had a blunted affect, suffered from auditory hallucinations, had fleeting suicidal ideation, had poor personal hygiene, memory loss, intrusive thoughts and was assigned a GAF score of 55. See VA examination report, August 5, 2005. Regardless of the veteran's improvements between December 2003 and July 2005, none of the evidence of record supports the contention that the veteran's symptoms more nearly approximate the 70 percent disability rating. The veteran has consistently reported that he suffered from some anxiety of varying levels, but never did this rise to the level of near-continuous panic. See VA examination reports, 1999, 2001, 2002 and 2005. The veteran had consistently presented with good personal hygiene, until his August 2005 VA examination. Again, the Board finds this questionable considering how well he was doing only one month prior. There was no evidence that the veteran performed obsessional rituals that interfered with routine activities. The veteran himself reported that he liked to watch television most of the day. There was also no evidence of spatial disorientation. In all the evidence of record, the veteran was noted to be oriented times three with normal speech. There was no evidence of impaired impulse control, though the veteran reported that he did suffer from bouts of anger and irritability. See VA examination reports, 1999 and 2002; VA treatment records, October 2001 and May 2003. The Board also notes that though the veteran has asserted that he is unable to maintain employment due to his PTSD symptoms, a VA treatment note in November 2002 stated that the veteran attributed his inability to work to a non service-connected back injury. See VA treatment record, November 6, 2002. While the Board notes that the veteran is in receipt of Social Security Administration benefits, he clearly does not meet the next higher criteria for a 70 percent disability evaluation for PTSD. Certainly, the Board does not mean to minimize the effect of the veteran's service experiences on his mental state, nor does the Board doubt that the veteran has faced many hardships since service. It is admirable, however, that at this point in his life, he is able to function very well despite his psychiatric symptoms. Since it is the current severity of the condition that is of utmost importance in assigning a disability rating, the Board finds that the veteran's PTSD symptoms more nearly approximate a 50 percent disability rating. Although the veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for a rating in excess of 50 percent for PTSD during any portion of the appeal period. See Gilbert, 1 Vet. App. at 53. ORDER Entitlement to an increased disability rating for PTSD, currently evaluated as 50 percent disabling, is denied. REMAND After a thorough review of the veteran's claims folder, the Board has determined that additional development must be accomplished prior to the adjudication of the veteran's claim of entitlement to TDIU. Under the applicable criteria, total disability ratings 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 a single service-connected disability ratable at 60 percent or more, or as a result of two or more 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. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2007). In determining whether the veteran is entitled to a total disability rating based upon individual unemployability, neither his nonservice-connected disabilities nor his advancing age may be considered. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). 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 it 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. Id. In the instant case, the veteran does meet the schedular criteria for a total disability rating based on individual unemployability. The veteran has been granted service connection for: PTSD, rated 50 percent disabling; a scar of the left thigh, rated as 10 percent disabling; residuals of a shrapnel wound to the left posterior chest, rated as 10 percent disabling; bilateral hearing loss, rated as 10 percent disabling; bilateral tinnitus, rated as 10 percent disabling; and diabetes mellitus, Type II, rated as 10 percent disabling. The combined evaluation is 70 percent. Thus, the veteran does satisfy the criterion of one service- connected disability ratable at 40 percent or more with a combined rating of 70 percent or more, so as to meet the threshold requirement for the requested benefit. Unfortunately, the veteran has not been provided with an appropriate VA opinion to determine the effect of his service-connected disabilities on employability. Indeed, the Board notes that no VA examination on file contains a discussion or medical opinion as to the likelihood that the veteran's service-connected disabilities render him unemployable. A VA opinion is warranted. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain any outstanding VA treatment records from August 2005 to the present. 2. After the above records are obtained, to the extent available, the veteran should be provided a VA examination of his service-connected disabilities in order to determine his ability to obtain and retain substantially gainful employment, considering only impairment due to service-connected disabilities. The claims file and treatment records must be made available and pertinent documents therein reviewed by the examiner in connection with the opinion, and it should be so indicated in the report. The examiner should render an opinion as to the overall effect of the service-connected disabilities on the veteran's ability to obtain and retain employment; that is, whether it would preclude an average person from obtaining, or retaining, substantially gainful employment. Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice- connected disabilities. The examiner should clearly outline the rationale for any opinion expressed. 3. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim for TDIU should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the veteran and his representative. After they have had an adequate opportunity to respond, this issue should be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals 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 2002 & Supp. 2007). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs