Citation Nr: 0814733 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 05-14 637 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an initial disability rating in excess of 50 percent for post-traumatic stress disorder (PTSD). 2. Entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The veteran had active service from January 1964 to January 1966. These matters come before the Board of Veterans' Appeals (BVA or Board) from May 2004 and September 2004 rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Louis, Missouri. The May 2004 rating decision granted service connection for PTSD, and assigned a 50 percent disability evaluation, effective February 25, 2003. The September 2004 rating decision denied entitlement to a TDIU. In May 2007 the veteran indicated that he no longer desired a hearing on this matter. This case was previously before the Board in September 2007. FINDINGS OF FACT 1. Throughout the appeal the veteran's PTSD was manifested by anxiety, intrusive thoughts, flattened affect, nightmares, and sleeping problems productive of no more than occupational and social impairment with reduced reliability and productivity. 2. The veteran's only service-connected disability is PTSD, rated as 50 percent disabling. 3. The veteran is not precluded from substantially gainful employment, consistent with his education and occupational experience, as a result of his service-connected disability. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 50 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 9411 (2007). 2. The criteria for entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies in the instant case. Notice Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005); rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman holds that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of an application for "service connection," therefore, the Department of Veterans Affairs (VA) is required 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 the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. As the May 2004 rating decision on appeal granted the veteran's claim of entitlement to service connection for PTSD, such claim is now substantiated. As such, the filing of a notice of disagreement as to the initial rating assigned does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). Rather, the veteran's appeal as to the initial rating assignment triggers VA's statutory duties under 38 U.S.C.A. §§ 5104 and 7105, as well as regulatory duties under 38 C.F.R. § 3.103. As a consequence, VA is only required to advise the veteran of what is necessary to obtain the maximum benefits allowed by the evidence and the law. The March 2005 statement of the case (SOC), under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," set forth the relevant diagnostic code (DC) for the veteran's PTSD, and the veteran was informed of what was needed to obtain a schedular rating above the disability evaluation that the RO had assigned. In addition, March 2006 correspondence explained how a disability rating is determined by VA for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman. However, because the instant decision denies the veteran's claims, no disability rating or effective date will be assigned. As for the issue of entitlement to TDIU, by correspondence dated in July 2004 the veteran was informed of the evidence and information necessary to substantiate his TDIU claim, the information required of him to enable VA to obtain evidence in support of his TDIU claim, the assistance that VA would provide to obtain evidence and information in support of his claim, and the evidence that he should submit if he did not desire VA to obtain such evidence on his behalf. The VCAA letter informed the veteran that he should submit any medical evidence pertinent to his TDIU claim. VCAA notice was provided to the veteran prior to the initial adjudication. Pelegrini. Duty to Assist The veteran's service medical records are associated with the claims file, as are VA records and records from the Social Security Administration (SSA). In December 2007 the veteran underwent a VA examination that addressed the medical matters presented by this appeal. The veteran has not referenced any other pertinent, obtainable evidence that remains outstanding. VA's duties to notify and assist are met. Accordingly, the Board will address the merits of the claims. I. PTSD Disability evaluations are determined by comparing a veteran's present symptoms with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Because the instant appeal is from the initial rating assigned with the grant of service connection, the possibility of "staged" ratings for separate periods during the appeal period, based on the facts found, must be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to this claim. Under Diagnostic Code 9411, a 70 percent rating is warranted for PTSD which is productive of 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; 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); and an inability to establish and maintain effective relationships. A 100 percent evaluation for PTSD is assignable where there is 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. A May 2004 rating decision granted service connection for PTSD, and assigned a 50 percent disability evaluation, effective February 25, 2003. In looking at the various VA treatment records and psychiatric examinations (VA examinations in May 2003, April 2004, March 2007, December 2007; private examination dated in August 2003) associated with the claims file, it is clear that throughout the appeal period the veteran's PTSD was manifested by anxiety, intrusive thoughts, flattened affect, nightmares, and sleeping problems. A May 2005 letter from the veteran's former employer noted that the veteran would sometimes lose his temper at work, and the veteran's wife also noted that the veteran's temper was getting worse. The Board finds, however, that a rating in excess of 50 percent for PTSD is not warranted, as the veteran has not been shown during this appeal to have symptoms such as suicidal ideation (other than as noted on a June 2007 VA treatment record, wherein he had suicidal ideas when frustrated, but no plans for suicide), 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, impulse control, spatial disorientation, or neglect of personal appearance and hygiene (other than sometimes foregoing shaving and not getting a haircut, as noted by his wife's statement). While some memory and concentration problems have been noted, the Board observes that an August 2003 VA neurological note indicated that the veteran appeared to have a dementing disorder that was probably progressing. Further, the December 2007 VA PTSD examiner noted that the veteran's cognitive problems were likely related to diffuse cerebral atrophy. No health professional has linked a speech or cognitive disorder to the veteran's PTSD. It is clear that the veteran's PTSD has impacted his social functioning. The veteran, however, has been able to maintain a marriage of more than 16 years, and the veteran reported contact with his siblings (including a sister who lives next door) and some former coworkers. While the veteran has reported that he no longer engages in woodworking, he has indicated that he helps his wife with her puppy raising business. To adequately evaluate and assign the appropriate disability rating to the veteran's service-connected PTSD, the Board must analyze the evidence as a whole, including the veteran's GAF scores and the enumerated factors listed in 38 C.F.R. § 4.130, Diagnostic Code 9411. See Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002) (holding that "the rating specialist is to 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 [Diagnostic and Statistical Manual of Mental Disorders, 4th ed.]. The veteran's GAF scores during this appeal have been as follows: 68-75 (May 2003), 47-52 (August 2003), 50 (January 2004), 55 (April 2004), 40-50 (but noted as being 50 at the time of the examination) (March 2007), and 48-50 (December 2007). While such findings reflect serious levels of PTSD symptoms, a review of the clinical findings from the psychiatric examinations of record do not reveal symptoms which more closely approximate the criteria for a rating of 70 percent. In sum, an initial rating in excess of 50 percent for PTSD is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49, 54- 56 (1990). The Board has considered assignment of an extra-schedular evaluation under 38 C.F.R. § 3.321(b)(1). The record does not show that the veteran's PTSD has required frequent hospitalization, or that manifestations of the disability exceed those contemplated by the schedular criteria. There is no indication in the record that PTSD disability, alone, has resulted in marked interference with employment. Therefore, assignment of an extra-schedular evaluation in this case is not in order. See Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). II. TDIU The veteran is claiming entitlement to TDIU. In a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, received in June 2004, the veteran indicated that he had last worked full time in February 2002. The veteran indicated that he had worked at a feed and seed company since 1963, a period of nearly 40 years. He reported that he had completed high school and had not received additional education. According to the law, entitlement to a TDIU requires evidence of service-connected disability so severe that it is impossible for the veteran in particular, or an average person in general, to follow a substantially gainful occupation. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). 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. 38 C.F.R. §§ 3.341, 4.16, 4.19. VA regulations indicate that when a veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned when: 1) if there is only one disability, this disability shall be ratable at 60 percent or more; and 2) if there are two or more disabilities, at least one disability shall be ratable at 40 percent or more, and there must be sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In the present case, service connection is currently established only for PTSD, rated 50 percent disabling, and the veteran's service-connected disability does not satisfy the criteria of § 4.16(a). Nevertheless, veterans who are unable to secure and follow a substantially gainful occupation because of service-connected disability are to be rated totally disabled. The Board will now review the evidence of record to see if it demonstrates that the veteran is unable to secure or follow a substantially gainful occupation due to service-connected disability. In his June 2004 claim, the veteran indicated that his mental condition prevented him from working. The Board observes that the Social Security Administration has found that the veteran has been disabled and unemployable since January 2003. According to the SSA, the veteran's primary diagnosis was anxiety, with an affective mood disorder listed as a secondary diagnosis. At a December 2007 VA examination, the examiner commented, in pertinent part, as follows: The results of this evaluation would also suggest that the veteran's level of social and occupational impairment due solely to his post-traumatic stress disorder would not restrict him from gainful employment. While the veteran's service-connected PTSD clearly impacts his employability, a VA physician has indicated that the veteran's PTSD, alone, would not restrict the veteran from gainful employment. The Board notes that the December 2007 VA examiner's opinion was given following an examination of the veteran and a comprehensive review of the veteran's medical and social history. While the veteran may dispute the VA physician opinion concerning his employability, there is no evidence that the veteran possesses a recognized degree of medical knowledge to contradict the judgment of a medical professional. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board further observes that the medical evidence of record reflects that the veteran suffers from significant nonservice-connected disability (cognitive impairment) identified as cerebral atrophy and a dementing disorder. In this regard, it appears that the August 2003 private examination report relied upon by SSA in awarding the veteran SSA disability benefits, noted that the veteran's employability would be impacted by the veteran's problems with sustained attention and concentration; however, the veteran's cognitive difficulties have been essentially attributed to disability other than PTSD. At any rate, while the Social Security Administration recognized the role that the veteran's PTSD (anxiety problems) played in his unemployability, the Board must consider only service- connected disability in this case. Decisions of the Social Security Administration regarding unemployability, while relevant, are not controlling with respect to VA determinations. Damrel v. Brown, 6 Vet. App. 242, 246 (1994). In sum, the evidence does not demonstrate that the veteran is precluded from substantially gainful employment as a result of his service-connected PTSD. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An initial rating in excess of 50 percent for PTSD is denied. Entitlement to a TDIU is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs