Citation Nr: 1007155 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 07-13 077 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD), to include consideration of a total rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Evan Deichert, Associate Counsel INTRODUCTION The Veteran had active service from February 1966 to December 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision of the Department of Veterans Affairs (VA) Philadelphia, Pennsylvania, Regional Office and Insurance Center (RO). In August 2009, the Veteran testified during a hearing at the RO before the undersigned. A transcript of the hearing is of record. The issue of entitlement to a 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. FINDING OF FACT Giving the Veteran the benefit of the doubt, during the course of his appeal, his service-connected PTSD has been manifested by suicidal ideation, panic attacks, intense irritability, and difficulty in establishing and maintaining social and work relationships, that has been productive of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood;, but has not been manifested by total occupational and social impairment. CONCLUSION OF LAW Resolving doubt in the Veteran's favor, the schedular criteria for a 70 percent rating, but no higher, for PTSD are met since June 16, 2005. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130, Diagnostic Code (DC) 9411 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act (VCAA) The requirements of 38 U.S.C.A. § 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in June 2005 and May 2008, via correspondence, of the information and evidence needed to substantiate and complete a 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. The RO provided notice of how disability ratings and effective dates are determined in May 2008. The claim was readjudicated in August 2008. Thus, any timing error was cured and rendered nonprejudicial. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations in August 2005, December 2006, and July 2008. The Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate, including testifying during a hearing before the undersigned in August 2009. Washington v. Nicholson, 21 Vet. App. 191 (2007). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Increased Rating The present appeal involves the Veteran's claim that the severity of his service-connected PTSD warrants a higher disability rating. Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service- connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2009). 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). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The record reflects that, in a January 1986 rating decision, the RO granted service connection for PTSD that was awarded a 10 percent disability rating under Diagnostic Code 9411. In a February 1999 rating decision, the RO awarded a 30 percent rating for the Veteran's PTSD. In June 2005, the RO received the Veteran's current claim for an increased rating for his PTSD. The August 2005 rating decision denied his claim for a rating in excess of 30 percent from which he appealed, but, in a January 2007 rating decision, the RO awarded the currently assigned 50 percent disability rating for PTSD. In this case, the Board reviewed the Veteran's VA examinations of August 2005, December 2006, and July 2008, as well as the pertinent medical records in his claims files. PTSD is evaluated under 38 C.F.R § 4.130, DC 9411 and is rated according to the General Rating Formula for Mental Disorders. Under DC 9411, a 50 percent evaluation will be assigned with evidence of 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; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, DC 9411. A 70 percent evaluation will be awarded with evidence of 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 work-like setting); and an inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, DC 9411. A 100 percent rating is assigned when there is total occupational and social impairment, due to such symptoms as gross impairment in though 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; and memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, DC 9411. Global Assessment of 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) (citing the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM IV), page 32). A GAF score of 41 to 50 is reflective of 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). A GAF score of 51 to 60 is reflective of 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). While the Rating Schedule does indicate that the rating agency must be familiar with the DSM IV, it does not assign disability percentages based solely on GAF Scores. See 38 C.F.R. § 4.130. Rather, GAF scores are but one factor to be considered in conjunction with all the other evidence of record. When it is not possible to separate the effects of a non- service-connected condition from those of a service-connected disorder, reasonable doubt should be resolved in the claimant's favor with regard to the question of whether certain signs and symptoms can be attributed to the service- connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998); see also 38 C.F.R. § 3.102; Mauerhan v. Principi, 16 Vet. App. 436 (2002) (factors listed in the rating formula are examples of conditions that warrant a particular rating and are used to help differentiate between the different evaluation levels.). The Veteran contends that he is entitled to a higher rating for his PTSD. After careful consideration of all the evidence of record, and giving the Veteran the benefit of the doubt, the Board concludes that a 70 percent rating is warranted from July 29, 2001, but a higher 100 percent rating is not in order. A June 2005 VA outpatient psychology note reflects the Veteran's complaint of having some difficulty coping with any kind of commotion and that he was anxious in crowds. The diagnosis at that time was severe PTSD with panic attacks. The Veteran underwent VA examination in August 2005. According to the examination report, he said he was employed by Amtrak as a conductor for the past 20 years. He complained of heightened sense of terrorism since the 9/11 attacks. He had a past medical history of inpatient hospitalization for depression and suicidal ideation approximately five years earlier and presently took prescribed psychotropic medications. He thought he had done well in his work career despite his emotional problems and was very industrious. He was married to his current wife since 1975 and reported quite a bit of interpersonal difficulties over the years due to his PTSD. The Veteran had four or five friends that were combat veterans. He went to church with his wife and saw family members but did not participate in social events. Subjectively, the Veteran complained of feeling worked up and agitated with heightened arousal symptoms. He has sleep difficulty due in part to his anxious feelings and was hypervigilant. His concentration was impaired and he experienced rage and irritability but usually did not act on that. He felt dysfunctional. Objectively, the Veteran was casually dressed and groomed, appeared in no acute distress and was alert and oriented. His speech was normal but his affect was tense and anxious. His mood was tense, anxious, and irritable but he denied any active or passive suicidal or homicidal thoughts. His thought process was clear and judgment and insight were good. PTSD was diagnosed and a GAF score in the range of 51 to 60 was assigned. The examiner commented that the Veteran was functional at work but was under great stress. The VA examiner suspected that the Veteran's hard work ethic and strong coping skills allowed him to deal with an otherwise extraordinarily difficult work environment, and speculated that the Veteran was at risk for "substantial regression" in the context of such high work stress and may at some point not be able to continue to do what he was doing. In December 2006, the Veteran underwent another VA examination that was performed by the psychiatrist who evaluated him in August 2005. It was noted that the Veteran was still employed full time for Amtrak but it was wearing him down and he felt great stress in his work as a conductor. The stress caused sleep difficulty. He and his wife got along fine and he did not see his children often because they lived far away. He avoided crowds and had subjective complaints similar to those noted in August 2005. He periodically had very distressing thoughts that caused anxiety, a rash, sweat and an increased heart beat with panic symptoms. He startled easily. His affect was restricted and he showed some depressive symtoms that appeared part of his trauma symptoms. There was no psychotic pathology and no violent tendencies. He managed to work adequately. Objectively, the Veteran was casually dressed and was alert and oriented. His affect was restricted and his speech was normal. He denied having suicidal or homicidal thoughts and his thought processes were logical with no delusions or hallucinations. His judgment and insight were good. A GAF score in the range of 45 to 55 was assigned. The examiner noted that the Veteran seemed to be functioning less well that previously with more social anxiety and stress. The Veteran felt overwhelmed. The Veteran underwent his most recent PTSD examination in July 2008 that performed by the same examiner who evaluated him in 2005 and 2006. The Veteran was still married and reported having periods of significant conflict although they essentially got along. He said his wife spent a lot of time trying to make him happy. His work situation changed and he retired from Amtrak approximately one year earlier. He felt that he lost significant income because he elected early retirement and lost the advantage of having his retirement compensation computed on higher pay grades. He said that he left Amtrak because of working with terrorism in the train system and described sleep difficulty and interpersonal problems that he associated with his PTSD. He did not do much with his day. He had his four combat veteran friends with whom he communicated but did not go out much with them. Subjectively, the Veteran complained quite a bit of psychological distress and the examiner noted that the Veteran had a sweaty palm and appeared anxious at the end of the interview. The Veteran startled more frequently and was more irritable. He was hypervigilant. His concentration was poor. He had passive suicidal thoughts. There were no psychotic symtoms or psychotic disorders but he had depressive thoughts. The examiner was unable to distinguish the depression from the PTSD. The Veteran had some panic symtoms periodically in the context of specific stressors of PTSD. Objectively, the Veteran was causally dressed and groomed and appeared slightly anxious during the interview. His affect was broad ranged overall, slightly anxious and generally euthymic. There were no suicidal or homicidal thoughts at that time and his thought process was clear. He was oriented and his judgment and insight were good. A GAF score range of 51 to 60 was assigned. Notes of the Veteran's outpatient treatment at the VA Camp Hill Outpatient Clinic reflect findings consistent with these examinations. The Veteran began attending cognitive behavior group therapy sessions for treatment of PTSD in September 2008. Records of these sessions show that the Veteran has been an active participant, showing no signs of impairment of thought process or communication. During his August 2009 Board hearing, the Veteran testified that during the pendency of his appeal, his symptoms became increasingly worse. He described the panic attacks and suicidal thoughts from which he suffered. He described ascending through the ranks at his former job, only to end up retiring in August 2007. Though he was eligible to retire due to age, the Veteran stated that he retired sooner than he wished on account of his symptoms and indicated that the prescribed medication that he took was in conflict with transportation industry policy. He spoke of being a restless sleeper, to the point that he and his wife slept in separate beds. He got demonstrably angry but was not physical with other people. He said that he became confused on occasion. The Veteran further stated that he did not like to shave and showered every third day, because by that time he realized his breath and body odor were offensive. In letters of January 2008 and August 2008, the Veteran spoke of how PTSD impaired his interpersonal relationships, his on the job functioning, and his sleep. These letters echoed the statements he made in his June 2005 notice of disagreement, wherein the Veteran stated that he disliked crowds and had trouble trusting others. The Board finds that under the doctrine of reasonable doubt the Veteran's post traumatic stress disorder warrants a 70 percent evaluation since he filed his claim in June 2005, but a 100 percent rating is not in order for any period during the appellate term. In this respect, the Veteran's post traumatic stress disorder was described as severely disabling by a VA clinic psychologist in June 2005. The record reveals several references to the appellant suffering from suicidal ideation, and he appears to suffer from weekly or greater panic attacks or anxiety. He testified, and it was evident to the undersigned, that he was somewhat neglectful of his personal appearance and hygiene and he described having difficulty establishing and maintaining effective relationships and in adapting to stressful circumstances. Admittedly the record also shows evidence of pathology that would suggest a lower rating. Still, the Board finds that the evidence of record is in equipoise, and that a 70 percent rating is in order under the doctrine of reasonable doubt. The evidence of record, however, preponderates against finding entitlement to a 100 percent rating. In this respect, the record shows that the while the Veteran retired, there is no evidence of a gross impairment in thought processes or communication, no evidence of persistent delusions or hallucinations, no evidence of grossly inappropriate behavior, and no evidence that the appellant is in persistent danger of hurting self or others. The appellant is oriented, and he can recall the names of close relatives, his occupation, as well as his own name. Hence, a 100 percent rating is not in order for post traumatic stress disorder. The Board has also considered whether the Veteran's PTSD disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extra-schedular rating is warranted. See 38 C.F.R. § 3.321(b)(1) (2009); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology, and provide for a greater evaluation for additional or more severe symptoms; thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Though the Veteran stated that he retired from his job earlier than he desired on account of his PTSD, he did acknowledge in his August 2009 hearing that he was eligible to retire on account of his age. The record is also silent as to any PTSD related hospitalizations since he filed his current claim for an increased rating. Accordingly, an extraschedular evaluation is not appropriate in this case. Consequently, referral for extraschedular consideration is not warranted. ORDER A 70 percent rating, but no higher, for PTSD is granted from June 16, 2005, subject to the laws and regulations governing the award of monetary benefits. REMAND In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims held that a TDIU claim is part of an increased rating claim when such a claim is raised by the record. Here, the Veteran has consistently stated that he retired from his job with Amtrak earlier than he desired on account of his PTSD symptoms and the medication prescribed to treat it. He stated that he was very concerned about the prospect of terrorism affecting the railroad, and this concern ultimately affected his work and hastened his retirement. Based on these facts, the Board finds that the issue of TDIU is raised by the record and properly before the Board. Having determined that the issue of TDIU is properly before the Board, the Board finds that further development is necessary prior to adjudicating the claim. The law provides that a TDIU may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his or her service-connected disabilities. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2009). In arriving at a conclusion, consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2009). The record shows that the Veteran is currently unemployed. The Veteran states that his service-connected PTSD led to him retiring from his job just as he was eligible to earn a higher income. Though the record is replete with evidence surrounding the Veteran's current level of disability, there is no opinion as to the Veteran's unemployability and the effect of his service-connected disability on his employability. The Veteran suffers from six service- connected disabilities in addition to PTSD. The Board finds that the Veteran should be afforded an appropriate VA examination to determine whether he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. Accordingly, the case is REMANDED for the following action: 1. The RO should forward the Veteran an appropriate form for applying for a TDIU. The Veteran should return the form, providing the exact dates of his post- service employment, including month and year, since June 2005. 2. After the above development has been completed, the RO should schedule the Veteran for an appropriate VA examination to determine the effect of his service- connected disabilities on his employability. The examiner should offer an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran is unable to secure or maintain substantially gainful employment solely as a result of his service-connected disabilities (including PTSD, lumbosacral strain, diabetes mellitus, hypertension). The examination report must include a complete rationale for all opinions and conclusions expressed. 3. The Veteran's claim for a TDIU should then be adjudicated. If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. 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 Supp. 2009). ______________________________________________ D.J. DRUCKER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs