Citation Nr: 1007272 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 03-15 165A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a rating in excess of 70 percent for an acquired psychiatric disorder, diagnosed as posttraumatic stress disorder (PTSD) since January 5, 2005, to include a total disability rating based on individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. Thomas Knope, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1965 to January 1969. This matter is on appeal from the Columbia, South Carolina, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Acting Veterans Law Judge in December 2008. A transcript of the hearing is of record. In a decision in February 2009, the Board granted a rating of 50 percent for the Veteran's service-connected PTSD prior to January 5, 2005. This aspect of the decision is no longer on appeal. The issue of entitlement to an increased rating for PTSD since January 5, 2005, was remanded for further development and is now ready for disposition. 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. FINDING OF FACT The Veteran's service-connected PTSD has been characterized by irritability, nightmares, periods of depression, some hallucinations and estrangement from others. 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, disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name have not been shown. CONCLUSION OF LAW The criteria for a rating in excess of 70 percent for an acquired psychiatric disorder, diagnosed as PTSD since January 5, 2005 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 4.130, Diagnostic Code (DC) 9411 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed all of the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive 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 each claim. Veterans Claims Assistance Act of 2000 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The Veteran's claim arises from his disagreement with the initial evaluation following the grant of service connection. 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). Therefore, no further notice is needed under VCAA. As to VA's duty to assist, the RO associated the Veteran's VA treatment records, and he was afforded VA examinations in January 2005, July 2008 and May 2009. The Board finds that these examinations were adequate for evaluation purposes. Specifically, the examiners reviewed the claims file, interviewed the Veteran and conducted a physical examination. Moreover, there is no indication that the VA examiners were not fully aware of the Veteran's past medical history or that they misstated any relevant fact. Therefore, the available records and medical evidence have been obtained in order to make adequate determinations as to these claims. 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). Entitlement to an Increased Rating for PTSD 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. See 38 C.F.R. § 4.1 (2009). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2009). 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 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 (2009). 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 (2009). In cases where the Veteran's claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Finally, the Court of Appeals for Veterans Claims has held that a rating decision issued subsequent to a notice of disagreement which grants less than the maximum available rating does not abrogate the pending appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Corchado v. Derwinski, 1 Vet. App. 160 (1991). With respect to the issue on appeal, the RO increased the Veteran's disability rating, but did not grant a 100 percent disability rating. Since the RO granted only a portion of the Veteran's increased rating claim, his appeals properly remain before the Board for review. For the entire period still on appeal, specifically since January 5, 2005, the Veteran has been rated at 70 percent for his PTSD. In order to be assigned a 100 percent disability rating for PTSD, the evidence must show 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; and * memory loss for names of close relatives, own occupation, or own name See 38 C.F.R. § 4.130, DC 9411 (2009). In this case, the evidence does not support a rating in excess of 70 percent. First, the Veteran has not displayed gross impairment in his thought processes or communication. At his January 2005 VA examination, he exhibited slow and halting speech, but his affect was bright. At a discharge evaluation in December 2006, his affect was constricted, his speech slow and exhibited poverty of thought. However, in two other evaluations that same month, he appeared calm, cooperative and receptive to examination, and otherwise alert with normal, goal-directed speech. Next, at an evaluation in March 2007, he exhibited normal speech and was cooperative with good eye contact. Similar observations were made at a subsequent evaluation in October 2007. At a VA examination in July 2008 the Veteran exhibited spontaneous and fluent speech. He was also observed to be cooperative at an evaluation in August 2008. Finally, at his VA examination in May 2009, his speech was observed to be fluent, grammatic and free of paraphasias. Therefore, gross impairment of thought process or communication has not been shown. Next, the Veteran has experienced some delusions and hallucinations, but they are not persistent. For example, at his January 2005 VA examination, he stated that he sometimes thought he heard someone calling his name, but he denied frank hallucinations or delusions. At evaluations in December 2006 and February 2008, he denied experiencing hallucinations and exhibited reality-based perceptions. Even though he stated that he experienced some auditory hallucinations at his VA examination in July 2008, the evidence does not indicate that they were persistent. Moreover, at his May 2009 VA examination, he denied auditory and visual hallucinations. The Veteran has also not exhibited grossly inappropriate behavior, persistent danger of hurting himself or others, intermittent inability to perform the activities of daily living or disoriented to time and place. Specifically, at his January 2005 VA examination, he was alert and oriented, neat but casually dressed, and had the ability for abstract thinking. Additionally, at his evaluations in December 2006, he denied suicidal or homicidal ideation (although he had been recently hospitalized for suicidal intentions), and was oriented to time and place and person. Next, at his evaluations in March, June and October 2007, he was again observed to be appropriately dressed and groomed with good eye contact and linear thought process. There was no evidence of suicidal or homicidal intentions. Moreover, at evaluations in February and August 2008, he appeared well groomed with no behavioral abnormalities noted. He had good insight, impulse control and judgment, and he again showed no suicidal or homicidal intentions. Finally, at his VA examination in July 2008, the Veteran was observed to be oriented to person, place and time, and he denied suicidal intentions. Moreover, at his May 2009 VA examination, he was "generally alert" and denied suicidal or homicidal intentions. Therefore, throughout the course of the appeal, he has not exhibited grossly inappropriate behavior, persistent danger of hurting himself or others, intermittent inability to perform the activities of daily living or was disoriented to time and place. Next, the evidence does not indicate memory loss for names of close relatives, own occupation, or own name. The VA examiner in January 2005 observed some impaired memory, but it did not appear that it was significant to the point where he could not remember his own name or the names of his relatives. At his evaluations in December 2006, his memory appeared intact and, in February 2008, his thought content was seen as appropriate. Additionally, at his VA examination in July 2008, a mental health evaluation in August 2008 and his VA examination in May 2009, he exhibited no memory deficiencies. The Board has also considered the Veteran's Global Assessment of Functioning (GAF) scores assigned during the course of the appeal. 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) (DSM IV)). In this case the Veteran's GAF scores have ranged from 35 (in December 2006) to 60 (on multiple occasions since March 2007). Importantly, the Veteran's GAF score of 60 was consistently observed in evaluations in March, June, and October 2007, February 2008, and at his VA examination in July 2008. Although his GAF was 49 at his most recent VA examination in May 2009, the Board determines that his GAF score is best approximated to be in the range of 51-60. In this regard, the Board notes that 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). The symptoms observed by psychiatric professionals during the course of the appeal appear consistent with the symptoms associated with a rating from 51-60. However, despite the seriousness of the symptoms associated with the GAF scores ranging from 51 to 60, they are not consistent with what is required to warrant a 100 percent rating. Based on the above, an evaluation in excess of 70 percent is not warranted for the rating period on appeal. In reaching this conclusion, the benefit of the doubt doctrine has been applied where appropriate. With respect to the Veteran's claim, the Board has also considered his statements that his disability is worse than his rating. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. He is not, however, competent to identify a specific level of disability for psychiatric disorders according to the appropriate diagnostic codes. On the other hand, such competent evidence concerning the nature and extent of the Veteran's PTSD has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. Next, the Board will consider whether referral for an extraschedular evaluation is warranted. The question of an extraschedular rating is a component of a claim for an increased rating. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). Under the provisions of 38 C.F.R. § 3.321(b)(1) (2009), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." Id. Therefore, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the Veteran has been employed through a temporary agency and that he was at one time told he worked too slowly. However, the rating criteria reasonably describe his disability level and symptomatology, and provide for higher ratings for additional or more severe symptoms than currently shown by the evidence. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. Consequently, referral to the Under Secretary for Benefits or the Director, Compensation and Pension Service, under 38 C.F.R. § 3.321 is not warranted. In sum, after a careful review of the evidence of record, the Board finds that the benefit of the doubt rule is not applicable and the appeal is denied. ORDER A rating in excess of 70 percent for an acquired psychiatric disorder, diagnosed as PTSD, is denied. REMAND In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. Here, the Veteran filed a claim for TDIU in September 2006, which was denied in November 2006. Since that rating, however, the Veteran's service-connected PTSD rating was increased to 70 percent and, in conjunction with his other service-connected disabilities, his combined disability rating for compensation is 80 percent under the Combined Ratings Table of 38 C.F.R. § 4.25 (2009). Therefore, the Veteran now meets the threshold minimum percentage criteria in 38 C.F.R. § 4.16(a) for consideration of TDIU. However, the evidence must also establish that he is unable to secure or follow a substantially gainful occupation solely as a result of his service-connected disabilities. On this matter, the Board concludes that additional development is necessary. Among the evidence incorporated in the claims file since 2006 is a VA examination from May 2009, where the examiner stated that the Veteran's PTSD did not render him unemployable but, at the same time, the examiner also stated that his ability to maintain consistent employment is considerably impaired by his PTSD. The VA examiner's opinion was clearly based at least in part on the Veteran's employment with a temporary service. However, he has not been employed full-time since 1998. Moreover, the evidence does not indicate that his employment with the temporary service is been consistent, as the evidence indicates that he was unemployed from November 2006 through at least June 2007. His VA examination in July 2008 indicates that he was not employed until May 2008. Of additional note, the May 2009 VA examination also indicates that he lives in a boarding house. The Board emphasizes that "[m]arginal employment shall not be considered substantially gainful employment" for purposes of TDIU. Employment is considered "marginal" in nature when the Veteran's annual income does not exceed the poverty threshold income for one person as established by the U.S. Department of Commerce. Moreover, even if the Veteran's income exceeds the poverty threshold, VA must consider whether his employment is "marginal" based on the facts of the situation. Therefore, even though the May 2009 VA examination indicates that he is currently employed, a determination must be made as to whether his employment is "gainful" or "marginal" as defined by the regulations. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's employee records from the various agencies that have employed him during the course of the appeal. The Veteran should also be asked to provide any information related to his employment during this time, including documentation such as pay stubs and income tax returns. The relevant information required from these documents include the hours per week he was been employed and the income he has received while engaged in such employment. Moreover, records concerning the Veteran's living conditions should also be acquired, such as what type of a boarding house he is living in and what type of expenses he incurs while living there. 2. The examiner who conducted the VA examination in May 2009 should be asked to provide an addendum to her report. She is specifically asked to clarify her meaning that the Veteran's "ability to maintain consistent employment is considerably impaired," given her opinion that he was not unemployable. A new VA examination is not required unless deemed necessary by the examiner. 3. 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 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). ______________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs