Citation Nr: 1035652 Decision Date: 09/21/10 Archive Date: 09/28/10 DOCKET NO. 07-19 409 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating due to individual unemployability resulting from a service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Robben, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1968 to May 1993. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which, in pertinent part, granted service connection for PTSD, with an initial rating of 10 percent assigned, effective December 7, 2005. In a June 2007 rating decision, an increased rating of 30 percent for PTSD was granted, effective December 7, 2005. A claimant is presumed to be seeking the maximum benefit allowed by law and regulation, and a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35 (1993). Therefore, the claim for a higher initial rating for PTSD remains before the Board. Entitlement to TDIU was denied in an August 2008 rating decision. Although no notice of disagreement has been submitted, the Court has held that TDIU is an element of all appeals of an initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Hence, the issue of entitlement to TDIU is before the Board as part of the appeal of the initial rating for PTSD. FINDINGS OF FACT 1. The Veteran's PTSD has been manifested by occupational and social impairment with deficiencies in most areas, such as social relations, activities of daily living, judgment, thinking, and mood without total social impairment. 2. The Veteran's PTSD precludes him from securing or following substantially gainful employment consistent with his education and industrial background. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 70 percent for PTSD have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.21, 4.130, Diagnostic Code 9411 (2009). 2. The criteria for entitlement to TDIU have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.25 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010) redefined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). This appeal arises from disagreement with the initial evaluation following the grant of service connection. The courts have held that once service connection is granted the claim is substantiated, additional VCAA 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). With respect to the issue of TDIU, the VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the Veteran in substantiating his claim. The Duty to Assist The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, records from various federal agencies, and private medical records. Additionally, the Veteran was provided VA examinations in April 2006 and February 2008 for evaluation of PTSD. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Increased Initial Rating for PTSD Legal Criteria Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2009). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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. See 38 C.F.R. § 4.7 (2009). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2009). Evidence to be considered in the appeal of an initial disability rating is not limited to that reflecting the current severity of the disorder. In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the initial evaluation period. Fenderson v. West, 12 Vet. App. 119 (1999). The schedular criteria, effective as of November 7, 1996, incorporate the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). 38 C.F.R. §§ 4.125, 4.130 (2009). A rating of 30 percent is warranted for PTSD if there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is warranted if it is productive 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 compete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating, may be assigned for 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 work-like setting); and inability to establish and maintain effective relationships. Id. The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). A 100 percent schedular evaluation contemplates 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. 38 C.F.R. 4.130, Diagnostic Code 9411. In assessing the evidence of record, it is important to note that the Global Assessment of Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." Richard v. Brown, 9 Vet. App. 266, 267 (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). A GAF score of 41-50 indicates "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)." Id. A GAF score of 51-60 indicates "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)." Id. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). On the other hand, if the evidence shows that the veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Mauerhan v. Principi, 16 Vet. App. at 443. The Court of Appeals for the Federal Circuit has embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis The Veteran has demonstrated deficiencies in most areas of social and occupational functioning, including work, social relations, judgment and mood without total social impairment. During an April 2006 VA examination, the Veteran described being mentally and socially detached and numb which resulted in almost complete social isolation. He reported a long-standing difficulty with sadness, depression, anxiety, and nervousness. He had difficulty being angry, irritable and short-tempered, which was noted to have contributed to the disintegration of three previous marriages. He reported difficulty with concentration and memory. The examiner noted that the Veteran was alert, oriented and cooperative but that he was depressed and somewhat guarded. His thoughts were clear and goal-oriented, there was no evidence of delusions or hallucinations, his cognitive abilities were grossly intact and there was no suicidal ideation. PTSD was diagnosed and a GAF scores of 55 was assigned to indicate that that PTSD symptoms were contributing to increasing social isolation. VA medical center (VAMC) records of treatment following the first VA examination showed that the Veteran continued to experience a full range of PTSD symptoms and that inactivity caused his symptoms to intensify. In a December 2006 treatment note, he reported some difficulty with memory and his mood was depressed. However, he stated that his daughter and son-in-law were going to visit for the holidays and that his wife continued to be supportive and understanding. The GAF score assigned throughout these records was 55. In a June 2007 VA Form 9, the Veteran stated that although he was not thinking of suicide during the April 2006 VA examination, he did have suicidal thoughts. He also reported that he saw North Vietnamese troops in the woods behind his house. He stated that the biggest problem he had in work and social relations was his inability to concentrate, think logically, and avoid panic attacks. Despite medication, his PTSD symptoms caused chronic depression, thoughts of suicidal, an almost complete avoidance of social situations, and panic attacks three to four times per week. During a February 2008 VA examination, the Veteran reported continuing problems with depression, poor concentration, panic, nightmares, irritability, and suicidal thoughts. He stated that he felt depressed all of the time and that his anxiety and panic symptoms caused him to isolate himself. He reported that he had suicidal thoughts but would not commit suicide because of his beliefs. He reported that he sometimes saw "the enemy" in the woods but he knew they were not really there. He reported that he often watched television and, while he engaged in very little social activity with his wife, he got together with his brothers as much as he could. During the February 2008 VA examination, the Veteran reported that he had not worked since November 2000 because he could no longer concentrate or enjoy being around people. He felt that he was unemployable because he could not socialize, control his temper or concentrate. The VA examiner found that the PTSD symptoms affected his ability to work by impairing his thinking skills such as concentration and thinking speed, his social skills such as comfort, communication, cooperation and warmth, and his stress management skills including mood stability, frustration tolerance, and optimism. The examiner concluded that the Veteran would likely have difficulty being reliable or persevering in a normal work place setting. The February 2008 examiner found that the Veteran had impaired social relationships, occupational functioning, judgment, mood and range of activities. His PTSD symptoms occurred on a daily basis, had been chronic in duration, had intensified over the last 10 years, and were considered to be moderate to severe. The examiner assigned a GAF score of 42 because of unemployment, poor social contact, and very limited activities. The evidence of record demonstrated total occupational impairment due to PTSD symptoms, as well as moderate to severe impairment in social functioning, judgment and mood. Moreover, the GAF scores assigned throughout this appeal, which have ranged from 55 to 42, have been indicative of moderate to serious impairment in several areas such as work, family relations, judgment and mood. As the evidence of record demonstrates deficiencies in most of these areas throughout this appeal, the Veteran's service-connected PTSD more closely approximates a 70 percent rating. 38 C.F.R. § 4.130, Diagnostic Code 9411; Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). As discussed above, a 100 percent rating contemplates total occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. at 443; Sellers v. Principi, 372 F.3d at 1326. Although he has significant impairment in most areas of social and occupational functioning, the Veteran is not totally impaired. Although the Veteran struggles with social isolation, he has been married to the same person for over 20 years, has a relationship with his daughter and son-in-law, and sees his brothers as much as he can. The Veteran stated in the June 2007 VA Form 9 that his PTSD symptoms caused almost complete avoidance of social situations, not that he was totally socially impaired. The February 2008 VA examiner did not find that the Veteran was totally socially impaired but rather stated that he had poor social contact and very limited activities. While his relationships were mostly with family members, the examiner described them as fair. Furthermore, both VA examiners found the Veteran's thinking to be logical, clear, productive and goal- oriented. As such, the weight of the evidence is against a finding that his disability approximates total social impairment and the criteria for a 100 percent disability rating have not been met. The Board notes that the medical evidence dated prior to receipt of the Veteran's claim here on appeal demonstrated that the Veteran's symptoms may not have been as severe. However, the effective date for a rating or award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400 (2009). The Veteran's claim was received December 7, 2005, and the Board finds that the evidence of record demonstrated that the PTSD symptomatology has more closely approximated a 70 percent disability rating since that time. In this regard, the Board notes that the February 2008 VA examiner found that the Veteran's PTSD symptoms have been chronic, moderate to severe, and have intensified over the last decade. Resolving reasonable doubt in the Veteran's favor, the Board finds that his symptoms more nearly approximate the criteria for a 70 percent disability rating. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. Extraschedular Considerations In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2009). 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. Therefore, initially, 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). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step--a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. The Board finds that the rating criteria contemplate the Veteran's disability. The Veteran's PTSD is manifested by symptoms such as depressed mood, hyperstartle reaction, irritability, suicidal ideation, and sleep disturbance. These manifestations are contemplated in the rating criteria. The rating criteria are therefore adequate to evaluate the Veteran's disability and referral for consideration of extraschedular rating is, therefore, not warranted. TDIU Legal Criteria A TDIU claim may be granted where the schedular rating is less than total and the service connected disabilities preclude the Veteran from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). 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). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Analysis As explained above, the Veteran's service-connected PTSD has been evaluated to be 70 percent disabling. Thus, the Veteran meets the percentage requirements for TDIU under 38 C.F.R. § 4.16(a). The remaining question is whether his service-connected PTSD precludes gainful employment for which his education and occupational experience would otherwise qualify him. The Veteran indicated on his July 2007 application for TDIU that he had been unable to work since November 2007. During the February 2008 VA examination, he stated that he left his job due to his service-connected PTSD symptoms, such as the inability to concentrate, control his temper and socialize. The February 2008 VA examiner found that the Veteran's PTSD symptoms affected his ability to work by impairing his thinking skills such as concentration and thinking speed, his social skills such as comfort, communication, cooperation and warmth, and his stress management skills including mood stability, frustration tolerance, and optimism. The examiner concluded that the Veteran would likely have difficulty being reliable or persevering in a normal work place setting. The Board recognizes that the Veteran also has non-service connected physical disabilities which may impact his ability to work. However, the February 2008 VA examiner noted the Veteran's physical impairments in the examination report and specifically focused on service-connected PTSD symptoms in providing the opinion regarding unemployability. Therefore, resolving reasonable doubt in his favor, the Board finds that the evidence of record substantiates entitlement to TDIU. 38 U.S.C.A. § 5107(b). ORDER Entitlement to an initial rating of 70 percent for PTSD is granted for the entire period here on appeal. The claim of entitlement to TDIU is granted. ____________________________________________ Nancy Rippel Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs