Citation Nr: 1123280 Decision Date: 06/17/11 Archive Date: 06/28/11 DOCKET NO. 06-34 274 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for post traumatic stress disorder (PTSD) for the period from February 23, 2001 to May 19, 2010, and 50 percent thereafter. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran had active military service from August 1968 to May 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. By that rating action, the RO, in part, granted service connection for PTSD; an initial 10 percent disability rating was assigned, effective February 23, 2001--the date VA received the Veteran's initial claim for compensation for the above-cited service connected disability. The Veteran appealed the RO's April 2005 rating action to the Board. By a June 2005 rating action, the RO assigned an initial 30 percent rating to the service-connected PTSD, effective May 2, 2005--the date of a VA examination report reflecting an increase in severity of the service-connected PTSD. In a September 2006 rating action, the RO assigned an effective date of February 23, 2001 to the initial 30 percent disability rating assigned to the service-connected PTSD (See June 2005 and September 2006 rating actions). In November 2009, the Board remanded the claim on appeal to the RO for additional development, to include obtaining additional VA treatment records and scheduling the Veteran for a VA psychiatric examination. These directives have been accomplished and the case has returned to the Board for appellate consideration. By a December 2010 rating action, the RO assigned a 50 percent disability rating to the service-connected PTSD, effective May 20, 2010--the date of a VA examination report reflecting an increase in severity of the service-connected PTSD. Because the increase in the evaluation of the Veteran's PTSD to 50 percent does not represent the maximum rating available for the disorder, the Veteran's initial evaluation claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). The issue of entitlement to TDIU, which is part of this appeal pursuant to Rice v. Shinseki, 22 Vet. App. 447, 454 (2009), is addressed in the REMAND portion of the decision below and is REMANDED to the RO/Appeals Management Center (AMC) in Washington, DC. FINDING OF FACT Since February 23, 2001, the Veteran's PTSD has been manifested by symptoms indicative of occupational and social impairment with reduced reliability and productive due to symptoms such as a flattened affect, hypervigilance, and irritability. Occupational and social impairment with deficiencies in most areas such as work, school, family relationships, judgment, thinking or mood and the inability to establish and maintain effective relationships has not been demonstrated. CONCLUSION OF LAW Beginning on February 23, 2001, the criteria for an initial disability rating of 50 percent for PTSD, but no higher, have been approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Proper VCAA notice must inform the claimant of any information and evidence not of record that is necessary to substantiate the claim. The claimant must be informed as to what portion of the information and evidence VA will seek to provide, and what portion of such the claimant is expected to provide. Proper notification must also invite the claimant to provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). See Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120- 21 (2004). In Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents (e.g., statements or supplemental statements of the case), was required. The Federal Circuit further held that such a letter must be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. Id. The Federal Circuit further held that such a letter should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. Id. Here, the appeal arose from the Veteran's disagreement with the RO's assignment of an initial 10 percent rating assigned after the grant of service connection for PTSD. (See April 2005 rating action). The Courts have held that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, such as here, the claim has been substantiated and there is no need to provide additional VCAA notice. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003. The Court has also held that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as an effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105. See Goodwin v. Peake, 22 Vet. App. 128 (2008). In this case, the initial evaluation claim on appeal was substantiated after the enactment of the VCAA, and the Veteran has not alleged any prejudice by any notice defect. The Board notes that the United States Court of Appeals for Veteran's Claims (Court), in Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. Sept. 4, 2009) clarified VA's notice obligations in increased rating claims. As the instant appeal stems from the grant of initial compensation benefits for PTSD, as opposed to an increased rating claim, Vazquez- Flores is inapplicable. Id. Regarding VA's duty to assist the Veteran with his initial evaluation claim, service treatment records (STRs) and VA and private post-service treatment and examination reports are contained in the claims file. In addition, statements of the Veteran, his wife and his representative have been associated with the claims file. The Veteran was afforded VA psychiatric examinations in May 2005 and May 2010. Copies of the above-cited examination reports are contained in the claims file. Accordingly, the Board finds that there is no further assistance that would be reasonably likely to substantiate the claim of entitlement to an initial disability rating in excess of 30 percent for PTSD from February 23, 2001 to May 19, 2010, and 50 percent thereafter. II. Merits Analysis The Veteran seeks initial ratings in excess of 30 and 50 percent for his PTSD for the prescribed periods on appeal. Having carefully considered the Veteran's contentions in light of the evidence of record and the applicable law, the Board finds that the weight of such evidence is in approximate balance and the claim will be granted on this basis. 38 U.S.C.A § 5107(b) (West 2002); Alemany v. Brown, 9 Vet. App. 518 (1996); Brown v. Brown, 5 Vet. App. 413 (1993) (under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the claimant shall prevail upon the issue). Specifically, the competent and probative evidence of record supports an initial rating of 50 percent, but no higher, for the service-connected PTSD from February 23, 2001. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2010). In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, such as here, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). 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 (2010). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a) (2010). When evaluating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b) (2010). On February 23, 2001, VA received the Veteran's claim for service-connection for PTSD. In the appealed April 2005 action, the RO granted service connection for PTSD; an initial evaluation 10 percent rating was assigned, effective February 23, 2001--the date VA received his initial claim for compensation for this disability. By a June 2005 rating action, the RO assigned an initial 30 percent rating to the service-connected PTSD, effective May 2, 2005--the date of a VA examination report reflecting an increase in severity of the service-connected PTSD. In a September 2006 rating action, the RO assigned an effective date of February 23, 2001 to the initial 30 percent disability rating assigned to the service-connected PTSD (See June 2005 and September 2006 rating actions). By a December 2010 rating action, the RO assigned an initial disability of 50 percent to the service-connected PTSD, effective May 20, 2010--the date of a VA examination report reflecting an increase in severity of the service-connected PTSD. Thus, in the analysis below, the Board will determine whether the Veteran is entitled to an initial rating in excess of 30 percent for PTSD from February 23, 2001 to May 19, 2010, and an initial evaluation in excess of 50 percent thereafter. PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411, which in turn incorporates criteria contained in the General Rating Formula for Mental Disorders. Under 38 C.F.R. § 4.130, Diagnostic Code 9411, PTSD which is productive of occupational and social impairment with an 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 a depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, and recent events), warrants a 30 percent disability evaluation; A 50 percent disability evaluation encompasses PTSD manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as a 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; or difficulty in establishing and maintaining effective work and social relationships; A 70 percent disability evaluation is warranted for PTSD manifested by 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); or the inability to establish and maintain effective relationships; and, A 100 percent disability evaluation is warranted for PTSD which is productive of 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; or memory loss for the names of close relatives, own occupation, or own name. Id. The Global Assessment of Functioning (GAF) is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health- illness." DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, FOURTH ED, American Psychiatric Association (1994) (DSM-IV), p.32; 38 C.F.R. §§ 4.125(a), 4.130 (2008). 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). Id. According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126; Mauerhan v. Principi, 16 Vet. App. 436 (2002). Private and VA examination and treatment records, dated from July 2001 to April 2010, reflect that since July 2001, the Veteran experienced PTSD-related symptoms, such as significant hypervigilance and irritability, insomnia controlled with medication, anxiety, a constricted affect and near-continuous depression. After noting the Veteran's complaints and problems with hypervigilance, irritability and sleep disturbance, VA physicians in April 2002 and November 2004 determined that the Veteran had "significant problems of PTSD" and that his PTSD was in poor control, respectively. (See April 2002 and November 2004 VA treatment records). The above-cited PTSD symptoms were also present at a May 2005 VA examination of the Veteran, along with a blunted affect, moderately depressed mood, and sleep disturbance that was controlled with medication. The Veteran also reported having an increased tension with war-related triggers, particularly with Iraq-related war material on the news. (See May 2005 VA examination report). In a December 2007 letter to the Veteran, a VA physician noted that at their most recent meeting, he had exhibited "more symptoms consistent with posttraumatic stress," to include, but not limited to, increased episodes of anger. (See VA physician's December 2007 letter to the Veteran). In December 2009, a VA physician opined that the Veteran was "'unemployable'" due to his PTSD and non-service-connected cardiac problems. (See December 2009 VA treatment record). In January 2010, this same VA examiner assigned the Veteran a GAF score of 46, which is indicative of serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or serious impairment in social, occupational, or school functioning. Given the relative depth and persistence of the Veteran's PTSD-related symptoms, such as a blunted affect, increased episodes of anger, occupational impairment caused, in part, due to his PTSD, and increased hypervigilance and irritability that have persisted since July 2001, which was only a few months after VA received the Veteran's initial claim for service connection for PTSD on February 23, 2001, the Board finds that his PTSD symptomatology has more closely approximated the criteria for a 50 percent rating since the inception of his appeal. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.7 (2010). Thus, the Veteran will be granted a 50 percent rating for the service-connected PTSD, effective February 23, 2001--the date when VA received his initial claim for service connection for this disability. The Board also concludes that an initial 70 percent rating is not warranted for the service-connected PTSD because the preponderance of the probative and competent evidence of record, namely the May 20, 2010 VA examination report and an August 2010 VA treatment record, are without evidence of occasional panic attacks, impaired impulse control, suicidal ideation, obsessional rituals which interfere with routine activities, speech that is intermittently illogical, obscure or irrelevant, spatial disorientation, neglect of personal appearance and hygiene, or an inability to establish and maintain effective relationships---criteria that are necessary for an initial 70 percent rating. Rather, and as noted above, the Board finds that the Veteran's current PTSD symptoms more closely approximate and are fully contemplated by the current 50 percent evaluation. Regarding social and occupational impairment, the Veteran still maintains a relationship with his family members, including his wife, daughter and son. During the above-cited May 2010 VA examination, the Veteran indicated that he had a couple of friends that he visited with every couple of weeks and that he enjoyed going out to eat and watching movies. When seen at a VA clinic in August 2010, the Veteran stated that he was happy that his daughter's upcoming wedding would be held at his home. Thus, it cannot be said that he is unable to establish and maintain effective relationships. Concerning the Veteran's occupational impairment, the Veteran indicated that he was forced into retirement because of "cardiac problems," as opposed to his service-connected PTSD. (See December 2009 VA treatment record). That same report contains the examining physician's opinion that the Veteran was not capable of working at anytime in the foreseeable future because of the combination affect of his service-connected PTSD and his cardiac problems--a disability for which service connection has not been established. Id. In addition, the May 2010 VA examiner described the affect of the Veteran's PTSD on his employment as mild to moderate (italics added for emphasis). Thus, the Board finds that the symptoms listed in the psychiatric criteria for a 70 percent evaluation have not been shown in this case, and there is no evidence indicating that the Veteran's PTSD results in the degree of social and occupational impairment contemplated by a 70 percent evaluation. Therefore, the Veteran will be granted a 50 percent rating for the service-connected PTSD, effective February 23, 2001--the date when VA received his initial claim for service-connection for this disability. The benefit of the doubt is resolved in the Veteran's favor. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App.49, 53-56 (1990). The Board finds that other than the 50 percent rating assigned to the service-connected PTSD from February 23, 2001 in the analysis above, there is no basis for staged ratings pursuant to Fenderson. III. Extraschedular Consideration The Board finds that this matter need not be remanded to have the RO refer the Veteran's claim to the Under Secretary for Benefits or to the Director of the Compensation and Pension Service for assignment of an extraschedular rating, pursuant to 38 C.F.R. § 3.321(b) (2010). The Board notes the above determination is based on application of pertinent provisions of the VA's Schedule for Rating Disabilities, and there is no showing that the Veteran's PTSD reflects so exceptional or so unusual a disability picture as to warrant the assignment of a higher evaluation on an extraschedular basis, and indeed, neither the Veteran nor his representative have identified any exceptional or unusual disability factors. See 38 C.F.R. § 3.321. The Board observes that there is no showing the disability results in marked interference with employment. A May 2010 VA examiner specifically concluded that the Veteran's PTSD only caused mild to moderate (italics added for emphasis) occupational impairment. In addition, over the course of an appeal that has spanned five (5)years, the Veteran was hospitalized for his PTSD on one occasion. (See June 2006 VA hospitalization). The service- connected PTSD has not otherwise rendered impractical the application of the regular schedular standards. Absent evidence of these factors, the criteria for submission for assignment of an extraschedular rating are not met. Thus, a remand of this claim to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) is not appropriate. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Beginning on February 23, 2001, an increased rating of 50 percent, but no higher, for the service-connected PTSD is granted, subject to the regulations controlling disbursement of VA monetary benefits. REMAND A request for TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but is rather part of the adjudication of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, when entitlement to TDIU is raised during the appeal of a rating for a disability, it is part of the claim for benefits for the underlying disability. Id at 454. In the present appeal, a VA physician opined that the Veteran was "unemployable." The physician further stated that he did not think that the Veteran would be capable of returning to work at anytime in the foreseeable future because of his PTSD and cardiac problems." (See December 2009 VA treatment record). In view of Rice and the December 2009 VA physician's conclusion, the Board finds that a TDIU claim has been raised and is part of the appeal. However, the Veteran has not been notified of the evidence needed to substantiate a claim of entitlement to TDIU nor has it been adjudicated by the RO. This action will need to be addressed on remand. TDIU 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. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a) (2010). In exceptional circumstances, where the veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). The record shows that a VA examiner has determined that the Veteran is unemployable because of his service-connected PTSD and non-service-connected cardiac disability. (See December 2009 VA treatment record). While the Veteran was afforded VA examinations to determine the current severity of his PTSD, an opinion as to his unemployability due solely to his service-connected disabilities (italics added for emphasis) and the impact of those disabilities on his employability is not of record. The Board finds that the Veteran should be afforded an appropriate VA examination to determine whether he is unable to secure or maintain substantially gainful employment as a result of his service-connected disabilities on remand. Accordingly, the case is REMANDED to the RO/AMC for the following action: 1. A letter should be sent to the Veteran explaining, in terms of 38 U.S.C.A. § 5103 and 5103A, the need for additional evidence regarding the claim of entitlement to TDIU. This letter must inform the Veteran about the information and evidence that is necessary to substantiate the claim and provide notification of both the type of evidence that VA will seek to obtain and the type of evidence that is expected to be furnished by the Veteran. The Veteran should also be notified of VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. Schedule the Veteran for an examination by an appropriate VA examiner to determine the impact of his service-connected disabilities on his unemployability. The Veteran's claim folder must be forwarded to the examiner for review. The examiner must state whether the Veteran's service-connected disabilities, without consideration of his non-service-connected disabilities, render him unable to secure or follow a substantially gainful occupation. In formulating the foregoing opinion, the examiner is requested to comment on the following evidence: (i) December 2009 VA treatment record, containing the examining physician's opinion that the Veteran was not capable of working at anytime in the foreseeable future because of his PTSD and non-service-connected cardiac problems; and, (ii) May 2010 VA examination report, containing the examiner's opinion that the Veteran's PTSD had a mild to moderate affect on his employment. A complete rationale for all opinions expressed must be provided in a typewritten report. 3. After completion of the above development, the Veteran's claim of entitlement to TDIU should be adjudicated. If the determination is adverse to the Veteran, he and his representative should be furnished with a Supplemental Statement of the Case and given an opportunity to respond The Veteran has the right to submit additional evidence and argument on the matter 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. 2010). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs