Citation Nr: 1123413 Decision Date: 06/21/11 Archive Date: 06/28/11 DOCKET NO. 08-13 314A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1965 to September 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. 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. FINDINGS OF FACT 1. For the entire initial rating period, the Veteran's PTSD manifested with occupational and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking, and mood, due to such symptoms as: suicidal ideation, near- continuous panic or depression affecting the ability to function independently, appropriately and effectively, impaired impulse control, difficulty in adapting to stressful circumstances (including work or work like setting), and an inability to establish and maintain effective relationships and Global Assessment of Functioning (GAF) scores of 41-50. 2. At no point during the initial rating period on appeal did the Veteran's PTSD more nearly approximate 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, or memory loss for names of closest relatives, own occupation, or own name. CONCLUSION OF LAW The criteria for a higher initial disability rating of 70 percent for PTSD have been met throughout the initial rating period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, Part 4, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002), and implemented by regulation, 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a) (2010), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1). The appeal for a higher initial rating for PTSD arises from a 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. The Board also finds that there has been substantial compliance with the assistance provisions set forth in the law and regulations. The record in this case includes VA examination reports, VA treatment records, and lay evidence. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case, and no further action is necessary. See generally 38 C.F.R. § 3.159(c). No additional pertinent evidence has been identified by the Veteran. The Veteran was afforded VA examinations in October 2007 and November 2009. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Board notes that the examiners were provided with an accurate history, the Veteran's history and complaints were recorded, the examination reports set forth detailed examination findings in a manner that allows for informed appellate review under applicable VA laws and regulations, and the examiners offered the necessary findings. The Board finds the examinations to be sufficient and adequate for rating purposes. Thus, further examination is not necessary. For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issues on appeal. Higher Initial Rating for PTSD 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. When the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time, and different ratings can be assigned for different periods of time in a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). Considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The evaluation must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a) (2010). Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b) (2010). According to the Diagnostic and Statistical Manual of Mental Disorders, Fourth edition (DSM IV), a global assessment of function (GAF) score reflects the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." DSM IV, American Psychiatric Association (1994), pp.46-47; 38 C.F.R. §§ 4.125(a), 4.130. A GAF score of 31-40 indicates some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school. 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). A GAF score of 51-60 represents 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). A GAF score of 61-70 indicates some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. The Veteran's service-connected PTSD has been rated under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9411, which provides: A 50 percent disability rating is warranted if the Veteran experiences 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability rating is warranted when the Veteran experiences occupational and social impairment, with deficiencies in most area, 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); inability to establish and maintain effective relationships. A 100 percent disability rating is warranted for 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of closest relatives, own occupation, or own name. 38 C.F.R. § 4.130. After a review of the evidence, lay and medical, the Board finds that, for the entire rating period, the Veteran's PTSD manifested with occupational and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking, and 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, which more nearly approximates a 70 percent disability rating under Diagnostic Code 9411. 38 C.F.R. § 4.130. VA treatment records and lay statements reveal deficiencies in work, family relations, thinking, and mood. The Veteran reported intermittent suicidal ideation. He noted no suicidal intent, but specifically stated that he thinks about it now and then. Although the Veteran's speech was not described as illogical, a VA treatment record showed that he was slow to answer and had difficulty findings words, while other records showed occasionally forced speech. VA treatment records show constant depression with anxiety. The Board acknowledges that the November 2009 VA examiner described his depression as near-continuous and noted that it does not affect the Veteran's ability to function independently, however in he later states that the Veteran has some interference in performing activities of daily living due to a lack of motivation and being burdened by symptoms. The evidence also shows impaired impulse control. Specifically, the record reveals at least two incidents of road rage; during one he chased after a man, caught up with him, yelled at him, and then drove away. The Veteran also reported violent thoughts. The record contains a lay statement from the Veteran's former boss noting that the Veteran was let go in May 2006 due to his behavior, specifically his boss specifically noted that he could become angry and offensive when challenged by anyone and would act out in inappropriate ways. The Board also finds that the evidence shows difficulty in adapting to stressful circumstances and an inability to establish and maintain effective relationships. The Veteran cares for his wheelchair bound son, but their relationship causes extreme stress, anxiety, and depression for the Veteran. His relationship with his remaining family members is also tense. He also described singing in the church choir but losing friends due to fights and being annoyed by the people in choir. He informed a VA psychologist that he was used to rapidly gaining and losing friends due to his difficulties. The VA examiner in November 2009 specifically noted that the Veteran is unable to establish and maintain effective work, school, and social relationships because the Veteran has had great difficulty managing his behavior. The Board again notes that the Veteran has lost two jobs due to his PTSD symptoms. In an October 2007 letter, the Veteran's prior boss described him as being great fun at times and then being angry and offensive whenever challenged, resulting in inappropriate behavior. The Board finds that the Veteran has difficulty adapting to stressful circumstances and cannot establish and maintain effective relationships. The record does not contain evidence of any spatial disorientation, obsessional rituals that interfere with routine activities, or neglect of personal appearance and hygiene; however, it is not required that the Veteran experience every symptoms listed in the regulation. The Board has considered that the symptoms listed in Diagnostic Code 9411 are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). As such, the Board notes that the Veteran experiences other symptoms that are not listed in the criteria, but may reflect the severity of his PTSD. These include, but are not limited to overinclusive and off track thought processes, a deficiency in attention and concentration, isolation, sleep disturbances, nightmares, mood swings, anger, and an exaggerated startle response. Specifically, the Board has also considered many of the Veteran's symptoms as "like or similar to" the schedular rating criteria of occupational and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking, and mood, due to such symptoms as: near- continuous panic or depression affecting the ability to function independently, appropriately and effectively, impaired impulse control, difficulty in adapting to stressful circumstances (including work or work like setting), and an inability to establish and maintain effective relationships. See Mauerhan, 16 Vet. App. 436 . The Veteran's GAF scores are also consistent with a 70 percent rating. Generally, the Veteran's GAF scores ranged from 41 to 50. GAF scores in the range from 41 to 50 generally indicate A GAF score of 41 to 50 indicates serious symptoms or a serious impairment in social, occupational, or school functioning. In this case, the severity of specific symptoms and the degree of occupational and social impairment shown by the evidence of record more nearly approximates the criteria for a 70 percent disability rating for the initial rating period. The Board must then consider whether the Veteran's symptoms more nearly approximate the criteria for a 100 percent disability rating during the period on appeal. The Veteran's PTSD did not manifest with 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of closest relatives, own occupation, or own name. 38 C.F.R. § 4.130. At no point did the Veteran present with gross impairment in thought processes or communication. Although his thought processes were described at times as overinclusive and off track, they were generally logical and without gross impairment. He denied any persistent delusions or hallucinations and VA treatment records do not show any objective signs of delusions or hallucinations. The Board acknowledges some inappropriate behavior, the Veteran's behavior is not described as grossly inappropriate. Rather, his behavior is better described under the 70 percent rating criteria for impaired impulse control. The Veteran does not have a persistent danger of hurting self or others. He admitted some suicidal ideation, but no suicidal intent or attempts. Additionally, he has no violent outbursts. He consistently has the ability to perform activities of daily living and even assists his wheelchair bound son in his activities of daily living. The record does not show any disorientation to time or place, nor does it show any memory loss for names of closest relatives, own occupation, or own name. Therefore, the Veteran does not meet the criteria for a 100 percent disability rating for PTSD. Based on the evidence of record, the Board finds that the evidence more nearly approximates the criteria for a 70 percent disability rating for the entire period on appeal. Extraschedular Consideration The Board also has considered whether the criteria for referral for extraschedular disability rating are met. An extraschedular disability rating is warranted when the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2010); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto 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 to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating. In this case, the Board finds that the symptomatology and impairment caused by the Veteran's PTSD is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria, Diagnostic Code 9411, specifically provides for disability ratings based on a combination of clinical findings and history, including history reported to examiners as well as history in lay statements or testimony. In this case, considering all the lay and medical evidence, including the Veteran's written statements, the Board has found that the Veteran's PTSD manifested with occupational and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking, and mood, due to such symptoms as: suicidal ideation, near- continuous panic or depression affecting the ability to function independently, appropriately and effectively, impaired impulse control, difficulty in adapting to stressful circumstances, and an inability to establish and maintain effective relationships. All of these symptoms or social and occupational impairments are explicitly recognized by the schedular rating criteria. As seen in the analysis above, the Board has considered these aspects of the Veteran's PTSD disability, and finds that the rating schedule (Diagnostic Code 9411) adequately provides for ratings base on these symptoms. Specifically, the Board has also considered many of the Veteran's symptoms as "like or similar to" the schedular rating criteria of occupational and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking, and mood, due to such symptoms as: near- continuous panic or depression affecting the ability to function independently, appropriately and effectively, impaired impulse control, difficulty in adapting to stressful circumstances, and an inability to establish and maintain effective relationships, as set forth in the 70 percent rating criteria. All of the Veteran's psychiatric symptoms attributable to PTSD are therefore adequately rated by either specific schedular rating criteria or by analogy under the schedular criteria. See Mauerhan, 16 Vet. App. 436. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] 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." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life. In the absence of exceptional factors associated with the Veteran's PTSD, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For this reason, the Board finds that the Rating Schedule measures and contemplates all aspects of the Veteran's disabilities, so is adequate to rate the Veteran's service-connected lumbar strain and PTSD, so that referral for extraschedular consideration is not warranted. ORDER A increased initial disability rating of 70 percent, but no higher, for PTSD is granted. REMAND In the present case, a May 2007 VA treatment record notes that the Veteran went through a vocational rehabilitation process with VA and was found not capable of working. The record also includes a letter stating that the Veteran lost his last job in 2006 due to his inappropriate behavior. The Veteran has submitted lay statements noting no employment since that time. Where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (VA to "determine all potential claims raised by the evidence, applying all relevant laws and regulations"); See also Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that an appeal for higher rating includes a claim for TDIU, if reasonably raised by the record). In light of the Court's suggestive language that evidence of unemployability in the context of a rating claim may include a TDIU claim, the Board finds that REMAND of the issue of TDIU for development by the RO, specifically to provide an examination to determine whether the Veteran is capable of obtaining and maintaining employment, is the appropriate action. Accordingly, the claim of entitlement to TDIU is REMANDED for the following action: 1. The Veteran should be scheduled for a VA examination to ascertain and evaluate the Veteran's ability to secure or follow a substantially gainful occupation. The examiner should review the claims file in conjunction with the examination and opinion. Any medically indicated special tests should be accomplished. The examiner should report the extent of the Veteran's service-connected disability, PTSD, and address its effect on the Veteran's ability to maintain employment. When making this evaluation, the examiner should do so without considering the Veteran's age or any non-service connected disabilities. A complete rationale must be provided for any opinion offered. 2. After completion of the above and any other development the RO/AMC should deem necessary, the RO/AMC should review the expanded record and readjudicate the claim. If the claim remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case, and should be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if otherwise in order. 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). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2010). 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). ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs