Citation Nr: 1124196 Decision Date: 06/24/11 Archive Date: 06/29/11 DOCKET NO. 06-00 967 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) from March 25, 2003 through April 28, 2009. 2. Entitlement to an initial staged rating in excess of 50 percent for PTSD from April 29, 2009. 3. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney at Law ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran had active service from October 1967 to August 1969. These matters come before the Board of Veterans' Appeals (BVA or Board) from a June 2005 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Cleveland, Ohio. This case was most recently before the Board in January 2010. In February 2006 the Veteran testified at a February 2006 hearing before a Decision Review Officer at the RO. Evidence pertinent to the matters on appeal was received in April 2011. The Veteran, through his representative, has waived initial RO consideration of this evidence. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required. FINDING OF FACT Throughout the rating period on appeal, the Veteran's PTSD was manifested by sleep difficulties, being easily angered, avoiding people, anxiety, emotional numbness, blunted affect, dysphoric and somber mood, and intrusive thoughts productive of occupational and social impairment comparable to no more than reduced reliability and productivity. CONCLUSIONS OF LAW 1. The criteria for a 50 percent initial rating for PTSD, from March 25, 2003 through April 28, 2009, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2010). 2. The criteria for a rating in excess of 50 percent for PTSD have not been met at any time during the rating period on appeal. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2010). REASONS AND BASES FOR FINDING AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies in the instant case. Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and 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. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As previously defined by the courts, those five elements include: (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. Upon receipt of an application for "service connection," therefore, the Department of Veterans Affairs (VA) is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. As the June 2005 rating decision granted service connection for the disability on appeal, that claim is now substantiated. As such, the filing of a notice of disagreement as to the disability ratings assigned does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). 38 C.F.R. § 3.159(b)(3). Rather, the Veteran's appeal as to the disability ratings assigned triggers VA's statutory duties under 38 U.S.C.A. §§ 5104 and 7105, as well as regulatory duties under 38 C.F.R. § 3.103. As a consequence, VA is only required to advise the Veteran of what is necessary to obtain the maximum benefits allowed by the evidence and the law. The Board observes that as for rating the Veteran's PTSD, the relevant criteria have been provided to the Veteran, including in the October 2005 statement of the case. In August 2006 Veteran received notice regarding the assignment of a disability rating and/or effective date in the event of an award of VA benefits. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Duty to Assist The Veteran's service treatment records are associated with the claims file, as are private records and VA records. The Veteran has undergone VA examination and private examinations that address the matters presented by this appeal. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the examinations obtained in this case are adequate, as they considered the pertinent evidence of record, and included an examination of the Veteran and elicited his subjective complaints. The examinations described the Veteran's disabilities on appeal in sufficient detail so that the Board is able to fully evaluate the claimed disability. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination with respect to the initial rating issue on appeal has been met. The Veteran has not referenced any other pertinent, obtainable evidence that remains outstanding. VA's duties to notify and assist are met, and the Board will address the merits of the claims. Legal Criteria Disability evaluations are determined by comparing a veteran's present symptoms with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Because the instant appeal is from the initial ratings assigned with the grant of service connection, the possibility of "staged" ratings for separate periods during the appeal period, based on the facts found, must be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the 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 the claims. Diagnostic Code 9411 addresses PTSD. Under that code, a 50 percent rating for PTSD is appropriate when there is 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating for PTSD is provided 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent rating for PTSD is provided 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 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. §§ 4.125-4.130. The Board observes that to adequately evaluate and assign the appropriate disability rating to the Veteran's service- connected psychiatric disability, the Board must analyze the evidence as a whole, including the Veteran's GAF scores and the enumerated factors listed in 38 C.F.R. § 4.130, Diagnostic Code 9411. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002) (holding that "the rating specialist is to consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV [Diagnostic and Statistical Manual of Mental Disorders, 4th ed.]. Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) [citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), p. 32]. A June 2005 rating decision granted the Veteran's claim for service connection for PTSD and assigned a 10 percent initial evaluation, effective March 25, 2003. In an August 2006 Supplemental Statement of the Case (SSOC) rating decision, the RO increased the veteran's PTSD evaluation to 30 percent, effective March 25, 2003. In a June 2010 Supplemental Statement of the Case (SSOC) rating decision, the RO increased the Veteran's PTSD evaluation to 50 percent, effective April 29, 2009. I. Entitlement to an initial rating in excess of 30 percent for PTSD from March 25, 2003 through April 28, 2009. The evidence for this time period, including March 2003 VA treatment records, a December 2004 private treatment record, a May 2005 VA PTSD examination, and the Veteran's February 2006 RO hearing testimony, reflect PTSD symptoms that include sleep difficulties, being easily angered, avoiding people, being anxious, feeling emotionally numb, blunted affect, dysphoric and somber mood, and intrusive thoughts. As such, a rating of 50 percent for this time period (March 25, 2003 through April 28, 2009) is warranted. II. Entitlement to an initial rating in excess of 50 percent for PTSD In finding that the Veteran is entitled an initial rating of 50 percent for PTSD from March 25, 2003 through April 28, 2009, the question now becomes whether the Veteran is entitlement to an initial rating in excess of 50 percent for PTSD at any time during the appeal period. A review of the claims file reveals that, despite undergoing multiple VA psychiatric examinations and treatment sessions, symptoms such as suicidal ideation, obsessional rituals which interfere with routine activities, irrelevant speech, depression affecting the ability to function independently, impaired impulse control, spatial disorientation, and neglect of personal appearance and hygiene have not been consistently shown. The Board can find no report of the Veteran having suicidal ideation during the appeal period. While the Veteran did indicate at his November 2006 RO hearing (November 2006 RO hearing transcript, pages 4-5) that he had homicidal ideations towards his former bosses, the Veteran denied that he had such thoughts on June 2006 VA and February 2007 VA treatment records, and the March 2010 VA examiner specifically noted that the Veteran was not a danger to himself or others. In a March 2011 letter, A.H., an individual who has known the Veteran for over thirty years and who had helped the Veteran resolve problems with post office management, noted that the Veteran would often lose his temper, but observed that the Veteran did not engage in violent actions. The Board can not find any mention of any speech or cognitive disorder, and it does not appear that the Veteran has ever asserted as much. The Veteran has not been found to have any spatial disorientation, and it does not appear that he has ever claimed any hallucinations. While the March 2010 VA examiner noted that the Veteran was wearing some dirty clothing, the record does not indicate that neglect of personal appearance and hygiene have been consistently shown. While it is clear that the Veteran's PTSD has impacted his social functioning, the Veteran did indicate (November 2006 RO hearing transcript, page 6) that he had a friend that he met up with once a week. While the Veteran indicated (March 2010 VA examination, Section C) that he had had difficulties in doing so (and has also essentially indicated that he had verbally abused his grandchildren on occasions), it appears that the Veteran was instrumental in providing care for his grandchildren at a crucial time in their lives. Further, while the Veteran admitted that he would occasionally isolate himself from his family, the Veteran has been able (albeit with difficulties, as described in the statements from the Veteran and in his wife's undated statement) to maintain a marriage of more than 30 years duration. As for employment, the Veteran indicated at his February 2006 RO hearing (February 2006 hearing transcript, page 6) that he had retired from the Post Office the prior June as he could not handle the stress. He went on to note, however (February 2006 hearing transcript, page 9) that he had retired "as soon as I had the time in." It is clear to the Board, as evinced by the Veteran's statements and as documented in the March 2011 letter from A.H., that the Veteran's PTSD has impacted his employment as a postal worker. As the Veteran's PTSD has clearly impacted his employment, the RO has assigned a 50 percent rating, which in itself recognizes that the Veteran's PTSD is productive of reduced reliability and productivity. The Veteran's GAF scores have included 45 (March 4, 2003 VA record), 50 (March 3, 2003 VA record), 55 (March 20, 2003 VA record), 61 (May 2005 VA PTSD examination), 48 (February 2007 VA record), 48 (June 2007 VA record), 55 (December 2007 VA record), 55 (June 2008), 55 (July 2008 VA record), 50 (March 2010 VA PTSD examination. While such findings tend to reflect serious levels of PTSD symptoms, a review of the clinical findings from the psychiatric examinations of record do not reveal symptoms which more closely approximate the criteria for a rating of 70 percent. As such, a rating in excess of 50 percent for PTSD is not warranted at any time during the appeal. Conclusion The Board notes that in adjudicating a claim the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences; for example, he is competent to report that he experiences certain PTSD symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Further, and while the Board finds that the Veteran has been credible in his reports, as with the medical evidence of record, the Veteran's account of his PTSD symptomatology describes a rating consistent with a 50 percent rating. In reviewing the foregoing, the Board has been cognizant of the "benefit of the doubt" rule, but there is not such an approximate balance of the positive evidence and the negative evidence to permit a more favorable determination. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As for extraschedular consideration, the threshold determination is whether the disability picture presented in the record is adequately contemplated by the rating schedule. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The evidence of record, including the detailed letters from the Veteran's private physician (M.C., MD), does not reveal that the Veteran's disability picture is so unusual or exceptional in nature as to render his schedular rating inadequate. The Veteran's disability on appeal is not one that is rated by analogy, but, instead, has been evaluated under the applicable diagnostic code, 9411, that has specifically contemplated the level of occupational impairment caused by PTSD. The evidence does not reflect that the Veteran's PTSD, alone, has caused marked interference with employment or necessitated any frequent periods of hospitalization, such that application of the regular schedular standards is rendered impracticable. Therefore, referral for assignment of an extra-schedular evaluation in this case is not in order. Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). ORDER Entitlement to an initial rating of 50 percent for PTSD, from March 25, 2003 through April 28, 2009, is granted, subject to the applicable law governing the award of monetary benefits. Entitlement to an initial rating in excess of 50 percent for PTSD at any time during the appeal is denied. REMAND As noted in the January 2010 Board remand, a claim for entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) is part of an increased rating issue when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran has attributed his employment difficulties largely to PTSD. Such issue has not been adjudicated by the AOJ, nor developed for appellate consideration at this time. As such, it must be adjudicated by the AOJ prior to appellate consideration. Accordingly, the case is REMANDED for the following action: 1. Issue VCAA notice relative to the issue of entitlement to a TDIU. 2. The AOJ should adjudicate the issue of entitlement to a total rating based on individual unemployability due to service- connected disability. Notice of the determination and the Veteran's appellate rights should be provided to the Veteran and his representative. Only if an appeal is completed as to this matter should the issue be returned to the Board for appellate consideration. The appellant 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). ______________________________________________ U.R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs