Citation Nr: 1125735 Decision Date: 07/08/11 Archive Date: 07/15/11 DOCKET NO. 09-27 581 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial evaluation higher than 30 percent for the service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to total disability rating based upon individual unemployability (TDIU) by reason of service-connected disability. ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran served on active duty from April 1957 to May 1962, May 1964 to May 1967 and from August 1967 to August 1979. This case comes before the Board of Veterans' Appeals (Board) on appeal from November 2007 and January 2009 rating decisions issued by the RO. As the claim for an increased rating for the service-connected PTSD involves a request for a higher rating following the grant of service connection, the Board has characterized this claim in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999). The issue of an increased evaluation for the service-connected low back pain with degenerative disc disease has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction and refers the matter to the AOJ for appropriate action. The claim for an increased rating in excess of 50 percent and entitlement to TDIU rating are being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT The clinical signs and manifestations of the service-connected PTSD are shown to more nearly approximate a disability picture manifested by occupational and social impairment with reduced reliability and productivity and difficulty in establishing and maintaining effective work and social relationships. CONCLUSION OF LAW The criteria for the assignment of a rating of 50 percent for the service-connected PTSD have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.130 including Diagnostic Code 9411 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Assist and Notify 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 the 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) (2010). This appeal arises from disagreement with an 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). The United States Court of Appeals for Veterans Claims (Court) has elaborated 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. Goodwin v. Peake, 22 Vet. App. 128 (2008). Where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. Id. There has been no allegation of prejudice with regard to the notice in this case, hence further VCAA notice is not required with regard to the initial rating appeals. The Veteran received the appropriate VCAA notice in December 2006. VCAA 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 private and VA treatment records and service treatment records. Additionally, the Veteran has been provided a necessary VA examination. For these reasons, the Board finds that VA has complied with the VCAA's notification and assistance requirements. To the extent that the action taken hereinbelow is favorable to the Veteran, further discussed of VCAA is not required at this time. II. Legal Criteria 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. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, 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. In every instance where the rating schedule does not provide a zero percent evaluation for a diagnostic code, a no percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Where a Veteran has been diagnosed as having a specific condition and the diagnosed condition is not listed in the Ratings Schedule, the diagnosed condition will be evaluated by analogy to closely-related diseases or injuries in which not only the functions affected, but the anatomical localizations and symptomatology, are closely analogous. 38 C.F.R. § 4.20. Diagnostic Code 9411, which is governed by the General Rating Formula for Mental Disorders set forth in 38 C.F.R. § 4.130, provides that: A 50 percent disability rating for PTSD is warranted when the veteran exhibits 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. A 70 percent disability rating for PTSD is warranted when the veteran exhibits 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); inability to establish and maintain effective relationships. Id. A 100 percent disability rating for PTSD is warranted when the veteran exhibits 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. Id. Global Assessment of Functioning (GAF) scores are a scale rating 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]. GAF scores ranging from 51 to 60 reflect 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). 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). See 38 C.F.R. § 4.130 [incorporating by reference the VA's adoption of the DSM-IV, for rating purposes]. Scores ranging from 31 to 40 reflect 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, avoids friends, neglects family, and is unable to work). The terms "mild," "moderate," "moderately severe," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R § 4.6. III. Analysis The Veteran claims that his PTSD symptoms reflect a higher evaluation than the currently assigned 30 percent evaluation. A November 2006 private treatment record shows a diagnosis of chronic PTSD and major depressive disorder. The psychiatrist assigned a GAF score of 39. At that time, the Veteran reported having visions of dead bodies from his experience in Vietnam. He could not watch television and was very jumpy. He also reported auditory hallucinations. In terms of relationships, the Veteran explained that his wife left him after he became verbally abusive due to alcohol use in 1985. He had not been married since that time and had a distant relationship with his two children. He reported being depressed, anxious and jumpy. The Veteran had no friends and secluded himself. He had trouble sleeping and felt sad, angry, anxious and jumpy. In terms of employment, the Veteran reported working as a security guard and being fired. The last time he worked was in 2000 as a security guard. The Veteran explained that he got tired and could not work anymore. Upon examination, the Veteran looked disheveled. His affect and mood were depressed and anxious. His thought processes were within normal limits, and he denied any auditory or visual hallucinations. He also denied any suicidal or homicidal ideation. There was no evidence of any psychosis or delusions. Cognitively, the Veteran had some concentration and recall problems; otherwise he was alert and oriented. He had very good insight and judgment. The psychiatrist recommended psychotherapy and psychopharmacology. In May 2007, the Veteran told his private psychiatrist that that, if he got nervous and could not walk away, he felt he could be out of control. In July 2007, the Veteran explained to his private psychiatrist that, when by himself, he was fine and that was why he did not talk with anyone. The Veteran was afforded a VA examination in October 2007. The Veteran reported being easily startled and sometimes seeing people that were not there out of the corner of his eyes. He reported having interrupted sleep and nightmares, three times a week along with intrusive thoughts. He was hypervigilant and stayed away from crowds. He was anxious and short-tempered. He reported having no panic attacks, being sober since 1979 and never having a drug problem. In terms of a history of suicidal ideation, he reported attempting suicide in 1986 when his wife left him. The examiner noted that past treatment included hospitalization in 1986 after he tried to kill himself. Currently, the Veteran was receiving treatment by a private psychiatrist every two months for the past year. The Veteran was not taking any medication and appeared to refuse to do so. In terms of employment, the Veteran was not working and last worked in 2000 in port security. He had not missed any work because of his psychiatric symptoms. He retired and began receiving Social Security benefits. The Veteran fed himself and tended to his own toilet needs. He had a person who lived in his home with him. He did some chores around the home. The Veteran had no friends and would spend time on the computer. He did not watch television or go to church. The Veteran was married three times and divorced and had two children with whom he was not close. He did not know where they were. The examiner found that the Veteran had been retired for seven year and did some chores around the house. Although his physical health was fairly good, he had no close friends and limited recreational and leisure pursuits. Upon examination, the Veteran was alert, cooperative and appropriately dressed. There were no loose associations or flight of ideas. There were no bizarre motor movements or tics. His mood was calm and appropriate. He had nightmares and intrusive thoughts, but no homicidal or suicidal ideation or intent. There was no impairment of thought processes or communication. There was no delusions, hallucinations, ideas of reference or suspiciousness. He had some illusions, but was oriented times three. His memory, both remote and recent, appeared to be adequate. Insight and judgment appeared to be adequate as was his intellectual capacity. The examiner diagnosed the Veteran with PTSD and assigned a GAF score of 55. The examiner found that the Veteran's PTSD symptoms such as hypervigilance, irritability and intrusive thoughts interfered with social activities and caused distress. The Veteran was anxious, irritable and stayed to himself. He had no friends and had limited interests. Following the VA examination, the Veteran continued to seek treatment for his PTSD symptoms from his private psychiatrist. In February 2008, the Veteran agreed to take medications for his sleep problems. He also agreed to take Zoloft in April 2008 for his symptoms. The private treatment records from February to August 2008 show that the Veteran continued to have symptoms of anxiety, irritability, concentration problems and constricted affect. Specifically in June 2008, the Veteran reported feeling anxious all of the time. In August 2008, the Veteran still had no social life and did not attend church. He reported some improvement in his symptoms. He also noted that, during a confrontation, he thought about killing people but walked away. An examiner's classification of the level of psychiatric impairment, by words or by a score, is to be considered, but is not determinative of the percentage rating to be assigned. VAOPGCPREC 10-95. A GAF score, however, is highly probative as it relates directly to the Veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. Massey v. Brown, 7 Vet. App. 204, 207 (1994). Given the symptoms of anxiety and irritability and limited social contacts, the overall disability picture due to the service-connected PTSD is found on this record to more close resemble that of occupational and social impairment with reduced reliability and productivity and difficulty in establishing and maintaining effective work and social relationships. Hence, on this record, the Board finds that an increased rating of 50 percent is assignable for the initial period of the appeal. As will be explained, the Board finds that the issue of an increased rating greater than 50 percent for the service-connected PTSD requires further development. The Board has also considered whether referral for an extraschedular rating is indicated. See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111, 115 (2008). However, there is nothing in the record that reflects or suggests that the service-connected PTSD is productive of an unusual or exceptional disability picture as to render impractical its rating under the provisions of the criteria applied in this case. The manifestations of the service-connected PTSD are contemplated and encompassed by the schedular criteria and are consistent with the current rating. Accordingly, on this record, those criteria are not inadequate and the criteria for submission for assignment of an extraschedular rating for this disability pursuant to 38 C.F.R. § 3.321(b)(1) are not satisfied. ORDER An increased rating of 50 percent for the service-connected PTSD is granted, subject to the regulations governing the payment of VA monetary benefits. REMAND The Board observes that entitlement to a TDIU rating, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather part of the adjudication of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, when the matter of TDIU rating is raised during the appeal of a rating for a disability, it is part of a claim for benefits of the underlying disability. Id at 454. Here, the Veteran filed a claim for a TDIU rating in August 2008 and explained that he had to quit his job because his nervous condition did not allow him to work with other people. In TDIU claims, the Court has held that the duty to assist requires that VA obtain an examination, which includes an opinion on what effect the Veteran's service-connected disabilities have on his ability to work. 38 U.S.C.A. § 5107(a) (West 2002 & Supp. 2010); Friscia v. Brown, 7 Vet. App. 294, 297 (1994); 38 C.F.R. §§ 3.103(a), 3.326, 3.327, 4.16(a) (2010). Moreover, as the Veteran has not been examined since filing his claim for a TDIU rating, a more current evaluation of his psychiatric disability is indicated. Any outstanding treatment records should be obtained for review. Accordingly, these remaining matters are REMANDED to the RO for the following action: 1. The RO should take appropriate steps to contact the Veteran and request that he identify all VA and non-VA health care providers who have treated him for his service-connected PTSD since 2007. The aid of the Veteran in securing these records, to include providing necessary authorizations, should be enlisted, as needed. The RO should specifically obtain copies of all outstanding records not already associated with the claims file. If the requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file. 2. After associating all outstanding records with the claims folder, the RO should arrange for another VA psychiatric examination to determine the severity of his service-connected PTSD. The reviewer is asked to report on the presence or absence of the specific symptoms as addressed by the general formula for rating mental disorders. The examiner should also comment on the degree of occupational and social impairment produced by the service-connected PTSD. The examiner must review the medical records and assign a GAF, if possible, and explain what the assigned score represents. A complete rationale for any opinion expressed must be provided. The claims folder should be made available to the examiner for review in conjunction with the examination and the examiner should acknowledge such review in the examination report. In addition, the examiner should provide an opinion as to whether, without considering the Veteran's age or the impact of any nonservice-connected disability, it is at least as likely as not (50 percent probability or more) that his service-connected disabilities, either separately or in combination, preclude the Veteran from securing and following substantially gainful occupation consistent with his education and occupational background. The examiner should set forth the complete rationale for all opinions expressed and conclusions reached. If the Veteran fails, without good cause, to report to the scheduled examination, apply the provisions of 38 C.F.R. § 3.655(b), as appropriate. 3. After completing all indicated development, the RO should readjudicate the claim for increase in light of all the evidence of record. If any benefit sought on appeal remains denied, and the Veteran should be furnished with a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs