Citation Nr: 1125903	
Decision Date: 07/11/11    Archive Date: 07/19/11

DOCKET NO.  08-32 713	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington


THE ISSUES

1.  Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD).  

2.  Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disability (TDIU).


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

A. C. Mackenzie, Counsel


INTRODUCTION

The Veteran served on active duty from July 1969 to July 1971.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington.  In this decision, the RO granted service connection for PTSD and assigned a 30 percent initial evaluation as of January 30, 2007.  

The Veteran appeared for a Travel Board hearing in October 2010 and submitted additional medical evidence, accompanied by a waiver of RO review.  38 C.F.R. § 20.1304(c) (2010).

The issue of entitlement to TDIU, part of this appeal for the reasons described below, 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.


FINDING OF FACT

The Veteran's PTSD is productive of a higher level of occupational impairment than contemplated by a 30 percent evaluation, with evidence of panic attacks two to four times per week and social and occupational interference due to persistent symptoms of increased arousal, including difficulty falling or staying asleep, difficulty concentrating, irritability or outbursts of anger, hypervigilance, and an exaggerated startle response.

CONCLUSION OF LAW

The criteria for an initial 50 percent evaluation for PTSD have been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.130, Diagnostic Code 9411 (2010).


REASONS AND BASES FOR FINDING AND CONCLUSION

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 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).  In accordance with 38 C.F.R. § 3.159(b)(1), proper 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.  Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case).  See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007).  

In this case, the Veteran was furnished with a preadjudication notice letter addressing the criteria for service connection for PTSD and the information required by Dingess in March 2007.  Subsequent to the grant of service connection for PTSD, he was furnished with a letter addressing the applicable diagnostic criteria in July 2008.  Moreover, as this case concerns an initial evaluation and comes before the Board on appeal from the decision which also granted service connection, there can be no prejudice to the Veteran from any failure to give adequate notice for the service connection claim.  See Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (Dec. 22, 2003) (in which the VA General Counsel held that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims).  Finally, the elements of the claim on appeal, as well as the types of evidence that would contain pertinent findings, were discussed during the October 2010 hearing.  See Bryant v. Shinseki, 23 Vet. App. 488 (2010).  In summary, there is no shortcoming of 38 C.F.R. § 3.159(b) notice that could possibly prejudice the Veteran in this case.

VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal.   38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1).  VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim.  38 C.F.R. § 3.159(c)(4).

Here, the Veteran has been afforded multiple VA examinations, and the claims file contains all records of relevant treatment dated since service.  There is no indication of any relevant evidence for which retrieval efforts have been inadequate.  In other words, there are no deficiencies of compliance with 38 C.F.R. § 3.159(c) for which corrective action is required.

Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication.  

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, 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.  

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. 

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. 

The Board has reviewed the claims file and finds that the currently assigned 30 percent evaluation is inadequate to contemplate the current level of PTSD symptomatology.  This is most apparent in the degree of occupational impairment indicated in the report of the April 2010 VA psychiatric examination.  In the history section of the report, it is noted that the Veteran's unemployment "is due to the effects primarily of a mental condition because of feeling overwhelmed with working and deciding that he needed to retire."  The examiner assigned a Global Assessment of Functioning (GAF) score of 59; while this score, under the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV), signifies moderate impairment, the examiner went on to note that the Veteran left his career early due to feeling overwhelmed and unable to cope with the demands of his job.  The examiner also cited to social and occupational interference due to persistent symptoms of increased arousal, including difficulty falling or staying asleep, difficulty concentrating, irritability or outbursts of anger, hypervigilance, and exaggerated startle response.  The duration of this "disturbance" was noted to be more than one month.  Similarly, the Veteran also reported panic attacks two to four times per week during his October 2010 hearing, and the Board finds that this is consistent with "panic attacks more than once a week," as listed in the criteria for a 50 percent evaluation.  Accordingly, the Board finds that the criteria for a 50 percent evaluation are presently met.

The Board has considered whether the 50 percent evaluation is warranted for the entire appellate period, in view of Fenderson, and is aware that the evidence dated prior to April 2010 is more mixed in this regard.  The Veteran's September 2007 VA examination report contains a higher GAF score of 65, signifying mild symptoms.  At the same time, the examiner cited to an unspecified level of distress in occupational areas of functioning and noted "[s]evere" psychosocial stressors.  Moreover, on two occasions of VA outpatient treatment in February 2007, the Veteran's PTSD was characterized as "severe."  Overall, the Board is satisfied that, for the entire pendency of this appeal, the degree of symptomatology and occupational interference has been more adequately contemplated by the criteria for a 50 percent evaluation than the criteria for a 30 percent evaluation.  A "staged" rating under Fenderson is accordingly not appropriate in this case.

The question thus becomes whether an even higher evaluation is warranted in this case.  In this regard, the Board has looked at the specific criteria for a 70 percent evaluation.  First, the Board is aware of the frequency (two to four times weekly) of panic attacks but finds that these fall well short of being "near-continuous."  There is no suggestion of obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; or neglect of personal appearance and hygiene.  As to social relationships, the April 2010 VA examination report indicates social isolation and avoidance of crowded places but also good relationships with his siblings, and the examiner concluded that the Veteran was able to establish and maintain effective relationships.

The Veteran has also consistently denied current suicidal ideation.  He did report "previous" thoughts of suicide during his September 2007 VA examination, but he indicated no plan and denied current thoughts.  Also, while he referenced having "thought about" harming himself or others during his October 2010 hearing, he also stated "that's not something I'm going to do."  In summary, the Board finds that the evidence does not show current and active suicidal ideation, as would warrant a higher evaluation.

The Board has also considered the full effect of the Veteran's PTSD on his employment status, including the question of difficulty in adapting to stressful circumstances (including work or a worklike setting).  Again, the Board is aware that the Veteran reported leaving his career early due to feeling overwhelmed and unable to cope with the demands of his job, and this was noted to have happened two years earlier.  The Board has also again considered the two initial findings of severe PTSD, although it is unclear whether the severity was in terms of social or occupational functioning.  As noted above, however, the April 2010 VA examiner assigned a GAF score of 59, signifying moderate symptoms, and went on to state that the Veteran had a fairly good psychiatric prognosis in view of his counseling, medical management, and motivation to continue to receive services.  The examiner further noted that the Veteran was "able to establish and maintain effective work/school and social relationships."  Consequently, the Board must conclude that his level of occupational adaptability, while diminished, is significantly higher than that warranting a 70 percent evaluation and is fully contemplated by the now-assigned 50 percent evaluation.  

Moreover, the Veteran has submitted no evidence showing that his PTSD has markedly interfered with his employment status beyond that interference contemplated by the assigned evaluation, and there is also no indication that this disorder has necessitated frequent, or indeed any, periods of hospitalization during the pendency of this appeal.  The Veteran has not pointed to any significant symptoms not addressed by the applicable diagnostic criteria, and all of his current symptoms are fully contemplated by the now-assigned 50 percent evaluation.  As such, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1), which were addressed in his September 2008 Statement of the Case and concern the assignment of extra-schedular evaluations in "exceptional" cases.  See Thun v. Peake, 22 Vet. App. 111 (2008).

Overall, the evidence of record supports an initial evaluation of 50 percent for PTSD.  To the extent that this represents an increase from the 30 percent evaluation assigned by the RO, the appeal is granted.  See 38 C.F.R. §§ 4.3, 4.7, 4.31.


ORDER

An initial 50 percent initial evaluation for PTSD is granted, subject to the laws and regulations governing the payment of monetary benefits.




REMAND

The Veteran's April 2010 VA psychiatric examination report reflects his contention that he "is no longer working due to feeling overwhelmed with work," in the context of providing a history of PTSD symptoms.  The Board finds that, by this comment and in his October 2010 hearing testimony, the Veteran has essentially raised a claim of entitlement to TDIU.  

That having been noted, the United States Court of Appeals for Veterans Claims (Court) has held that a request for a total disability rating due to individual unemployability resulting from service-connected disability (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.

Prior to a Board determination of this claim, however, it is essential that the Veteran be afforded full 38 C.F.R. § 3.159(b) notice as to the evidence necessary to substantiate a TDIU claim, as well as the relative duties of VA and a claimant in obtaining such evidence.  No such action has been taken to date.  

Accordingly, the case is REMANDED for the following action:

1.  The Veteran should be furnished with a notice letter, in compliance with 38 C.F.R. § 3.159(b).  This letter should contain information as to the evidence necessary to substantiate a TDIU claim, the relative duties of VA and a claimant in obtaining such evidence, and VA's practices in assigning disability evaluations and effective dates for such evaluations.  

2.  After accomplishing any additional development deemed necessary, in light of the Veteran's response to the development letter, the TDIU claim should then be adjudicated.  If the determination is negative, he and his representative should be furnished with a Supplemental Statement of the Case, containing the applicable regulatory provisions (e.g., 38 C.F.R. § 4.16) and given an opportunity to respond before the case is returned to the Board.

The Veteran has the right to submit additional evidence and argument on this matter.  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).


______________________________________________
JOHN Z. JONES
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs