Citation Nr: 1126350 Decision Date: 07/13/11 Archive Date: 07/19/11 DOCKET NO. 10-39 957 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a finding of total disability based on individual unemployability (TDIU). ATTORNEY FOR THE BOARD A. Walrond, Law Clerk INTRODUCTION The Veteran, who is the Appellant in this case, served on active duty with the United States Army from July 1982 to July 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 decision by the Winston-Salem, North Carolina, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which granted service connection for PTSD and assigned a 50 percent evaluation, effective November 17, 2009. In May 2009 the Court of Appeals for Veterans Claims issued a decision in Rice v. Shinseki, 22 Vet App. 447 (2009), holding that TDIU is not a separate claim, but is in fact part and parcel of any claim for increased evaluation. Consequently, the issue has been recharacterized to reflect consideration of TDIU. FINDINGS OF FACT 1. At all times during the appellate period, PTSD has been manifested by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to symptoms such as obsessional rituals, nightmares and flashbacks, depression, crying spells, anxiety, panic attacks, impaired judgment and insight, difficulty adapting to stressful circumstances, and social isolation and phobias. 2. The Veteran is unable to obtain or retain substantially gainful employment due to service-connected PTSD. CONCLUSIONS OF LAW 1. For the entire rating period, the criteria for an initial evaluation of 70 percent, but no higher, for PTSD have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.13, 4.126, 4.130, Diagnostic Code 9411 (2010). 2. For the entire rating period, the criteria for a finding of TDIU have been met. 38 C.F.R. § 4.16 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a 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. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). This appeal arises from disagreement with the initial evaluation following the grant of service connection for PTSD. 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). VA also has a duty to assist the Veteran in the development of the claim, which is not abrogated by the granting of service connection. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA has obtained records of treatment reported by the Veteran, including service treatment records and a statement from the Veteran's private psychologist. Additionally, the Veteran was provided a VA examination in April 2010 for PTSD. The VA examiner considered all of the pertinent evidence of record, to include service treatment records, the Veteran's DD-214, and the statements of the Veteran, and rendered all required opinions with supporting clinical data and rationale. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. VA has substantially complied with the assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. Disability Rating Criteria Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2010). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. § § 4.1, 4.2, 4.10. 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 view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2010). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as "staged" ratings." Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The schedular criteria incorporate the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). 38 C.F.R. § § 4.125, 4.130. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive. Mauerhan v. Principi, 16 Vet. App. 436 (2002). A 50 percent rating is warranted if 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 compete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating, may be assigned 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 work-like setting); and inability to establish and maintain effective relationships. Id. A 100 percent schedular evaluation is assigned 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. § 4.130, Diagnostic Code 9411. In assessing the evidence of record, it is important to note that the Global Assessment of Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). 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)." Id. 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)." Id. Evidence In his November 2009 claim, the Veteran reported depression, anxiety, and nightmares. He stated he was nervous around large crowds and was restless all of the time, making him easily agitated and short-tempered. In a March 2010 evaluation, the Veteran reported intrusive thoughts, nightmares, night sweats, hypervigilance, avoidance of conversations about his military service, avoidance of movies about war, problems with memory and concentration, and an exaggerated startle response. The Veteran stated that he avoids crowds and that in public he always positions himself with his back against the wall because he cannot tolerate having someone behind him. The Veteran also reported preferring to be alone and having a hard time with trusting others. He asked his girlfriend to move out because he could not stand having someone around all the time. The Veteran reported problems falling and staying asleep, often getting up at night to check the locks on the doors and windows. The Veteran also reported problems with memory and concentration, such as forgetting important events like appointments. The psychologist noted him to be cooperative, normal in dress, with an agitated mood, and no current suicidal or homicidal ideations. His affect was restricted, and his narrative was not always linear. He was oriented to the person, place, and object. The Veteran's private psychologist found these symptoms to have caused significant disturbances in all areas of the Veteran's life. He was found to be severely compromised in his ability to initiate or sustain work or social relationships and unable to learn new tasks. The psychologist's diagnosis was chronic, severe PTSD. A GAF score of 37 was assigned by the Veteran's private psychologist. At his April 2010 VA examination, the Veteran reported similar symptoms to the examiner. He also reported decreased energy, crying spells and difficulty with focusing, attention, and concentration. The Veteran stated that he lived with his parents and that he worked 12 hours a week helping his father around his father's shop. He reported being laid off from his last full-time job 10 years prior, but that he was close to being fired due to anger and decreasing quality of work. During the last year he worked, he missed about 6 weeks due to psychological issues. The Veteran reported that he was divorced twice and had two children that did not live with him. The Veteran stated he had a female friend of 2 years, whom he saw about once or twice a week, usually at his home, but that the relationship was strained due to his psychological problems. He stated that he tries to go out once a month with her to please her, but reported the last time he had done so, he experienced severe anxiety and left for home after about 20 minutes. The Veteran also reported that at home he keeps the blinds closed because he is worried about someone seeing into his home. He was noted not to be on any medication. The examiner noted no sign of a thought disorder, loosened associations, flight of ideas, hallucinations, delusions, obsessions, compulsions, or phobias, other than social phobia associated with his PTSD. The Veteran was noted to have moderate to severe insomnia, hypervigilance, repeated checking behavior during the night, decreased energy, occasional crying spells, and panic attacks. The Veteran's insight and judgment appeared somewhat superficial, but adequate. The examiner found the Veteran to be showing moderate to severe impairment in social, occupational, recreational, and familial adjustment. The examiner's diagnosis was PTSD with associated depression. A GAF score of 42 was assigned by the examiner. Analysis The Board finds that staged ratings are not appropriate here. For the short time period covered by this claim, the Veteran's diagnoses have been consistent and the Veteran has complained of the same symptoms and severity of symptoms. Over the appellate period, the evidence of record demonstrates a disability picture most closely approximating the criteria for a 70 percent evaluation. The Veteran credibly describes obsessional behaviors which interfere with his performance of routine activities. He adjusts window blinds to prevent observation, sits with his back to the walls, and wakes several times a night to check that windows and doors in his home are locked. He is socially isolated; he interacts mainly with his parents; while he apparently has a girlfriend, he reports steps he has taken to maintain distance in the relationship. The Veteran goes out minimally to accommodate her. He attends church twice monthly, but does not socialize. He lives with his parents, and his only recent employment has been to assist his father in the shop for about 12 hours a week. His mood is somber, and he reports frequent depression and anxiety. Doctors describe periodic crying spells and panic attacks. His social phobia is apparently severe, and interferes with his ability to function independently. While no suicidal ideation is described, and the Veteran denies any physical violence (despite his reports of irritability and not getting along with coworkers previously), the overall disability picture is greater than that associated with a 50 percent disability evaluation. He does not have mere difficulty with relationships or work, for example; they are nearly impossible for him to establish and maintain due to PTSD symptoms. The medical opinions describing his impairment due to PTSD as moderate to severe or total, as well as the assigned GAF scores around 40, correspond to a 70 percent evaluation. However, no schedular evaluation in excess of 70 percent is warranted. The Veteran has not demonstrated total occupational and social impairment. The VA examiner stated the Veteran had no sign of a thought disorder, and the Veteran was able to fully communicate the extent of his condition to the VA examiner and his private psychologist. Both examiners noted the Veteran as not having delusions or hallucinations and not to have suicidal or homicidal ideations. The Veteran was observed to have appropriate behavior and good hygiene and appeared well-nourished. The Veteran was reported by both examiners to be well-oriented. The Veteran displayed no memory loss as to his occupation and own name. He is able to maintain some close relationships and perform some occupational tasks. There is no dissociation from reality; insight and judgment were impaired, but not absent. A total, 100 percent evaluation is not appropriate. Accordingly, an increased 70 percent schedular evaluation, but no higher, is warranted. Consideration has been given regarding whether the schedular evaluation is inadequate, requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extra-schedular evaluation where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating, otherwise, the schedular evaluation is adequate, and referral is not required. Thun, 22 Vet. App. at 116. The Board finds the schedular rating in this case to be adequate. Ratings in excess of the rating assigned are provided for certain manifestations of the service-connected PTSD, but the medical evidence reflects that those manifestations are not present in this case. The Veteran has manifested no delusions or hallucinations, grossly inappropriate behavior, memory loss, persistent danger to himself or others, disorientation to time or place, or intermittent inability to perform the activities of daily living. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disabilities. No extraschedular referral is required. TDIU The Veteran has submitted a claim for increased rating and has submitted some evidence of unemployability; as such, this claim requires consideration for TDIU. Rice v. Shinseki, 22 Vet App. 447 (2009). TDIU is established where a Veteran is unable to obtain or retain substantially gainful employment due to service connected disabilities. A threshold entitlement to the benefit is shown where a Veteran is rated at least 60 percent disabled due to a single service connected disability, or has multiple service connected disabilities combining to at least a 70 percent evaluation, where one disability is rated at least 40 percent disabling; total disability will also be found when a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 338 C.F.R. § 4.16. The Veteran has been rated 70 percent disabled by PTSD, and so he has met the threshold requirement. The Board finds that the Veteran is unable to obtain or retain substantially gainful employment due to his PTSD. He is currently able to work only 12 hours a week for his father in his father's shop, which does not amount to substantially gainful employment. This is a protected environment, insulated from the stresses of the competitive job market. The Veteran's social phobia and isolation would severely impair his ability to apply for and obtain work. Maintaining such employment would also be difficult in light of his social phobia and anxiety. He is irritable and difficult to get along with. Due to the symptoms of his PTSD, the Veteran is not suited for any type of work outside a protected environment. Accordingly, a finding of TDIU due to PTSD is warranted. ORDER An increased initial evaluation of 70 percent, but no higher, for PTSD is granted. Entitlement to a finding of TDIU is granted. ____________________________________________ WILLIAM H. DONNELLY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs