Citation Nr: 1126508 Decision Date: 07/14/11 Archive Date: 07/21/11 DOCKET NO. 10-33 361 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an evaluation greater than 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from November 1966 to November 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. FINDINGS OF FACT 1. The Veteran's PTSD is not manifested by occupational and social impairment with deficiencies in most areas. 2. The Veteran is service-connected for PTSD, currently evaluated as 50 percent disabling; he does not meet the schedular requirements for a total disability rating based on individual unemployability and the preponderance of the evidence is against finding that he is unable to obtain or maintain any form of substantially gainful employment due to service-connected disability. CONCLUSIONS OF LAW 1. The criteria for an evaluation greater than 50 percent for PTSD are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2010). 2. The criteria for a total disability rating based on individual unemployability due to service-connected disability are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A; 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5013A have been met. There is no issue as to providing an appropriate application form or completeness of the application. By correspondence dated in July 2009, September 2009, November 2009, December 2009, and May 2010, VA notified the Veteran of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. He has been provided notice of the applicable rating criteria and how disability ratings and effective dates are determined. The issues were most recently readjudicated in the January 2011 supplemental statement of the case. VA has also fulfilled its duty to assist the Veteran. The claims file contains VA medical center records. The Veteran was provided VA examinations in August 2009, September 2009, January 2010, and November 2010. The claims file was reviewed and the examinations contain findings adequate for rating purposes. Evidence of record indicates that the Veteran is currently receiving benefits from the Social Security Administration. The Board acknowledges that these records were not obtained; however, it appears that receipt of benefits is based on retirement age and not disability. There is no indication that such records would be relevant to the claim. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (VA has an obligation to secure Social Security Administration records only if there is a reasonable possibility that the records would help to substantiate the Veteran's claim). On review, there is no error or issue that precludes the Board from addressing the merits of the appeal. Analysis Evaluation for PTSD In February 2007, the RO granted entitlement to service connection for PTSD as related to service and assigned a 10 percent evaluation effective July 26, 2006. The Veteran appealed this decision and in March 2008, the evaluation was increased to 30 percent, effective July 26, 2006. The Veteran subsequently withdrew his appeal. In June 2009, the Veteran submitted a claim for increase. At that time, he reported that he was having more and more flashbacks and more frequent nightmares. It was getting more difficult for him to communicate with his family and friends. In an August 2009 statement, the Veteran reported that even though he was in group therapy, he still had nightmares, trouble sleeping, and panic attacks. He also indicated that he was depressed all the time. In August 2009, October 2009, and January 2010, the RO continued the 30 percent evaluation. The Veteran disagreed and subsequently perfected this appeal. In January 2011, the evaluation for PTSD was increased to 50 percent, effective June 11, 2009. The Veteran contends that the currently assigned evaluation does not adequately reflect the severity of his disability. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2 (2010); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to a veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, in Hart v. Mansfield, 21 Vet. App. 505 (2007), the United States Court of Appeals for Veterans Claims (Court) held that staged ratings are appropriate for an increased rating claim that is not on appeal from the assignment of an initial rating when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. PTSD is evaluated pursuant to the General Rating Formula for Mental Disorders. A 50 percent evaluation is warranted 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; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent evaluation is warranted when there is 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 the inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted if there is 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. The symptoms listed in the rating schedule 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). The Board notes that not all, or even some, of the symptoms cited in Diagnostic Code 9411 are required to support a particular evaluation. Id. The Global Assessment of Functioning scale reflects the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). A score of 51-60 is appropriate where there are 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 between 61 and 70 reflect 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. See DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM-IV) 47 (4TH ed. 1994). VA records show group therapy for PTSD. The Veteran is also seen in psychiatry for medication management. He takes celexa and ambien. He uses yoga to manage distress. On VA examination in August 2009, the Veteran reported group therapy and medication use. He reported a close relationship with his wife and children. He has several buddies and he sits around and talks to them. He stopped bowling and fishing because he was not interested. He watches television and gardens. On mental status examination, the Veteran was anxious. He reported interrupted sleep and 3 panic attacks per week. Following examination, diagnosis was PTSD, chronic, mild. Global Assessment of Functioning scale score was 65. The examiner noted that the Veteran's symptoms were mild and he had been participating in outpatient mental health treatment. On VA examination in September 2009, the Veteran reported that therapy helps, but that group therapy is hard sometimes. He reported that he has been married for 45 years, has 2 children, and has a close relationship with his family. He has several friends and they come over and sit and talk. On mental status examination, the Veteran was anxious. He reported interrupted sleep and several panic attacks per week. Diagnosis remained PTSD, chronic, mild. Global Assessment of Functioning score was 65. The examiner noted that the Veteran was reflecting more on his traumatic experiences and had been less interactive with his wife. He feels more depressed. The examiner stated that PTSD symptoms were mild. The Veteran has been involved in outpatient mental health treatment and has a supportive family. Statements from the Veteran's son and daughter dated in November 2009 indicate that he has a long history of a negative attitude and mood changes. He would often get mad at them and was depressed. On VA examination in January 2010, the Veteran reported continued treatment and medication. He reported that he was close to his family. He does not like crowds and their friends come to them. He likes to work on mowers and when the weather is nice, he likes to be outside. On mental status examination, the Veteran was tense and his mood was anxious and dysphoric. He continued to report interrupted sleep. He has 3 panic attacks a week. Diagnosis was PTSD, chronic, mild. Global Assessment of Functioning score was 60. The examiner noted that the Veteran was frustrated by the fact that his compensation percentage had not been increased. The examiner noted that although the Veteran stated he has a close relationship with his family, based on statements from his children, it is clear that they do not feel his love and closeness. The examiner further stated that the Veteran internalizes his feelings and is not the best communicator. He is limiting his socialization to having friends visit him at home. The Veteran most recently underwent a VA examination in November 2010. He indicated that the medicine helps him sleep, but group is hard sometimes because there are a lot of guys with a lot of problems. He reported that his spouse has a lot of patience with him, but he is quiet with his children and daughter-in-law. His friends come by the house every 2 or 3 weeks. He indicated that his wife gets mad because she likes to go out to eat and he does not like being around crowds. Leisure activities include gardening and watching television. On mental status examination, the Veteran was tense and his mood was anxious. He continues to have difficulty falling asleep and staying asleep. He reported panic attacks 3 to 4 times a week. Diagnosis was PTSD, chronic, mild. Global Assessment of Functioning score was 60. The examiner noted that the Veteran has limited socialization and solitary leisure activities. He becomes irritated with his wife from time to time but has learned to walk away until he can discuss what is bothering him. The examiner further stated that the Veteran continues to suffer from mild PTSD symptoms despite participation in the mental health treatment program. In determining whether an evaluation greater than 50 percent is warranted, the Board acknowledges the VA examiners' statements that the Veteran had deficiencies in various areas. For example, deficiencies in mood (due to anxiety); in thinking (negative thinking) and family relations (does not talk to his wife as much and does not express love for his family well). The Board recognizes that such deficiencies are listed in the criteria for a 70 percent evaluation. Notwithstanding, the Board does not find the overall disability picture consistent with a 70 percent evaluation. Findings on examinations were similar throughout the appeal period and do not show suicidal ideation, obsessional rituals which interfere with routine activities, or speech intermittently illogical, obscure, or irrelevant. The Veteran's thought process and though content were consistently described as unremarkable and there was no evidence of delusions, psychotic behavior, or other inappropriate behavior. The Veteran understands the outcome of behavior and that he has a problem. The Board has considered the Veteran's reports of panic attacks and depression, but there is no indication that these affect his ability to function independently. On the contrary, the evidence shows he is able to maintain hygiene and is independent in the activities of daily living. The Veteran reported irritability but impulse control has repeatedly been described as good. The Veteran is able to "walk away" and episodes of violence are not shown. The Board also acknowledges that the Veteran limits his socialization and has some difficulty with relationships. Evidence of record, however, does not show he is completely unable to establish and maintain effective relationships. He has a long term marriage and maintains contact with his children and family. He also has friends he continues to talks to and outpatient records indicate he successfully participates in group therapy. In considering whether an increased evaluation is warranted, the Board has also considered the assigned Global Assessment of Functioning scores. The scores assigned on VA examinations are indicative of mild to moderate symptoms and are consistent with the level of disability described. On review, the impairment related to the Veteran's PTSD is consistent with no more than a 50 percent evaluation and a higher evaluation is not warranted at any time during the appeal period. See Hart. The Board also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Shinseki, 573 F.3d 1366 (Fed. Cir. 2009). As discussed above, the rating criteria for PTSD reasonably describe the Veteran's disability level and symptomatology. Additionally, higher schedular evaluations are available for greater levels of disability. On review, the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral for extraschedular evaluation is required. Id. Individual unemployability In January 2010, the RO denied entitlement to a total disability rating based on individual unemployability. The Veteran disagreed with the decision and subsequently perfected this appeal. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: provided that, if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran's only service-connected disability is PTSD, evaluated as 50 percent disabling. Thus, he does not meet the schedular requirements for a total disability rating based on individual unemployability. Notwithstanding, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a). 38 C.F.R. § 4.16(b). A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15. Entitlement to a total compensation rating must be based solely on the impact of a veteran's service-connected disabilities on his ability to keep and maintain substantially gainful work. See 38 C.F.R. §§ 3.340, 3.341, 4.16. The question in a claim of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders is whether a veteran is capable of performing the physical and mental acts required by employment and not whether a veteran is, in fact, employed. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In his November 2009 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, the Veteran reported that he last worked full-time in 2005 and that he left his job because of PTSD. He reported 4 years of high school. Information from the Veteran's previous employer, received in December 2009, indicates that the Veteran retired in March 2009. No time was lost and no concessions were made due to disability. Subsequent information, received in June 2010, indicates that the ending date of employment was March 2007. In his April 2010 notice of disagreement, the Veteran reported that he did not retire in 2009, but that his employment ended in May 2005 due to his PTSD. He reported a lot of difficulty with his fellow employees. He indicated he could not be around a lot of people for fear he may go off in a rage of anger and end up losing his job. Relevant VA examinations indicate that the Veteran retired in 2005 based on eligibility due to age or duration of work. On VA examination in August 2009, the Veteran claimed that he left his last job because it was a job for a young person and they moved too fast. The examiner stated that the Veteran's anxiety could interfere with his productivity during significant periods of stress. VA examination dated in September 2009 indicates that the Veteran's anxiety and poor concentration could be obstacles to his productivity in a work setting. The January 2010 examination indicates that the Veteran's anxiety, including his panic attacks and hypervigilance, were obstacles to his productivity in a work setting. On VA examination in November 2010, the examiner asked the Veteran what physical condition would stop him from working. The Veteran stated that it was really more his concentration and his age. He reported that he did his job well in the past until he felt his supervisor was assigning difficult and dirty jobs to him because of his race. He later accepted a different job, only to find out that he was given more tasks with very little assistance from others. He quit that job. The examiner stated: Although the Veteran's anxiety can reduce his efficiency and productivity in a work setting, it does not prevent him from working. The Veteran seems to have seen himself as less healthy and able to work as he is aging. It is the Veteran's perception that he is unemployable, but his cognitive and social functioning does not justify total unemployability. The Veteran may always have a difficult time working with others, and feeling that he is being treated unfairly. This has been a pattern in the last two jobs which he held. Other than the Veteran job related expectations, there does not seem to be any other factors that would have prevented the Veteran from working since 2006. The Board acknowledges that the Veteran's PTSD causes some occupational impairment. Indeed, such impairment is contemplated in the 50 percent rating currently assigned. See Van Hoose (the assignment of a compensable rating itself is recognition that industrial capabilities are impaired). On review, the overall evidence indicates that the Veteran voluntarily retired and he has not tried to obtain employment since that time. Evidence of record does not support finding that the Veteran is unable to obtain or maintain substantially gainful employment, much less solely due to service-connected PTSD. While the Veteran contends that he can no longer work due to PTSD, these reports are simply not supported by the objective evidence of record. In the absence of any evidence of unusual or exceptional circumstances beyond what is contemplated by the assigned schedular disability evaluation, the overall evidence is against the Veteran's claim that he is precluded from securing substantially gainful employment solely by reason of his service-connected PTSD or that he is incapable of performing the mental and physical acts required by employment, even when his disabilities are assessed in the context of subjective factors such as his occupational background. The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. See 38 C.F.R. § 3.102. ORDER Entitlement to an evaluation greater than 50 percent for PTSD is denied. Entitlement to a total disability evaluation based on individual unemployability is denied. ____________________________________________ D. C. Spickler Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs