Citation Nr: 1126544 Decision Date: 07/14/11 Archive Date: 07/21/11 DOCKET NO. 04-23 105 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD), prior to November 23, 2009, to include the matter of entitlement to a total rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: National Association for Black Veterans, Inc. ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran had active military service from December 1978 to June 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision from the Portland, Oregon Department of Veterans Affairs (VA) Regional Office (RO) which denied the Veteran's claim for an increased rating for PTSD. In a June 2010 rating decision, an increased schedular rating of 100 percent was granted for PTSD, effective November 23, 2009; a TDIU due to PTSD was granted, effective September 20, 2009; and basic eligibility for Chapter 35 education benefits was granted from November 23, 2009. The Board notes that the matter of TDIU has been separately addressed in rating decisions during the appeal period. The Veteran has most recently initiated disagreement with the assigned effective date of September 20, 2009, for the TDIU grant. However, that matter is addressed herein as part of the increased rating for PTSD claim. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). A review of the record reveals that the Veteran requested a hearing in April 2008. However, by VA Form 9, received in October 2008, the Veteran indicated that he did not want a hearing. The Board also notes that the Veteran has been incarcerated at various times throughout the pendency of the appeal. Nonetheless, give the Veteran's October 2008 desire to not have a hearing, no additional action in this regard is needed. FINDINGS OF FACT 1. Prior to January 14, 2008, the Veteran's PTSD did not result in total occupational and social impairment. 2. Prior to January 14, 2008, the Veteran's PTSD did not prevent him from securing and following substantially gainful employment. 3. As of January 14, 2008, the Veteran's PTSD resulted in total occupational and social impairment. CONCLUSIONS OF LAW 1. Prior to January 14, 2008, the criteria for a rating in excess of 70 percent for PTSD are not met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2010). 2. Prior to January 14, 2008, the criteria for entitlement to TDIU were not met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2010); 38 C.F.R. § 4.16 (2010). 3. As of January 14, 2008, the criteria for a 100 percent schedular rating for PTSD are met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 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. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran 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 notice from VA must inform the Veteran 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 Veteran is expected to provide. 38 C.F.R. § 3.159(b). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). VCAA letters dated in October 2006, November 2007, June 2008, January 2009, June 2009, July 2009, and February 2010, fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Veteran was aware that it was ultimately the Veteran's responsibility to give VA any evidence pertaining to the claim. The VCAA letters told the Veteran to provide any relevant evidence in the Veteran's possession. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The notice requirements under 38 U.S.C.A. § 5103 underwent significant changes during the pendency of the Veteran's appeal. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) recently held that, for increased rating claims, notice provided to the Veteran under 38 U.S.C.A. § 5103 need not be "veteran specific," and that VA is not required to notify the Veteran that he may submit evidence of the effect of his worsening disability on his daily life, nor is VA required to notify the Veteran of diagnostic codes that his disability may be rated under. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Nonetheless, the Board notes that the June 2008 letter informed the Veteran of the diagnostic code that his disability may be rated under, and was notified that he may submit evidence regarding the impact of his disability on his employment and daily life. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of the claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). The VCAA notices notified the Veteran that that a disability rating and an effective date for the award of benefits will be assigned in compliance with Dingess v. Nicholson, 19 Vet. App. 473 (2006). Regarding the duty to assist, the Veteran's pertinent medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. For the time period in question, the Veteran was scheduled for multiple VA examinations, but did not report. The Veteran was incarcerated for a portion of the appeal period and difficulties were incurred with regard to obtaining a VA examination. The Board remanded this matter for the Veteran to have an examination, which was conducted in November 2009. This examination was the basis for the assignment of a total schedular rating. Nevertheless, the Board has assigned a total schedular rating from the date of an earlier private prison treatment record. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. In summary, the Board finds that "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claim." See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran). Ratings Historically, in an April 2002 rating decision, service connection was granted for PTSD and a 70 percent rating was assigned effective December 2000. From that rating decision, the Veteran appealed the assigned effective date of service connection to the Board. This matter was eventually denied by the Board. In April and October 2006, claims for TDIU were received. As the Veteran is only service-connected for PTSD, this claim may also be accepted as his claim for an increased rating. The Veteran has indicated that he is seeking a TDIU from August 2007, when he believes that he filed his claim; however, as noted, the claim was actually received 2006. In a January 2007 rating decision, the claims for entitlement to an increased rating for PTSD and TDIU were denied. The Veteran appealed the denials, which in this case are intertwined. See Rice. The Veteran indicated that his PTSD had worsened and that he wanted a VA examination. VA outpatient records were then received, which are dated March 2007 to September 2007. The Veteran was treated by VA on an inpatient basis. An April 2007 mental status examination showed that the Veteran was anxious, but cooperative and forthright. His mood was slightly depressed, but he did not appear depressed on the evaluation. His affect was appropriate and his thoughts were logical and organized. There was no evidence of a thought or perception disturbance. He acknowledged suicidal thoughts, but indicated that he had no intentions and had not attempted suicide in the past. His cognition seemed to be generally intact and his insight and judgment seemed to be fair to good. The diagnoses were PTSD, adjustment disorder, and history of cocaine abuse. His Global Assessment of Functioning (GAF) score was 65. Thereafter, the Veteran participated actively in classes, group therapy, and recreational activities. It was noted that the Veteran was doing a very good job in the program. However, in September 2007, the Veteran was not present for a bed check and he was given an irregular discharge for relapsing and eloping from the infirmary. During that same time period, the Veteran was scheduled for VA examinations in August 2007 and September 2007, but he failed to report. He also failed to report for a December 2007 examination. However, thereafter, in June 2008, the Veteran notified VA that he had returned to prison. In February 2009, the RO attempted to schedule the Veteran for VA examination, but later canceled the request because of his incarceration and the Oregon State Prison policy regarding not transporting inmates for VA examinations because of funding issues. It was also noted that the VA medical center did not have a psychiatrist available to go to the prison to conduct the examination. Thus, in sum, the Veteran wanted a VA examination, but was unable to attend due to incarceration. VA could not afford him an examination, even though an attempt was made. Nevertheless, medical records from the penal institution include psychiatric evaluations. In pertinent part, beginning on January 14, 2008, the records reflected a decrease in functioning, as compared with the prior April 2007 VA evaluation noted above. Although the examination report was not significantly detailed, the examiner indicated that the Veteran's GAF was 35. Later GAF scores were no higher than 40. Depression and hopelessness were cited in the records. The Board accepts that the examiner recorded accurate findings. When the Veteran was released from prison, he was afforded a VA examination in November 2009. This examination reflected a GAF score of 31 and a detailed mental status examination. The examiner noted that his functioning was within the 31-40 range per GAF scoring. The Veteran was thereafter assigned a 100 percent schedular rating based on this examination. Specifically, in a June 2010 rating decision, a 100 percent schedular rating for PTSD was assigned effective November 23, 2009, the date of the VA examination. A TDIU rating was assigned September 20, 2009, the first day of his release from incarceration. Disability evaluations are determined by comparing a veteran's present symptomatology 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. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. However, if VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. Thus, VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased-rating claim has been pending. Cf. McClain v. Nicholson, 21 Vet. App. 319, 323 (2007) (Board finding that veteran had disability "at some point during the processing of his claim," satisfied service connection requirement for manifestation of current disability); Moore v. Nicholson, 21 Vet. App. 211, 216-17 (2007). In Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court found no basis for drawing a distinction between initial ratings and increased rating claims for applying staged ratings. Accordingly, it was held that ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The regulations for mental disorders are found in 38 C.F.R. §§ 4.125-4.130. The Board notes that psychiatric disabilities evaluated under Diagnostic Code 9411 are rated according to the General Rating Formula for Mental Disorders. A 50 percent rating is provided for 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. A 70 percent rating 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 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 further notes that a GAF rating 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. 1994). The Board notes that an examiner's classification of the level of psychiatric impairment, by a GAF score, is to be considered but is not determinative of the percentage rating to be assigned. VAOPGCPREC 10-95. GAF scores ranging between 81 and 90 reflect absent or minimal symptoms (e.g., mild anxiety before an exam), good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns (e.g., an occasional argument with family members). GAF scores ranging between 71 and 80 reflect that if symptoms are present they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument; no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). GAF scores ranging between 61 to 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, and has some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect more 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 man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school). A score from 21 to 30 is indicative of behavior which is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or inability to function in almost all areas. A score of 11 to 20 denotes some danger of hurting one's self or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement) or occasionally fails to maintain minimal personal hygiene (e.g., smears feces) or gross impairment in communication (e. g., largely incoherent or mute). A GAF score of 1 to 10 is assigned when the person is in persistent danger of severely hurting self or others (recurrent violence) or there is persistent inability to maintain minimal personal hygiene or serious suicidal acts with clear expectation of death. See 38 C.F.R. § 4.130. In this case, the Board finds that a 100 percent schedular rating is warranted from January 14, 2008 (subject to payment provisions prescribed for incarcerated veterans). On that date and after, the Veteran's functioning is shown to have significantly decreased as reflected in his low GAF scores of 35-40 which the Board finds sufficiently indicative that the Veteran was unable to work and function normally in a social setting. The GAF scores recorded during the Veteran's incarceration are consistent with the post-incarceration examination of November 2009. Prior to that the January 2008 medical report, a 100 percent rating was not warranted because the evidence did not reflect that his PTSD was productive of total occupational and social impairment. The Board has VA records to review for a portion of the time period. In April 2007, the Veteran did not have gross impairment in thought processes or communication. His thought processes and communication were normal. There were no persistent delusions or hallucinations. His behavior was not grossly inappropriate; he was appropriate on examination. He was apparently able to perform activities of daily living, including maintenance of minimal personal hygiene. He appeared cognitively intact. The Board is aware that the Veteran engaged in actions that resulted in his irregular discharge from treatment and he return to prison; however, the evidence does not show that his overall function was to such a severe degree to fall within the realm of a total schedular rating. The Board is also aware that the symptoms listed under the 100 percent evaluation are essentially examples of the type and degree of symptoms for that evaluation, and that the Veteran need not demonstrate those exact symptoms to warrant a 100 percent evaluation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, the Board finds that the preponderance of the evidence, including the clinical findings, shows that the Veteran's PTSD symptoms more nearly approximated occupational and social impairment with deficiencies in most areas. In fact, his symptoms at that time reflected higher functioning according to the April 2007 report. Accordingly, the Board concludes that the criteria for a 100 percent rating are not met prior to January 14, 2008. The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis, prior to January 14, 2008. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008); aff'd, Thun v. Shinseki, No. 2008-7135, 2009 WL 2096205 (Cir. 2009), there is a three- step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's PTSD with the established criteria found in the rating schedule for PTSD shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology; as discussed above. The Board further observes that, even if the available schedular evaluation for the disability is inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." The record does not show that the Veteran has required frequent hospitalizations for his disability. Moreover, there is no evidence in the medical records of an exceptional or unusual clinical picture. The Veteran was incarcerated for over a decade for a felony which played the major role in his unemployment status. In short, there is nothing in the record to indicate that this service-connected disability on appeal causes impairment with employment over and above that which is contemplated in the assigned schedular rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) [noting that the disability rating itself is recognition that industrial capabilities are impaired]. The Board therefore has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. Further, 38 C.F.R. § 4.1 specifically sets out that "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." Factors such as requiring periodic medical attention are clearly contemplated in the Schedule and provided for in the evaluations assigned herein. What the Veteran has not shown in this case is that the service-connected disability's manifestations have resulted in unusual disability or impairment that has rendered the criteria and/or degrees of disability contemplated in the Schedule impractical or inadequate. The criteria for PTSD specifically address both social and industrial dysfunction. Accordingly, consideration of 38 C.F.R. § 3.321(b)(1) is not warranted in this case. With regard to entitlement to TDIU, during the time period prior to January 14, 2008, as it is moot after that point since a 100 percent schedular rating has been awarded, a TDIU is not warranted. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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, this disability shall be ratable at 60 percent or more, and that, if there are two or more such 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. For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a). The Veteran met the schedular criteria. However, the question remains as to whether his service-connected PTSD prevented him from securing and following substantially gainful employment. The veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be considered. 38 C.F.R. § 4.16(b). The essential issue is whether the veteran's service-connected disabilities preclude him from engaging in substantially gainful employment (i.e. work which is more than marginal, that permits the individual to earn a "living wage"). 38 C.F.R. § 4.16(b); Moore v. Derwinski, 1 Vet. App. 356 (1991). The record must reflect that circumstances, apart from non-service-connected conditions, place him in a different position than other veterans having the same compensation rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the veteran, in light of his service-connected disabilities, was capable of performing the physical and mental acts required by employment, not whether he could find employment. Van Hoose. The pertinent evidence of record during the time frame in question showed that the Veteran was in rehabilitative type treatment for his PTSD and was doing well until he left the program of his own volition. His GAF was 65 which indicated only mild symptoms at that time as related to his PTSD at that time. His long history of arrests and incarcerations presented the major impediment to obtaining employment at that time. The record indicated that the Veteran's PTSD did not render him incapable of performing the physical and mental acts required by employment. Therefore, a TDIU rating is not warranted prior to January 14, 2008. ORDER Prior to January 14, 2008, a rating in excess of 70 percent for PTSD is denied. Prior to January 14, 2008, a TDIU is denied. As of January 14, 2008, a 100 percent schedular rating for PTSD is granted, subject to the law and regulations governing the payment of monetary benefits. ______________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs