Citation Nr: 1127358	
Decision Date: 07/22/11    Archive Date: 07/29/11

DOCKET NO.  07- 38 920	)	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 greater than 30 percent for posttraumatic stress disorder (PTSD).

2.  Entitlement to total disability rating based upon individual unemployability (TDIU) by reason of service-connected disability.



REPRESENTATION

Appellant represented by:	Disabled American Veterans





ATTORNEY FOR THE BOARD

Tahirih S. Samadani, Counsel



INTRODUCTION

The Veteran served on active duty from July 1963 to July 1993. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision issued by the RO, which granted service connection for PTSD and assigned a 30 percent evaluation.

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 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 October 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.

In terms of the Veteran's current symptoms of PTSD, the Veteran reported to the July 2007 VA examiner that he had difficulty sleeping, had nightmares of Vietnam, exhaustion, anxiety, and hypervigilance.  The Veteran also reported being jumpy and that loud noises and crowds bothered him.  He experienced road rage and was very irritable and depressed.  He felt bitter and hostile toward people and his concentration was poor.  He noted that he had intrusive memories about Vietnam all the time and all he can think about is killing people.

In terms of employment, the Veteran was a civilian contractor at Fort Bragg up until 2004.  He was falsely accused of stealing money and being involved in a land investment scheme.  Due to these accusations, the Veteran became quite angry and irritable at work.  He began to think about Vietnam so he had to quit his job.  Overall, the examiner found that the Veteran had some problems getting along with the public and co-workers.

In terms of social relationships, the Veteran lives alone.  He has difficulty driving for long distances due to road rage.  He attends church but keep to himself.  He reports that he is very introverted when he was not previously.  He declines going out with friends when they call.  During a February 2002 Agent Orange Examination, the Veteran reported that he was married but has been separated on and off for the last 20 years

The July 2007 VA examiner found that the Veteran to be neatly groomed and dressed.  He was pleasant and cooperative and not hostile or belligerent.  His speech was spontaneous and logical.  He had no hallucinations, delusions, paranoia or ideas of reference.  He was not homicidal or suicidal.  He's affect was depressed and irritable.  He had anxiety but no panic attacks.  The examiner assigned a GAF score of 50.  

Private treatment records from January to April of 2007 show that the Veteran also experiences hallucinations, panic attacks, and intrusive thoughts.  A February 2007 private treatment record notes that the Veteran felt that he was progressing but that he "still wants to take people out."  GAF scores of 40 and 45 were assigned during this time.

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). 

Here, GAF scores assigned ranged from 40 to 50.  These scores reflect serious symptoms and some impairment in reality testing or communication.

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 Court has held that a total compensation rating based upon individual unemployability (TDIU) is encompassed in a claim for increased rating or the appeal of an initial rating.  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.  
Therefore, the Veteran's claim for a higher evaluation for PTSD includes a claim for TDIU.

Here, the Veteran reported during the July 2007 VA examination that he began to think about Vietnam and become irritable at work which caused him to have to quit his job.  It is unclear if the Veteran is currently unemployed.

Such factors affecting the Veteran's employment status raises the issue of 4.16(b) for PTSD.  In light of the medical evidence of record, the Board determines that development and adjudication of the TDIU claim is essential to avoid potential prejudice to the Veteran.

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 for his psychiatric disability since July 2007, a more current evaluation of his psychiatric disability is indicated.  In addition, 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.  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.  If indicated, the RO should take all indicated action to request that the Veteran and his representative provide additional evidence pertinent to the claim for a TDIU rating.

In particular, the RO should request that the Veteran complete and submit a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, so that VA will have information concerning his past employment.  The RO should explain the type of evidence that is the Veteran's ultimate responsibility to submit to substantiate a claim for a TDIU rating and what VA will do.

The letter should clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period).
3.  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 score, 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.  

4.  To help avoid future remand, the RO must ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND.  If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken.  See Stegall v. West, 11 Vet. App. 268 (1998).

5.  After completion of the foregoing, and after undertaking any further development deemed necessary, the RO should readjudicate the claim for a higher evaluation for PTSD, to include any claim for a TDIU rating, in light of all pertinent evidence.  If any benefit sought on appeal remains denied, the RO should furnish a fully responsive Supplemental Statement of the Case to the Veteran and his representative and afford them with 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 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).  




______________________________________________
D. C. Spickler
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs