Citation Nr: 1127654 Decision Date: 07/25/11 Archive Date: 08/02/11 DOCKET NO. 10-27 418 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to a higher initial disability evaluation for posttraumatic stress disorder (PTSD), rated 30 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Terrence T. Griffin, Associate Counsel INTRODUCTION The Veteran had active service from October 1966 to October 1968, including service combat service during the Vietnam War, and his decorations include the Combat Infantryman Badge, the Bronze Star Medal with "V" device and Oak Leaf Cluster, and the Army Commendation Medal with "V" device and Oak Leaf Cluster. This matter came before the Board of Veterans' Appeals (Board) on appeal from an August 2009 decision by the Department of Veterans Affairs (VA) Columbia, South Carolina, Regional Office (RO). In April 2011, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of this proceeding has been associated with the claims folder. The Board finds that it properly has jurisdiction over the Veteran's claim seeking entitlement to a TDIU, which he raised by his statements at his April 2011 Board hearing, and included such claim on the title page. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (where there is evidence of unemployability raised by the record during a rating appeal period, the TDIU is an element of an initial rating or increased rating). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Since September 17, 2007, the Veteran's PTSD was manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; near- continuous depression affecting his ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); and difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. 2. Since September 17, 2007, the Veteran's PTSD was not manifested by 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 ability 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. 3. Since September 17, 2007, the Veteran has been unemployable as a result of his service connected PTSD. CONCLUSIONS OF LAW 1. Since September 17, 2007, the criteria for a 70 percent disability evaluation, and no more, have been met. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.130, Diagnostic Code 9411 (2010). 2. Since September 17, 2007, the criteria for a TDIU have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In the present matters on appeal arise from the initial grant of service connection; therefore, the notice that was provided to the Veteran in July 2009, before service connection was granted for PTSD, was legally sufficient and no further notice under the VCAA is necessary. See Hartman v. Nicholson, 483 F.3d 1311 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Board also finds that all necessary development of evidence has been completed. VA has obtained the Veteran's service, VA and private treatment records, and he has been afforded appropriate VA examinations. Further, the Veteran has not indentified additional records VA should seek to obtain on his behalf and his Board hearing request has been honored. Consequently, the Board has no notice of any additional relevant evidence not of record, and finds that VA made all reasonable efforts to obtain evidence necessary to substantiate the Veteran's claims. Therefore, no further assistance with the development of evidence is required. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearings, the VLJ clarified the issues on appeal, with the Veteran and his representative specifically limiting the matters on appeal to a claim seeking a higher initial disability evaluation for PTSD and entitlement to a TDIU. See Board Hearing Trans., p. 2, Apr. 26, 2011. Additionally, the VLJ noted the bases of the prior determinations and the elements of the claims that were lacking. The VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding. Moreover, neither the Veteran nor his representative have asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the April 2011 Board hearing. In fact, the hearing focused on the elements necessary to substantiate the claims and the Veteran and his representative, through testimony, argument and questions, demonstrated actual knowledge of the elements necessary to substantiate each claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and the Board will proceed to adjudicate the claims based on the current record. Higher Rating Claim for PTSD By way of background, an August 2009 rating decision granted the Veteran service connection for PTSD, assigning a 30 percent disability evaluation, effective September 17, 2007. The Veteran submitted a timely notice of disagreement (NOD) with the initial disability evaluation assigned for this condition and, in a June 2010 Appeal to Board of Veterans' Appeals (VA Form 9), perfected appellate review. The Board will now review the Veteran's claim seeking an initial disability evaluation in excess of 30 percent for PTSD. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating 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. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Here, the Veteran is appealing the initial assignment of a disability rating, and as such, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim, or whether a preponderance of the evidence is against the claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's PTSD is presently rated under 38 C.F.R. § 4.130, Diagnostic Code 9411, which provides the following ratings for psychiatric disabilities. A 30 percent disability rating is provided for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130. A 50 percent disability rating is warranted if it is productive of 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. Id. A 70 percent disability rating contemplates 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; obessional 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 contemplates 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 ability 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 Veteran's relevant psychiatric treatment is noted in multiple VA treatment records. At an October 2007 VA psychiatric treatment, the Veteran reported sleeping less than 4 hours a night, having nightmares 6-to-7 times a week, being easily frustrated with others, and having frequent intrusive thoughts, causing him to lose track of time. A November 2007 VA psychiatric record documents the assessment of a VA medical professional that the Veteran presented threat to himself, based upon his reports of weekly suicidal ideation, which were execrated by periods of anger and feelings of hopelessness. A January 2008 VA psychiatric treatment record also documents the Veteran's pertinent psychiatric symptoms and treatment. At this time, the Veteran's spouse provided a first-hand account of the nature and extent of the Veteran's mood swings, anxiety and inability to "sit still." Further, a VA medical professional indicated that the Veteran's energy level was poor, that he expressed feelings of general hopelessness and, while able to remember names, demonstrated some short-term memory impairment. Additionally, the Veteran reported that he was sleeping approximately 2 hours a night and continued to have frequent nightmares. The Veteran's Global Assessment of Functioning (GAF) score was 45. In March 2008, the Veteran underwent a VA psychiatric assessment. During this assessment, the Veteran detailed sleeping only 2-to-3 hours a night and reported being experiencing frequent fright and panic attacks associated with military planes frequently flying over his home. The Veteran also reported his easy irritation with others and increasing memory impairment. This March 2008 record also notes the Veteran's endorsement of crying spells, isolation from others and his somewhat flat affect. The Veteran's GAF score was 50. Another, March 2008 VA psychiatric treatment record documents the Veteran reported difficulties controlling his anger and his GAF score was 45. In August 2008, a private medical care provider detailed the Veteran's psychiatric symptoms, to include depression, severe nightmares and flashbacks. On mental status examination, the Veteran's presented a depressed mood, hypervigilance, visual hallucinations and fair insight/judgment. The Veteran's GAF score was 60. Additional treatment records from this facility, dated from September 2008 to June 2009, reflect a generally consistent picture of the Veteran's psychiatric symptoms. The Veteran was provided a VA examination in August 2009. During the examination, the Veteran reported difficulty sleeping, having night sweats, screaming in his sleep and experiencing daily intrusive thoughts. The VA examiner also noted the Veteran's account of auditory hallucinations and flashbacks, both associated with planes from the near-by military instillation frequently flying over his home. On mental status examination, the VA examiner noted psychomotor agitation in the Veteran's speech and movements, as well as his endorsement of passive suicidal ideation. Additionally, with respect to his employment, the examiner noted the Veteran's need to work alone but he had not been employed since 2002. The Veteran's GAF score was 58. Most recently, the Veteran underwent a VA examination in April 2010. At this time, the Veteran continued to report psychiatric symptoms, to include sleep impairment, nightmares, intrusive thoughts, hypervigilance, exaggerated startle response, difficulties functioning in crowds, and some memory impairment. The examiner further detailed the Veteran's account of self-isolation, having only one friend, feeling hopeless "all the time," and past suicidal ideation. What is more, the Veteran reported spending most of his time alone and needing his spouse to organize because of memory difficulties. On mental status examination, the Veteran's mood was mildly anxious and his memory was mildly impaired. The Veteran's GAF score was 58. In addition to the records highlighted herein, the competent and credible April 2011 Board testimony offered by the Veteran relating to the nature and severity of his PTSD, his numerous statements and various medical records have also been associated with the claims folder. Although each is not summarized in detail, these pieces of evidence are consistent with the evidence discussed above and without question has been considered in evaluating the Veteran's claim. Merits Based on the evidence of record, the Board finds that the Veteran's disability picture, for the entire period under review, most closely approximates a 70 percent disability evaluation. Initially, the Board finds the April 2011 sworn testimony of the Veteran to be competent and credible with respect to the nature, extent, frequency and severity of his PTSD related symptomatology, to include memory and social impairments. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). What is more, the medical evidence confirms the Veteran's multiple instances of passive suicidal ideation, to include a November 2007 VA psychiatric treatment record and respective August 2009 and April 2010 VA examination reports. VA treatment records, dated in October 2007 and March 2008, and VA examination reports, dated in August 2009 and April 2010, confirm the Veteran's PTSD related sleep impairment, intrusive thoughts, irritability and isolative behavior. A January 2008 VA psychiatric treatment record, as well as numerous other treatment records, also tends to support the Veteran's account of, at least minimal, PTSD related memory impairment. Additionally, the medical and lay evidence sufficiently confirm the Veteran's near constant depression, anger and irritability, impairing his ability to establish and maintain effective social and/or professional relationships. In light of the aforementioned factors and other relevant evidence of record, the Board finds that, during the pendency of the present appeal, the Veteran's PTSD symptomatology most closely approximates a 70 percent disability rating, and to this extent, the claim is granted. Nonetheless, the preponderance of the evidence shows that the Veteran is not entitled to a 100 percent disability rating. The evidence of record confirms the Veteran being oriented to all spheres. Further, the evidence shows that he has not demonstrated grossly inappropriate behavior or an intermittent inability to perform activities of daily living. The Board acknowledges the evidence of the Veteran's suicidal ideation and significant occupational impairment; however, there is no evidence of total social impairment, as by the Veteran's own account he maintains relationships with his spouse, children and, at least, one friend. Thus, the Board finds that there is insufficient evidence of record to support any findings that the Veteran's PTSD symptomatology has manifested in total social and occupational impairment, as contemplated in Diagnostic Code 9411. Accordingly, at no time since September 17, 2007, has the Veteran's service connected PTSD warranted assignment of a 100 percent schedular disability evaluation. Extra-Schedular Considerations Additionally, the Board has considered whether the Veteran's claim warrants referral to the Chief Benefits Director of VA's Compensation and Pension Service under 38 C.F.R. § 3.321. In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. The Board finds that the rating criteria contemplate the Veteran's level of the Veteran's PTSD disability. There is evidence that the Veteran's PTSD is productive of occupational and social impairment, which are contemplated by the rating presently assigned and the applicable rating criteria. The rating criteria are therefore adequate to evaluate the Veteran's disability and referral for consideration of extraschedular rating is not warranted. TDIU The Veteran contends that he is entitled to TDIU benefits. Upon reviewing the evidence of record, the Board concludes that, since September 17, 2007, a TDIU based on his PTSD is warranted. A TDIU may be assigned where the schedular rating is less than total when, in the judgment of the Board, the Veteran us disabled and unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this shall be ratable at 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 disability or more. 38 C.F.R. § 4.16(a). As outlined in this decision, the Veteran was granted an initial 70 percent disability evaluation for his service-connected PTSD, since September 17, 2007. Additionally, the Veteran has also been granted (I) a 20 percent disability evaluation for diabetes mellitus, type II, effective October 19, 2005, and (II) a noncompensable disability evaluation for right inguinal herniorrhaphy, effective January 1, 1969. As such, during the period under review (i.e. since September 17, 2007), the Board finds that the Veteran met the threshold schedular requirements for an award of TDIU benefits, under 38 C.F.R. § 4.16(a). Further, the evidence confirms that the Veteran was unemployed during this period, having last worked in the year 2002. See Board Hearing Trans., p. 8; VA Examination Rpt., Aug. 18, 2009. It is undisputed that the Veteran has presented numerous psychiatric symptoms, throughout the pendency of his present claim, which have impaired his functioning and employability, to include irritability, memory and concentration deficits, isolative behavior and anger control problems. Moreover, as documented in the numerous private psychiatric treatment records associated with the claims folder, the Veteran's PTSD symptoms have steadily increased in severity, such that the symptoms render him unemployable and continue to have such impact on his occupational functioning (regardless of any impairment caused by any nonservice-connected conditions). The Board acknowledges that the medical evidence alone does not provide any definitive opinion that the Veteran's psychiatric symptoms render him unemployable. However, as the impact psychiatric symptoms have on his employability is within his personal observation, the Board finds the Veteran's April 2011 sworn testimony on this matter, considered with all other evidence of record, to be competent, credible and highly probative evidence that his psychiatric symptoms, in fact, prevented him from securing or following substantially gainful employment. Buchanan, supra; see also Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005) (it is the Board's responsibility, as fact-finder, to determine the credibility and weight to be given to the evidence). Thus, the Board finds that the totality of the evidence, medical and lay, to sufficiently reflects psychiatric symptoms of such a severity that the Veteran would be unable to secure or follow a substantially gainful occupation. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In sum, the Board finds that the evidence, medical and lay, shows the Veteran's entitlement to TDIU benefits, since September 17, 2007. As such, an award of a TDIU is warranted. ORDER Since September 17, 2007, a rating of 70 percent, and no more, is granted, subject to the law and regulations governing the payment of monetary benefits. Since September 17, 2007, a TDIU is granted, subject to the law and regulations governing the payment of monetary benefits. ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs