Citation Nr: 1127786 Decision Date: 07/26/11 Archive Date: 08/02/11 DOCKET NO. 09-18 882 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUES 1. Entitlement to an increased rating for posttraumatic stress disorder (PTSD), currently rated as 70 percent disabling. 2. Entitlement to an effective date earlier than October 14, 2007, for the award of a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Paul J. Streetman, Attorney WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The appellant had active military service from June 1975 to August 1975. This appeal comes to the Board of Veterans' Appeals (Board) from June 2008 and July 2009 rating decisions. In June 2010, the appellant testified at a hearing before the undersigned Acting Veterans Law Judge. A transcript of that hearing is of record. At that hearing, the appellant's testimony was accepted as a notice of disagreement with the July 2009 rating decision that had denied a rating in excess of 70 percent for PTSD. The Board subsequently remanded the appellant's claim so that the appellant could be provided with a statement of the case. This was done, and the appellant promptly perfected his appeal to the Board. It is also noted that the effective date for the grant of service connection for PTSD was assigned by a September 2007 rating decision, which is now final since the appellant did not appeal the effective date assigned by that rating decision. As such, a claim for an effective date prior to June 22, 2001 must be characterized as whether new and material evidence has been submitted or whether there was clear and unmistakable error in the September 2007 rating decision that assigned June 22, 2001 as the effective date for service connection for PTSD. The matter was referred to the RO for clarification and appropriate action by the Board in the March 2011 remand, but it is unclear whether any action was taken. As such, to the extent the RO has not yet complied with the referred issues, this should be done. FINDINGS OF FACT 1. The appellant's PTSD is not productive of total social and occupational impairment. 2. TDIU was awarded as of the date of entitlement. CONCLUSIONS OF LAW 1. Criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130, Diagnostic Code (DC) 9411 (2010). 2. Criteria for an effective date earlier than October 14, 2007, for the award of TDIU have not been met. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the appellant's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The appellant is currently rated at 70 percent for PTSD under 38 C.F.R. § 4.130, Diagnostic Code 9411. He was granted service connection for PTSD by a September 2007 rating decision. The appellant did not appeal this decision and it became final. In November 2008, the appellant requested an increased rating for PTSD. A 70 percent evaluation is assigned when PTSD causes has 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); or an inability to establish and maintain effective relationships. A 100 percent rating is assigned when PTSD causes total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. Id. In June 2010 the appellant testified at a hearing before the Board, asserting that he felt a rating in excess of 70 percent was warranted because he was unable to obtain or maintain gainful, regular employment. However, the Board notes that for a 100 percent disability rating, the rating criteria require total occupational and social impairment. Therefore, for the reasons cited below, the Board concludes that a rating in excess of 70 percent is not warranted for PTSD. At the time the appellant filed his request for an increased rating for PTSD, he was receiving treatment from VA's mental health clinic. This treatment has continued during the course of his appeal and will be briefly discussed below. In June 2008, the appellant reported last being employed one month earlier. At a July 2008 session, the appellant was dressed appropriately, his grooming and hygiene were good, and he was cooperative. The appellant's mood was slightly depressed and his affect was worrisome. Nevertheless, the appellant was able to organize his thoughts, and hallucinations were not present. The appellant's insight was partial, his judgment was fair, and his memory was intact. Later in July 2008, the appellant reported that he was doing fairly well. In September 2008, the appellant was noted to have been briefly hospitalized with suicidal ideation. However, it was noted that the appellant had cocaine, alcohol and marijuana on board, and the psychiatrist indicated that there was a strong possibility that substance abuse was the cause of the suicidal ideation. In November 2008, the appellant noted that he was planning to go see his family in Florida for a month or two. He also reported having moved in with a girlfriend. In April 2009, the appellant reported sleep problems. In May 2009, the appellant had good impulse control. The appellant denied any depression and any suicidal ideation, and his thought processes were found to be goal-directed. His affect was appropriate albeit constricted, and he had limited insight and judgment. In July 2009, the appellant reported that he was considering a move to Florida to be closer to his sister. The appellant was oriented to person, place and time, his thought processes were goal-directed, and the appellant denied both delusions and hallucinations. The appellant has also been seen by non-VA mental health professionals. For example, in July 2008, the appellant was seen by Dr. Duffy in conjunction with his Social Security Administration (SSA) claim. The appellant was noted to have normal sleep patterns with his medication. The appellant was cooperative and presented with generally adequate social skills. The appellant was adequately dressed and his personal hygiene and grooming were good. The appellant displayed fair insight and judgment. The appellant's socialization was noted to be okay, and the appellant reported having a couple friends. He also stated that family relationships had improved, despite being strained in the past. Dr. Duffy found that the appellant could follow and understand simple directions and instructions and could perform simple tasks independently. The appellant was provided with a VA examination in January 2009. It was noted that the appellant remained divorced and would speak to his examination-wife approximately twice per year. It was noted that their relations were friendly. He also maintained a platonic friendship with an ex-girlfriend. It was noted that he had lived with the girlfriend from July-December 2008. The arrangement was mutually beneficial, as she helped with bills, and he helped by preparing meals, taking care of the dog, and doing chores. The appellant then moved in with another friend. The appellant described his social life as pretty bland, but it was noted that he would see his roommate several times a week and they would go to dinner. The appellant also reported talking on the phone to his female friend on a daily basis, and would spend approximately every second Sunday with her. He reported spending his days doing chores and then would watch TV in the afternoon. He also reported going to a bar for a cocktail where he reported being friends with the bartender. The appellant was noted to be able to maintain his personal hygiene; his psychiatric illness presented no interference with household chores, toileting, grooming, shopping, self-feeding, engaging in sports, traveling, or driving. The appellant did report frequent sleep disturbance and nightmares. The examiner assigned a GAF of 51 which is suggestive of moderate symptoms. The examiner indicated that the appellant's employment performance was difficult to gauge as he had been unemployed for the past 18 months. The appellant's family role function was impaired by a need to keep his relationships stress-free, so his relationships tended to be superficial. However, after interviewing the appellant and reviewing his claims file, the examiner acknowledged that the appellant did have impairment in thinking, family, work and mood, but he concluded that the appellant did not have total occupational and social impairment. Having reviewed the evidence of record, the evidence simply does not support a finding that the appellant is totally occupationally and socially impaired. There is no dispute that the appellant's psychiatric disability causes impairment, but it is for specifically this reason that the Veteran is receiving a 70 percent rating. After all, a 70 percent rating contemplates deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. It also contemplates symptoms such as suicidal ideation and near-continuous depression. In the appellant's case he does not appear to have worked during the course of his claim for a higher PTSD rating. However, the appellant is far from totally socially impaired. During the appeal, the appellant has been noted to interact with his roommate, speak daily to a platonic examination-girlfriend, and drop by a bar to see a bartender friend. Additionally, the appellant visited his family for the holidays and was contemplating moving closer to his sister. These are simply not the actions of a person who is totally socially impaired. Additionally, the VA examiner reached the same conclusion, specifically indicating that the appellant was not totally socially and occupationally impaired. As such, the criteria for a 100 percent schedular rating have simply not been met, and the appellant's claim is denied. The Board has also considered whether an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). 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. This means that 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 adequate, and no referral is required. If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. However, in this case, the medical evidence fails to show anything unique or unusual about the appellant's psychiatric disability, diagnosed as PTSD, that would render the schedular criteria inadequate. The rating that is assigned contemplates deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The appellant is also receiving a TDIU based on the interference his PTSD causes with his employability. As such, it would not be found that his disability met the "governing norms" of an extraschedular rating. Accordingly, an extraschedular rating is not warranted. Earlier effective date for TDIU 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 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. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. In November 2008, the appellant submitted a notice of disagreement indicating that he disagreed with the effective date that was assigned for the grant of TDIU, because the grant did not date back to the date of his initial claim (which was filed in 2001 and sought service connection for a psychiatric disability). It is noted that there was no mention made of employability in the 2001 claim, and in fact the section of the form that was to be completed if the appellant was alleging unemployability was crossed out and not applicable was written on it. The appellant's claim for TDIU was received in January 2008. The application asserted that the appellant had been employed from March 2007 until September 2007 at a car dealership. The appellant stated that he had made $50,000 in the previous twelve months. A form was received in January 2008 from the appellant's last employer who clarified that the appellant had begun employment in February 2007 and ceased working on October 13, 2007. During this time, the appellant earned more than $54,000. The appellant was granted TDIU effective the day after he stopped working. In June 2010 the appellant testified at a hearing before the Board. His representative acknowledged that the date that was assigned for TDIU, in October 2007, was assigned based on the day that his employment at the car dealership ceased. The representative acknowledged that the appellant had made approximately $54,000 in the eight months prior to that time, but he asserted that this time period was an anomaly, in that the appellant had not been able to maintain any job for much more than a year since 1975. The appellant acknowledged being aware of the fact that benefits generally could not be paid earlier than the date of claim. However, he asserted that he should be an exception because essentially no one gave him information about psychiatric treatment or disability benefits when he was discharged from the military. While the Board sympathizes with the appellant, lack of knowledge is unfortunately not sufficient grounds to award an earlier effective date for TDIU. The AVLJ asked the appellant if he had disagreed with either the evaluation assigned, or with the effective date assigned. The appellant responded that he had sent a couple letters, but it did not appear that the appellant actually knew whether he had ever filed a notice of disagreement. A review of the evidence of record does not appear to show an earlier claim for TDIU or that the appellant had disagreed with an earlier rating decision (other than appealing the initial denial of service connection for PTSD). The procedural history is as followed. The appellant initially filed a claim for a psychiatric disability in June 2001. On his application form, it was noted that if the appellant was claiming to be totally disabled, he should complete a certain section of the form. However, this section was clearly crossed out, and not applicable was written on the appellant's claim. The appellant's claim for PTSD was denied in March 2003 and he perfected his appeal to the Board. In May 2005, the Board remanded the appellant's claim for additional development. The RO then granted service connection for PTSD (and assigned a 70 percent rating) in September 2007 with the effective date being the date the appellant's claim had been received in June 2001. It is noted that the appellant did not appeal either the effective date of this award or the disability level that was assigned. As noted, the laws governing effective dates generally dictate that an effective date be the later of the date of entitlement and the date of claim. With regard to a claim for TDIU, an earlier effective date may be awarded prior to the date of the claim if the increase in disability became factually ascertainable within the one-year time period immediately preceding the claim. 38 U.S.C.A. § 5110 (b)(2); 38 C.F.R. § 3.400(o)(2). However, the Federal Circuit affirmed a CAVC decision denying an effective date earlier than the date a claim for an increase was received where the increase in disability occurred more than one year earlier than the filing of the claim. Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. May 20, 2010) (explaining that the legislative history of 38 U.S.C.A. § 5110 (b)(2) was to provide veterans with a one-year grace period for filing a claim following an increase in a service-connected disability). In this case, the appellant's claim was received in January 2008 at which time he had stopped working. The RO granted the effective date back to October 2007. However, the evidence shows that the appellant was working during much of 2007; and while he did not work for the entire year, during the time he did work, he made well in excess of the poverty threshold for one person as established by the U.S. Department of Commerce for the entire year. Additionally, there is no indication that the appellant was in a protected work environment such as a family business or sheltered workshop. The appellant was working in the fast-paced and competitive environment of car sales, and from a letter written by a former employer, the appellant was very innovative and successful at his job. As such, it simply cannot be concluded that this was only marginal employment. The appellant, and his representative, have argued that while the appellant was working during the year prior to his claim for TDIU, this was an aberrational period as the appellant had not been working for many years prior to that time. However, as mentioned, Gaston clearly held that the grace period for an effective date for TDIU is not to exceed one year. See 605 F.3d 979 (2010). The appellant has also argued that but for his psychiatric impairment he would have been able to earn a lot more. However, it is noted that the appellant's 70 percent disability rating was assigned for specifically this purpose, that is to compensate for reduced efficiency and productivity in employment. In this case, the appellant was working until October 13, 2007 and therefore a TDIU cannot be assigned prior to that date. As such, the effective date assigned for the appellant's TDIU is the earliest possible effective date, as it was awarded the first day after the appellant stopped working. Therefore, the appellant's claim is denied. II. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letters dated in January and December 2008, which informed the appellant of all the elements required by the Pelegrini II Court as stated above. The letters also informed the appellant how disability ratings and effective dates are established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA treatment records and SSA records have been obtained, and the appellant has not alleged receiving any private psychiatric beyond that in conjunction with his SSA claim. Additionally, the appellant testified at a hearing before the Board. The appellant was also provided with a VA examination (the report of which has been associated with the claims file). The Board finds the recent VA examination was thorough and adequate and provides a sound basis upon which to base a decision with regard to the appellant's claim. The VA examiner personally interviewed and examined the appellant, including eliciting a history from him, and provided the information necessary to evaluate his disability. VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the appellant in adjudicating this appeal. ORDER A rating in excess of 70 percent for PTSD is denied. An effective date earlier than October 14, 2007, for the award of TDIU is denied. ____________________________________________ RAYMOND F. FERNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs