Citation Nr: 1134492 Decision Date: 09/15/11 Archive Date: 09/23/11 DOCKET NO. 08-26 468 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an initial disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD William Alan Nelson II, Associate Counsel INTRODUCTION The Veteran, who is the appellant, had active service from August 1965 to June 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In a June 2007 decision, the Portland RO granted service connection and assigned an initial 50 percent rating for service connection for PTSD. In October 2007, the Veteran entered a notice of disagreement (NOD) with the initial rating assigned in the June 2007 rating decision. Because the Veteran has disagreed with the initial rating assigned following the grant of service connection for PTSD, the Board has characterized this issue as one of entitlement to a higher initial disability rating. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). Thereafter, in a November 2008 rating decision and Supplemental Statement of the Case (SSOC), the Portland RO granted a higher 70 percent rating for PTSD for the entire initial rating period. Although the RO granted a higher 70 percent rating for PTSD for the entire initial rating period, inasmuch as a higher rating is available, and a veteran is presumed to seek the maximum available benefit for a disability, the claim for a higher initial disability rating remains viable on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran was scheduled to testify before a Member of the Board in a hearing at the Oakland RO in May 2011. Because the Veteran withdrew the hearing request, the hearing request is considered withdrawn, and the Board will proceed with its adjudication of the appeal. See 38 C.F.R. § 20.704(d) (2010); accord Anderson v. Brown, 9 Vet. App. 542, 546-47 (1996). The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. For the entire period of initial rating appeal, the Veteran's PTSD has been characterized by recurrent nightmares and flashbacks of combat, restricted affect, irritability and outbursts of anger, hypervigilance, low energy, depression, insomnia, passive suicidal and homicidal ideation, memory problems, and feelings of helplessness and hopelessness. 2. For the entire period of initial rating appeal, the Veteran's PTSD has not been characterized 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 inability to perform activities of daily living; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. CONCLUSION OF LAW For the entire initial rating period, the criteria for an initial disability rating in excess of 70 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.125, 4.126, 4.130, Diagnostic Code (DC) 9411 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist 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 a 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). In an December 2006 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran and what evidence VA would obtain. The notice included provisions for disability ratings and for the effective date of the claim. The claim for a higher disability rating for PTSD arises from disagreement with the initial evaluation following the grant of service connection for PTSD. 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 VCAA also 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 the 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) (2010). VA has obtained records of treatment reported by the Veteran, including service treatment records and VA treatment records. Additionally, the Veteran was provided VA examinations in March 2007 and October 2008 for PTSD. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. Disability Rating Criteria Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2010). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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 view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2010). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Fenderson, 12 Vet. App. at 126. The schedular criteria, effective as of November 7, 1996, incorporate the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). 38 C.F.R. §§ 4.125, 4.130. A 70 percent rating, may be assigned 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 work-like setting); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, DC 9411. The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). A 100 percent schedular evaluation 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 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. 4.130, DC 9411. In assessing the evidence of record, it is important to note that the Global Assessment of Functioning (GAF) score 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. (DSM-IV) at 32). A GAF score of 41-50 indicates "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)." Id. A GAF score of 51-60 indicates "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)." Id. A GAF score of 61-70 indicates "Mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. Id. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive. The Board need not find all or even some of the symptoms to award a specific evaluation. On the other hand, if the evidence shows that a veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). The U.S. Court of Appeals for the Federal Circuit has embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). Initial Rating of PTSD The Veteran was granted service connection and initially assigned a 50 percent rating for PTSD, effective October 30, 2006, in the June 2007 rating decision on appeal. In a November 2008 rating decision, the Portland RO granted a higher 70 percent rating for PTSD for the entire initial rating period. After a review of all the evidence, lay and medical, the Board finds that, for the entire period of initial rating appeal, the Veteran's PTSD has been characterized by recurrent nightmares and flashbacks of combat, restricted affect, irritability and outbursts of anger, hypervigilance, low energy, depression, insomnia, passive suicidal and homicidal ideation, memory problems, and feelings of helplessness and hopelessness, which more nearly approximates the criteria for a 70 percent disability rating under DC 9411. 38 C.F.R. § 4.130. The evidence includes the March 2007 VA PTSD examination report that shows the Veteran reported recurrent nightmares and flashbacks of military combat. The Veteran also reported irritability and anger outburst, restricted affect, depression, trouble sleeping, hypervigilance, and feelings of hopelessness and helplessness. During the PTSD examination interview in March 2007, the Veteran was fully oriented. His thought process was normal. The Veteran's affect was appropriate and mood was curious. He evidenced no delusions or hallucinations. The Veteran's concentration and memory were in the average range. He denied current thoughts of harm to himself. The Veteran did report passive homicidal ideation, but stated that he would not do anything about it. The Veteran evidenced good judgment and insight. The VA examiner reported increased hypervigilance and startle reaction. The Veteran was given an Axis I diagnosis of mild to moderate PTSD; dysthymia secondary to PTSD; and alcohol abuse secondary to PTSD. The GAF score was 55. An October 2008 VA PTSD examination report shows that the Veteran reported hypervigilance (checking locks and walking the perimeter of his house). The Veteran also reported problems with anger, intrusive thoughts and memories, memory problems, difficulty sleeping, and being psychologically aroused with his anxiety. During the VA PTSD interview in October 2008, the Veteran was fully oriented. His thought processes were logical and linear. The Veteran's affect was irritable and mood was anxious. He evidenced no delusions or hallucinations. He denied current thoughts of harming others. The Veteran did report passive suicidal ideation, but stated that he would not do anything about it because of the impact it would have on his family. The Veteran's gross cognitive functioning appeared intact. The VA examiner reported increased hypervigilance and startle reaction. The Axis I diagnoses were chronic moderate PTSD; major depressive disorder secondary to PTSD; and symptoms of obsessive/compulsive disorder related to PTSD and depression. The GAF score was 45. On review of the evidence, the Board finds that, for the entire initial rating period, the symptoms of the Veteran's PTSD have been characterized by recurrent nightmares and flashbacks of combat, restricted affect, irritability and outbursts of anger, hypervigilance, low energy, depression, insomnia, passive suicidal and homicidal ideation, memory problems, and feelings of helplessness and hopelessness. The GAF scores have varied between 45 and 55. The Veteran's psychiatric symptoms have been relatively consistent, and a 70 percent rating under Diagnostic Code 9411 takes into account occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 38 C.F.R. § 4.130. The Board also finds that, for the entire initial rating period, the Veteran's PTSD has not been characterized 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 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, as required for a 100 percent disability rating under DC 9411. 38 C.F.R. § 4.130. The evidence in this case does not reveal gross impairment in thought processes or communication. In the March 2007 VA examination, the Veteran's thought process was normal. In the October 2008 VA PTSD examination, the Veteran's thought processes were linear and logical throughout the examination With regard to persistent delusions and hallucinations, in the March 2007 and October 2008 VA PTSD examinations, the Veteran evidenced no hallucinations or delusions. The Veteran has not evidenced a persistent danger of hurting himself or others. In the March 2007 VA PTSD examination, the Veteran reported passive homicidal ideation, but stated that he would not do anything about it. In the October 2008 VA PTSD examination, the Veteran reported passive suicidal ideation, but stated that he would not do anything about it because of the impact it would have on his family. The Veteran has not been disoriented to time or place. In the March 2007 and October 2008 VA PTSD examinations, the Veteran was fully oriented in all spheres. The Veteran has not evidenced memory loss for names of close relatives, own occupation, or own name. In the March 2007 VA PTSD examination, the VA examiner reported that the Veteran's memory was in the average range. In the October 2008 VA examination, the Veteran reported problems with memory. The record does not reflect memory loss for names of close relatives, own occupation, or own name. The record demonstrates that the Veteran's PTSD is characterized by recurrent nightmares and flashbacks of combat, restricted affect, irritability and outbursts of anger, hypervigilance, low energy, depression, insomnia, passive suicidal and homicidal ideation, memory problems, and feelings of helplessness and hopelessness. The Board concludes that the Veteran's disability picture does not more nearly approximate the next-higher 100 percent rating criteria under DC 9411 for any period. Even though the Veteran exhibits some passive suicidal and homicidal ideation, the Veteran's PTSD symptoms, as a whole, are contemplated by the 70 percent rating. See 38 C.F.R. § 4.7 (the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating, otherwise, the lower rating will be assigned). For these reasons, the Board finds that a preponderance of the evidence is against an initial rating in excess of 70 percent for PTSD for any period, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration The Board has considered whether referral for an extraschedular evaluation is warranted for PTSD. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2010). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine 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"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's PTSD is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria, DC 9411, specifically provides for disability ratings based on a combination of history and clinical findings. In this case, considering the lay and medical evidence, the Veteran's PTSD has manifested recurrent nightmares and flashbacks of combat, restricted affect, irritability and outbursts of anger, hypervigilance, low energy, depression, insomnia, passive suicidal and homicidal ideation, memory problems, and feelings of helplessness and hopelessness. These symptoms are either explicitly part of the schedular rating criteria under the general formula for rating mental disorders at 38 C.F.R. § 4.130, are analogous to the schedular rating criteria (see 38 C.F.R. §§ 4.20, 4.21), or are "like or similar to" the schedular rating criteria (see Mauerhan at 442-43). The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] 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." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life. In the absence of exceptional factors associated with PTSD, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER An initial disability rating in excess of 70 percent for PTSD is denied. REMAND The record contains some evidence suggesting the Veteran may be unemployable due to the service-connected PTSD. Such evidence in the record suggesting unemployability constitutes an informal claim for TDIU. Where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim identify the benefit sought has been satisfied and VA must consider whether the veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (VA to determine all potential claims raised by the evidence, applying all relevant laws and regulations). See also Rice v. Shinseki, 22 Vet. App. 447 (2009) (suggesting, in an effective date appeal, that an appeal for higher rating somehow includes TDIU, or that a TDIU must arise from an increased rating claim, unless it is the veteran who raises the TDIU claim). Based upon the foregoing, the Board finds that the evidence of record has raised a claim of entitlement to TDIU. Accordingly, the issue of TDIU is REMANDED for the following action: 1. The AMC/RO should issue the Veteran notice in accordance with 38 C.F.R. § 3.159 with regard to the inferred claim for TDIU. Said notice should include provision to the Veteran of the appropriate TDIU claim form and requirements to establish inability to obtain or maintain substantially gainful employment due to service-connected disabilities. 2. After completion of the above and any additional development deemed necessary, the AMC/RO should adjudicate the issue of TDIU. If any benefit sought remains denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and should be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter 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). ______________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs