Citation Nr: 1136499 Decision Date: 09/28/11 Archive Date: 10/11/11 DOCKET NO. 09-45 081 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial rating greater than 50 percent, prior to September 22, 2010, for posttraumatic stress disorder. 2. Entitlement to an initial rating greater than 70 percent, beginning September 22, 2010, for posttraumatic stress disorder. 3. Entitlement to a total disability rating for compensation on the basis of individual unemployability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD H.J. Baucom INTRODUCTION The Veteran had active service from August 1985 to April 1988. These matters come before the Board of Veterans' Appeals (BVA or Board) from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. During the pendency of the appeal, but before the case was sent to the Board, in January 2011, the RO granted an increased rating of 70 percent for posttraumatic stress disorder (PTSD), effective September 22, 2010. As the award is not a complete grant of benefits, the issue remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). In May 2011 a Board hearing was held before the undersigned Acting Veterans Law Judge at the RO; the transcript is of record. The issue of TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. For the entirety of the appeal period, the Veteran's service-connected PTSD is manifested by a level of impairment that more nearly approximates that of occupational and social impairment, with deficiencies in most areas, due to symptoms such as suicidal ideation; impaired impulse control as seen in unprovoked irritability with periods of aggression; near-continuous panic or depression affecting the ability to function independently; neglect of personal appearance and hygiene and an inability to establish and maintain effective relationships 2. The evidence of record does not reflect that the Veteran's PTSD has never been shown to produce 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; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. CONCLUSIONS OF LAW 1. The criteria for a 70 percent rating, but no greater, for PTSD prior to September 22, 2010 have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.130, Diagnostic Code 9411 (2010). 2. The criteria for a rating greater than 70 percent for PTSD beginning September 22, 2010, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.130, Diagnostic Code 9411 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS An October 2008 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The issue of an initial higher rating for PTSD involves a "downstream" issue, as the claim for service connection was granted in the March 2009 rating decision appealed, and the current appeal arises from the Veteran's disagreement with the ratings originally and subsequently assigned. In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated; it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). As the Veteran's claim for an increased initial disability rating was appealed directly from the initial rating assigned, no further action under the section 5103(a) is required. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008); See also Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; he did not identify any additional private or VA treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran's Social Security Administration disability determination, and the records considered in that determination, are part of the record. 38 C.F.R. § 3.159 (c) (2). VA examinations were conducted in February 2009 and September 2010; the Veteran has not argued, and the record does not reflect, that this examination was inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The examiners thoroughly evaluated the Veteran's current disability level and provided enough information to allow proper evaluation under the rating schedule. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity resulting from a disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When there is a question as to which of two evaluations should 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. 38 C.F.R. § 4.7. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3. The Veteran's service-connected PTSD is rated pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is assigned 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. A 70 percent rating is assigned 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. A 100 percent rating is assigned 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. The symptoms recited in the criteria in the rating schedule are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. The Global Assessment of Functioning (GAF) scale reflects the psychological, social and occupational functioning under a hypothetical continuum of mental illness. See American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV); see also Carpenter v. Brown, 8 Vet. App. 240, 243 (1995). A GAF score between 31 and 40 is indicative of some impairment in reality resting or communication (e.g., speech is at times illogical, obscure, or irrelevant) OR major impairment in several areas, such as work, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). A GAF score between 41 and 50 is indicative of 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 between 51 and 60 is indicative of 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 coworkers). Id. At a November 2008 private evaluation, the Veteran appeared poorly groomed and older than his stated age. He made good eye contact and responded to questions appropriately. The Veteran reported feeling depressed, hopeless, anxious, irritable, and experiencing difficulty with sleeping, energy, attending to daily personal hygiene. The Veteran reported having an erratic appetite, being isolated from family and friends, and difficulty concentrating; his speech was coherent and relevant with good articulation, his thought content was of constricted range and intensity, and his thought process was organized and goal directed. The Veteran denied auditory or visual hallucinations, delusions, or suicidal or homicidal ideation or intent. Socially, he had only one friend, and liked to draw and play guitar which he had to give up when he no longer had one to play. Chronic recurrent major depression, PTSD, and panic attacks without agoraphobia were diagnosed; a GAF of 40-50 was assigned. At a February 2009 VA examination, the Veteran reported having a suicide plan when he first sought treatment from the VA in August 2008. He reported a lot of anxiety and being nervous around people. The Veteran reported problems with his anger; he has outbursts of yelling and screaming at people, but his last physical aggression was three years ago. He has trouble concentrating or focusing when people are around him. The Veteran has intrusive memories about his in-service stressor event, triggered by anything on television about car accidents. He reported having about 23 jobs in the last 10 years plus a number of odd jobs, never staying at one job for more than a year. On mental status examination, he appeared disheveled with poor hygiene. He was verbal and cooperative with the examiner, but rapport was very difficult to establish, and his social skills were noted to be poor. The Veteran's thought process was logical and coherent, and his affect was irritable and depressed with some psychomotor slowing. He was oriented to time, place and situation. The Veteran reported anxiety, nightmares, panic attacks, phobias about driving, compulsive behaviors of clearing his throat repeatedly, and initial and middle insomnia. PTSD was diagnosed; a GAF of 45-50 was assigned. At a February 2010 private evaluation, the Veteran appeared tense with difficult conversation and notably poor hygiene. He reported having no relationships with anyone, including his children and parents. He avoided television that showed car accidents and had frequent nightmares, hyper- and insomnia, poor memory, trouble concentrating, self-isolation, and exaggerated startle responses. The Veteran reported being irritable, easily frustrated, in poor control of his temper, and having anhedonia. He reported hallucinations, flashbacks, and frequent suicidal ideations. The examiner commented that the Veteran appeared to be in a constant state of panic. Chronic severe PTSD with occupational and social impairment was diagnosed; a GAF of 35 was assigned. At the September 2010 VA examination, the Veteran reported dreams of being chased, and recurrent and intrusive distressing recollections of his in-service stressor event. He reported trouble staying asleep, irritability, outbursts of anger, difficulty concentrating, memory impairment, hypervigilance, and anxiety while driving. He reported last working in 2008, at which time he was fired due to his temper; he stated that he had over 80 jobs in his lifetime. He denied being married or having any friends. The examiner commented that the Veteran was dressed casually for his appointment with fair eye contact, grooming, hygiene and posture. His psychomotor activity was retarded. The Veteran was cooperative and pleasant but his speech and communication were hesitant. His thought processes were slowed with evidence of blocking. The Veteran's thought content was notable for intrusive memories. He described both auditory and visual hallucinations, saying that he sees movement in his peripheral vision but when he turns his head there is nothing there. The Veteran's mood was depressed; he denied homicidal ideation but admitted to suicidal thoughts as recently as the other day. Chronic PTSD and depression was diagnosed, and a GAF of 50 was assigned. The examiner commented that the Veteran's symptoms were exacerbated and his overall mental health condition was worse than the previous examination, especially after a recent incident with the police. Numerous lay statements from his family are also of record. In an October 2008 statement, the Veteran's father reported that the Veteran had suicidal thoughts two years prior, and that the Veteran could be belligerent and angry. His mother similarly cited the Veteran's anger and quick mood swings where he would lash out and become loud angry and combative, and her observations that he was withdrawn and uncommunicative. The Board finds that the evidence of record substantiates a 70 percent disability rating, but no higher, prior to and beginning September 22, 2010. The totality of the record reflects that the Veteran's PTSD-related symptoms and corresponding GAF scores have remained fairly consistent since the grant of service connection, and the Veteran has undergone some periods where there is an increase in symptoms, but that overall, the symptoms since the date of the claim more nearly approximate the criteria for the assignment of a 70 percent rating. As for the potential of an even higher disability rating, the objective findings on examination do not support the assignment of a 100 percent rating. The Veteran's predominant symptoms are irritability, anger, isolation, difficulty concentrating, sleep disturbance and intrusive memories. At times the Veteran has shown neglect of personal appearance and hygiene. However, the Veteran has consistently been able to act appropriately at all examinations, engage in activities of daily living and participate in treatment. He has always been able to provide coherent statements to examiners and to the RO regarding his disabilities. While he reported that he is isolated and has no friends, he has continued to cohabitate with his mother and is therefore not completely isolated. The evidence of record has never shown gross impairment in thought processes, persistent delusions or hallucinations, inability to perform activities of daily living, grossly inappropriate behavior, persistent danger of hurting self or others, disorientation to time or place, or trouble recalling names of close relatives or his own name. The assignment of different evaluations throughout the pendency of the Veteran's appeal has been considered. However, the evidence does not support staged evaluations. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Consideration has also been given regarding whether the schedular evaluation is inadequate, requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extra-schedular evaluation where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b) (1). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating, otherwise, the schedular evaluation is adequate, and referral is not required. Thun, 22 Vet. App. at 116. The schedular rating in this case is adequate. Ratings in excess of that assigned are provided for certain manifestations of the service-connected PTSD but those symptoms are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's PTSD. He has not required hospitalization for PTSD, and while he has reported difficulty keeping a job, the September 2010 VA examiner found the Veteran to have only moderate interference with employment due to his symptoms. As such, marked interference of employment has not been shown. Therefore, the Veteran's disability picture is contemplated by the rating schedule and no extraschedular referral is required. The preponderance of the evidence is against the claim. There is no doubt to be resolved, and greater than a 70 percent rating for PTSD, at any point of the appeal period, is not warranted. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A 70 percent rating, but no greater, for PTSD prior to September 22, 2010 is granted, subject to laws and regulations governing the payment of monetary benefits. A rating greater than 70 percent for PTSD beginning September 22, 2010 is denied. REMAND A 70 percent initial rating has been assigned for the Veteran's PTSD, thus satisfying the pertinent schedular criteria for TDIU. 38 C.F.R. § 4.16(a). However, the sole opinion as to whether the Veteran's PTSD results in unemployability for VA purposes also considers nonservice-connected disabilities to include Graves' disease. Once VA provides an examination in a service connection claim, the examination must be adequate or VA must notify the Veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As such, a remand is required so that a sufficient opinion may be obtained. Accordingly, the issue of entitlement to TDIU is REMANDED for the following actions: 1. Schedule the Veteran for a new examination to determine whether his service-connected PTSD results in unemployability. The claims file and a copy of this remand must be made available to and reviewed by the examiner. Following a review of the service and post service medical records, the VA examiner must state whether the Veteran is unable to obtain or retain employment due solely to his service-connected PTSD, consistent with his education and occupational experience, irrespective of age and any nonservice-connected disabilities. The opinion must be based on the review of the claims file, to include the multiple VA examination reports of record. A complete rationale must be provided for any opinions expressed. The report must be typed. 2. Notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2010). If the Veteran does not report for a scheduled examination, obtain documentation showing that notice scheduling the examination was sent to the last known address of record, and indicate whether any notice that was sent was returned as undeliverable. 3. Readjudicate the claim for TDIU. If the benefit sought on appeal remains denied, provide a Supplemental Statement of the Case to the Veteran and his representative, and an appropriate period of time in which to respond. Thereafter, return the appeal to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. All claims 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. MACIEROWSKI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs