Citation Nr: 1120928 Decision Date: 05/31/11 Archive Date: 06/06/11 DOCKET NO. 09-17 430 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE 1. Entitlement to a higher initial rating for posttraumatic stress disorder (PTSD) with major depressive disorder and alcohol dependence, rated 30 percent disabling prior to June 9, 2009 and 50 percent disabling since that date. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Heather E. Vanhoose, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1968 to January 1970. He received the Purple Heart Medal, Air Medal, Bronze Star Medal, and Combat Infantry Badge. This matter comes before the Board of Veterans' Appeals (Board) from an August 2008 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In that decision, the RO granted service connection for PTSD and assigned an initial disability rating of 30 percent, effective June 16, 2008. In an April 2010 statement (VA Form 9), the Veteran requested a hearing before a Decision Review Officer (DRO) at the RO. An informal hearing conference with a DRO was conducted in July 2010 in lieu of a formal hearing and a report of that conference has been associated with the Veteran's claim folder. In September 2010, the RO granted service connection for major depressive disorder and alcohol dependence as secondary to the already service-connected PTSD and assigned a single initial 50 percent disability rating for all service-connected psychiatric disabilities, effective June 9, 2009. The Veteran testified before the undersigned Acting Veterans Law Judge in a March 2011 videoconference hearing from the RO. A transcript of the hearing has been associated with his claims folder. The issue of entitlement to a TDIU is addressed in the Remand that follows the Order section of the Decision below. FINDING OF FACT Since June 16, 2008, the Veteran's PTSD with major depressive disorder and alcohol dependence has been manifested by impairment in most of the areas of work, school, family relations, judgment, thinking, and mood, but not by total social and occupational impairment. CONCLUSION OF LAW The criteria are met for an initial 70 percent rating, but not more, for PTSD with major depressive disorder. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.125, 4.126, 4.130, Diagnostic Code (DC) 9411 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). A veteran is presumed to be seeking the maximum rating permitted by law, but may limit his appeal to a lesser benefit. AB v. Brown, 6 Vet. App. 35, 39 (1993); Hamilton v. Brown, 4 Vet. App. 528, 544 (1993). During the March 2011 hearing, the Veteran's representative stated that an initial 70 percent rating for the Veteran's service-connected psychiatric disability "would satisfy" the claim. The Board is granting the precise relief requested by the Veteran, i.e., an initial 70 percent rating for PTSD with major depressive disorder and alcohol dependence for the entire appeal period. Thus, the claim is substantiated and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Analysis Disability evaluations are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155. Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In 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. 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder, VA will also consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The schedular criteria for rating psychiatric disabilities incorporate the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). See 38 C.F.R. §§ 4.125, 4.130. The Veteran's PTSD with major depressive disorder and alcohol dependence is currently rated under 38 C.F.R. § 4.130, DC 9411, according to the General Rating Formula for Mental Disorders. Under the General Rating Formula, a 30 percent disability rating is warranted when there is 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, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent disability rating is warranted when there is 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability rating is warranted when there is 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); and inability to establish and maintain effective relationships. A 100 percent disability rating is warranted when there is total social and occupational impairment due to such symptoms as: gross impairment in thought processes or communications; 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 list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). On the other hand, if the evidence shows that the 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. Id. at 443. The United States 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). 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 (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). GAF scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). GAF scores ranging from 51 to 60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Id. However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue. Rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). 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). Examination reports from the Princeton Vet Center and Quail Valley Medical Center dated in June and July 2008, respectively, reveal that the Veteran reported that he was married to and lived with his third wife of 14 years. He experienced difficulty sleeping, abusive drinking (he drank to help him sleep), restlessness, flashbacks, nightmares about his military service, a decreased appetite, frustration, irritability, anxiety, depression, marital problems, an inability to express feelings, tension, anxiety, a hyperstartle response, and avoidance of activities that reminded him of prior unpleasant experiences. He also experienced vivid memories of unpleasant experiences, difficulty concentrating, memory impairment, trouble trusting others, loss of interest in usual activities, and emotional numbing. He was unable to tolerate crowds or loud noises and preferred to be alone. Examinations revealed that the Veteran had an anxious manner, impaired memory and concentration, tense motor activity, and fair judgment, but speech was appropriate. He was cooperative, neatly and casually dressed, and oriented to time, place, person, and situation. His thoughts were coherent and there was no evidence of any circumstantial or tangential thinking. Insight was fair and there were no auditory or visual hallucinations, delusional thinking, ideas of reference, or loose associations. Diagnoses of chronic and severe PTSD and moderately severe recurrent depression were provided and GAF scores of 45-50 were assigned, indicative of serious impairment. The psychiatrist who conducted the July 2008 examination concluded that the Veteran's emotional difficulties affected his daily life and interactions and opined that he did not appear to be able to tolerate much stress or handle any gainful employment. A July 2008 VA examination report indicates that the Veteran reported that he had been participating in group therapy for treatment of PTSD since the previous month and took medication for depression. He had experienced a persistent depressed mood since approximately 2004, loss of appetite, and social isolation which resulted from drinking and talking about his experiences. The psychologist who conducted the July 2008 VA examination opined that the Veteran's depression was mild to moderate in severity and related to his PTSD. He married his first wife in 1966 with whom he had a good relationship prior to being drafted into the military. He began experiencing marital difficulties following his return from military service because he "was a little crazy", but remained married to his first wife until 1989. He had 2 children with his first wife, with whom he had very good relationships. He was married to his second wife for approximately one year and remarried a third time in 1994. He continued to have a good relationship with his third wife at the time of the July 2008 VA examination The Veteran further reported that he had a couple of friends with whom he built buildings, worked on vehicles, and played pool. His interests included reading, playing pool and golf, and traveling. There was no history of suicide attempts or violence/assaultiveness, but he engaged in excessive alcohol consumption on a daily basis (reportedly a pint of liquor each day). Overall, his psychosocial functioning was fair. Examination revealed that the Veteran was clean, neatly groomed, and appropriately dressed. Psychomotor activity was unremarkable and speech was spontaneous. He had a cooperative attitude, appropriate and full affect, a "good" mood, intact concentration, attention, and orientation, unremarkable thought process and content, intact memory, and adequate judgment and insight. He did not experience any delusions, but had sleep impairment in that he had to engage in excessive alcohol consumption in order to fall asleep. Also, he had good impulse control and there was no inappropriate behavior, obsessive/ritualistic behavior, panic attacks, homicidal/suicidal thoughts, or episodes of violence. He was able to maintain minimum personal hygiene and did not experience any impairment in activities of daily living. The Veteran experienced moderate to moderately-severe symptoms of PTSD that had been persistently present since service. His symptoms had increased in severity since his retirement in 2003 due to the presence of extensive unstructured time and there were no remissions of symptoms. His distrustfulness had influenced his ability to maintain marital relationships and he was unable to feel empathy for others. He was employed as a coal miner prior to retirement. He was diagnosed as having chronic PTSD and a GAF score of 60 was assigned, indicative of moderate impairment. Overall, the examiner who conducted the July 2008 VA examination concluded that the Veteran's quality of life had been diminished by trauma exposure, he had become distressed due to his PTSD (manifested via depression and alcohol use), and he demonstrated difficulty maintaining relationships due to social distancing and emotional numbing as demonstrated by his three marriages since service. Prognosis for improvement was guarded and symptoms had been present for an extended duration, which made complete remission unlikely. Medical records dated from June 2009 to June 2010 reveal that the Veteran reported poor motivation and energy, social isolation, anxiety, paranoia, irritability, depression, impaired concentration, a normal to decreased appetite, difficulty sleeping, increasing flashbacks and intrusive thoughts about his service in Vietnam, avoidance, hypervigilance, a hyperstartle response, occasional suicidal ideation, emotional detachment, numbness, and social withdrawal, and an increase in the severity and frequency of his nightmares. He was married to his third wife and had a good relationship with his children and grandchildren. He retired as a coal miner in 2003 and enjoyed various physical activities. Examinations revealed a neat and tidy appearance, a euthymic, anxious, and depressed mood, congruent/restricted affect, normal speech, appropriate thoughts and responses, normal orientation, intact to mildly impaired memory, and good judgment and insight. There was no suicidal/homicidal ideation, feelings of hopelessness/helplessness, hallucinations, or illusions. Insight and judgment were good. The Veteran was diagnosed as having PTSD, depressive disorder not otherwise specified, and mood disorder not otherwise specified and GAF scores of 47 and 50 were assigned, indicative of serious impairment. In a December 2009 examination report, Stephen Fink, Psy.D. opined that the Veteran's level of impairment in function was severe. He reasoned that the Veteran reported that his symptoms had interfered with his work, household chores and duties, relationships with friends, fun and leisure activities, relationships with his family, sex life, general satisfaction with life, and overall level of functioning in all areas of his life. An August 2010 VA examination report indicates that the Veteran reported that he had a good relationship with his third wife and that his psychiatric symptoms did not have any notable impacts on his family relationships. He had several superficial relationships involving activities such as playing pool, but he appeared to have difficulty relating to individuals who were not veterans. He experienced a loss of interest in and withdrawal from activities he once enjoyed and rather engaged in socially isolating activities. He also experienced recurrent intrusive recollections and recurrent dreams of his military service, flashbacks, illusions, hallucinations, irritability, feelings of detachment from others, a restricted range of affect, difficulty sleeping, impaired concentration, hypervigilance, and a hyperstartle response. Examination revealed normal appearance, speech, and affect, tense psychomotor activity, a cooperative attitude, and a "pretty good" mood. Attention, orientation, and memory were intact, thought content was unremarkable, insight and judgment were normal, impulse control was good, and there were no delusions, hallucinations, homicidal or suicidal thoughts, or episodes of violence. However, there was circumstantiality of thought process. Activities of daily living were slightly to moderately impaired. The Veteran was diagnosed as having chronic PTSD and major depressive disorder. The prognosis for improvement of his psychiatric disability and functional status was fair. During the March 2011 hearing, the Veteran testified that he had been retired for seven years and that his psychiatric disability would have been an obstacle to employment due to such symptoms as anxiety, sleep impairment, and an inability to get along with others. He experienced increasing difficulty interacting with others and was irritable. His relationship with his wife was affected in that they were unable to sleep together due to his nightmares. He experienced depression, impaired concentration and memory, a loss of interest in activities he once enjoyed, and social isolation. Furthermore, he routinely checked the doors of his house several times each night to ensure that they were locked, experienced difficulty sleeping and drank alcohol in order to fall asleep, and experienced a decline in his personal hygiene The above evidence reflects GAF scores which generally indicate serious impairment and deficiencies in most of the areas needed for a 70 percent rating. For example, the July 2008 examination report from Quail Valley Medical Center includes an opinion that the Veteran did not appear to be able to handle any gainful employment due to his psychiatric problems and he reported during the March 2011 hearing that his psychiatric symptoms have been an obstacle to employment. In December 2009, Dr. Fink opined that the Veteran's level of impairment was severe. His distrustfulness has been noted to have influenced his ability to maintain marital relationships, as evidenced by his three marriages, and occasional marital problems have been noted. Furthermore, he has experienced such symptoms as flashbacks, intrusive thoughts, nightmares, impaired concentration and memory, frustration, irritability, anxiety, depression, social isolation, hypervigilance, and a hyperstartle response, Overall, the Veteran's mental evaluations show that he has been found to have serious impairment in most of the areas of work, school, family relations, judgment, thinking, and mood, as evidenced by the GAFs and assessments of his level of disability. Accordingly, the Board finds that an initial 70 percent rating is warranted for the entire appeal period. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.130, DC 9411. The Board has considered whether an evaluation in excess of 70 percent is warranted. However, the record does not show total occupational and social impairment, and in fact none of the symptoms associated with a 100 percent rating are shown in the case of this Veteran. Further, since the criteria for a 100 percent rating were not shown during any distinct period during the course of the appeal the criteria for staged rating are not met. Fenderson, 12 Vet. App. 119, 125-26. The Board has considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(a). In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the Veteran's occupational and social impairment is described by the rating criteria and referral for extra-schedular evaluation is not warranted. Thun, id. In sum, the Board has found the criteria are met for assignment of a 70 percent initial rating for PTSD, but not more. His appeal is accordingly granted to that extent. The benefit of the doubt has been resolved in favor of the Veteran. Gilbert, 1 Vet. App. 49, 54. ORDER Entitlement to an initial 70 percent rating for PTSD with major depressive disorder and alcohol dependence is granted, effective June 16, 2008. REMAND The Court has recently held that a request for a TDIU, whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation. There must be cogent evidence of unemployability in the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). According to VA General Counsel, the question of TDIU entitlement may be considered as a component of an appealed increased rating claim if the TDIU claim is based solely upon the disability or disabilities that are the subject of the increased rating claim; if the veteran asserts entitlement to a TDIU based in whole or in part on other service-connected disabilities that are not the subject of the appealed RO decision, the Board lacks jurisdiction over the TDIU claim except where appellate jurisdiction is assumed in order to grant a benefit, pursuant to 38 C.F.R. 19.13(a). See VAOGCPREC 6-96. VA General Counsel opinions are binding on the Board. See 38 U.S.C.A. § 7104(c) (West 2002); 38 C.F.R. § 14.507. In this case the Veteran asserts unemployability solely due to the service-connected PTSD on appeal. Accordingly, he has raised a claim for a TDIU over which the Board has jurisdiction. Because the Originating Agency has not yet developed the Veteran's claim for a TDIU, to include notice of the elements required to establish entitlement to the benefit, the Board finds that to avoid prejudice to the Veteran the issue must be remanded to the Originating Agency for appropriate development and initial adjudication before it is returned to the Board for further appellate review. Accordingly, this case is REMANDED to the RO for the following actions: 1. The RO should notify the Veteran and his representative of the elements required to establish entitlement to a TDIU, to include the respective duties of VA and the claimant in obtaining such evidence. The Veteran should be allowed an appropriate period in which to respond. 2. The RO should also undertake any other development it determines to be warranted. 3. The RO should then readjudicate the Veteran's claim for a TDIU in light of all pertinent evidence and legal authority. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be issued an SSOC and afforded the requisite opportunity to respond before the case is returned to the Board. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until he is otherwise notified but he 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). ____________________________________________ JOHN H. NILON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs