Citation Nr: 1207124 Decision Date: 02/27/12 Archive Date: 03/09/12 DOCKET NO. 11-04 195 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an initial rating higher than 50 percent for post-traumatic stress disorder. 2. Entitlement to a total disability rating based on individual unemployability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION This appeal has been advanced on the Board of Veterans' Appeals (Board) docket pursuant to 38 U.S.C.A. § 7107(a) (2) (West 2002); 38 C.F.R. § 20.900(c) (2011). The Veteran performed active military service from August 1942 to October 1945. This appeal arises to the Board from January 2010 and later-issued rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In pertinent part of a January 2010 rating decision, the RO granted service connection for post-traumatic stress disorder (PTSD) with depression and anxiety and assigned a 50 percent rating effective September 4, 2009. Later issued rating decisions continued the 50 percent rating. In pertinent part of a September 2011 rating decision, the RO denied entitlement to a total disability rating based on individual unemployability (hereinafter: TDIU). The Veteran did not appeal that decision. If a claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran has asserted that he cannot work due to PTSD. Thus, a TDIU claim has been added to page 1 to reflect the Board's jurisdiction over this matter. In February 2012, the Veteran submitted additional information to the Board. The RO has not had the opportunity to review this newly-submitted information and the Veteran has not waived his right to initial RO consideration of it; however, a remand is not necessary for this procedural safeguard because the information submitted does not address the severity of the Veteran's PTSD. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Entitlement to 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. PTSD has been manifested throughout the appeal period by occupational and social impairment with deficiencies in most areas, such as work, family relationships, judgment, thinking or mood, due to suicidal ideation, near continuous depression affecting ability to function independently, unprovoked irritability; and inability to establish and maintain effective relationships. 2. PTSD is not shown to cause occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusion or hallucination; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name. 3. The evidence does not contain factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal. CONCLUSION OF LAW The criteria for an initial 70 percent schedular rating for PTSD are met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); § 5103 (West 2002 & Supp.2011); 38 C.F.R. §§ 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA must notify and assist claimants in substantiating claims for benefits. 38 U.S.C.A. §§ 5100, 5103A, 5107, 5126 (West 2002); 38 U.S.C.A. §§ 5102, 5103 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant and his representative of any information and any medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA must also inform the claimant of any information and evidence not of record that VA will seek to provide and that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). This notice was provided in September 2009, prior to the initial decision in this matter. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for service-connection, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The claimant challenges the initial evaluation for PTSD following the grant of service connection. In Dingess, the Court stressed that 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. Id. at 490-91. Because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. VA also has a duty to assist the claimant in the development of the claim. This duty includes assisting the claimant in obtaining service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All necessary development has been accomplished and adjudication may proceed without unfair prejudice to the claimant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has obtained VA outpatient treatment records. The claimant was afforded VA medical examinations in December 2009, October 2010, and April 2011. Neither the claimant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the claimant is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002). Disability Ratings Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2011). Diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. The entire medical history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Evaluation of a disability includes consideration of the Veteran's ability to engage in ordinary activities, including employment, and the effect of symptoms on functional abilities. A VA medical examination report must also include a "full description of the effects of disability upon the person's ordinary activity." 38 C.F.R. § 4.10; Martinak v Nicholson, 21 Vet. App. 447, 454 (2007). In Fenderson v. West, 12 Vet. App. 119, 126-7 (1999), the Court distinguished a claim for an increased rating from that of a claim arising from disagreement with the initial rating assigned after service connection was established. The Court has also held that where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). In Mauerhan v. Principi, 16 Vet. App. 436 (2002), the Court stated that the specified factors for each incremental PTSD rating were examples rather than requirements for a particular rating. The Court stated that the analysis should not be limited solely to whether the claimant exhibited the symptoms listed in the rating scheme. Consistent with the foregoing, the Court found it appropriate for a rating specialist to consider factors outside the specific rating criteria in determining the level of occupational and social impairment. In Tatum v. Shinseki, 23 Vet. App. 152 (2009), the Court stressed that each of the rating criteria need not be present to warrant a higher rating. PTSD has been rated 50 percent disabling for the entire appeal period under Diagnostic Code 9411. Under 38 C.F.R. § 4.130, Diagnostic Code 9411 (2011), PTSD will be evaluated in accordance with the General Rating Formula for Mental Disorders. Under that formula, a 50 percent evaluation is warranted for 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 evaluation is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 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 evaluation is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusion or hallucination; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name. The medical evidence concerning the severity of the Veteran's PTSD has varied during the appeal period. The Board must reconcile the variances in severity of PTSD into a consistent picture that accurately represents all elements of the disability. 38 C.F.R. § 4.2. "It is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the rating may accurately reflect the elements of disability present." Global Assessment of Functioning (hereinafter: GAF) scores ranging from 35 to 80 have been assigned during the appeal period. A GAF score of 35, according to the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (hereinafter: DSM-IV), indicates impairment in reality testing or major impairment in work, judgment, thinking, or mood, i.e., is unable to work. See 38 C.F.R. § 4.125 (2011). GAF scores ranging from 41 to 50 have also been assigned. Scores in this range indicate serious symptoms, or serious difficulty in social, occupational, or school functioning, i.e., no friends, unable to keep a job. See 38 C.F.R. § 4.125 (2011). In February 2010, a clinical psychologist wrote a letter on behalf of the Veteran explaining that a 50 percent rating is too low for the impairment shown. The psychologist noted that suicidal ideation had been shown. The psychologist pointed out a recent GAF score of 35. The psychologist also noted higher GAF scores but defended the lower score of 35 because it was offered after four visits, whereas the higher scores are based on only one visit. The psychologist pointed out that the Veteran had demonstrated irritability and outbursts of anger. In October 2010, a VA compensation examiner offered a GAF score of 80. A score of 71 to 80 indicates transient, if any, symptoms that are expectable reactions to psychosocial stressors resulting in no more than slight impairment in social, occupational, or school functioning, i.e., temporarily falling behind in schoolwork. See 38 C.F.R. § 4.125 (2011). Most of the VA examination reports note severe social isolation from friends and family, although none of the evidence shows that total occupational impairment is due to PTSD. From the evidence of record, PTSD has been manifested throughout the appeal period by occupational and social impairment with deficiencies in most areas, such as work, family relationships, judgment, thinking or mood, due to such symptoms as: suicidal ideation; near continuous depression affecting ability to function independently, unprovoked irritability; and inability to establish and maintain effective relationships. Comparing these manifestations with the criteria of the rating schedule, the Board finds that the criteria for a 70 percent schedular rating are more nearly approximated. This is because there is suicidal ideation and nearly complete social isolation. The 100 percent schedular rating criteria are not more nearly approximated because total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusion or hallucination; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name, are not shown. In this case, the evidence does not contain factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal. The assignment of staged ratings is therefore unnecessary. Hart, supra. After considering all the evidence of record, the Board finds that the evidence favors the claim. An increased (70 percent) rating for PTSD is granted, subject to the laws and regulations governing payment of monetary benefits. Extra-schedular Consideration The provisions of 38 C.F.R. § 3.321(b) provide that where the disability picture is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the Veteran for his service-connected disability, an extra-schedular evaluation will be assigned. Where the Veteran has alleged or asserted that the schedular rating is inadequate or where the evidence shows exceptional or unusual circumstances, the Board must specifically adjudicate the issue of whether an extra-schedular rating is appropriate, and if there is enough such evidence, the Board must direct that the matter be referred to the VA Central Office for consideration. Colayong v. West 12 Vet. App. 524, 536 (1999); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Although the Veteran has alleged that the rating schedule is inadequate, entitlement to an extra-schedular rating is not shown. The Court added a three-part test for triggering extra-schedular ratings in Thun v. Peake, 22 Vet. App. 111 (2008). Moreover, in Thun v Shinseki, 572 F.3d 1313 (Fed. Cir. 2009), the Federal Circuit interpreted and then affirmed the Court's three-part test to determine whether an extra-schedular rating is warranted. The Federal Circuit stressed that (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. In this case, the rating criteria are adequate to describe the severity and symptoms of PTSD with depression and anxiety. There is no indicia of an exceptional or unusual disability picture that is not contemplated by the schedular criteria for a 70 percent evaluation. Thus, the Thun criteria for extra-schedular rating consideration are not met. ORDER An initial schedular PTSD rating of 70 percent is granted, subject to the laws and regulations governing payment of monetary benefits. REMAND This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). Expedited handling is requested. TDIU In this case, the Veteran has alleged that he is unemployable due to PTSD; however, TDIU consideration may include all service-connected disabilities. Service connection is also in effect for bilateral hearing loss disability and tinnitus. Although a VA examiner opined in April 2011 that the Veteran cannot work due to advanced age, this opinion does not rule-out the possibility that all service-connected disabilities (disregarding age) would preclude obtaining and retaining substantially gainful employment. VA's duty to assist includes obtaining a medical opinion where such is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.159(b); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Board is prohibited from substituting its own unsubstantiated medical opinion. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board may not reject a TDIU claim without producing evidence, as distinguished from mere conjecture, that the Veteran can perform work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). In Friscia, the Court stressed that VA has a duty to supplement the record by obtaining an opinion on what effect the appellant's service-connected disability has on his ability to work. Friscia, at 297, citing 38 U.S.C.A. § 5107(a); 38 C.F.R. §§ 3.103(a), 3.326, 3.327, 4.16(a). Accordingly, the case is REMANDED to the AMC for the following action: 1. VA must review the file and ensure that all notification and development necessary to comply with 38 U.S.C.A. §§ 5103(a) and 5103A and 38 C.F.R. § 3.159, as well as VAOPGCPREC 7-2004, is satisfied. 2. The AMC should arrange for the physician who performed the April 2011 VA compensation examination to offer an addendum. The physician is asked to do the following: I. Note a review of the claims file. As of this writing, service connection is in effect for PTSD, rated 70 percent, bilateral hearing loss disability, rated 10 percent, and tinnitus, rated 10 percent. II. Offer an opinion addressing whether it is at least as likely as not (50 percent or greater probability) that all service-connected disabilities would prevent the Veteran from securing and following a substantially gainful occupation. The physician should offer a rationale for any conclusion in a legible report. The Veteran may be re-examined if necessary. If the specified physician is not available, a qualified substitute may be used. 3. Following the above, the AMC should review all relevant evidence and re-adjudicate the TDIU claim. Following that action, if the desired benefits are not granted, an appropriate supplemental statement of the case (SSOC) should be issued. The Veteran and his representative should be afforded an opportunity to respond to the SSOC before the claims folder is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). Failure to report for a scheduled VA examination (if an examination is scheduled) without good cause may have adverse consequences on this claim. 38 C.F.R. § 3.655. 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. 2011). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs