Citation Nr: 1300853 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 12-25 281 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE 1. Entitlement to an increased rating (evaluation) in excess of 50 percent for posttraumatic stress disorder (PTSD) with secondary depression and alcohol dependence. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from August 2001 to January 2005. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which denied a higher rating, in excess of 50 percent, for posttraumatic stress disorder (PTSD) with secondary depression and alcohol dependence and denied a TDIU. The issue of a TDIU is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. For the entire rating period, the Veteran's PTSD with depression and alcohol dependence has more nearly been approximated by occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, and mood, due to such symptoms as: suicidal ideation, impaired impulse control with violence, neglect of personal appearance and hygiene, and inability to establish and maintain effective relationships. 2. For the entire rating period, the Veteran's PTSD with depression and alcohol dependence has not more nearly approximated total occupational and social impairment. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for an increased 70 percent rating for PTSD with secondary depression and alcohol dependence have been met for the entire rating period on appeal. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA has a duty to notify a veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. In order to meet the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must (1) inform the veteran about the information and evidence necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. VCAA notice should be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). In a claim for an increased rating, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In this case, a VCAA notice letter sent in December 2011 satisfied the provisions of 38 U.S.C.A. § 5103(a). In this letter, VA informed the Veteran about the information and evidence not of record that was necessary to substantiate the claim; the information and evidence that VA would seek to provide; the information and evidence the Veteran was expected to provide; and the information required by Vazquez-Flores. The Board finds that all necessary assistance has been provided to the Veteran. In January 2012, the RO provided the Veteran with VA psychiatric examination to assist in determining the extent of the Veteran's PTSD. As the examination report was written after an interview with the Veteran and review of the claims file, and contained specific findings indicating the nature of the Veteran's PTSD disability and symptomatology, the VA examination is adequate for VA purposes, and there is no duty to provide an additional examination or medical opinion for this claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, statements from the Veteran, and VA treatment records. Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained; hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Disability Rating Criteria Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The United States Court of Appeals for Veterans Claims has held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In a claim for an increased rating, unless specifically provided otherwise, the effective date of an award based on a claim for increase shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. 3.400 (2012). An effective date for a claim for increase may be granted prior to the date of claim if it is factually ascertainable that an increase in disability had occurred within one year from the date of claim. 38 U.S.C.A. § 5110(b)(2) (West 2002); 38 C.F.R. §§ 3.400(o)(1) and (2) (2012); see Harper v. Brown, 10 Vet. App. 125, 126 (1997); VAOPGCPREC 12-98. The Veteran is in receipt of a 50 percent disability rating for PTSD under Diagnostic Code 9411. A 50 percent rating is assigned 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; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130 (2012). A 70 percent disability rating is 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 that is 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. Id. A 100 percent disability rating is assigned 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; and memory loss for names of close relatives, or for the veteran's own occupation or name. Id. In applying the above criteria, the Board notes that, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability. See 38 C.F.R. § 3.102 (2012); Mittleider v. West, 11 Vet. App. 181 (1998) citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so). In determining the level of impairment under 38 C.F.R. § 4.130, a rating specialist is not restricted to the symptoms provided under the diagnostic code, and should consider all symptoms which affect occupational and social impairment, including those identified in the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed. 1994) (hereinafter DSM- IV). See Mauerhan v. Principi, 16 Vet. App. 436 (2002). If the evidence demonstrates that a claimant suffers symptoms or effects that cause an occupational or social impairment equivalent to those listed in that diagnostic code, the appropriate, equivalent rating is assigned. Id. Within the DSM-IV, Global Assessment Functioning (GAF) scale scores ranging from 1 to 100, reflect "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996). GAF scores from 71 to 80 reflect transient symptoms, if present, and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family arguments); resulting in no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind school work). GAF scores from 61 to 70 reflect some 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, with some meaningful interpersonal relationships. 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). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsession rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, inability to keep a job). GAF scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech which is at times illogical, obscure, or irrelevant) or major impairment in several areas such as work or school, family relations, judgment, thinking, or mood (e.g., a depressed patient who avoids friends, neglects family, and is unable to do work). DSM-IV at 46-47. In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board has reviewed all of the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran's claim. PTSD Increased Rating Analysis The Veteran contends that his PTSD and related symptoms include worsening memory, anger, higher alcohol dependence, suicidal thoughts, criminal behavior, and social isolation. The Veteran states that these symptoms interfere with his relationship with his family and his ability to work. See September 2011 psychiatric note from Clarksburg VAMC and the Veteran's statement dated October 28, 2011. After reviewing all the lay and medical evidence of record, the Board finds that the criteria for a higher evaluation of 70 percent, but no higher, have been more nearly approximated for the entire rating period on appeal. The Board finds that, for the entire rating period, the evidence shows symptoms and occupational and social impairments due to PTSD and related symptoms that more nearly approximates the criteria for a higher initial 70 percent evaluation under Diagnostic Code 9411. For the entire rating period, the Veteran's PTSD with depression and alcohol dependence has more nearly approximated occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, and mood, due to such symptoms as: suicidal ideation, impaired impulse control with violence, neglect of personal appearance and hygiene, and inability to establish and maintain effective relationships. The evidence in this case includes a January 2012 VA examination report, in which examiner assessed that the Veteran manifested symptoms of flattened affect; difficulty in understanding complex commands; impairment of short and long term memory; impaired judgment; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. The VA examiner assigned a GAF score of 50. The examiner assessed the Veteran with occupational and social impairment with reduced reliability and productivity due to his PTSD, consistent with a 50 percent evaluation. The January 2012 VA examiner noted that the Veteran demonstrates the presence of suicidal ideation; impaired impulse control; neglect of personal appearance and hygiene, and inability to establish and maintain effective relationships. Notwithstanding the overall characterization by the VA examiner that these symptoms are consistent with the 50 percent rating criteria, the Board as the adjudicator, reconciling all the evidence of record, finds that these symptoms and impairments are more consistent with serious impairment in occupational and social functioning consistent with a 70 percent evaluation. In addition to the symptoms listed in the chart for rating mental disorders, the evidence demonstrates alcohol dependence. Service connection was granted for alcohol dependence as secondary to PTSD by the RO in a July 2010 rating decision. In the January 2012 VA examination, the examining psychiatrist reported that the Veteran used alcohol to self-medicate hypervigilence, mood problems, and frustration. The Veteran had criminal charges relating to his alcohol abuse and reported that without drinking he was unable to leave the house because he felt too anxious around other people, becoming short of breath and having racing thoughts. The Veteran further contends that his fear of leaving the home interferes with his ability to work and attend VA appointments. See September 2011 psychiatric note from Clarksburg VAMC and the Veteran's statement dated October 28, 2011. In sum, the Board finds that the entire record of evidence, including the lay evidence report of symptoms and impairments by the Veteran, is at least in relative equipoise as to whether a higher initial 70 percent evaluation is warranted by the evidence. The Veteran exhibits symptoms described by both the 50 percent and 70 percent ratings for PTSD. The Board finds that the GAF score of 50, which reflects serious symptoms or any serious impairment in social, occupational or school functioning, is consistent with a higher 70 percent evaluation. See DSM-IV at 46. Moreover, the Veteran's symptoms of suicidal ideation, impaired impulse control, neglect of personal appearance and hygiene, and inability to establish and maintain effective relationships reflect occupational and social impairment with deficiencies in most areas, including work, family relations, judgment, and mood, are consistent with a 70 percent evaluation. For example, during the January 2012 VA examination, the Veteran reported that he has experienced an increase in anger, reported threatening to kill his girlfriend, has had increase domestic violence issues, criminal charges relating to his alcohol abuse, and he is rarely allowed to see his child. The Veteran reported drinking liquor in addition to beer. He had increased disagreements with his mother and is no longer involved in social activities. The Veteran has reported being unemployed for the last two years. The Board need not find all or even some of the symptoms in order to assign a particular rating. See Mauerhan, 16 Vet. App. 436. Here, the Veteran exhibits symptoms in both the 50 percent and 70 percent rating categories are demonstrated by the evidence. Resolving any reasonable doubt in favor of the Veteran, the Board finds that the criteria for a 70 percent evaluation for PTSD with alcohol dependence have been more nearly approximated for the entire increased rating period on appeal. 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. The Board finds that a 100 percent evaluation is not warranted for PTSD with secondary depression and alcohol dependence. The Veteran is entitled to a 100 percent rating if his service-connected PTSD causes total occupational and social impairment, regardless of whether he has some, all, or none of the symptoms listed in the rating formula, and regardless of whether his symptoms are listed in the Rating Schedule. See Mauerhan at 442-3; see also Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). While the January 2012 VA examiner reported that the Veteran's continued use of alcohol makes it difficult to determine the true extent of impairment and how that impairment impacts on physical and sedentary employment, the examiner indicated that the service-connected disability PTSD does not cause total occupational and social impairment. Moreover, the evidence shows that the Veteran does not exhibit the symptomatology described for a 100 percent rating (i.e., gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; disorientation to time or place; and memory loss for names of close relatives, or for the veteran's own occupation or name). The Board finds that the Veteran's current PTSD symptoms, though severe in degree, do not more nearly approximate the severity indicated for a 100 percent rating for PTSD for any period. The Board finds that the severity of the Veteran's PTSD and related symptomatology more closely approximates a 70 percent rating in this case. Additionally, the record does not provide sufficient evidence that the Veteran's PTSD increased within one year prior to the filing of his claim in October 2011; therefore, the Board finds that it is not ascertainable that an increase in disability occurred within one year from the date of his October 28, 2011 claim for increase. As such, the 70 percent rating is warranted beginning October 28, 2011. Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). Extraschedular Consideration The Board has considered whether an extraschedular evaluation would have been warranted for PTSD. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). 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 with secondary depression and alcohol dependence is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria, Diagnostic Code 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 suicidal ideation, impaired impulse control with violence, neglect of personal appearance and hygiene, and inability to establish and maintain effective relationships. These symptoms are either explicitly part of the schedular rating criteria or are "like or similar to" those symptoms and impairment explicitly listed in the schedular rating criteria. Mauerhan at 443. The levels of occupational and social impairment are also explicitly part of the schedular rating criteria. In addition, the GAF scores are incorporated as part of the schedular rating criteria as they tend to show the overall severity of symptomatology or overall degree of impairment in occupational and social functioning. 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 an acquired psychiatric disorder, 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 A 70 percent evaluation for the service-connected PTSD with secondary depression and alcohol dependence, for the entire rating period, is granted. REMAND In a February 2012 rating decision, the RO denied a TDIU. In the August 2012 VA Form 9 (Substantive Appeal to the Board), the Veteran indicated that he is unable to work due to his PTSD. While special wording is not required, a notice of disagreement (NOD) must be in terms that can be reasonably construed as disagreement with that determination and a desire for appellate review. 38 C.F.R. §§ 20.201 (2012); Gallegos v. Principi, 283 F.3d 1309, 1313-15 (Fed. Cir. 2002). The actual wording of the communication and the context in which it was written determines whether a written communication constitutes a valid NOD. Jarvis v. West, 12 Vet. App. 559, 561 (1999). The Board has construed the Veteran's August 2012 statement as a timely notice of disagreement with the RO's February 2012 decision, which denied entitlement to a TDIU. See 38 U.S.C.A. § 7105(b)(2) (West 2002); 38 C.F.R. § 20.201 (defining a notice of disagreement). Because the Veteran filed a NOD to the issue of TDIU, the Veteran is entitled to a statement of the case (SOC) addressing the issue of a TDIU. Manlincon v. West, 12 Vet. App. 238 (1999); Gibson v. Peake, 22 Vet. App. 11 (2007) . When a claimant has filed a NOD and there is no SOC on file for that issue, the Board must remand, not refer, the issue to the RO for issuance of a SOC. Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398 (1995); Archbold v. Brown, 9 Vet. App. 124 (1996). The Board acknowledges Rice v. Shinseki, 22 Vet. App. 447 (2009), in which the Court held that a claim for TDIU is part of an increased rating claim when such claim is raised by the record. Specifically, the Court determined that, when evidence of unemployability is submitted at the same time that a veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. In this case, unlike in Rice, the Veteran filed a formal claim for increased compensation based on unemployability on October 5, 2011, twenty-three days prior to his October 28, 2011 claim for an increased rating for PTSD. See VA Form 21-8940. Accordingly, the issue of TDIU is REMANDED for the following action: The AMC/RO should issue a Statement of the Case addressing the claim for a TDIU. The Veteran should also be advised that, for the Board to have jurisdiction in the matter, he must file a timely substantive appeal responding to the SOC. Should the Veteran submit a timely substantive appeal, the matter 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. 2012). ______________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs