Citation Nr: 1301044	
Decision Date: 01/10/13    Archive Date: 01/16/13

DOCKET NO.  03-02 168	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1.  Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD), prior to January 9, 2003.

2.  Entitlement to a total disability rating based on individual unemployability (TDIU) due to service connected disability, prior to January 9, 2003.


REPRESENTATION

Appellant represented by:	Barbara Burns Harris, Esq.


ATTORNEY FOR THE BOARD

M. Harrigan Smith, Counsel



INTRODUCTION

The appellant served on active duty from November 1976 to November 1996.

Clarification of the Issue on Appeal

The appellant filed her initial claim of entitlement to service connection for PTSD on April 10, 1998. A rating decision dated January 3, 2000, granted entitlement to service connection for PTSD, assigning a 30 percent disability rating, effective the date of claim.  The appellant maintains that she submitted a Notice of Disagreement (NOD) with the assigned 30 percent disability rating, though the claims file does not contain any record of a NOD.  On January 9, 2003, the appellant filed a claim for an increased disability rating for her service-connected PTSD and entitlement to TDIU.  A rating decision dated July 8, 2003, increased the appellant's disability rating for her service-connected PTSD, from 30 percent to 70 percent disabling, and granted entitlement to TDIU, both effective January 9, 2003.  The appellant filed a NOD with the effective date assigned to these issues and timely perfected her appeal in June 2005.

The appellant participated in an Informal Conference in October 2005 at the RO.  The Informal Conference Report has been associated with the appellant's claims file.

In August 2006, the Board of Veterans' Appeals (Board) remanded the aforementioned issues for additional evidentiary development.  In August 2007, following appropriate development, the Board denied the appellant's claims.  The appellant subsequently submitted a notice of appeal (NOA) to the United States Court of Appeals for Veterans Claims (the Court), indicating her disagreement with the denial of her claims.  The Court issued an October 2009 Order vacating the August 2007 Board decision and remanding the appeal for readjudication consistent with the parties' Joint Motion for Remand (JMR).

The JMR stated that the appellant's claim for an increased disability rating, following her grant of service connection for PTSD in January 2000, was pending at the time of the passage of the Veterans Claims Assistance Act of 2000 (VCAA), and that it should be readjudicated under the provisions of the VCAA.  Review of the evidence of record revealed that the appellant had submitted a copy of the first page of a notice letter issued to her by the RO on September 14, 2000, noting her claim for VA service-connected disability compensation benefits for PTSD.  The letter further informed the appellant of the well-grounded standard of establishing a claim.  The Court found that the appellant's claim for an increased disability rating was pending since the assignment of the 30 percent disability rating in January 2000.  Additionally, because the criteria for providing notice, developing evidence and deciding benefits claims were fundamentally altered by the passage of the VCAA, readjudication of the appellant's claims was warranted.

Based on the October 2009 JMR, the appellant's claim of entitlement to an increased disability rating for PTSD was considered pending from the January 2000 assignment of the initial 30 percent disability rating.  In March 2010, the Board denied the appellant's claims of entitlement to disability ratings for PTSD in excess of 30 percent prior to January 9, 2003, and in excess of 70 percent from January 9, 2003.  The Board also found that the criteria for an effective date prior to January 9, 2003, for the award of a TDIU rating had not been met.

The appellant subsequently submitted a NOA to the Court, indicating her disagreement with the denial of her claim of entitlement to a disability rating in excess of 30 percent for PTSD, prior to January 9, 2003.  The Court issued an October 2010 Order vacating, in part, the March 2010 Board decision and remanded the appeal for readjudication consistent with the parties' JMR.

The JMR also noted that the Board should consider whether documentation of the appellant's VA in-patient treatment at the Women's Trauma Recovery Program, from August 25, 2003, to November 7, 2003, reasonably raised a claim of entitlement to a temporary total evaluation under 38 C.F.R. § 4.29.  As this issue has not yet been adjudicated by the RO, it is REFERRED back for appropriate action.  The appellant submitted additional medical evidence to the Board in January 2011, consisting of a private medical opinion.  In correspondence attached thereto, the appellant's representative specifically waived RO review of this newly submitted evidence.  See 38 C.F.R. § 20.1304 (2012).

In May 2011, the Board denied a disability rating in excess of 30 percent for the Veteran's service-connected PTSD, for the time period prior to January 9, 2003.  The Veteran appealed this decision and the Court issued a March 2012 Order vacating the May 2011 Board decision and remanded the appeal for readjudication consistent with the parties' February 2012 JMR.

The Board notes that the Veteran has been granted TDIU as of January 9, 2003.  In its March 2010 decision, the Board denied an earlier effective date for TDIU.  In the October 2010 JMR, the Court noted that the parties asked not to disturb the Board's decision with regard to the denial of an earlier effective date for TDIU.  However, in the October 2012 statement, the Veteran's representative contended that a TDIU should be considered with the Veteran's claim for a higher disability rating for PTSD, from April 10, 1998.  In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a total rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record.  As the issue of a TDIU rating has been raised as part of the Veteran's claim for an increased initial disability rating for her PTSD, for the period from April 10, 1998 to January 9, 2003, it is currently before the Board.

The issue of entitlement to a TDIU due to service connected disability, prior to January 9, 2003, 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.  Prior to January 9, 2003, the appellant's PTSD was productive of moderate social and occupational impairment, with reduced reliability and productivity, depressed mood, anxiety, chronic sleep impairment, nightmares, and difficulty in establishing and maintaining relationships.

2.  The competent medical evidence does not show that prior to January 9, 2003, the appellant's service-connected PTSD was so exceptional or unusual that referral for extraschedular consideration by designated authority was required.


CONCLUSIONS OF LAW

1.  The criteria for an initial disability rating of 50 percent for PTSD, prior to January 9, 2003, have been met.  38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.125, 4.126, and 4.130, Diagnostic Code 9411 (2012).

2.  Application of the extraschedular rating provisions prior to January 9, 2003, is not warranted in this case.  38 C.F.R. § 3.321(b) (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  The Veterans Claims Assistance Act of 2000 (VCAA)

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. 2012) 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) (2012). 

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). 

In this case, the Veteran's representative stated in a January 2011 statement that the Veteran is entitled to a disability rating of at least 50 percent for the time period on appeal; however, in a more recent statement to the Board, in October 2012 the Veteran's representative noted that her PTSD warranted a 50 percent rating.  The Board is granting the precise relief requested by the Veteran, i.e., an increased 50 percent rating for PTSD.  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).

II.  Evaluation of initial disability rating 

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

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 evaluation will be assigned.  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.

In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition.  The Board has a duty to acknowledge and consider all regulations that are potentially applicable.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required.  38 C.F.R. §§ 4.1, 4.2, 4.10.

Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability 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).

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a).

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"); Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table).

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).

In January 2000, a rating decision granted the appellant's claim of entitlement to service connection for PTSD and assigned a 30 percent disability rating, effective April 10, 1998.  In July 2003, a rating decision increased the appellant's disability rating from 30 percent to 70 percent disabling, effective January 9, 2003.  As discussed above, the only issue presently before the Board is the time period prior to January 9, 2003.  Accordingly, the Board will address whether a disability rating in excess of 30 percent should have been granted for this time period. 

PTSD is rated under Diagnostic Code 9411, which provides ratings under the General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130.  The following ratings are provided for psychiatric disabilities:  

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, mild memory loss (such as forgetting names, directions, recent events), a 30 percent rating.  38 C.F.R. § 4.130, Diagnostic Code 9411.

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 50 percent rating.  Id.

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); inability to establish and maintain effective relationships, a 70 percent rating.  Id.

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, a 100 percent rating.  Id.

The level of occupational and social impairment due to a psychiatric disorder is the primary consideration in determining the severity of a psychiatric disorder for VA purposes, and not all the symptoms listed in the rating criteria must be present in order for a rating to be warranted.  See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002) (finding that symptoms contained in rating schedule criteria 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.").

Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), p. 32.

Scores ranging from 51 to 60 reflect more 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).

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). 

Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech 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., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school).

The Board has thoroughly reviewed all the evidence in the appellant's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on her behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant).

Background

As explained above, based on the passage of the VCAA, the Board will consider all of the evidence of record prior to the assignment of the 70 percent disability rating on January 9, 2003.  The evidence associated with the claims file prior to the January 9, 2003 assignment of the 70 percent disability rating consisted of VA outpatient treatment records, a VA examination and lay statements.  VA must consider all the evidence of record to determine when an ascertainable increase occurred in the rated disability.  See Hazan v. Gober, 10 Vet. App. 511 (1997); see also Swanson v. West, 12 Vet. App. 442 (1999).

The Veteran has contended that her service-connected PTSD warrants a higher disability rating for the period from April 10, 1998 through January 8, 2003.  

The Veteran was provided with a VA gynecological examination in October 1998.  The Veteran became distressed when discovering that the examination would be conducted by a male doctor.  She broke down and cried and could not continue with the examination.  The examiner concluded that the Veteran had been through trauma and felt a great deal of internal anger at the way her problems had been handled by the military.

A February 1999 VA examination report shows that the Veteran stated that she was working for herself, producing gift baskets, and that her business was doing well.  She had worked for the State of Nevada but left because the hierarchy reminded her of the military and made it impossible for her to work for them.  She indicated that, over the previous year, her mood swings had worsened.  While she was able to maintain an excellent work performance, she felt that her "self" was a wreck.  She had made a few good friends since leaving the military, but had avoided military men, and had little in common with civilian men.  She reported that she often felt as though she did not fit in.  She indicated that she had low mood, with problems sleeping and frequent awakenings and little energy or motivation.  She had suicidal ideation, but had no plan.  She indicated that she was afraid of relationships and having children due, in part, to mood swings.  

The Veteran reported several in-service stressors, and recurrent and intrusive recollections and distressing dreams of the events.  She was intensely reactive to symbols of the military and had a difficult time even reporting to the VA for her examination.  She was extremely tearful during her interview and the examiner noted that she had been this same way at another examination, as well.  She avoided thoughts, feelings, and conversations connected with the military.  She reported the inability to love other adults, especially men who had broken up with her because she would not say that she loved them.  She did not expect to get married and have children.  She had persistent symptoms of increased arousal, manifested by difficulty sleeping, irritability, and anger.  She reported always being fearful, and needing to be near a door at all times.  She had no delusions or hallucinations and could not recall inappropriate behaviors.  She was homicidal or suicidal, though she had those thoughts.  She was able to maintain personal hygiene, and was oriented to person, place and time.  She denied memory loss or obsessive or ritualistic behavior.  Her rate and low of speech were within normal limits.  She reported feeling much stress and panic upon coming to the VA or encountering other military symbols.  She felt depressed, although her anxiety was mainly around military symbols.  She was not impulsive.  She woke frequently throughout the night, and was fatigued during the day.  The examiner diagnosed PTSD and assigned a GAF of 55.  

In June 1999, the Veteran reported the incidents in service and was tearful during most of the interview.  She reported decreased sleep, memory, and concentration.  In June 1999, the Veteran reported intrusive thoughts of trauma on active duty, with nightmares.  She indicated that she was angry with herself that she felt she was worsening in her condition, and had suicidal ideation with no plan.  She felt hopeless about relationships and helpless about her future.  She indicated that she was looking for work.  She reported that she had a small business making gift baskets.  The examiner diagnosed PTSD, related to childhood and the military, and provided a GAF of 35.  She was provided with antidepressant medication and was to return to the clinic in one month.  In July 1999, the Veteran was doing well on Prozac, and that she would be starting a business as soon as she could get some resources together.  She was assigned a GAF of 55.

In February 2000, the Veteran reported that she was afraid for her life, because the man that she had testified against while on active duty was going to be released from prison.  This man had threatened to kill her when he was released from prison.  She had not been sleeping well, and was depressed and anxious, reporting nightmares and intrusive thoughts of the man finding her and harming her.  The primary diagnosis was PTSD, with no secondary diagnosis.  The examiner assigned a GAF score of 35.  

In April 2000, the Veteran indicated that she was doing well on Prozac, and that she enjoyed her women's group and was learning to relate to other women.  She was diagnosed with PTSD with no secondary diagnosis.

In November 2001, the Veteran reported that she had a history of child abuse from her father, her mother was dying of breast cancer, she had a lumpectomy from her breast with another lump being monitored, and had just undergone a total abdominal hysterectomy and bilateral salpingo-oophorectomy (TAH-BSO) in September 2001.  The examiner noted multiple life stressors occurring simultaneously.  The Veteran reported low mood, sleep problems, poor concentration, hopelessness and helplessness.  During the treatment, she was easily tearful and her mood was dysthymic.  She denied suicidal or homicidal thoughts or intent, hallucinations, delusions, obsessions, or compulsions.  She was diagnosed with recurrent, moderate major depressive disorder and PTSD.  The examiner noted that she had a GAF of 50.  In December 2001, the Veteran noted that she had been feeling down since she moved to St. Louis in 2000, to care for her dying mother.  She had been having more nightmares during this time relating to her sexual trauma, and feelings of alienation in her family.  She reported being uncomfortable around men, the VA and her family.  She had difficulty concentrating, and had vague thoughts of suicide, such as thoughts about having a car crash or "something like that."  She also mentioned that she did not believe in suicide, and knew that she had the responsibility of caring for her mother.  The Veteran reported that she had little problem making friends; however, the examiner noted that she had no friends in St. Louis.  The examiner noted that the Veteran presented with significant symptoms of anxiety and depression, following a history of sexual assault, and that she was also coping with caring for her mother with terminal cancer.  The Veteran admitted to binge drinking to deal with her issues.  The examiner diagnosed moderate, recurrent major depressive disorder, PTSD and alcohol abuse.  In March 2002, the Veteran reported that her mother had passed away a week and a half prior to the appointment.  She reported feeling sad and missing her mother.  She was easily tearful during the treatment, and her mood was dysthymic.  In October 2002, the Veteran indicated that she was still dealing with sadness about the death of her mother, but was taking computer coursed four nights per week and indicated that the structure was helping her.

A March 2003 VA examination reflected a history provided by the Veteran since her last examination.  She reported that she had been advised not to move to Missouri in 2000 due to her increased risk of PTSD symptoms, and her needing more intensive treatment, but that she had moved regardless, as her mother had been ill and needed care.  After her mother died, her PTSD worsened.  She indicated that she had no suicide attempts since her last examination, but that she had periodic suicidal ideation, variable sleep, with frequent periods of initial and terminal insomnia, despite taking medication for sleep.  She reported that her last employment was in early 2000, and that it lasted only a few months.  All other employment was of short duration, except one year when she worked for the state of Nevada in the records department.  She indicated that she could not work for men anymore, and that she had trouble being around people.  

A February 2011 opinion from a private examiner, Dr. Trina M. Powell, Psy.D., shows that the Veteran reported that during her military experience, she witnessed and was a victim of repeated traumatic events, including sexual assault and stalking, and that following the military, she exhibited repeated instances of irritability, sleep disturbances, depression, anxiety, panic attacks, episodes of excessive crying, paranoia and mistrust of men, with suicidal ideation.  She reported that, during encounters with men, she often responded by having meltdowns including excessive crying and feeling as though she was having a heart attack.  She indicated that her fear of men affected her employment, since when a coworker showed an interest in her or when she would get a bad customer, it would reinitiate her feelings and she would often prematurely leave the job.  She stated that often she would withdraw from everyone and drink a half pint of vodka a day by herself.  She reported that from her retirement until the time she moved to take care of her mother in 2000, she was able to maintain gainful employment.  The examiner found that it was highly likely that the Veteran had recurrent severe to major difficulties and/or symptomatology and levels of functioning as they related to PTSD from 1998 through her relocation to care for her mother in 2000 and for years following this move.  

This examiner also provided an opinion in October 2012.  After an extensive review of the Veteran's medical records and history, including her childhood trauma, the examiner opined that the Veteran would have had serious difficulty socially and/or occupationally without the added stress of the death of her family members (her mother died in March 2002, her grandfather died in September 2002 and her aunt died in November 2002) or the childhood molestations.  The examiner noted that sexual trauma can cause PTSD in and of itself, and that she was not only raped, but there were attempted rapes and sexual harassment and stalking in the military.  Her negative military experiences could solely have triggered the PTSD symptoms and provided the foundation for the low GAF scores.  

In addition, the examiner was asked whether there were other extenuating factors during the period from 1998 through 2002 and, if so, what the percentage each had on the Veteran in relation to her sociological and/or occupational impairments.  The examiner noted that it would be very difficult to provide a percentage for the stress due to her family member's death.  She found that although the deaths were a significant factor for her, she could not apply a percentage when she was in a severe state of stress prior to their deaths due to the sexual abuse and the stalking.  The examiner opined that the trauma experienced while in service escalated her childhood trauma creating her hopeless and helpless stance.  She opined that, given the evidence of PTSD beginning in childhood and worsening during the military, the any percentage due to the deaths would be insignificant.  

The examiner opined that the symptomatology of PTSD and the sociological and/or occupational impairments of not being able to sustain gainful employment prior to 2003 were interrelated.  The examiner noted that the Veteran's symptoms included fearfulness, helplessness, hopelessness, having intrusive thoughts, feeling distressed, extreme tearfulness and anxiety, recurrent suicidal ideations, depression, recurrent distressing dreams, chronic sleep impairment, anxiety, inability to maintain a job more than a few weeks or months, repeated crying "meltdowns" when confronted with interacting with men, which were actually panic attacks, self-medicating with alcohol, and her continuous need to totally withdraw from interacting with others.

Analysis

In the February 2012 JMR, the Court found that the Board had not clearly discussed whether staged ratings were appropriate for the Veteran's PTSD.  In addition, the JMR noted that, in its May 2011 decision, the Board made conclusions regarding whether certain symptoms were related to her service-connected PTSD or to other events in her life; however, the Court noted that there was no medical evidence of record to support these conclusions.  The Court found that, as the Board had not provided medical evidence for these findings, they were made in violation of the holding in Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). 

The Board notes here that, subsequent to the February 2012 JMR, the Veteran submitted an additional opinion from a private provider who had reviewed the Veteran's history and provided the opinion that the Veteran's PTSD as a result of her in-service stressors, on its own, would have caused her symptoms and low GAF scores for the time period from 1998-2002.  Therefore, giving the Veteran the benefit of the doubt, the Board will consider the overall disability picture and symptoms in determining the appropriate rating.  See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (holding that the Board is precluded from differentiating between symptomatology attributed to a non-service-connected disorder and a service-connected disability in the absence of medical evidence that does so, although the Board may not ignore such distinctions where they appear in the medical record).

Overall, the Board finds that the Veteran's service-connected PTSD warrants a 50 percent disability rating under Diagnostic Code 9411 for the period from April 10, 1998 through January 8, 2003.  During this time, the evidence reflects that the Veteran's PTSD resulted in social and occupational impairment with reduced reliability and productivity due to her PTSD symptoms.  The Veteran indicated that she could not relate to men, felt hopeless about relationships and could not love another adult.  These issues caused her to leave jobs prematurely and resulted in sporadic employment.  However, while she had occupational impairment, she also reported that she had started her own business, and was taking computer classes.  

The Board notes that the Veteran was assigned varying GAF scores during the time period from August 10, 1998 through January 8, 2003, including two GAF scores of 35-reflecting major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood.  However, the Board finds that these scores were assigned for relatively brief periods of time over the appeals period, and are not reflective of the Veteran's overall disability picture during this time.  Specifically, the Veteran was assigned a GAF score of 55 in February 1999, reflecting more moderate symptoms or difficulty in social, occupational, or school functioning.  In June 1999, when the Veteran was assigned a GAF of 35, she was provided with antidepressant medication.  The next month she reported that she was doing well on the medication, and was again assigned a GAF of 55.  The Veteran was then assigned a GAF of 35 in February 2000, during a particularly stressful period when a man she had testified against, who had made threats towards her, was potentially being released from prison.  However, shortly afterward, in April 2000, the Veteran reported that she was doing well on her medication, and enjoying a women's group.  In November 2001, she was assigned a GAF score of 50-reflecting serious symptoms or impairment in social, occupational or school functioning.  Thus, the Board finds that the Veteran's GAF scores reflect a disability picture which approximates the criteria for a 50 percent disability rating for the period from August 10, 1998 through January 8, 2003.

While the rating criteria include lists of specific symptoms for each rating, these are to be used as a guide, and are not a dispositive list.  However, it is significant to note that the Veteran had several of the symptoms listed in the criteria for a 50 percent disability rating, including memory problems, disturbances of motivation and mood, and difficulty establishing and maintaining effective work and social relationships.  She has also endorsed some symptoms included in the 30 percent disability rating criteria, including recurrent distressing dreams causing chronic sleep impairment, depression, and panic attacks in certain situations with men; however, the Board finds that her overall disability picture is more severe than that represented in the criteria for a 30 percent disability rating. 

The Board notes here that the Veteran did report intermittent recurrent suicidal ideation during this time frame, which is a symptom listed in the criteria for a 70 percent disability rating.  However, the Board finds that, overall, the Veteran does not warrant a 70 percent disability rating for the time period from August 10, 1998 to January 8, 2003.  While the Veteran had occupational and social impairment, the Board finds that her symptoms did not rise to the level of disability contemplated by the criteria in the 70 percent disability rating.  Significantly, the Veteran did not exhibit obsessional rituals which interfered with routine activities, speech that was intermittently illogical, obscure, or irrelevant, impaired impulse control, such as unprovoked irritability with periods of violence, spatial disorientation or neglect of personal appearance and hygiene.  While she suffered from depression, she was able to function independently, appropriately and effectively, starting a business, attending school and even caring for her mother while she was ill, as difficult as that must have been.  She had difficulty in relationships with men; however, the Veteran admitted that she had made a few good friends since leaving the military and that she was enjoying her women's group and becoming more comfortable around women, which does not reflect an inability to establish and maintain effective relationships.  

Therefore, the Board finds that the Veteran's disability picture more closely approximates the criteria for a 50 percent disability rating, but no higher, for the time period from August 10, 1998 to January 8, 2003.  

III.  Extraschedular Consideration

Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.321(b)(1) (2009), Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

Under Thun v. Peake, 22 Vet. App. 111, 115 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

Neither the appellant nor her representative expressly raised the matter of entitlement to an extraschedular rating.  The appellant's contentions have been limited to those discussed above, i.e., that her disability is more severe than is reflected by the currently assigned rating.  See Brannon v. West, 12 Vet. App. 32 (1998) [while the Board must interpret a claimant's submissions broadly, the Board is not required to conjure up issues that were not raised by the claimant]. Moreover, the appellant and her representative have not identified any factors which may be considered to be exceptional or unusual with respect to the service-connected PTSD and the Board has been similarly unsuccessful.

The record does not show that the appellant has required frequent hospitalizations for her service-connected disability. There is no unusual clinical picture presented, nor is there any other factor which takes the disability outside the usual rating criteria.

In short, the evidence does not support the proposition that the appellant's PTSD presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2012).


ORDER

A disability rating of 50 percent is granted for PTSD, for the period from August 9, 1998 through January 9, 2003, subject to the regulations governing the payment of VA monetary benefits.


REMAND

With regard to a TDIU prior to January 9, 2003, the Board notes that the Veteran had a claim for an earlier effective date for her TDIU rating, which was denied by the Board in an earlier decision.  However, in an October 2012 statement, the Veteran's representative contended that a TDIU should be considered with the Veteran's claim for a higher disability rating for PTSD, from April 10, 1998.   In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a total rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record.  As the issue of a TDIU rating has been raised as part of the Veteran's claim for an increased initial disability rating for her PTSD, and new evidence has been presented which links more of her symptoms to her PTSD as previously found, the issue is currently before the Board, for the period from April 10, 1998 through January 8, 2003.

In this regard, VA's Office of General Counsel has stated that when the issue of entitlement to a TDIU for a particular service-connected disability or disabilities is raised in connection with a claim for an increased rating for such disability or disabilities, the Board would have jurisdiction to consider the TDIU issue.  If the Board determines that further action by the RO is necessary with respect to TDIU, the Board should remand rather than refer the TDIU issue for further development.  See VAOPGCPREC 6-96 at para. 12, 13 (August 16, 1996); Cf. Godfrey v. Brown, 7 Vet. App. 398, 409 (1995).  

In the present case, the Veteran has claimed that she could not work, prior to January 9, 2003, due to her service-connected PTSD.  In addition, an opinion provided by a private provider in October 2012 appears to confirm her contentions of unemployability.  However, some of the evidence of record reflects that the Veteran had been working, albeit sporadically, during this time.  Therefore, additional information and development is needed to determine whether a TDIU is warranted for the period from April 10, 1998 through January 8, 2003.  

As an initial matter, on remand, the AOJ should send a notice letter to the Veteran for her TDIU claim, as it appears that this has not been done.  This letter should notify the Veteran and her representative of any information or lay or medical evidence not previously provided that is necessary to substantiate the TDIU claim. The notice should also indicate what information or evidence should be provided by the Veteran and what information or evidence VA will attempt to obtain on the Veteran's behalf.

In addition, the AOJ should provide a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to the Veteran.  See M21-1MR, IV.ii.2.F.25.i.  

The Board notes that, with the grant of a 50 percent disability rating herein, the Veteran would be entitled to a TDIU rating under 38 C.F.R. § 4.16a (2012).  On remand, the RO should determine whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities and adjudicate his claim under 38 C.F.R. § 4.16a.

Accordingly, the case is REMANDED for the following action:

1.  The AOJ must review the entire file and ensure that all notice obligations have been satisfied in accordance with 38 U.S.C.A. § 5103(a) and 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012) and 38 C.F.R. § 3.159 (2012).  In particular, VA must send the appellant notice that explains the information or lay or medical evidence not previously provided that is necessary to substantiate the TDIU claim on appeal.  The claims file must include documentation that the AOJ has complied with VA's duties to notify and assist a claimant.

2.  The AOJ should send the Veteran a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, for him to complete, with instructions to return the form to the AOJ.  See M21-1MR, IV.ii.2.F.25.i.

3.  After completion of the above, the AOJ should adjudicate the appellant's claim for a TDIU rating pursuant to 38 C.F.R. § 4.16a.

4.  If any determination remains unfavorable to the Veteran, the Veteran and her representative should be provided with a supplemental statement of the case. The appellant should be afforded an opportunity to respond before the case is returned to the Board for further review.

The appellant 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).

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. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs