Citation Nr: 1301272 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 06-24 383 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an evaluation in excess of 50 percent for post traumatic stress disorder, from the initial grant of service connection. 2. Entitlement to a total rating for compensation purposes based on individual unemployability (TDIU). ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from September 1966 to September 1968. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a December 2004 decision by the RO which granted service connection for PTSD and assigned a 50 percent evaluation; effective from May 23, 2003, the date of receipt of claim. 38 C.F.R. § 3.400(b)(2). A statement of the case was promulgated in July 2006, and a substantive appeal was received in July 2006. In May 2008, the Board denied an increased rating for PTSD, and the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2010 Memorandum Decision, the Court vacated the May 2008 Board decision and remanded the appeal to the Board for further action. During the pendency of the appeal for an increased rating, the Veteran perfected an appeal to an October 2007 RO decision that denied entitlement to TDIU. The issues were merged, and the Board remanded both issues for additional development in September 2010 and March 2012. FINDINGS OF FACT 1. Since service connection was established, the Veteran's psychiatric symptoms are not shown by any credible or competent evidence to be productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 2. The Veteran's only service-connected disability, PTSD, is rated 50 percent disabling. 3. The Veteran completed one year of college and was a shift supervisor for a major textile company when he retired in 1996, after 28 years of employment. 4. The Veteran's service-connected disability is not shown to preclude him from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 50 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.126, 4.130, Part 4, including Diagnostic Code 9411 (2012). 2. The criteria for TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 3.340, 3.341, 4.3, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before addressing the merits of the Veteran's claim, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). In this case, the Veteran is challenging the initial rating assigned following the grant of service connection. In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Thus, 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. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). That notwithstanding, the Veteran was nevertheless apprised of the rating criteria for PTSD in the statement of the case promulgated in November 2008. The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Veteran's service treatment records (STRs) and all VA and available private medical records have been obtained and associated with the claims file. The Veteran was examined by VA at least four times during the pendency of this appeal and was offered an opportunity for a personal hearing, but declined. The Board finds that the most recent VA examination in March 2012 was comprehensive and adequate upon which to base a decision concerning the claim for increase, and there is no competent or credible evidence indicating that there has been a material change in the severity of the Veteran's PTSD since the VA examination. The examiner personally interviewed and examined the Veteran, elicited a medical and occupational history, and provided a rational explanation for his conclusions. Further, the Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the issues on appeal, and has not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. See Shinseki v. Sanders, 129 S.Ct.1696 (2009). Based on a review of the claims file, the Board concludes that there is no indication in the record that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. Increased Ratings - In General In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are also appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. The Veteran's PTSD is currently assigned a 50 percent disability evaluation pursuant to 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. Under DC 9411, a 50 percent evaluation is for assignment when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereo-typed 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 disability evaluation is contemplated 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 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent evaluation is warranted when there is evidence of total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The use of the term "such as" in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as" followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. Id. PTSD Historically, service connection was established for PTSD by the RO in December 2004, and was assigned a 50 percent rating, effective from May 23, 2003, the date of receipt of the Veteran's claim. 38 C.F.R. § 3.400(b)(2). The Veteran disagreed with the rating assigned giving rise to the current appeal. The pertinent evidence of record includes a December 2003 private psychiatric report with related treatment notes from January 2004 to May 2009, and four VA/QTC psychiatric examination reports conducted in November 2004 and May 2005 (QTC), and November 2010 and March 2012 (VA). The Veteran's complaints, included impaired sleep, intrusive thoughts, hypervigilance, startled response, irritability, depression and memory disturbance. The Veteran reported that he stopped working in 1996, due to hypertension and said that his doctor told him that it was due to stress.. The mental status findings on all four VA examinations showed that he was alert, cooperative and well oriented. His affect was appropriate, there was no obsessive or compulsive behavior and his memory, insight and judgment were adequate. There was no impairment of thought processes or communications, and no hallucinations, delusions or ideas of reference. The Veteran denied panic attacks, violent episodes, suicidal or homicidal ideations or any hospitalizations for PTSD. The Global Assessment of Functioning (GAF) scores on the examinations included 50 in November 2004, 65 in May 2005, and 50 in November 2010 and March 2012. The examiners in November 2004 and 2010 indicated that while the Veteran's symptoms were disabling, they did not preclude substantially gainful employment. The examiners in May 2005 and March 2012 did not specifically comment on the Veteran's employability. The VA examiner in March 2012, indicated that there was occupational and social impairment with reduced reliability and productivity. The reported symptoms and findings on the December 2003 private examination and associated treatment notes were not materially different from the VA/QTC examinations, and showed that the Veteran was cooperative, his cognition was grossly intact and his thought process was linear. Although the private psychiatrist described the Veteran's report of seeing "shadows or movements or figures" as "occasional illusions or hallucinations," on mental status examination, he reported that there were no hallucinations or delusions. In December 2003, the examiner assigned a GAF score of 35, and reported that the Veteran was severely compromised in his ability to sustain social and work relationships, and was permanently and totally disabled and unemployable. The GAF scores on the subsequent treatment notes included, 35 in April 2005, 40, 40 and 45 in June, August and December 2005, respectively, and ranged from 50 to 55 from June 2006 to May 2009. In March 2012, the Board remanded the appeal for a VA examination to determine the extent and severity of the Veteran's PTSD. When examined by VA that same month, the examiner indicated that the claims file was reviewed and included a description of the Veteran's complaints and medical and social history. The Veteran reported that he has been married for 42 years, and that they have a good, close relationship and enjoy traveling, going to the beach occasionally, and that they socialize with friends three to four times a week. The Veteran also reported that he has a good relationship with his only child (daughter). The Veteran described his typical day, which involved gardening, reading the paper, watching sports and tinkering with his tractor/lawnmower. He said that he prefers to be outside and to be active as much as possible. The Veteran reported that he was a shift supervisor when he retired in 1996, after 28 years with the company, and that he got along well with co-workers and was meeting his productivity goals. He said that he was liked by his supervisors and others, and that they didn't want him to retire, but that he was having problems with his blood pressure and was advised by his doctor advised to reduce his stress level, so he decided to retire. The Veteran reported that he sees his private psychiatrist about every six months. The Veteran's reported mental status findings included, depressed mood, chronic sleep impairment, mild memory loss, disturbance of motivation and mood, and difficulty adapting to stressful circumstances. The examiner also noted that the Veteran was administered the SIMS test, which is a screening measure to detect symptom exaggeration and endorsement of atypical symptom patterns across a variety of settings. The examiner explained that a total score above 14 indicated an attempt to intentionally portray oneself in a negative light. The Veteran's score was 31, which was well above the recommended cut-off score, meaning that he endorsed a high frequency of symptoms that are highly atypical and inconsistent in patients with genuine psychiatric disorders. Due to his elevated SIMS score, the examiner indicated that other self-reported measures should be interpreted with caution. In discussing the other medical reports of record, the examiner noted that the GAF scores assigned (by the private psychiatrist) from 2003 to 2005 were much lower than the score of 50 rendered on the VA examination in November 2010. The examiner indicated that as he was not present at the time the scores were rendered and, therefore, could not comment with any high degree of certainty about the accuracy of those estimates. However, he pointed out that a score in the 31-40 range typically suggests impairment in reality testing or communication and major impairment in several areas of functioning, and that the reported mental status findings on the December 2003 private report did not indicate any problems with reality testing or communication, which would support the low GAF score (35). He also noted that while the private examiner described the Veteran as "severely compromised" in his ability to sustain social and work relationships, he did not provide any specific examples to support his conclusion. Thus, the VA examiner opined that the report failed to provide adequate evidence to support the low GAF score. The examiner also noted that the more recent estimates of the Veteran's GAF on the private reports were in the 50-55 range, which was consistent with the scores rendered on the VA examinations. At this point, the Board notes that while the Veteran is competent to provide evidence regarding his personal experiences and symptoms, any such assertions must be weighed against other contradictory or inconsistent evidence of record. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Maxon v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom Maxon v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000). Credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995). The Board emphasizes that personal interest to receive benefits may affect the credibility of the evidence. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). In this regard, the Board notes a number of inconsistencies in the Veteran's self-reported symptoms that raise serious reservations as to his ability to provide accurate and reliable information and reflects negatively on his credibility. For example, when examined by VA in May 2006, the Veteran described his relationship with his former co-workers and supervisors as "fair" and that he had personality conflicts with people at work. However, when examined by VA in March 2012, he reported that he got along well and was liked by everyone at work, and that they did not want him to retire. Similarly, when examined by VA in November 2010, the Veteran reported that he did not have any friends outside of family. The private examiner in December 2003 reported that the Veteran's desire to spend his time at home alone and not to socialize was evidence of a "severely compromised" ability to sustain social and work relationships. However, on VA examination in November 2004, the Veteran reported that he does some part-time work for other people, that he has friends, goes fishing and to church, and enjoys recreational or leisure pursuits. In March 2012, the Veteran reported that he and his wife enjoy traveling, going to the beach, and that they socialize with friends three to four times a week. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). An essential element of the VA rating system requires the claimant's cooperation, particularly when an examination is necessary to determine the current severity of the disability at issue. In this case, the competent, credible evidence of record shows that the Veteran had not been fully cooperative and has provided inconsistent and contradictory information concerning the extent and severity of his psychiatric symptomatology. The Board does not question that the Veteran's PTSD has some negative impact on his life, however, his exaggeration of symptoms only serves to undermine his credibility and further obfuscates the Board's ability to determine the actual degree of impairment associated with his PTSD. The Board has considered the letter from the Veteran's wife, received in November 2010, wherein she described her observations of the Veteran's activities and response to various situations. However, her description of the Veteran's nightmares and reactions to stressful situations does not shed any additional light on the severity of his symptomatology. That is, the Veteran has repeated stated that he does not recall the content of his dreams. Therefore, while she finds his thrashing about and mumbling in his sleep distressing, it does not appear to have any significant impact on the Veteran. The fact that the Veteran avoids watching war movies or sad events, gets tearful when talking with other Veterans and is easily agitated and frustrated, are symptoms contemplated by the 50 percent evaluation currently assigned. Accordingly, the Board finds that the wife's letter is of limited probative value. As discussed above, the Veteran's complaints and the clinical findings during the pendency of this appeal have consistently shown that he was well oriented, his thought processes were goal directed, and there was no evidence of any impaired judgment, abstract thinking or psychosis. The Veteran had no difficulty with his supervisors or the workers he supervised when he was employed, and has a good and close relationship with his wife and daughter. He enjoys traveling, working around the house, and interacts with his friends on a regular basis. The Veteran is not a threat to himself or to others, nor is there any evidence to suggest that his PTSD has any material effect on his employability. On the contrary, the VA examiners who have commented on his employability opined that he was not precluded from working due to his PTSD. Although the Veteran reported occasional nightmares, he has repeatedly indicated that he cannot recall the content and is not emotionally disturbed or awakened by his dreams. He also reports some mild memory impairment, intrusive thoughts, flashbacks a couple of times a month and occasional startled response. However, there were no reported symptoms of impaired impulse control, disorientation, suicidal ideation, obsessional rituals, near-continuous panic, impaired intellectual functioning or impaired judgment, and no impairment of thought processes or psychosis. While the Board has considered the degree of functioning as evidenced by the reported scale scores, they are but one factor for consideration in assigning a rating in this case. In this regard, the Board finds the March 2012 VA examiner's explanation for discounting the low private GAF scores was rational and, given the Veteran's attempt to intentionally portray himself in a negative light on the psychological test, further diminishes the probative value of the private examiner's conclusions. See Nieves-Rodriguez, 22 Vet. App. 295, 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). As outlined above, the Board finds that when all of the evidence and findings contained therein are considered, including the degree of functioning as evidenced by the reported scales, the Board concludes that the Veteran has not been shown to have met the criteria for an evaluation in excess of 50 percent for PTSD. The material question at issue is whether the Veteran has sufficient occupational and social impairment to disrupt his performance of occupational tasks to the extent set forth in the rating criteria described above for a higher evaluation of 50 percent or greater. 38 C.F.R. § 4.130 (2012). Here, the evidence of record does not show that the Veteran's symptomatology is reflective of the severity and persistence to warrant an evaluation in excess of 50 percent at anytime during the pendency of this appeal. The Board has considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321(b)(1). However, there is no objective evidence that any manifestations related to the Veteran's PTSD are unusual or exceptional. For the reasons discussed above, the Board finds that the schedular rating criteria adequately contemplates the impairment caused by the Veteran's psychiatric disorder. In view of this, referral of this case for extraschedular consideration is not in order. See Thun v. Peake, 22 Vet. App. 111 (2008); Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996); see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). TDIU Under the applicable criteria, a total disability rating for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2012). However, even when the percentage requirements are not met, entitlement to a total rating, on an extraschedular basis, may nonetheless be granted, in exceptional cases, when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321(b), 4.16(b). In determining whether an individual is unemployable by reason of service-connected disability, consideration must be given to the type of employment for which the veteran would be qualified. Such consideration would include education and occupational experience. See Hyder v. Derwinski, 1 Vet. App. 221, 223 (1992); Ferraro v. Derwinski, 1 Vet. App. 326, 331- 332 (1991). Age may not be considered a factor. 38 C.F.R. § 3.341 (2012). Unemployability associated with advancing age or nonservice-connected disability may not be used as a basis for assignment of a total disability rating. 38 C.F.R. § 4.19 (2012). In the instant case, the Veteran does not meet the schedular criteria for a total disability rating based on individual unemployability. The Veteran has only a single service-connected disability, PTSD, which is rated 50 percent. Therefore, he does not meet the threshold requirements for TDIU. Additionally, the Board finds that the record does not present any unusual factors that might serve as a predicate for a finding of unemployability. The Veteran has never been hospitalized for any psychiatric problems and, other than for examination purposes, is not seen by VA for any problems related to his service-connected PTSD. While the Veteran reported that he receives psychiatric treatment from a private physician about every three months, the records from that provider showed that he is seen on average of about two times a year. In any event, the totality of the evidence shows that the Veteran's PTSD has not materially worsened since 2003, and that it does not render him unemployable. The Veteran was employed with the same company full-time for some 28 years prior to retiring in 1996, due to hypertension, and that he a good working relationship with everyone when he was employed. Furthermore, the Veteran reported that he currently does some part-time work, enjoys socializing with friends, goes fishing and to church regularly, and has close relationships with his wife and daughter. In short, there is no persuasive, credible evidence that the Veteran is precluded from substantially gainful employment. For a veteran to prevail on a claim for TDIU, the record must reflect some factor which takes this case outside the norm. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. However, the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). For the reasons discussed above, the Board finds the preponderance of the evidence fails to show that the Veteran's service-connected PTSD, alone, precludes substantially gainful employment. While the Board does not dispute that the Veteran experiences some industrial impairment due to his PTSD, the degree of impairment is adequately reflected by the schedular rating of 50 percent. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). However, the Veteran's only service-connected disability has not been so severely disabling as to have rendered him or the average person similarly situated unable to secure or follow substantially gainful employment. ORDER An increased rating for PTSD is denied. Entitlement to TDIU is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs