Citation Nr: 1301774 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 10-35 729 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to a rating in excess of 50 percent for Posttraumatic Stress Disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Jennifer R. White, Counsel INTRODUCTION The Veteran served on active duty from October 1967 to October 1969. These matters come to the Board of Veterans' Appeals (Board) on appeal from an April 2010 decision from the St. Louis, Missouri Department of Veterans Affairs (VA) Regional Office (RO). The issue of an increased rating for tinnitus has been raised by the record, on the Veteran's TDIU application dated June 1, 2009, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The preponderance of the evidence indicates that the Veteran's PTSD does not manifest in 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 work like setting); or an inability to establish and maintain effective relationships. 2. The preponderance of the evidence indicates that the Veteran's service-connected disabilities do not render him unable to maintain gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 3.102, 4.130, Diagnostic Code 9411 (2012). 2. The criteria for a TDIU are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.341, 4.3, 4.16, 4.18 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in August 2009 that provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. The Board additionally notes in this regard that the Veteran's Social Security records were requested by the RO in July 2009. The Social Security Administration responded that the records had been destroyed and were unobtainable. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claims. 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). Regulations and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2012); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2012); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2012); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10 (2012). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Consideration has been given to assigning a staged rating; however, at no time during the period in question has the Veteran's disability warranted a rating higher than 50 percent for PTSD. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). The Board notes that the issues decided herein arise from the Veteran's application for TDIU dated June 1, 2009. The Veteran claimed that he was unemployable due to his tinnitus and PTSD. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). PTSD The Veteran contends that the correct disability rating for his PTSD is higher than the current 50 percent. The Veteran's PTSD is currently rated under Diagnostic Code 9411. 38 C.F.R. § 4.130. Under this Code a 30 percent rating is warranted for PTSD where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent evaluation is to be 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; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability evaluation is warranted 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 a work like setting); inability to establish and maintain effective relationships. Id. A 100 percent disability evaluation is warranted where the evidence shows 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; 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. Id. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. One factor for consideration is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)). 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 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). While the Rating Schedule does indicate that the rating agency must be familiar with the DSM-IV, it does not assign disability percentages based solely on GAF scores. See 38 C.F.R. § 4.130 (2012). Turning to the evidence, the Veteran was afforded a VA examination in November 2009. The Veteran reported that he had problems with irritability, depression, anxiety, nightmares, a hyperstartle response, hypervigilance and sleep problems. The Veteran indicated that he had fleeting suicidal thoughts which coincided with his physical deterioration due to multiple sclerosis (MS) and confinement to a wheelchair. The Veteran reported that his mental status had been the same for the previous five years. He indicated that he had been too disabled to work since 1992 due to his MS, which he was diagnosed with in 1983. The examiner described the Veteran as being moderately irritable with his speech being somewhat loud, but of average rate, pitch and productivity for someone his age and gender. He was a poor historian, frequently relying upon his wife to fill in dates and sequencing of events. His long-term memory was described as definitely impaired. The Veteran showed no signs of a psychotic thought disorder as he spoke spontaneously. He denied experiencing hallucinations or delusions upon direct examination. His thoughts flowed evenly, logically, and in a goal-directed manner, not showing any signs of a formal thought disorder. The Veteran was perfectly oriented to all aspects of place and time. His immediate auditory memory was unimpaired but his delayed auditory recall was moderately impaired as he missed two out of three items. The Veteran failed the tasks to screen his concentration and mental control. He was unable to spell a five letter word backwards and made two subtraction errors on the simple serial threes task. The Veteran denied a history of assaultiveness and was not homicidal. He was able to maintain minimal personal hygiene and other basic activities of daily living. His interpersonal relationships were described as unremarkable. The Veteran did not have obsessive or ritualistic behavior that interfered with routine activities, panic attacks or impaired impulse control. Additionally, his impairment of short- and long-term memory noted on examination is considered in his current 50 percent disability rating. The Veteran was diagnosed with PTSD of moderate severity with a GAF score between 55-58. The examiner indicated that due to the Veteran's PTSD, there is occasional decrease in work efficiency or there are intermittent periods of inability to perform occupational tasks due to PTSD signs and symptoms, but generally he had satisfactory functioning (routine behavior, self-care, and conversation normal.) Additionally, the examiner noted that the Veteran's PTSD symptoms are not severe enough to interfere with occupational and social functioning but required continuous medication. Private treatment records were associated with the claims file that noted the Veteran's PTSD as well as a history of anxiety and depression. However, these private records do not specifically discuss the severity of the Veteran's PTSD or associated psychiatric syptomatology. An August 2009 private treatment record indicates that the Veteran is disabled due to his MS. An additional September 2010 letter from the Veteran's private physician indicates that he has had an increase in his PTSD symptoms and that he is 100 percent disabled due to his multiple medical problems and progression of his illness related to PTSD. The Veteran was afforded an additional VA examination in May 2012. The Veteran reported good relationships with his siblings, spouse and children. The examiner indicated that the Veteran had depressed mood, anxiety, chronic sleep impairment, disturbances of mood and motivation, and that he did not like to be around crowds or sudden loud noise. The Veteran denied suicidal thoughts or ideation but he got angry with his body due to his physical limitations because of his MS. The examiner indicated that the Veteran's feelings of depression were related to his MS rather than his PTSD. The examiner indicated that due to all mental health diagnoses, the Veteran had occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although general functioning was satisfactory with normal routine behavior, self-care and conversation. The examiner indicated that the Veteran did not meet the criteria of unemployability due to his service-connected PTSD. His GAF score was noted as 58. The evidence, as a whole, demonstrates that the Veteran's PTSD is no more than 50 percent disabling. Based on the noted psychiatric symptomatology, the Board cannot conclude that his PTSD is so severe as to produce the occupational and social impairment as required for a 70 percent rating. The Veteran has not been shown to have 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; or neglect of personal appearance and hygiene that are indicative of a 70 percent rating. In this regard, the VA examinations consistently note the Veteran was oriented to time and place; he communicated normally; he operated independently; his hygiene was good; and while he complained of irritability, there was no evidence of periods of violence. Additionally, although the November 2009 VA examination indicated suicidal thoughts, the Veteran clarified in May 2012 that he had no suicidal ideation but instead had physical frustration due to his MS. Additionally, while there was mention that his depression and anxiety were continuous, the evidence does not reflect that such affect his ability to function independently, appropriately and effectively. His symptoms of anxiety and/or depression are consistent 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)" as specifically noted by the VA examiner. The preponderance of the evidence does not indicate that his anxiety or depression affect his ability to function independently, appropriately and effectively. Therefore, the Veteran's symptoms are contemplated in his current 50 percent disability rating. For the reasons set forth above, the Board finds that the Veteran's disability picture has not reflected symptomatology which more nearly approximates the criteria for a 70 percent rating, nor is the evidence on this point in relative equipoise. As the criteria for the next higher, 70 percent rating have not been met, it logically follows that the criteria for the maximum, 100 percent rating - requiring a showing of symptoms of even greater severity - likewise have not been met. In this regard, the GAF scores assigned on the examination in which the Veteran reported such was ranging from 52 to 58 reflecting moderate symptoms, indicating that the examiners did not feel such was impacting his functioning severely. To sum up, the Veteran's total mental health picture is best contemplated by the 50 percent criteria. While he experiences periods of anxiety, his occupational function is adversely affected by his MS (as further discussed below), and he has good social functioning as described by the evidence. Thus, the preponderance of the evidence reflects that an evaluation in excess of 50 percent is not warranted. The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2012). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is not inadequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected PTSD, but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder. As the rating schedule is adequate to evaluate the disability, referral for extraschedular consideration is not in order. TDIU Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2012). If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341 (2012). In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15 (2012). In determining whether the Veteran is entitled to TDIU, neither his non-service-connected disabilities nor his age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993); 38 C.F.R. § 3.341(a). A total disability rating may be assigned where the combined rating for the Veteran's service-connected disabilities is less than total if the disabled Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional cases, an extra-schedular rating may be assigned on the basis of a showing of unemployability alone. See 38 C.F.R. § 4.16(b). In this case, the Veteran's service-connected disabilities presently include PTSD (50 percent rating), tinnitus (10 percent) and hearing loss (0 percent). The Board notes that the Veteran was assigned to a field artillery unit in Vietnam and indicated that he only had tinnitus after his one year period in Vietnam while on active duty. The Veteran's combined disability evaluation due to multiple injuries incurred in combat action is 60 percent (effective April 2008). See 38 C.F.R. § 4.16(a)(4). This evaluation meets the schedular criteria for consideration of TDIU under 38 C.F.R. § 4.16(a), and the question thus becomes whether these disabilities, in and of themselves, preclude the Veteran from securing or following a substantially gainful occupation. In this case, the Veteran completed a high school degree per his VA psychiatric examinations. The Veteran was afforded a VA psychiatric examination in May 2012. The results of such examination are detailed in the PTSD portion of this decision. The Veteran was afforded a general medical VA examination in June 2012. The examiner indicated that the Veteran is unemployable due to his general weakness from his MS. The Veteran was afforded a VA audiological examination as well in June 2012. The examiner indicated that the Veteran's tinnitus is not significant enough to restrict him from gaining or holding employment. The preponderance of the medical evidence presented is against a finding that the Veteran is unemployable due to his service connected conditions. In this regard, the VA examinations conducted indicate that Veteran is unemployable and unemployed due to his non-service connected MS. The private treatment records suggest that the Veteran is totally disabled, but consider his MS and other nonservice-connected disability; the Veteran had indicated that he stopped work in 1993 due to his MS. There is no suggestion in the private medical reports that service-connected disability alone precludes employment. Thus, the competent medical evidence reflects that the Veteran's service-connected disabilities do not render him unemployable. In reaching the conclusions above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to a rating in excess of 50 percent for PTSD is denied. Entitlement to a TDIU due to service-connected disabilities is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs