Citation Nr: 1307652 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 07-13 602 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for the service-connected posttraumatic stress disorder (PTSD) with polysubstance dependence. 2. Entitlement to a total disability rating based on individual unemployabillity due to service connection disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from December 1967 to January 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii, which awarded service connection for PTSD and assigned an initial 10 percent rating effective from April 2005. In June 2007, the RO awarded an increased 30 percent evaluation for PTSD retroactive to the original grant of service connection. His claim remained in controversy as the Veteran was presumed to be seeking the maximum benefit allowed by law and regulation and less than the maximum benefit available was awarded. See AB v. Brown, 6 Vet. App. 35 (1993). In March 2011, the Board remanded the matter for additional development and adjudication. At that time, the Board also determined that the Veteran raised a claim for TDIU. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) ("... if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue whether a TDIU is warranted as a result of that disability.") This matter was also remanded; however, as the remand orders of the Board were not complied with, further remand is mandated due to the RO's failure to follow the directives in the Board's remand. Stegall v. West, 11 Vet. App. 268 (1998). The claim for TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The service-connected PTSD was shown to be produce social isolation; however, the disability picture did not more nearly approximate the criteria for the next higher rating as at no time during the period of the appeal, was the PTSD shown to have been productive of symptomatology consistent with flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment in short-term and long-term memory; impaired abstract thinking; disturbances of motivation and mood other than some anxiety; or difficulty maintaining effective work relationships. CONCLUSION OF LAW The criteria for the assignment of an initial evaluation in excess of 30 percent for the service-connected PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.130 including Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the Veteran's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the Veteran pre-adjudication notice in connection with his original claim for service connection by letter dated in June 2005. The Veteran's claim on appeal arises from his disagreement with the initial disability evaluation assigned following the grant of service connection. The Courts have held that once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Board would note however, that in March 2006 the RO sent the Veteran a letter notifying him of the evidence to submit in support of his claim for increase, i.e. evidence showing that the service-connected PTSD had increased in severity. Thereafter, the claim was readjudicated in the February 2007 statement of the case. VA has obtained service treatment records, assisted the Veteran in obtaining evidence (post-service VA and private treatment records), afforded the Veteran VA examinations, and afforded the Veteran the opportunity to give testimony before the RO and Board, which he declined. The Board notes that handwritten treatment records from the Honolulu Vet Center were received in July 2012 after the April 2012 supplemental statement of the case (SSOC) was issued. Remand for preparation of an additional SSOC is not necessary as there was no material changes in, or additions to, the information included in the prior SSOC. 38 C.F.R. § 19.31. A July 2012 report of contact from JFM reveals it was his opinion that the handwritten notes would not provide any additional information than what was provided in his June 2007 report. After review of the handwritten notes, the Board confirms that they were duplicative of the June 2007 summary provided by JFM and largely administrative notes containing no information on symptomatology. The June 2007 summary report was previously considered by the RO in July 2007 SSOC and April 2012 SSOC, as well as VA examiners in June 2007 and April 2011. The Veteran is not prejudiced by a decision on the claim at this time. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. The Board finds that there has been compliance with the assistance provisions set forth in the law and regulations. II. Analysis The Veteran appealed the decision that assigned the initial 10 percent rating, and the Board will now consider whether a higher evaluation is warranted for the psychiatric disability at any stage since the effective date of service connection. See Fenderson v. West, 12 Vet. App 119 (1999). In June 2007, the RO awarded an increased 30 percent rating retroactive to the original grant of service connection. His claim remains in controversy as less than the maximum benefit available has been awarded. See AB, supra. 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; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. VA should interpret 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. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. When considering functional impairment caused by a service-connected disorder, evaluations should be based on an assessment of the lack of usefulness, and adjudicators should consider the effects of the disabilities upon the person's ordinary activity. 38 C.F.R. § 4.10. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath, 1 Vet. App. at 594. However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). The service-connected PTSD disability has been assigned an initial 30 percent rating under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the applicable criteria, a 30 percent disability evaluation is warranted for 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, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130. A 50 percent disability evaluation is assigned under the general rating formula for mental disorders where the evidence shows occupational and social impairment 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 in short-term and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech 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. Id. A 100 percent rating is assigned for 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. Id. Having carefully considered all the evidence of record in light of the pertinent law and regulations, the Board finds that an initial rating in excess of 30 percent is not warranted. 38 C.F.R. § 4.7. The pertinent evidence is as follows. In January 2006, the Veteran was afforded a VA examination. The Veteran had no history of mental health treatment. He complained of nightmares four to six times a year. He indicated they had been decreasing over the years. He reported chronic sleep disturbance, intrusive thoughts about events in Vietnam, and hypervigilance. He avoided reminders of war. He endorsed an exaggerated startle response and problems with anger. Mental status examination showed no impairment of thought process or communication. There were no delusions or hallucinations reported. He indicated he got into fights soon after Vietnam. He did not report any recent fights. He had homicidal thoughts when angry, but with no lethal thoughts or plan. His personal hygiene was normal. He was oriented in all spheres. There was no memory loss or impairment. He was obsessive about safety seeking. His speech was normal. He did not report panic attacks other than to say that he got nervous in crowded places. Alcohol and drug abuse were in remission. The Veteran was assigned a Global Assessment of Functioning Scale Score (GAF) of 70, which according to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV), was indicative of some mild symptoms, but generally functioning pretty well and has some meaningful interpersonal relationships. The examiner further noted the Veteran had always had sufficient psychological resources to overcome PTSD symptoms and lead a productive life. VA outpatient treatment records dated in March 2006 reveal the Veteran was not taking any medication for his PTSD. In November 2006, he denied anxiety and depression. He informed the treatment provider that he did not have any difficulties in interpersonal relationships. In June 2007, the Veteran's social worker (JFM) from the Vet Center wrote a summary report. He noted the Veteran was seen approximately three to four times in 2005 and subsequently dropped out of counseling. JFM further indicated the Veteran was seen five to six times between March 2006 and December 2006. The Veteran complained of a long history of sleep difficulty, nightmares, intrusive thoughts, exaggerated startle response, anger outbursts, and avoidance of any thoughts and feelings that might remind him of Vietnam. The Veteran reported self-medicating over the years. The Veteran had four driving under the influence (DUI) charges and had been without a license for several years. His mother drove him to work and counseling appointments. The Veteran indicated that he was divorced in 1994 after 16 years of marriage, stating that his wife was tired of his drinking. JFM noted the Veteran continued to experience nightmares, intrusive thoughts, exaggerated startle response, anger outbursts and social isolation. The examiner concluded the Veteran was ambivalent and hesitant in discussing his experience and issues, but that his combat experiences and resulting symptomatology negatively impacted his occupational and social functioning. VA outpatient treatment records dated in March 2007 show the Veteran had a negative depression screen. Upon VA examination in June 2007, the examiner noted the Veteran did not have any hospitalizations for a mental disorder. He informed the examiner that his divorce was prompted by his heavy alcohol use. He was close to his brothers, sister, and mother. He saw his adult children, who lived in Oahu, several times a year. He had no history of suicide attempts or violence/assaultiveness. He missed work due to gastrointestinal problems not PTSD. He had been working full time for the past two years. He had not drunk since leaving the hospital the last time. He was neatly groomed and clean. Psychomotor activity was unremarkable. His speech was clear and coherent. He was cooperative and friendly. His affect was appropriate and full. His mood was mildly dysphoric. His thought process and content was unremarkable. His attention was intact. He had no delusions or hallucinations. He understood outcome of behavior and that he had a problem. There was some insomnia, difficulty staying asleep, frequent nightmares and sweating. The examiner noted that he also had some medical problems that interfered with sleep. There was no inappropriate behavior. There was no homicidal or suicidal thoughts. Impulse control was good. The Veteran was able to maintain minimum personal hygiene. There were no problems with activities of daily living. Recent and remote memory were normal. The Veteran was again assigned a GAF score of 70 for only some mild symptoms. The examiner noted the Veteran continued to experience nightmares, intrusive thoughts, exaggerated startle response, anger outbursts, and social isolation. Alcohol dependence was a primary diagnosis independent of PTSD, but the symptoms overlapped and it was not possible to separate out the effects. The examiner concluded that PTSD symptoms did not significantly interfere with the Veteran's present employment. His family role functioning was unchanged. His functioning was more impacted by his medical problems rather than PTSD. There was no total occupational and social impairment due to PTSD. His PTSD symptoms did not result in deficiencies in judgment, thinking, family relations, work, mood, or school. There was no reduced reliability and productivity due to PTSD symptoms. There was not an occasional decrease in work efficiency. There were not intermittent periods of inability to perform occupational tasks due to PTSD signs and symptoms. PTSD symptoms did not require continuous medication. VA outpatient treatment records dated in January 2008 show the Veteran denied depression and anxiety. He did complain of memory changes and sleep disturbance. His mood and affect were normal. In October 2010, VA treatment providers noted it had been two years since his last treatment. The Veteran indicated that he worked so much. He denied suicidal and homicidal ideation and hopelessness. He still did have dreams. In March 2011, the Veteran indicated that he had dreams once in awhile. He continued to work a lot. He denied any psychiatric treatment and refused current treatment. He denied suicidal and homicidal ideation. He also denied anxiety and depression. Upon VA examination in April 2011, the Veteran continued to endorse social isolation, intrusive thoughts, flashbacks, and avoidance behaviors. The Veteran indicated that he no longer abused alcohol. His activities of daily living were not impaired. The Veteran was not engaged in psychiatric care. He denied any assaultiveness and suicidal ideation. His mood was reported as even. The Veteran was pleased with how he was doing and was reluctant to get involved talking about Vietnam. He did not miss any work last year due to PTSD. He got his license back three years prior. He was oriented in all spheres. There were no impairment of thought process or communication. There were no delusions or hallucinations. The Veteran denied suicidal or homicidal ideation. There was no memory loss or impairment or obsessive or ritualistic behavior. The Veteran's speech was normal. There were no panic attacks reported. The Veteran denied depression and indicated he had some anxiety. He did not have impaired impulse control. He did have chronic sleep impairment. He was assigned a GAF score of 65 indicative of some mild symptoms. The examiner noted the Veteran continue to work full time and his only absence from work had been due to medical problems. Since the last examination, he stopped drinking and got his license back. He has remained friendly with his ex-wife and his children were doing very well. There was no total occupational and social impairment due to PTSD. His PTSD symptoms did not result in deficiencies in judgment, thinking, work, mood, or school. There was some deficiency in family relations as his divorce was most likely due to a combination of PTSD and alcohol dependence. There was no reduced reliability and productivity due to PTSD symptoms. There was not an occasional decrease in work efficiency. There were not intermittent periods of inability to perform occupational tasks due to PTSD signs and symptoms. The Veteran was socially avoidant. The Veteran's PTSD did not interfere with his employability. VA outpatient treatment records show the Veteran stopped drinking in 2008. An entry dated in April 2011 indicated the Veteran denied anxiety or depression. He also denied any difficulty with interpersonal relationships or substance abuse. An evaluation in excess of 30 percent, to include "staged" ratings, is not warranted for any period of the initial rating because the evidence does not show symptomatology consistent with flattened affect, circumstantial, circumlocutory, or stereotyped speech, difficulty in understanding complex commands, impairment in short-term and long-term memory, or impaired abstract thinking. 38 C.F.R. § 4.119; See Fenderson, 12 Vet. App. at 126. There were no disturbances of motivation and mood beyond symptoms of some anxiety on the most recent examination in April 2011, though the Veteran repeatedly denied complaints of anxiety to VA treatment providers. Nevertheless, the reported anxiety is accounted for in the current 30 percent rating. The Veteran has repeatedly denied depression. The Veteran has remained employed full-time. He has remained friendly with his ex-wife. He visited several times a year with his adult children and had good relationships with his siblings and mother. Though the most recent VA examiner indicated the Veteran was socially avoidant, the overall disability picture is consistent with no more than a 30 percent rating. Id. "Staged" ratings, other than what is already in effect, are not warranted for any period of the appeal. 38 C.F.R. § 4.71a; see Fenderson, supra. Should the Veteran's disability picture change in the future, he may be assigned a higher rating. See 38 C.F.R. § 4.1. The above determinations are based upon application of the pertinent provisions of VA's rating schedule. The Board finds that the record does not reflect that the Veteran's service-connected PTSD is so exceptional or unusual as to warrant the assignment of a higher rating on an extra- schedular basis. See 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). In this case, the service-connected PTSD has not caused frequent periods of hospitalization. The Veteran continues to be employed full-time. The Board has found that the rating criteria used to evaluate the Veteran's service-connected PTSD reasonably describe his disability level and symptomatology. Therefore, the Veteran's disability picture is contemplated by the rating schedule and no extraschedular referral is required. 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). ORDER An initial evaluation in excess of 30 percent for the service-connected PTSD is denied. REMAND As noted in the Introduction, the claim was previously before the Board in March 2011. At that time, the Board determined that the Veteran raised a claim of TDIU in his VA Form 9 when he asserted that the symptoms of his PTSD "interfere substantially with his ability to obtain and retain substantive employment." Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). The Board additionally found that the Veteran's claims file raised the issue of whether new and material evidence had been received pertaining to the Veteran's claims for service connection for alcoholic liver disease, alcohol induced pancreatitis and alcoholic gastritis as secondary to his service-connected PTSD with polysubstance dependence. The Board noted these issues were originally denied by RO decision in August 1995, which cited alcohol abuse as the source of these disabilities. The denial of those issues was considered final as the Veteran did not appeal. The matters were not, and are still not, currently before the Board. The Board found that these claims were inextricably intertwined with the issue of entitlement to TDIU and as such, ordered that the claims be developed and adjudicated prior to the AOJ's readjudication of the claim for TDIU. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (all issues 'inextricably intertwined' with an issue certified for appeal are to be identified and developed prior to appellate review). The RO failed to develop and/or adjudicate the claims for service connection for alcoholic liver disease, alcohol induced pancreatitis and alcoholic gastritis as secondary to his service-connected PTSD with polysubstance dependence. As such, the claim for TDIU remains deferred. Accordingly, this case must again be remanded to effectuate the evidentiary development necessary to fully and fairly adjudicate the Veteran's claims for service connection and then, the RO must readjudicate the claim for TDIU. The AMC/RO is directed to the specific development instructions delineated in the numbered paragraphs herein below. 1. Develop and adjudicate the reopening of the issues of service connection, as secondary to PTSD with polysubstance dependence, for alcoholic liver disease, alcohol induced pancreatitis, and peptic ulcer disease/alcoholic gastritis. A separate rating action should be issued by the AOJ and the Veteran should be notified of his appellate rights. The Veteran should also be informed that this new rating action, if unfavorable, will not be before the Board unless it is appealed to the Board. 2. After completion of the above and any other development deemed necessary, review the expanded record and determine if the Veteran has submitted evidence sufficient to warrant entitlement to TDIU. Unless the benefit sought on appeal is granted, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and afforded an opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs