Citation Nr: 1308482 Decision Date: 03/13/13 Archive Date: 03/20/13 DOCKET NO. 10-48 740 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an initial disability rating higher than 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Cheryl E. Handy, Associate Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from September 1952 to September 1955 and from September 1957 to August 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in February 2010 of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which granted service connection for PTSD and assigned a 30 percent disability rating. Jurisdiction was later transferred to the RO in St. Louis, Missouri. A subsequent rating decision in October 2012 granted an increased disability rating of 50 percent as of the date of claim. A claimant is presumed to be seeking the maximum benefit allowed by law and regulation, and a claim remains in controversy where less than the maximum available benefit is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Therefore, the claim for a higher disability rating remains on appeal. The Court has ruled that, where there is evidence of a Veteran's unemployability, the issue of entitlement to TDIU is implicitly raised as part of a claim for a higher disability rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a total rating based on individual unemployability, due to service-connected disability (TDIU) claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran). The Board notes that the Veteran filed a separate claim for this benefit in October 2012. However, because the issue is implicit in the higher rating claim already on appeal, the Board has jurisdiction over the claim regardless of this filing and the matter is addressed below. The issue of entitlement to TDIU is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to July 2012, the Veteran's PTSD was manifested by occupational and social impairment consistent with reduced reliability and productivity as a result of such symptoms as depression, anxiety, lack of motivation, poor concentration, intrusive thoughts, and irritability. 2. As of July 2012, the Veteran's PTSD has been productive of occupational and social impairment with deficits in most areas, including family and social relations, judgment, thinking, or mood, as a result of such symptoms as near constant depression and irritability, frequent intrusive thoughts and memories, and inability to establish and maintain effective relationships; total occupational and social impairment as a result of PTSD symptoms has not been shown. CONCLUSIONS OF LAW 1. Prior to July 2012, the criteria for a disability rating higher than 50 percent for PTSD were not met or approximated. 38 U.S.C.A. §§ 1155, 5103A, 5103(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.7, 4.130, DC 9431 (2012). 2. As of July 2012, the criteria for a disability rating of 70 percent, and no higher, for PTSD have been met or approximated. 38 U.S.C.A. §§ 1155, 5103A, 5103(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.7, 4.130, DC 9431 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Duty to Notify 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). The Veteran's higher initial rating claim arises from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as 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). Therefore, no further notice is needed under VCAA. Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. 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 Veteran was afforded a VA examination in October 2009 in relation to his claim of service connection for PTSD. He was later afforded an additional VA examination in September 2012 in relation to his claim for an increased initial disability rating. The Board notes that the VA examination reports contain sufficiently specific clinical findings and informed discussion of the pertinent history and features of the disability on appeal to provide probative medical evidence adequate for rating purposes. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). 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 Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. 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 the Veteran's 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 claim. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Assigning Disability Ratings A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Here, the Veteran's disability picture indicates that his symptoms worsened during the course of the appeals process, such that a staged rating is appropriate. Rating Mental Health Disabilities The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides the following ratings for psychiatric disabilities: 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, is assigned a 50 percent rating. 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, warrants a 70 percent rating. 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, merits a 100 percent rating. 38 C.F.R. § 4.130. Facts and Analysis On October 2009 VA examination, the Veteran reported being hospitalized for combat fatigue in Vietnam and later in 1970. He was prescribed anti-anxiety medication and anti-depressants after his wife died, which he had continued to take up to the present. He reported current symptoms of four or five days of stress per month, with feelings of sadness, anxiety and somatic complaints. These symptoms were described as being beyond his typical level of heightened anxiety and were attributable to other natural life stressors. He gave a history of combat experiences in service, including 24 months in Vietnam during which time he was ambushed on several occasions. He reported close interpersonal relationships with his family and friends and being active on a daily basis, despite daily bouts of anxiety focused around the safety of his family and his own intrusive memories. He denied any problems getting along with people or any legal problems. On mental status evaluation, he was clean and neatly groomed, cooperative and friendly, and his speech was clear. He did engage in some hand-wringing but showed appropriate thought content and judgment and was appropriately oriented. He reported initial sleep disturbance, racing thoughts, and worry, with an average of 8 hours of sleep per night. He denied current regular nightmares about Vietnam, although he did have vivid dreams about his wife and daughter who had died. He denied hallucinations and did not display any inappropriate behaviors. He did report some obsessive behaviors, namely counting telephone poles as he drove and trees when sitting on the porch. He denied experiencing panic attacks, suicidal or homicidal thoughts, or problems with impulse control. He was able to maintain the activities of daily living and exhibited only mild memory impairment. The Veteran received mental health treatment through VA on several occasions between September 2010 and July 2012. He reported symptoms of anxiety and depression, occasional panic attacks, nightmares, passive homicidal and suicidal thoughts, and flashbacks to Vietnam. The Veteran told his provider in October 2010 that he felt the initial 30 percent disability rating was a "slap in the face," which made him increasingly upset. In January 2011, he described his increasing volatility as a symptom that his family complained had been gradually worsening for several years. In August 2011, his provider documented increasing cognitive difficulties and memory problems. In July 2012, the Veteran reported an increase in the frequency and severity of intrusive thoughts and memories of Vietnam, as well as in his anger and irritability. On September 2012 VA examination, the Veteran reported that his symptoms had worsened since the time of the last examination. He no longer saw his friends as often as he did before, in part because of increased distrust of other people and in part because of lack of interest. He reported increased irritability and anger, low frustration tolerance, and loss of interest in his previous leisure activities. He avoided most people and most social situations. His intrusive thoughts had increased to become a daily occurrence requiring no specific triggers, and his ability to concentrate was diminished. In addition to increased anger and irritability, he reported increased hypervigilance and paranoia, including a need to keep an eye on his vehicle most of the time to prevent people from damaging it. He had begun attending individual therapy sessions and reported increased thoughts of suicide, although he had no specific intent or plan. The examiner indicated that the Veteran's symptoms seemed to most closely match an assessment of occupational and social impairment with manifestations of reduced reliability and productivity. The Veteran has submitted several lay statements from his family and friends regarding his symptomatology. The statements by his children relate mostly to the Veteran's behavior during their childhoods, although they indicate that reactivity to memories and reminders of Vietnam, as well as some level of volatility, anxiety, and depression have been constant since his retirement from service. The Veteran's friends have described increased memory problems and difficulty finding words in conversation. Finally, the Board notes that the Veteran has submitted a significant volume of historical articles and information regarding his service in Vietnam during the war and the extremely severe nature of his experiences. The Board acknowledges the severity of the trauma experienced by the Veteran. However, while the specifics of the stressor events in service are critical to a claim of service connection, they are of reduced significance in assigning the appropriate disability rating. Rather, the critical focus of a claim for increased disability rating is the nature and severity of the symptoms resulting from the in-service trauma and the effect on the Veteran's ability to function on a daily basis in society. In this instance, the Veteran's disability picture based on the frequency and severity of his symptoms is one of moderate impairment, at least until July 2012, when a higher level of impairment was shown. Specifically, prior to July 2012, the assigned 50 percent disability rating, based on evidence of occupational and social impairment with reduced reliability and productivity as a result of his symptoms, is appropriate in light of the facts set forth above. From July 2012, a 70 percent disability rating is warranted, based on evidence of occupational and social impairment, with deficiencies in most areas, such as family relations, judgment, thinking, or mood, due to his increased PTSD symptoms. Prior to July 2012, the Veteran was active in his social life, interacting with friends and family on a regular basis, attending church prior to physical health problems, and going fishing and hunting. He had occasional intrusive thoughts and memories of Vietnam, anger and irritability, anxiety, and depression, and passive thoughts of suicide or harm towards other. He reported being able to manage his anger with self-talk and described his increased volatility as an ongoing problem for several years. His thought content and behavior were normal, with the exception of some obsessive counting, and he had only minor impairment of his memory. This disability picture does not support a rating in excess of 50 percent. Also weighing against a higher rating prior to July 2012 are the Global Assessment of Functioning (GAF) scores of record. GAF is a scale used by mental health professional and reflects psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. In this case, the October 2009 VA examination yielded a GAF score of 63, reflective of mild symptoms. Outpatient records in April 2011 and July 2011 reflect GAF scores of 60 and 58, respectively. These scores represent moderate symptoms, which are already accounted for by the 50 percent evaluation assigned during the period in question. Beginning in July 2012, by the Veteran's own report, his PTSD symptoms had worsened in severity and frequency. He was having intrusive thoughts and flashbacks without any specific triggers, his nightmares had increased, and he was much more irritable and angry all the time. He had lost interest in the things he enjoyed doing, such as hunting and fishing and being with his friends, and had become more hypervigilant and paranoid. He was more depressed and anxious than ever and was having increased problems with his memory. In short, his ability to function independently had decreased and his ability to establish and maintain effective relationships had also diminished, his family relations had worsened and his judgment and thinking were more impaired. This disability picture more nearly approximates the rating criteria for a 70 percent disability rating. A total or 100 percent disability rating for PTSD is not warranted for any portion of the rating period on appeal, however, as the Veteran is still able to think and communicate clearly, does not exhibit grossly inappropriate behavior, is not a danger to himself or others, and is able to perform activities of daily living. He still maintains a relationship with his children and grandchildren, despite increased interpersonal friction caused by his moods, and is able to attend medical appointments at VA. He has not demonstrated a lack of minimal personal hygiene or a need for supervision or assistance in the basic responsibilities of life. As such, a rating in excess of 70 percent for the Veteran's PTSD is not appropriate. 38 C.F.R. § 4.130. Extraschedular Rating Although the Board is precluded by regulation from assigning extraschedular ratings under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for a service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology relative to his PTSD, and provide for higher ratings for more severe symptoms, as demonstrated by the staged disability rating awarded herein. The Veteran's specific major symptoms of intrusive and distressing thoughts, loss of interest in pleasurable activities, increased irritability and anger, avoidance of social situations, and hypervigilance are all considered in the rating criteria for mental health disabilities; the Veteran has not identified any unusual symptoms specific to his disability picture. As the disability pictures are contemplated by the Rating Schedule, the assigned schedular ratings are, therefore, adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). ORDER An initial disability rating higher than 50 percent prior to July 2012 is denied. A disability rating of 70 percent, and no higher, is granted as of July 2012, subject to the laws and provisions governing the award of monetary benefits. REMAND Regarding TDIU, in Rice v. Shinseki, 22 Vet. App. 447(2009), the Court has held that TDIU is an element of an increased or initial rating. In October 2012, the Veteran submitted a claim for TDIU. The claim for TDIU is an element of the initial rating claims currently before the Board. Id. In the case of a claim for total rating based on individual unemployability, the duty to assist requires that VA obtain an examination that includes an opinion on what effect the Veteran's service-connected disabilities, considered separately and in combination, have on his ability to work. Friscia v. Brown, 7 Vet. App. 294, 297 (1994). The record does not include such an opinion and one must be obtained on remand. As of June 2009, the Veteran meets the requirement of a combined schedular disability level of 70 percent, sufficient to support an award of TDIU on a schedular basis if unemployability is demonstrated. Prior to June 2009, the question of entitlement to TDIU on an extraschedular basis should be considered. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The Veteran should be afforded a VA examination to obtain an opinion as to whether his service connected disabilities would, either individually or in combination, preclude him from obtaining and maintaining gainful employment for which his education and occupational experience would otherwise qualify him. The examiner should review the claims folder and any relevant records in Virtual VA. If the Veteran is found capable of gainful employment, the examiner should provide examples of the employment for which the Veteran would be qualified and he would be able to perform. If the Veteran is found to incapable of gainful employment, the examiner should indicate, to the extent possible, the date at which he became incapable of gainful employment as a result of his service connected disabilities. If the date given is prior to June 2009, the examiner should explain the specific factors which demonstrate unemployability. The examiner should note that the Veteran's service-connected disabilities currently consist of posttraumatic stress disorder, diabetes mellitus, left knee disability, right knee disability, and back disability. If an opinion cannot be rendered in response to these questions, the reason therefore should be explained. A rationale for any opinion expressed should be provided. It is requested that the examiner discuss the prior medical evidence in detail and reconcile any contradictory evidence. 2. On completion of the foregoing, the claim for TDIU, to include on an extraschedular basis prior to June 2009, should be adjudicated. If the decision remains adverse to the Veteran, then provide him and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Eric S. Leboff Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs