Citation Nr: 1309079 Decision Date: 03/18/13 Archive Date: 03/25/13 DOCKET NO. 08-04 819 ) 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 service-connected posttraumatic stress disorder. 2. Entitlement to total disability rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from February 1967 to January 1969. He is the recipient of the Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, which denied entitlement to an evaluation in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD). In a June 2012 rating decision, a 50 percent rating was assigned for the disability at issue, effective August 29, 2006, the date of the increased rating claim. However, as this rating is still less than the maximum benefit available, the appeal is still pending. AB v. Brown, 6 Vet. App. 35, 38 (1993). In August 2011, the Board remanded the appeal for further development, and it is again before the Board for appellate review. The issue of entitlement to a 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 Veteran's service-connected PTSD is manifested by reduced reliability and productivity in occupational and social functioning due to anxious and flattened affect, panic attacks, sleep difficulty, impaired concentration, diminished judgment, disturbances, of motivation and mood, and difficulty establishing and maintaining effective relationships; and a GAF score ranging from 50 to 65, indicating moderate symptoms. CONCLUSION OF LAW The criteria for a rating in excess of 50 percent for service-connected PTSD have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Stegall Considerations The Board observes that this case was remanded by the Board in August 2011. The United States Court of Appeals for Veterans Claims (Court) has held "that a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, a right to compliance with the remand orders." See Stegall v. West, 11 Vet. App. 268, 271 (1998). The purpose of the remand was to achieve further development of the claim, namely to obtain outstanding VA treatment records and to schedule a VA examination. A review of the post-remand record shows that up-to-date VA treatment records were added to the claims file, and a VA examination was performed in September 2011. Therefore, the Board determines that the RO/AMC substantially complied with the Board's orders in the August 2011 remand, and that the Board may now proceed with adjudication of the claim. II. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes certain duties upon VA to notify the claimant of the shared obligations of the claimant and VA in developing his or her claim and to assist the claimant by making reasonable efforts to obtain relevant evidence in support of the claims. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA must inform a claimant about the information and evidence not of record that is necessary to substantiate the claims, the information and evidence that VA will seek to provide, and the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (revised 73 Fed. Reg. 23353-23356, April 30, 2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements also apply to the evidence considered in determinations of the degree of disability and effective date of the disability once service connection has been established. VCAA notice must be provided before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claims for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided with VCAA notification letters in September 2006 and November 2006, prior to the initial unfavorable AOJ decision issued in February 2007. The Board observes that the pre-adjudicatory VCAA notice, informed the Veteran that he must show that his service-connected disability had increased in severity, how VA would assist him in developing his claims, and his and VA's obligations in providing such evidence for consideration. These letters also advised him of the criteria for consideration in the assignment of a disability rating and/or effective date in the event of award of the benefit sought. Therefore, the Board finds that the Veteran was provided with all necessary VCAA notice prior to the initial adjudication of the claim. Accordingly, the Board determines that the content requirements of VCAA notice have been met and the purpose of such notice, to promote proper development of the claim, has been satisfied. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir.). Based on the above, the Board finds that further VCAA notice is not necessary prior to the Board issuing a decision. VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim and providing him with VA examinations. The Veteran's VA treatment records and the reports of October 2006 and September 2011 VA examinations were reviewed by both the AOJ and the Board in connection with adjudication of his claim. The Veteran has not identified any additional, relevant treatment records the Board needs to obtain for an equitable adjudication of the claim. With regard to the VA examinations, the Board notes that once VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this case, each examiner reviewed the claims file, documented the Veteran's subjective complaints and medical history, and evaluated the Veteran. Thereafter, in the reports they provided information sufficient in detail and relevance to the rating criteria to allow for determination of the appropriate disability rating. Nothing suggests that the examiners documented findings inconsistent with the medical history outlined in the claims file or not representative of the Veteran's symptomatology; therefore, the Board finds the VA examination reports in this case are adequate for rating purposes. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue decided herein has been met. 38 C.F.R. § 3.159 (c)(4). In light of the above, the Board concludes that the medical evidence of record is sufficient to adjudicate the Veteran's claim without further development and additional efforts to assist or notify the Veteran in accordance with VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran). Therefore, the Board determines that the Veteran will not be prejudiced by the Board proceeding to the merits of the claim. III. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). 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; 38 C.F.R. § 4.1. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. 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. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disability. 38 C.F.R. § 4.14. In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 and Schafrath, the Board has reviewed all evidence of record pertaining to the history of the Veteran's service-connected PTSD. The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes. The Board is of the opinion that this case presents no evidentiary considerations that would warrant an exposition of remote clinical histories and findings pertaining to this disability beyond that which is set out herein below. In an increased rating case, the present disability level is the primary concern, and past medical reports do not take precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Board also notes that the Court has held that staged ratings are appropriate for increased rating claims when factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); see Fenderson v. West, 12 Vet. App. 119 (1999). Thus, the Board has considered the propriety of staged ratings in assessing the Veteran's service-connected disability. The Veteran's service-connected PTSD is currently assigned a 50 percent rating evaluation, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). He contends that his symptomatology is of such a severity as to warrant a higher rating. The regulations establish a General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Ratings are assigned according to the manifestations of particular symptoms. However, the use of the phrase "such as" 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 only as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). The criteria for a 50 percent rating are: 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. The criteria for a 70 percent rating are: 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. The criteria for a 100 percent rating are: 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. The evidence relevant to the appeal period includes two VA examinations and records of VA mental health treatment. At the October 2006 VA examination, the Veteran had subjective complaints of lack of motivation or interest, sleep disturbance with nightmares, poor attention, concentration, and memory, anxiety, nervousness, and anger problems. He reported having been married to his current spouse since 1973 and that their relationship was good. He also reported speaking to one brother weekly and seeing him every couple of months and speaking to another brother on the phone. He denied having contact with friends as he preferred to not be around people. Daily social interaction was limited to his spouse unless one of his daughters drops by. The only outside social interaction he had was at church, but only because it made his spouse happy. The Veteran related that he was on the Board of Directors for the Alzheimer's Association, but had stopped since he retired from work. Hobbies included fishing, hunting, gardening, and yard work. The Veteran reported diminished interest in activities and difficulty completing tasks. He endorsed having angry outbursts, hypervigilance, and waking up in panic. He indicated that he avoids thoughts and feelings associated with trauma, as well as news coverage of the Iraq War. The examiner observed that the Veteran's hygiene was good and he was appropriately dressed. Affect was restricted. Speech was fluent and free of paraphasic errors with normal rate and volume, but with difficulty putting thoughts into words. The Veteran endorsed difficulties with short-term memory, interrupted sleep, and panic attacks on average twice per week. He denied hallucinations and indicated that he had fleeting suicidal thoughts and homicidal thoughts twice in recent years, but would never act on either. The examiner assigned a GAF score of 50. At the September 2011 VA examination, the Veteran reported problems with depression, poor concentration, excessive anger and irritation, guilt, trouble staying asleep, nightmares, nervousness, panic, and an inability to relax. He further indicated problems concentrating. The Veteran related that he still had a good relationship with his spouse. He indicated that he went fishing with friends once per week and also saw his two daughters once per week. He continued to go to church and work in the garden. The examiner observed that the Veteran's hygiene was good and that he was appropriately dressed. Affect was nervous, and overall mood was anxious. Speech was clear with good ability to express himself. Orientation was appropriate, and thinking was spontaneous, logical, and productive. Concentration was fair. Judgment was diminished. The Veteran was open with the examiner and exhibited good eye contact. The examiner observed that relationships with others seemed fair in quality with a medium amount of contact and a preference for contact rather than being alone. The examiner determined that the Veteran's symptoms were moderate with impaired social relationships, occupational functioning, judgment, mood, and range of activities. He stated that the Veteran had reduced reliability and productivity in occupational and social functioning due to flattened affect, panic attacks, impaired concentration, impaired judgment, disturbances of motivation and mood, and difficulty establishing and maintaining effective relationships. The examiner indicated that while the PTSD does not preclude employment, it does interfere with being able to work normally. The examiner assigned a GAF score of 53. VA treatment records do not document symptoms inconsistent with or more severe than those reported at VA examination. The Veteran's GAF scores during treatment have not been assessed at below 50, and scores as high as 65 have been assigned. A GAF score of 41-50 contemplates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or serious impairment in social, occupational, or social functioning (e.g., no friends, unable to keep a job). A GAF score of 51-60 reflects 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). A GAF score of 61-70 contemplates some mild symptoms (e.g., depressed mood and mild insomnia), or some difficulty in social, occupational, or school functioning (e.g., occasional truancy or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. While a GAF score is highly probative as it relates directly to the Veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders, the GAF scores assigned in a case are not dispositive of whether overall improvement has been established; rather, they must be considered in light of the actual symptoms of the Veteran's disorder. See 38 C.F.R. § 4.126(a). Based on the above, the Board finds that a rating in excess of 50 percent is not warranted for the Veteran's service-connected PTSD. The Board notes that in his August 2006 claim for benefits, the Veteran indicated that he had been obsessive about checking all the doors and windows to make sure they were shut and locked. However, this behavior does not establish occupational and social impairment in work, school, family relations, judgment, thinking, or mood. The Veteran has some difficulty working with people, but he has relationships with his spouse, children and siblings, as well as some social interaction at church and when fishing with friends. His mood is anxious, but his thinking is logical and productive, and his speech is fluent. His affect was restricted. He indicated panic attacks a couple of times per week, as well as during the night when sleeping. However, he did not endorse suicidal ideation or have speech that was impaired. His personal hygiene was not neglected. The Veteran did not act on fleeting thoughts of suicide or homicide. In light of these facts, the Board determines that the Veteran's symptoms do not more closely approximate a rating in excess of 50 percent. Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2012). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extra-schedular rating. 38 C.F.R. § 3.321(b) (2012). The threshold factor for extra-schedular 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, a task performed either by the RO or the Board. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render the already assigned rating inadequate. Service-connected PTSD is evaluated under the schedular criteria, which the Board has found to specifically contemplate the level of occupational and social impairment caused by this disability. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). The Veteran's service-connected psychiatric disability is manifested by reduced reliability and productivity in occupational and social functioning due to anxious and flattened affect, panic attacks, sleep difficulty, impaired concentration, diminished judgment, and disturbances, of motivation and mood, and difficulty establishing and maintaining effective relationships at work. When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's symptoms are congruent with the disability picture represented by the 50 percent disability rating assigned throughout the appeal period. Evaluations in excess of that assigned are provided for functional impairment that has not been demonstrated in this case. The criteria for the 50 percent rating assigned by the RO reasonably describe the Veteran's disability level and symptomatology. Consequently, the Board concludes that a schedular evaluation is adequate and that referral of the Veteran's case for extra-schedular consideration is not required. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012); see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996). The Board has considered the applicability of the benefit of the doubt doctrine. However, as the competent evidence does not support a higher rating for service-connected PTSD, the preponderance of the evidence is against the claim for a rating in excess of the 50 percent assigned for this disability. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal, and his increased rating claim must be denied. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7. ORDER Entitlement to a rating in excess of 50 percent for service-connected PTSD is denied. REMAND While the appeal was pending, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part and parcel of an increased-rating claim when raised by the record. The Board has jurisdiction to consider the Veteran's possible entitlement to a TDIU rating in this circumstance when the TDIU issue is raised by assertion or reasonably indicated by the evidence and is predicated at least in part on the severity of the service-connected disability in question, regardless of whether the RO has expressly addressed this additional issue. See VAOPGCPREC 6-96 (Aug. 16, 1996). See also Caffrey v. Brown, 6 Vet. App. 377, 382 (1994); Fanning v. Brown, 4 Vet. App. 225, 229 (1993); EF v. Derwinski, 1 Vet. App. 324 (1991). The Veteran is service-connected for PTSD, rated as 50 percent disabling; tinnitus, rated as 10 percent disabling; and right ear hearing loss, rated as noncompensable. He has a combined rating of 60 percent. Therefore, he does not meet the schedular criteria for TDIU, which require that if he has only one service-connected disability it must be rated at 60 percent, and if he has multiple service-connected disabilities, one disability must be rated at least 40 percent disabling with sufficient additional disability for a combined rating of 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2012). However, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but fail to meet the percentage standards as set forth in 38 C.F.R. § 4.16(a). The Veteran indicated that he retired from his job with the postal service in 2000 because of his PTSD symptoms. In his August 2006 claim, he reported working at Body Pro Shop for less than 30 hours per year. At the September 2011 VA examination, he indicated that he worked a couple of hours per month for a press association. Nevertheless, a few hours per month or year does not constitute substantially gainful employment, and the Board observes that a July 2008 VA treatment record notes that the Veteran has a low tolerance for workplace stress and doubts he could tolerate a typical workplace. The social worker at that time noted that retirement had not diminished the Veteran's PTSD symptoms overall and stated that the Veteran's GAF score of 50 at that time would be lower if he were working. The September 2011 VA examiner opined that the Veteran's PTSD would interfere with his being able to work normally, but the opinion does not specify what substantially gainful employment the Veteran could do, given his limitations. In light of these facts, the Board determines that the Veteran should be scheduled for a VA examination to assess his ability to obtain and maintain substantially gainful employment due solely to service-connected disabilities. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the impact that all of his service-connected disabilities, in combination, have on his employability. All pertinent symptomatology and findings must be reported in detail. All indicated diagnostic tests and studies must be accomplished. The claims file must be made available for review and the examiner's report should reflect that such review occurred. The examiner must elicit from the Veteran and record, for clinical purposes, a full work and educational history. Based on a review of the claims file, the examiner must provide an opinion as to whether it is at least as likely as not that the Veteran's service-connected disabilities, considered in combination, render the Veteran unable to obtain or maintain substantially gainful employment consistent with his education and occupational experience, irrespective of age and any nonservice-connected disorders. 2. Thereafter, adjudicate the issue of entitlement to TDIU. If the benefit sought is not granted, issue a supplemental statement of the case and afford the appellant an appropriate opportunity to respond. The case should then be returned to the Board, as warranted. 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). ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs