Citation Nr: 1310160 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 12-04 880 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a rating in excess of 50 percent for post traumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran served on active duty from May 1968 to May 1970 and from January 1991 to March 1991. This appeal to the Board of Veterans' Appeals (Board) arises from a November 2010 rating decision of the Winston-Salem, North Carolina Regional Office (RO) of the Department of Veterans' Affairs (VA), which granted a 50 percent (but no higher) rating for the Veteran's service-connected PTSD effective August 5, 2010, the date the Veteran's claim for an increased rating was received. The Veteran appealed the assigned 50 percent rating but did not appeal the effective date. On his January 2012 Form 9, the Veteran requested a Board videoconference hearing, which was then scheduled to take place on January 10, 2013. However, in a December 2012 communication, the Veteran withdrew his hearing request and indicated that he wanted his appeal decided based on the evidence of record. The Board notes that the issue of entitlement to a TDIU was not certified for appeal. However, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). As the Veteran has maintained that he is now unemployed due, at least in part, to symptoms of his service-connected PTSD, the issue of entitlement to a TDIU has been raised. Therefore, as the Board has jurisdiction over such issue as part and parcel of the Veteran's increased rating claim, it has been listed on the first page of this decision. The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disability (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 PTSD has been manifested by occupational and social impairment with reduced reliability and productivity. Occupational and social impairment with deficiencies in most areas has not been shown. CONCLUSION OF LAW The criteria for a rating in excess of 50 percent for PTSD are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.7, 4.130, Diagnostic Code (Code) 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist In the present case, the Board finds that VA has satisfied its duty to notify. By way of a VCAA notice letter sent to the Veteran in August 2010, the RO generally informed the Veteran of the evidence necessary to substantiate his claim and his and VA's responsibilities in claims development. Also, the Veteran was informed that in evaluating his disability, VA would consider evidence of the nature and symptoms of his condition; the severity and duration of his symptoms; and the impact of his condition and symptoms on employment. Additionally, he was notified of the general manner in which disability ratings are assigned, and examples of the types of evidence he could submit, or ask VA to obtain, were also provided. This notice was provided prior to the November 2010 rating decision. No further notice is required. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the Veteran's claim. Pertinent medical evidence associated with the claims file consists of VA treatment records and the reports of QTC examinations. The Board has also considered the contentions of the Veteran. The Board notes that no further RO action, prior to appellate consideration of the claim, is required. II. Analysis Disability ratings are based on average impairment in earning capacity resulting from a particular disability, and are determined by comparing symptoms shown with criteria in VA's Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations, which are potentially applicable, based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 (2007). The Board finds, however, that staged ratings are not warranted here, as the degree of impairment due to the Veteran's PTSD has not varied significantly during the appeal period. The Veteran's PTSD is rated under Diagnostic Code 9411. Under this Code, a 50 percent rating is 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. 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. 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. 38 C.F.R. § 4.130. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126. Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score. According to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." There is no question that the GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). At an October 2010 QTC examination, it was noted that the Veteran was an infantryman during Vietnam who learned to fight or be killed. He generally did not talk about his experiences unless it was to those he knew had been in Vietnam. He reported that his PTSD symptoms began in 2005. He endorsed current symptoms of nightmares, flashbacks, lack of trust, hypervigilance, isolating behavior, a lack of pleasurable activities, drinking to the point of excess with friends, anger, avoidance of activities related to the military, inability to get along with people and avoidance of crowds. The symptoms were described as moderate and as constant, continuing or ongoing. Since the Veteran had retired, he was more symptomatic and his health had declined. He reported that he had trouble sleeping, waking after only 2 or 3 hours. He would be awakened with nightmares, which caused him to sweat, holler and throw off the covers. At times he would feel nervous and would go into his den and sit in his recliner. He did not have a history of violent behavior and did not report any history of suicide attempts. He had received treatment in a PTSD group for the past 8 weeks but the response had been minimal. He had not received psychotherapy in the past year and had not been hospitalized for psychiatric reasons. He had also not made any emergency room visits for psychiatric problems. The Veteran described his relationships with his father, mother and siblings as good. He had been married from 1973 to 1979 but he then divorced. He did have children but his relationship with them was limited. He was retired and stayed home most of the time unless he would go to church on Sunday, go out with friends or go to his garage to work on furniture. He did not fish as much as he used to. He had last worked in 2007. He had been employed at a Georgia Pacific plant for 7 years and 1 month. The plant closed in 2008 but he thought that he was laid off early because the superintendent did not like him. The Veteran described recurrent recollections of traumatic events, distressing dreams 1 to 2 times per week and avoidance of events, which might remind him of the past trauma. He reported that he was using alcohol 2 to 3 times per month, consuming a 6 pack and a pint of liquor with friends. Mental status examination showed that appearance and hygiene were appropriate. Behavior was deemed inappropriate in that the Veteran refused to discuss the traumatic events leading to his PTSD. He had poor eye contact during the examination and showed a disturbance of motivation and mood and anxiety. The examiner noted that the Veteran participated in very limited activities outside the home. Communication, speech and concentration were within normal limits and panic attacks were absent. There were signs of suspiciousness in that he would not talk about his stressor events in service. There was no history of delusions or hallucinations and none observed during the examination. Obsessive compulsive behavior was absent. Thought processes were appropriate. He was able to understand directions and did not have slowness of thought nor appear confused. Judgment was not impaired and abstract thinking was normal. Memory was within normal limits and suicidal and homicidal ideation was absent. There was avoidance of closeness and crowds, angry feelings, and the unwillingness to talk about his experiences with anyone who did not have experience with his type of stressors. The examiner diagnosed the Veteran with PTSD and alcohol abuse in remission. A GAF score of 55 was assigned. The substance abuse was related to the PTSD. The examiner noted that due to the PTSD, the Veteran had not been able to stay in a relationship with a woman and he was not closely involved with the church or friends. As far as his overall quality of life, he was a loner and would not talk about his stressor experiences. He was capable of managing his benefit payments and was taking care of himself. He did not have difficulty performing activities of daily living. He did have difficulty establishing and maintaining effective work/school and social relationships. The best description of his current psychiatric impairment was that his symptoms caused occupational and social impairment with reduced reliability and productivity. In this regard, symptoms included circumstantial, circumlocutory speech, impaired judgment, impaired abstract thinking, disturbances of motivation and mood and difficulty maintaining effective family role functioning because his last girlfriend had left him three years prior. He had had intermittent inability to perform a recreational or leisurely pursuit because he rarely went fishing anymore. He had no difficulty understanding commands. The examiner recommended that the Veteran seek follow up treatment but felt that it was unlikely that he would do so. The Veteran did not appear to pose any threat of danger to himself or others. He seemed to be stable with his current situation and unable and unwilling to consider options for further mental health treatment and evaluation. In a December 2010 notice of disagreement, the Veteran indicated that he felt he should receive a 70 percent rating for his PTSD because he had told the October 2010 QTC examiner that he was having suicidal thoughts daily. On his January 2012 Form 9, the Veteran contended that his PTSD should be rated at 70 percent. He indicated that he was unable to do work, did not have any close relations with family or friends and suffered from suicidal thoughts daily. At a March 2012 QTC examination, the examiner diagnosed the Veteran with PTSD, chronic and assigned a GAF score of 55. The examiner found that the Veteran's level of occupational and social impairment was best summarized as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran reported that his employment since leaving the military had been working at a shipyard as a rigger and a cleaner for 32 years. He retired in 2000 mostly because he could not tolerate the long commute. He then went to Georgia Pacific and worked as a sorter and the person who feeds lumber into the planer. He worked there for seven years until the plant closed. He indicated that he had problems with the supervisors at these jobs but got along with his fellow workers. He found that he would get irritated with his supervisors when they told him what to do. The examiner found that the Veteran had recurrent and distressing recollections of stressor events, including images, thoughts and perceptions, that he made efforts to avoid thoughts, feelings, or conversations associated with the trauma, efforts to avoid activities, places or people that aroused recollections of the trauma and that he displayed markedly diminished interest or participation in significant activities. The examiner also found that the Veteran exhibited irritability or outbursts of anger and difficulty concentrating. Additionally, the examiner found that the Veteran's symptoms included chronic sleep impairment, circumstantial, circumlocutory or stereotyped speech and disturbances of motivation and mood. The evidence indicates that the Veteran's PTSD has not been shown to involve a level of impairment more severe than occupational and social impairment with reduced reliability and productivity. He has exhibited circumstantial or circumlocutory speech, disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships, symptoms, which tend to be compatible with assignment of the existing 50 percent rating. However, for the most part, he has not exhibited symptoms, which tend to be compatible with assignment of a higher 70 percent rating. In this regard, he has not been shown to have 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 and inability to establish and maintain effective relationships. Notably, although the Veteran has been noted to have difficulty establishing and maintaining relationships, he has not been shown to be completely unable to do so, as evidenced by his continued good relationships with family members and his ongoing relationships with his friends. Also, while he is shown to have difficulty with anger, this has not been shown to result in impaired impulse control such as unprovoked irritability with periods of violence. The Veteran has clearly reported ongoing suicidal ideation, which he described as daily thoughts and he also appears to have difficulty adapting to stressful circumstances. However, given the lack of any other symptomatology, which appears severe enough to be compatible with assignment of a 70 percent rating and given that there is no evidence that the Veteran has ever attempted suicide or made a plan to do so, the evidence indicates that his PTSD symptomatology is more compatible with the assignment of the existing 50 percent rating. More broadly, the Veteran's symptomatology is not shown to result in occupational and social impairment with deficiencies in most areas. In this regard, the October 2010 QTC examiner found that the symptomatology was moderate in severity and that it was best described as occupational and social impairment with reduced reliability and productivity. Also, the March 2012 QTC examiner found that the symptomatology was even less severe, characterizing it as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, but generally functioning satisfactorily, with normal routine behavior, self-care and conversation. Additionally, while the Veteran has a deficiency in mood and has reported a deficiency in relation to work, he is not shown to have deficiencies in thinking or judgment. Further, although the October 2010 QTC examiner found that he had difficulty maintaining effective family role functioning because his last girlfriend had left him three years prior, given his positive relationships with his parents and siblings, he is not shown to have a deficiency in family relations. Accordingly, he does not exhibit a deficiency in most areas within the meaning of the criteria for assigning a higher 70 percent rating. Moreover, during both QTC examinations, a GAF score of 55 was assigned. GAF scores between 51 and 60 tend to indicate moderate symptoms (e.g. flat 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). Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) (1994). Consequently, as these scores have been entirely in this moderate range during the rating period, they are not compatible with assignment of a 70 percent rating for severe impairment. In sum, for all the reasons listed above, the preponderance of the evidence does not support assignment of a schedular rating in excess of 50 percent for PTSD. Gilbert, 1 Vet. App. 49, 55 (1990). The Board has also considered whether the Veteran's claim for increase should be referred for consideration of an extraschedular evaluation, and has concluded that no such referral is warranted. As explained above, the PTSD symptomatology, including nightmares, flashbacks, lack of trust, hypervigilance, avoidance, isolating behavior, a lack of pleasurable activities, drinking to the point of excess, depression, anxiety, anger, irritability, suspiciousness, difficulty getting along with people, difficulty sleeping, markedly diminished interest or participation in significant activities, difficulty concentrating and circumstantial, circumlocutory or stereotyped speech, is fully contemplated by the pertinent diagnostic criteria. There is nothing in the record to suggest that the Veteran's disability picture is so exceptional or unusual as to render impractical the application of these regular schedular standards. See, e.g., Thun v. Peake, 22 Vet. App. 111 (2008). ORDER A rating in excess of 50 percent for post traumatic stress disorder (PTSD) is denied. REMAND As noted in the introduction above, a request for a TDIU was raised during the appeal of the increased rating for PTSD, and it is part of the claim for benefits for the underlying disability. Rice, 22 Vet. App. 447, 454 (2009). On his January 2012 Form 9, the Veteran alleged that he was unable to work as a result of his service-connected PTSD. The Board finds that by this testimony, the Veteran has raised the issue of entitlement to a TDIU. This matter is therefore included with the present appeal in view of Rice but assuming the Veteran wishes to pursue this claim, it would be prejudicial to reach a final determination because he has not received the required initial notice and adjudication from the agency of original jurisdiction (AOJ). See 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R. § 3.156(b). Thus, a remand is necessary. On remand, the AOJ is requested to afford the Veteran proper notice under the VCAA as related to a TDIU claim and should clarify whether he wishes to pursue this claim. If so, the AOJ may decide to obtain further information concerning the Veteran's employment history or to obtain additional medical evidence or medical opinion, as is deemed necessary to develop the claim. After all appropriate development has been completed, the TDIU claim should be adjudicated based on all evidence of record to include consideration of the provisions of 38 C.F.R. § 4.16(a) and (b), as applicable. The Board notes that the Veteran's service connected disabilities include PTSD, rated 50% disabling, and diabetes, rated 20% disabling. These current percentage ratings do not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a). However, VA policy is to grant a TDIU in all cases where service-connected disability precludes gainful employment, regardless of the percentage evaluations. 38 C.F.R. § 4.16(b). Notably, the Board is prohibited from assigning a TDIU on an extraschedular basis in the first instance without ensuring that the claim is referred to VA's Director of Compensation and Pension (C&P) for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1 (2001). Accordingly, on remand, if the Veteran wishes to pursue the claim but continues to fail to meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a), the AOJ should consider whether referral for extraschedular consideration is warranted. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with notice in compliance with the VCAA that informs him of what evidence he must show to support a claim for a TDIU. The RO/AMC should also ascertain whether the Veteran wishes to pursue a TDIU claim. In the event that he does, further action as described herein should be taken. In the event that he does not, this should be annotated for the file and no further action is required. 2. The AOJ shall provide the Veteran with the opportunity to identify any additional relevant medical treatment records, from either private or VA facilities, which pertain to the TDIU claim, that have not yet been associated with the claims file. Appropriate steps should be taken to obtain any such identified records. If any identified records cannot be obtained after reasonable efforts have been made, the AOJ should issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, and include a copy of such in the claims file. The Veteran must be notified of the attempts made to obtain outstanding records, informed as to why further attempts would be futile, and allowed the opportunity to obtain or provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. The RO/AMC shall consider the issue of whether the Veteran is entitled to a TDIU under the provisions of 38 C.F.R. § 4.16(a) and (b) on the basis of his service-connected conditions. In so doing, the RO/AMC may decide to pursue further development of the Veteran's employment history, obtain additional medical evidence or medical opinion(s), or refer the case for extraschedular consideration, as is deemed necessary. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The appellant 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). ______________________________________________ KELLI KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs