Citation Nr: 1314334 Decision Date: 05/01/13 Archive Date: 05/15/13 DOCKET NO. 10-48 427 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a rating higher than 50 percent for posttraumatic stress disorder. 2. Entitlement to a total disability rating for compensation based on individual unemployability due to service-connected disability. ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to October 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in May 2010 of a Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied a rating higher than 30 percent for posttraumatic stress disorder. Then, in a December 2010 decision, the RO assigned a 50 percent rating for posttraumatic stress disorder, effective in February 2009, and denied a total disability rating for compensation based on individual unemployability. The Veteran continued his appeal for a higher rating. The issue of entitlement to a total disability rating for compensation based on individual unemployability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center in Washington, DC. FINDING OF FACT For the period considered in this appeal, the Veteran's posttraumatic stress disorder is shown to be productive of a disability picture that equates to occupational and social impairment with deficiencies in most areas, and inability to establish and maintain effective relationships; his disability picture is without evidence of total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication, persistent delusions or hallucinations, persistent danger of hurting self and others, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, and memory loss (for names of close relatives, own occupation, or own name). CONCLUSION OF LAW The criteria for a rating of 70 percent, but no higher rating, for posttraumatic stress disorder have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting veteran-specific notice as to the effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided the Veteran with pre-adjudicatory, content-complying VCAA notice on the claim for a higher rating for posttraumatic stress disorder, by letters dated in April 2009 and September 2009. The notice included the type of evidence needed to substantiate the claim for a higher rating, namely, evidence to show that the disability was worse and the effect the disability had on employment. The Veteran was also notified that VA would obtain service records, VA records, and records of other Federal agencies and that he could submit private medical records or authorize VA to obtain private medical records on his behalf. The notice included the provisions for the effective date of a claim and for the degree of disability assignable. As for content of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim); and of Vazquez-Flores v. Peake, 580 F.3d 1270 (Fed. Cir. 2009) (evidence demonstrating a worsening or increase in severity of a disability and the effect that worsening has on employment). Duty to Assist VA has also made reasonable efforts to identify and obtain relevant records in support of the claim. 38 U.S.C.A. § 5103A (a), (b), and (c). The RO has obtained VA records, records from the Social Security Administration, and records from Dr. Jabbour, who was identified by the Veteran. The Veteran has not identified any additionally available evidence for consideration in his appeal. VA has conducted the necessary medical inquiry in an effort to substantiate the claim. 38 U.S.C.A. § 5103A(d). The Veteran was afforded a VA examination in May 2010, to determine the severity of the disability. When VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination is adequate to rate the disability. Further, as there is no evidence subsequent to the VA examination that shows a material change in the condition, a reexamination is not warranted. 38 C.F.R. § 3.327(a). As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. Principles of Evaluating Disabilities Disability evaluations are 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; 38 C.F.R. § 4.1. 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 (2007). Rating Criteria and Analysis When evaluating the level of disability of a mental disorder, the rating agency shall consider the extent of social impairment, but shall not assign an evaluation based solely on the basis of social impairment. The focus of the rating process is on industrial impairment from the service-connected psychiatric disorder, and social impairment is significant only insofar as it affects earning capacity. 38 C.F.R. §§ 4.126, 4.130. Posttraumatic stress disorder is evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9411. Ratings are assigned according to the manifestation of particular symptoms, but the use of the term "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 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 from posttraumatic stress disorder under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in Diagnostic Code 9411. 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 DSM-IV (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)). For the period considered in this appeal, the Veteran's posttraumatic stress disorder has been evaluated as 50 percent disabling. A 50 percent rating is warranted 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. The criteria for a higher rating (i.e., 70 percent) are as follows: 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. Further, a 100 percent rating is warranted 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 and 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 relevant evidence in this case consists of private treatment records from H. Jabbour, M.D., VA outpatient records, a VA examination report, and statements of the Veteran. In regard to medical evidence, the Veteran underwent a VA examination in May 2010, at which time his diagnoses were posttraumatic stress disorder and depressive disorder (secondary to posttraumatic stress disorder and increased symptoms attributable to service-connected diabetes mellitus). The Global Assessment of Functioning (GAF) score was 50. He has also received outpatient psychiatric treatment from Dr. Jabbour, who indicated on an initial evaluation in January 2009 that the Veteran's diagnosis was posttraumatic stress disorder and his GAF score was 42. The GAF is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." DSM-IV at 32. GAF scores ranging from 61 to 70, for example, reflect 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. Scores ranging from 51 to 60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas such as work or school, family relations, judgment, thinking, or mood. Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). In this case, the Veteran's GAF scores, few as they are, basically denoted serious impairment, with one on the high range of serious symptoms (and closer to moderate symptomatology) and the other on the low range of symptoms (and closer to major impairment in several areas). Nevertheless, his scores fell in the range of 41 to 50 throughout the period considered in this appeal, which reflects more or less that the Veteran's posttraumatic stress disorder has remained relatively static despite the slight variability in the record. Thus, a single evaluation, rather than "staged ratings" as will be noted herein below, is proper for the period considered. In any event, the Board notes that a disability rating depends on evaluation of all the evidence, and an examiner's classification of the level of a psychiatric impairment, by words or by a GAF score, is to be considered but is not determinative of the percentage disability rating to be assigned. 38 C.F.R. § 4.126. In evaluating all the evidence, the Board finds that the private and VA medical evidence, and the records from the Social Security Administration, reflect that the Veteran's symptoms of posttraumatic stress disorder are so severe as to affect his everyday life and his ability to function to a degree that more nearly approximates the schedular criteria for a 70 percent rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). That is, the evidence shows that his psychiatric symptomatology was of such extent, severity, depth, and persistence as to have been productive of occupational and social impairment, with deficiencies in most areas and an inability to establish and maintain effective relationships. For example, clinical evidence, consisting of Social Security Administration records dated from 1999 to 2009, private physician treatment records dated from January 2009 to July 2010, VA outpatient records dated in 2008, and a VA examination report dated in May 2010, appears to support a higher rating for the mental disability. This evidence demonstrates the following about the Veteran in relation to his posttraumatic stress disorder: he avoids reminders of the war and crowds; he has a heightened state (hypervigilance), easy irritability, and constant edginess; he has problems sleeping (nightmares) and relaxing; his affect was constricted and flat and his mood was jittery and anxious; he is withdrawn, depressed, and without energy; he avoids socializing and interacting with others (he only sees immediate family members); he was essentially housebound as he did not like going out; and he has decreased interest in hobbies and feelings of detachment, estrangement from others, and emotional numbing. It is also noted that as symptoms of diabetes mellitus were becoming more "prominent," he has experienced an increase in levels of anxiety and depression regarding his health. He took prescribed psychiatric medication and engaged in psychotherapy. He was no longer employed and was in receipt of Social Security disability benefits in part due to anxiety related disorders. The VA examiner concluded that posttraumatic stress disorder caused moderate to occasionally severe levels of impairment in various areas, namely, social functioning, recreational activities, and family relations (although only moderate occupational maladjustment was expected if the Veteran were to attempt to work). While the Veteran's disability picture was without evidence of such symptoms as suicidal ideation, obsessional rituals that interfere with routine activities, illogical or obscure speech, spatial disorientation, neglect of personal appearance and hygiene, impaired judgment or thinking, the Veteran's social isolation, near-continuous mood problems (irritability and depression), and apparent inability to establish and maintain effective relationships beyond his wife, daughter, and grandchildren are sufficiently severe in themselves to result in occupational and social impairment marked by deficiencies in most areas. In sum, the severity of the Veteran's posttraumatic stress disorder picture is such that a 70 percent rating is warranted. In arriving at this conclusion, the Board has accorded much probative weight to the GAF scores provided by the VA examiner and the Veteran's own treating physician, which are not inconsistent, as well as the clinical records of the treating physician. In recognizing too that the Veteran's symptomatology is illustrative of both the criteria for a 50 percent rating and the criteria for a 70 percent rating, the Board emphasizes that in this case it has given careful consideration to allowing the Veteran the benefit of the doubt in accordance with 38 U.S.C.A. § 5107(b). The objective evidence, however, does not show that the Veteran's posttraumatic stress disorder meets the criteria for a 100 percent rating under Diagnostic Code 9411. In a July 2010 statement, the Veteran asserted that there were only two possible outcomes for his appeal: (1) granting a 70 percent rating along with an award of a total disability rating for compensation based on individual unemployability; and (2) granting a 100 percent rating. It is the Board's judgment that the record does not reflect those symptoms of posttraumatic stress disorder to the degree and severity that typify a 100 percent disability rating. For example, no medical examiner has indicated that the Veteran is totally impaired, both socially and occupationally. There is no objective evidence of gross impairment in thought processes or communication, persistent delusions or hallucinations, 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, or memory loss for names of close relatives, own occupation, or own name. The mental status examinations for the Veteran, such as that undertaken during the May 2010 VA examination, do not disclose that any of the foregoing symptoms, or any other symptoms of the same type and degree, are clinically present. Although the evidence clearly demonstrates that the Veteran has significant social and occupational impairment attributable to posttraumatic stress disorder, his symptomatology is not consistent with the criteria for a 100 percent disability rating under Diagnostic Code 9411. As noted earlier, consideration has been given to "staged ratings" for posttraumatic stress disorder over the period considered in this appeal, but the Board concludes that clinical findings demonstrate that the Veteran meets the criteria for a 70 percent rating and no higher rating. Extraschedular Consideration Although the Board is precluded by regulation from assigning an extraschedular rating 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 for a rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. This is accomplished by comparing 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 referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In this case, comparing the Veteran's disability level and the symptomatology of his mental disability to the Rating Schedule, the degree of disability manifested by the various complaints discussed in the decision above is wholly encompassed or covered by the Rating Schedule, which provide for higher ratings for more severe symptoms or related symptoms. For example, the nature and extent of the Veteran's mood deficiencies and social impairment are all incorporated in the schedular criteria for evaluating mental disabilities. In other words, the Veteran does not experience any symptomatology not already encompassed or covered in the Rating Schedule. The Board also notes that the record does not show that the Veteran has required hospitalization to treat his mental disability or that it has markedly interfered with employment. Indeed, the Veteran is not currently employed as he evidently quit work as a truck driver in 2005 or 2006, but the Veteran himself reported on the VA examination in May 2010 that it was primarily his nonservice-connected back disability and his service-connected diabetes mellitus that led him to stop working. Therefore, the Board finds that the assigned schedular rating is adequate and no referral for an extraschedular rating is required under 38 C.F.R. § 3.321(b)(1) . ORDER A 70 percent rating, and no higher, for posttraumatic stress disorder is granted. REMAND The record shows that the Veteran has not been employed since 2005 or 2006 and that he is in receipt of disability benefits from the Social Security Administration, based primarily on disorders of the back (a nonservice-connected disability) and secondarily on anxiety related disorders (a service-connected disability). In its December 2010 adjudication of this claim, the RO indicated that the Veteran was in receipt of Social Security disability benefits because he was unable to work due to his back disability; the RO did not mention the Veteran's psychiatric impairment. A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). With service-connected disabilities consisting of posttraumatic stress disorder (70 percent disabling, as a result of this decision), diabetes mellitus (20 percent disabling), and peripheral neuropathy of both lower extremities (each 10 percent disabling), the Veteran meets the minimum schedular percentage requirements for a total disability rating under 38 C.F.R. § 4.16(a). It is further acknowledged that the Veteran underwent separate VA examinations in May 2010 to assess the severity of the service-connected disabilities. An examiner on the psychiatric examination stated that the Veteran would be expected to show moderate occupational maladjustment if he was to attempt to work and was physically able to do so. An examiner on the examination to evaluate the Veteran's diabetes mellitus and residual disabilities stated that sedentary employment for the Veteran was not limited but that physical employment would be limited due to neuropathy (balance problems). Records from the Social Security Administration include a notation, on a case development sheet, about a vocational assessment in May 2009 that appeared to conclude the Veteran was unable to meet the mental demands of his former work (post office carrier, auto salesman, truck driver) due to the skill level required. A medical opinion on the Veteran's employability status due to his service-connected disability, which considers - and reconciles the disparities of - the foregoing assessment, is needed. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA general medical examination to determine whether his service-connected disabilities preclude "substantially gainful" employment. The claims folder must be forwarded to the examiner for review in connection with the examination. In particular, the examiner should (a) comment generally on the functional and industrial impairment caused by the service-connected disabilities, and (b) indicate whether, without consideration of the Veteran's age and any nonservice-connected disabilities, the service-connected disabilities together result in his unemployability. To that end, the examiner's attention is directed to statements pertinent to the Veteran's employability status given by VA examiner's in May 2010 as well as those made in May 2009 by examiners while determining the Veteran's entitlement to Social Security disability benefits. The examiner is advised that "substantially gainful" employment means work that is more than marginal and permits an individual to earn a "living wage" consistent with his education and occupational experience. 2. Upon completion of the above, adjudicate the claim of entitlement to a total disability rating for compensation based on individual unemployability. If the benefit is denied, then provide the Veteran 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 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). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs