Citation Nr: 1314447 Decision Date: 05/02/13 Archive Date: 05/15/13 DOCKET NO. 09-37 318 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an increased rating for posttraumatic stress disorder (PTSD), rated as 30 percent disabling prior to December 30, 2009, and as 50 percent disabling thereafter. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Bordewyk, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1966 to November 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, which, in pertinent part, denied entitlement to an increased rating in excess of 30 percent for PTSD. In May 2010, the RO granted an increased rating of 50 percent, effective December 30, 2009. The Court has held that a claim for a TDIU is an element of a claim for an increased rating when raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the issue will be considered herein. FINDINGS OF FACT 1. Throughout the claim period, the Veteran's PTSD has been manifested by occupational and social impairment with deficiencies in most areas, such as social relations, judgment, and thinking. 2. The Veteran's service-connected PTSD precludes him from securing or following substantially gainful employment consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The criteria for an increased disability rating of 70 percent for PTSD have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.21, 4.130, Diagnostic Code 9411 (2012). 2. The criteria for entitlement to TDIU based on PTSD are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist a veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, VA must inform the claimant of any information and 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. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a letter issued in July 2006, prior to the initial adjudication of the claim, the RO notified the Veteran of the evidence needed to substantiate his claim for increased rating. The letter also satisfied the second and third elements of the duty to notify by informing the Veteran that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that he was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them. He was informed that VA provided ratings based on the rating schedule and was given examples of the evidence he could submit. The Veteran has substantiated his status as a veteran. He was notified of all elements of the Dingess notice, including the disability-rating and effective-date elements of the claims. These requirements were also noted in a February 2008 letter to the Veteran. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records and VA treatment records. Additionally, the Veteran was provided a VA examination in December 2009 to evaluate the severity of his PTSD symptoms. That examination is adequate as it contains all of the findings necessary for evaluating the disability and considered the Veteran's reports. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2012). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2012). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). The schedular criteria, effective as of November 7, 1996, refer to the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). 38 C.F.R. §§ 4.125, 4.130 (2012). Under the schedular criteria, a 50 percent rating is warranted if the disability is productive of 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 compete 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. A 70 percent rating, may be 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 work-like setting); and inability to establish and maintain effective relationships. Id. A 100 percent schedular evaluation contemplates 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. In assessing the evidence of record, it is important to note that the Global Assessment of Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). A GAF score of 41-50 indicates "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)." Id. A GAF score of 51-60 indicates "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)." Id. A GAF score of 61-70 indicates "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. Id. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). If the evidence shows that the veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Mauerhan at 443. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board finds that throughout the claim period, the Veteran demonstrated deficiencies in most areas of social and occupational functioning, including work-related functioning, family and social relations, judgment, and thinking, but without total impairment. He has been diagnosed with and treated for PTSD throughout the appeal. Although his GAF scores have ranged from 48 to 65, the majority of the scores have been between 50 and 55, which are indicative of moderate to serious symptoms. He has endorsed symptoms of disturbed sleep, nightmares, hypervigilance, exaggerated startle reaction, irritability, and social isolation, which have interfered with his functioning to a significant degree. Regarding occupational functioning, the Veteran has reported several times that he ended his employment as a bus driver in 2002 due to his service-connected psychiatric symptoms. At a March 2008 VA examination, the Veteran reported that he had become unable to tolerate other people and became argumentative with clients and other bus drivers. For those reasons, he felt it was best to stop working. Since then, he has not returned to work and he has reported that his symptoms continued to worsen. In an October 2007 and an October 2008 VA treatment record, his treating psychiatrist stated that the Veteran was not able to work or get involved in gainful activities. A December 2009 VA examiner noted that his occupational functioning was markedly limited. Regarding social functioning, the Veteran reported in statements to VA as well as to VA examiners and treatment providers that he preferred to isolate himself. His brother confirmed the social isolation in a February 2008 statement, stating that the Veteran spent most of his time alone in his room. His brother also stated that the Veteran lived with his parents, who were afraid to push him into doing anything social because he was so irritable and had angry outbursts. The Veteran was divorced twice, and during the March 2008 VA examination, he attributed at least part of his past marital issues to his inability to overcome the memories of combat and his anger outbursts. The VA examiner described the degree and quality of his social relationships as poor, noting that the Veteran's last girlfriend was afraid that he might become violent as he had threatened once before. The December 2009 VA examiner noted that his social functioning was markedly limited. However, during a December 2006 VA examination, the Veteran stated that he had good family relations and had friends, albeit few. Throughout VA treatment from September 2009 to May 2010, and during the December 2009 VA examination, he reported that he had a good relationship with his three adult children. Throughout the claim, impairment of judgment and thinking were also demonstrated. The March 2008 VA examiner found partially limited insight and preoccupation with one or two topics. VA treatment records from March 2009 to May 2010 noted poor judgment and insight and impaired thought content involving feelings of guilt, intrusive and distressing recall, and traumatic memories. The GAF scores assigned throughout this appeal have most consistently ranged from 50 to 55, which is indicative of moderate to serious impairment in several areas such as work and social relations. The Board acknowledges that he has at times been described with more severe or improved symptomatology. A GAF score of 48 was assigned in August 2007 and May 2009. However, the scores were soon after followed with higher GAF scores and appear to have been outliers. The Veteran was assigned GAF scores higher than 55, including one score of 65 during the December 2006 VA examination and 60 during the December 2009 VA examination. However, the score of 65, which is normally indicative of mild impairment, is inconsistent with the December 2006 VA examiner's description of the Veteran's social and occupational impairment as moderate. Similarly, while a GAF score of 60 is indicative of moderate impairment, the December 2009 VA examiner described social and occupational functioning was markedly impaired, seeming to indicate greater than moderate impairment. These higher GAF scores, like the lowest ones, were either preceded or succeeded by VA treatment indicating GAF scores between 50 and 55 and appear to have been outliers. Therefore, as the Veteran has endorsed significant psychiatric symptoms, which have resulted in impairment of judgment, thinking, and occupational and social functioning, and resolving all doubt in the Veteran's favor, the Board finds that his symptoms more nearly approximate a 70 percent disability rating throughout the claim period. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As discussed above, a 100 percent rating contemplates total occupational and social impairment. Although the Veteran has significant impairment in most areas of occupational and social functioning, the Veteran is not totally impaired as contemplated by the rating criteria. As noted above, he has consistently reported good family relations, including with his three adult children, and has even reported having friends. Moreover, the claims file indicates that several times during the appeal, the Veteran has been able to perform all daily life functions, including attending to personal hygiene and handling his funds. Such ability is not typical of the symptoms normally attending total occupational and social impairment as set forth in the criteria. Therefore, a 100 percent disability rating for PTSD is not warranted. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012); Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Initially, there must be a comparison between the symptomatology of the claimant's service-connected disability and the established criteria found in the rating schedule for that disability. If the symptoms experienced by the claimant are those contemplated by the rating criteria, further consideration of whether a referral for extraschedular analysis is not required. Thun, supra. The Board finds that the rating criteria specifically contemplate the Veteran's social and occupational impairment due to symptoms such impaired judgment, thinking, memory, and mood. The rating criteria are specifically based on such impairment. 38 C.F.R. § 4.85. The rating criteria are, therefore, adequate to evaluate the Veteran's disability. Referral for consideration of an extraschedular rating is, therefore, not warranted. TDIU TDIU may be granted where the schedular rating is less than total and the service-connected disability precludes the Veteran from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). By this decision, the Veteran's service-connected PTSD is found to be 70 percent disabling. Thus, the Veteran meets the percentage requirements for consideration of TDIU under 38 C.F.R. § 4.16(a) (2012). The remaining question is whether his service-connected PTSD precludes gainful employment for which his education and occupational experience would otherwise qualify him. As noted above, the Veteran has reported several times that he ended his employment as a bus driver in 2002 due to his psychiatric symptoms. At a March 2008 VA examination, he reported that he had become unable to tolerate other people and became argumentative with clients and other bus drivers. For those reasons, he felt it was best to stop working. Since then, he has not returned to work and he reported that his symptoms continued to worsen. In an October 2007 and an October 2008 VA treatment record, his treating psychiatrist stated that the Veteran was not able to work or get involved in gainful activities. A December 2009 VA examiner noted that his occupational functioning was markedly limited. Based on the foregoing, and resolving reasonable doubt in his favor, the Board finds that the medical opinion evidence regarding the severity of his PTSD supports an award of TDIU. 38 U.S.C.A. § 5107(b). ORDER Entitlement to a schedular rating of 70 percent, but no more, for PTSD is granted, subject to the laws and regulations governing the award of monetary benefits. A total disability rating based on individual unemployability due to PTSD is granted, subject to the laws and regulations governing the award of monetary benefits. _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs