Citation Nr: 1316580	
Decision Date: 05/21/13    Archive Date: 05/29/13

DOCKET NO.  12-11 624	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to an initial disability rating for posttraumatic stress disorder (PTSD) in excess of 50 percent. 

2.  Entitlement to a disability rating for burns of the scalp, neck, back, shoulders, and arms in excess of 40 percent. 

3.  Entitlement to a disability rating for hepatitis in excess of zero percent. 

4.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant (the Veteran) is represented by: The American Legion


ATTORNEY FOR THE BOARD

L. Cramp, Counsel


INTRODUCTION

The Veteran had active service from November 1944 to August 1946.  

This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions of the RO in St. Petersburg Florida dated in September 2009 and December 2009.

In reviewing this case, the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The issues of entitlement to an increased disability for burns of the scalp, neck, back, shoulders, and arms in excess of 40 percent, and entitlement to TDIU, are addressed in the REMAND below and are therein REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC.


FINDINGS OF FACT

1.  All notification and development action needed to fairly adjudicate the issues decided herein has been accomplished.

2.  For the entire period of this appeal, the Veteran's PTSD has been manifested by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; there has not been total occupational and social impairment during any period.

3.  For the entire period of this appeal, the Veteran's hepatitis has been asymptomatic without residual disability.


CONCLUSIONS OF LAW

1.  The criteria for an initial disability rating of 70 percent for PTSD have been met for the entire period on appeal; the criteria for any rating higher than 70 percent have not been met for any portion of that period.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411 (2012).

2.  The criteria for a disability rating higher than zero percent for hepatitis have not been met for any period.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.114, Diagnostic Code 7345 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  The notice requirements of the VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain.  The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1).  See 73 Fed. Reg. 23,353-356 (April 30, 2008).

The United States Court of Appeals for Veterans Claims (CAVC) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the 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, including the degree of disability and the effective date of an award.  Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.

Because the appeal of the PTSD rating arises from the Veteran's disagreement with the initial evaluation following the grant of service connection, no additional notice is required.  The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the CAVC have held that, once service connection is granted the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for 'downstream' issues following a service connection grant, such as initial rating and effective date claims).

The Veteran submitted his claim for an increased rating for hepatitis in April 2009.  He was sent letters in April 2009 and June 2009, which advised him of the information and evidence necessary to substantiate these claims.  Those letters advised him as to how disability ratings and effective dates were assigned.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  Since the letters were sent to the Veteran prior to the initial adjudication of the claims in September 2009, there exists no error in the timing of this notice.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

The Board is also satisfied that VA has made reasonable efforts to obtain relevant records and evidence.  Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA and private treatment records, and the Veteran's written assertions.  The RO requested records pertaining to the grant of disability benefits from the Social Security Administration (SSA), and received notice from SSA that the Veteran's records had been destroyed.  The RO also certified its attempts to obtain the Veteran's service personnel records and certified the unavailability of those records.  

In addition, the Veteran was afforded a VA examination to address his PTSD and hepatitis in August 2009.  This examination was adequate because it was performed by a medical professional based on solicitation of history and symptomatology from the Veteran, and a thorough examination of the Veteran.  Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008).  The examination included complete descriptions of the Veteran's symptoms and included findings pertinent to rating each claim.  

Disability Ratings - Laws and Regulations

Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  

The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability.  38 C.F.R. § 4.1.  Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes.  38 C.F.R. § 4.27 (2012).  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in the claimant's favor.  38 C.F.R. § 4.3.  When the schedule does not provide a zero percent evaluation for in a Diagnostic Code, a zero percent evaluation will be assigned when the requirements for a compensable evaluation are not met.  38 C.F.R. § 4.31 (2012).  

In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the disability.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  Although the claimant's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  When a claimant is awarded service connection and assigned an initial rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found.  Such separate disability ratings are known as staged ratings.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned).  In Hart v. Mansfield, 21 Vet. App. 505, 511 (2007), the CAVC extended entitlement to staged ratings to claims for increased disability ratings where "the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings."

In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). 


Analysis of Rating for PTSD

In the process of evaluating a mental disorder, VA is required to consider a number of pertinent factors, such as the frequency, severity, and duration of a veteran's psychiatric symptoms.  See 38 C.F.R. § 4.126.  After consideration of these factors, and based on all the evidence of record that bears on occupational and social impairment, VA must assign a disability rating that most closely reflects the level of social and occupational impairment a veteran is suffering.

The VA Secretary, acting within his authority to adopt and apply a schedule of ratings, chose to create one general rating formula for mental disorders.  38 U.S.C. § 1155; see 38 U.S.C. § 501; 38 C.F.R. § 4.130.  By establishing one general formula to be used in rating more than 30 mental disorders, there can be no doubt that the VA Secretary anticipated that any list of symptoms justifying a particular rating would in many situations be either under- or over-inclusive.  The Secretary's use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation.  This construction is not inconsistent with Cohen v. Brown, 10 Vet. App. 128 (1997).  See Mauerhan v. Principi, 16 Vet. App. 436, 442 (1992).  The schedular criteria incorporate the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV).  38 C.F.R. §§ 4.125, 4.130.  In Vazquez-Claudio v. Shinseki, --- F.3d ----, 2013 WL 1395804 (Fed. Cir. April 2013), the United States Court of Appeals for the Federal Circuit held that a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.  

The evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code.  Instead, the rating specialist is to consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV).  See 38 C.F.R. § 4.126.  If the evidence demonstrates that a claimant 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, 16 Vet. App. at 443.  The Court of Appeals for the Federal Circuit has embraced the Mauerhan interpretation of the criteria for rating psychiatric disabilities.  Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004).

The current appeal arises from a claim received at the RO on April 17, 2009.  In the September 2009 rating decision, the RO granted service connection and assigned an initial 50 percent rating for PTSD, pursuant to Diagnostic Code 9411, effective April 17, 2009.  

Pertinent to the claim on appeal, the General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides the following ratings for psychiatric disabilities: 

A 10 percent rating is warranted for PTSD if there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication.  

A 30 percent rating is warranted for PTSD if there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, recent events).  

A 50 percent rating is warranted if it 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.  

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.  

A 100 percent rating 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).

The Board acknowledges that service connection has not been granted for any psychiatric or mental disorder other than PTSD; however, the clinical evidence in this case establishes additional diagnoses of major depression and cognitive disorder NOS, also diagnosed as dementia NOS and Alzheimer's dementia.  While these are not service-connected disabilities, and the Board may compensate the Veteran only for his service-connected disability, the Board is legally precluded from differentiating between symptomatology attributed to a non service-connected disability and a service-connected disability in the absence of medical evidence which does so.  Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996).  Here, the Veteran was afforded a VA examination in August 2009 and the examiner was prompted to address the level of impairment attributable to the various mental disorders.  The examiner found that the 3 conditions are intertwined with their symptoms and it is not possible to separately evaluate them.  There is no other medical evidence that attempts to apportion the psychiatric/mental symptoms among service-connected and nonservice-connected disabilities.  Accordingly, the Board must treat all of the Veteran's psychiatric/mental symptomatology as service connected.  

After a review of all of the evidence, the Board finds that the evidence in favor of a higher initial rating of 70 percent has attained relative equipoise with the evidence against a higher rating.  In essence, while not all of the specific symptom examples are demonstrated in the evidence, the Veteran's symptoms do result in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.  In particular, the Board notes findings on the August 2009 VA examination that the Veteran was not oriented to person or time, but was oriented to place.  This does not quite fit the symptom examples for either the 70 percent or 100 percent level -- the 70 percent level contemplates spatial disorientation, and the 100 percent rating contemplates disorientation to time or place.  Nevertheless, it is symptomatology of greater severity than that contemplated for the 50 percent rating.  

The Veteran has also been shown to have significant memory impairment.  A private evaluation in June 2009 reveals, although the Veteran's long-term memory was intact, there were immediate and delayed memory deficits.  His immediate memory scores were very low in list learning and story memory.  The Veteran's delayed memory score was severely impaired in retrieving newly learned information from short-term memory storage.  Additional measures of attention, concentration, and mental set indicated problems sustaining focus and performing tasks that require rapid mental processing speed.  A measure of basic attention and concentration was below average.  There were problems in sequential mental tracking and divided attention.  Clock drawing was inaccurate due to reversal of hands.  There were deficiencies in visual and auditory immediate memory, and mental serial 7 and 13 subtractions.  The Veteran's neurocognitive profile indicated problems in visual and immediate memory, delayed memory, attention, and sustained concentration, processing speed, and divided attention.  

In addition, the Board notes that the Veteran's GAF scores on the VA examination, and as reported by the June 2009 private examiner, are in the range from 41 to 50, which is consistent with 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).  This is consistent with the VA examiner's finding that there was serious impairment in social and occupational functioning.  This would appear to reflect a level of impairment that is greater than the 50 percent level, which reflects reduced reliability and productivity.  

The evidence above contributes to deficiencies in work, school, judgment, and thinking.  In addition, the June 2009 private examiner found that communication skills and social interaction are negatively impacted by PTSD and depression.  The Board also finds that the Veteran experiences deficiencies in mood resulting from PTSD.  The June 2009 examiner found a depressed mood.  A November 2009 VA outpatient record notes that the Veteran's mood was dysphoric.  The August 2009 VA examiner that, about 1 year ago, he became depressed and was having less interest in activities; he frequently feels hopeless and fatigued.  His mood was anxious and depressed.  

Regarding deficiencies in family relations, the June 2009 private examiner found that the Veteran's personality characteristics are consistent with depression, low self-esteem, distrust, chronic anxiety and isolation affecting family relationships.  

Regarding specific symptom examples, the Board finds that the evidence demonstrates depression affecting the ability to function independently, appropriately and effectively.  The Veteran has also demonstrated difficulty in adapting to stressful circumstances (including work or a work-like setting).  

The Board acknowledges that the evidence does not demonstrate symptomatology such as suicidal ideation, obsessional rituals which interfere with routine activities, speech intermittently illogical, obscure, or irrelevant, near-continuous panic, impaired impulse control (such as unprovoked irritability with periods of violence), neglect of personal appearance and hygiene, and the inability to establish and maintain effective relationships.  However, with resolution of all reasonable doubt in the Veteran's favor, the Board finds that the criteria for a 70 percent rating are more nearly approximated than those for a 50 percent rating.  

The Board has also considered whether a 100 percent rating is warranted.  After a review of all of the evidence, the Board finds that the weight of the evidence demonstrates that the criteria for a 100 percent rating are not more nearly approximated than those for the 70 percent rating.  

While the evidence demonstrates some thought impairment, the evidence is not consistent with gross impairment in thought processes or communication.  The June 2009 private examiner noted that, while speech was halted, the Veteran's thoughts were organized with no evidence of psychosis.  His language initiation and production speed was average on picture naming and semantic production.  The report of VA examination in August 2009 reveals that speech, thought content, and thought process were unremarkable.

The Veteran's symptomatology is not of the type and degree contemplated by persistent delusions or hallucinations.  The report of VA examination in August 2009 reveals no hallucinations or delusions.  A November 2009 VA outpatient record also reveals no delusions or auditory or visual hallucinations.  

The Veteran's symptomatology is not of the type and degree contemplated by grossly inappropriate behavior.  There are no examples of inappropriate behavior described in the clinical evidence or by the Veteran.  The August 2009 VA examiner found no inappropriate behavior.  

The Veteran's symptomatology is not of the type and degree contemplated by a persistent danger of hurting self or others.  The Veteran has consistently reported that he does not experience suicidal ideation or homicidal ideation.  Moreover, the August 2009 VA examiner found good impulse control with no episodes of violence.  

The Veteran's symptomatology is not of the type and degree contemplated by an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene).  The August 2009 VA examiner found that the Veteran was able to maintain at least minimal hygiene.  Regarding activities of daily life, there was no impairment of household chores, toileting, grooming, bathing, sports/exercise, or traveling.  There was only a slight impairment of self-feeding and dressing/undressing.  There was a moderate impairment of shopping.  While the August 2009 examiner noted that driving was prevented, the Veteran told a VA clinician in November 2009 that he was still driving.  

As noted above, there is evidence of disorientation to time or place, as reported by the August 2009 VA examiner.  The record is otherwise negative as to disorientation.  The June 2009 private examiner found the Veteran to be oriented times 3, as did the November 2009 VA clinician.  In August 2009, September 2009, and October 2009, the clinician found him to be oriented to time, place, and person.  The Board finds that, to the extent the severity of the Veteran's disorientation exceeds spacial disorientation, as listed under the 70 percent criteria, this is weighed against other symptomatology which is present to a lesser degree than contemplated for a 70 percent rating.  As discussed above, the Veteran does not demonstrate suicidal ideation, obsessional rituals which interfere with routine activities, speech intermittently illogical, obscure, or irrelevant, near-continuous panic, impaired impulse control (such as unprovoked irritability with periods of violence), neglect of personal appearance and hygiene, or the inability to establish and maintain effective relationships.  

While the evidence demonstrates some memory impairment, the evidence is not consistent with memory loss for names of close relatives, own occupation, or own name.  As discussed above, the June 2009 private examiner conducted extensive memory testing and found that the Veteran's long-term memory was intact, with primarily deficits in immediate and delayed memory.  The Veteran displayed average skills on digit repetitions and copying speed; attention measures were average; and his ability to copy geometric figures and understand visuospatial concepts was average.  The August 2009 VA examiner found that remote and immediate memory were only mildly impaired, and that recent memory was normal.  Thus, while there is some memory impairment, it is not of the degree contemplated as memory loss for names of close relatives, own occupation, or own name.  

The Board acknowledges that the August 2009 VA examiner answered "[y]es" to the question whether there total occupational and social impairment due to PTSD signs and symptoms.  The examiner then elaborated that the Veteran is having poor memory and planning ability, and is insomniac, irritable, with lessened social interest.  Total occupational and social impairment are the stated criteria for a 100 percent rating.  However, in this case, the examiner's own findings are inconsistent with his response to this question.  Indeed, his explanation notes symptomatology that does not imply total occupational and social impairment.  The GAF score of 50 certainly does not correspond to symptomatology associated with a 100 percent rating, and with the exception of disorientation, the specific symptoms described in the report do not reflect total occupational and social impairment.  The Board notes that the June 2009 private examiner noted that the Veteran isolates from people, and the September 2009 VA clinician noted that the Veteran is withdrawn from others.  The same clinician reported in November 2009 that the Veteran had no interest in social activities over the last couple of years, and did not belong to any group in the community.  However, that clinician also reported that the Veteran had been married for 57 years, and had good team work with his wife, and that the Veteran's wife was supportive.  Thus, while there is social impairment, it is not total.  

In this case, the Board assigns great probative weight to the actual symptoms described and GAF scores assigned by the August 2009 examiner and by the other clinicians who have examined the Veteran.  That examiner's positive response to a pre-printed question regarding total occupational and social impairment is inconsistent with the examiner's own findings and is given less probative weight.  The Board finds that the weight of the evidence demonstrates that there is no total occupational and social impairment during any portion of the period on appeal.  

For these reasons, the Board finds that, while the evidence for and against a 70 percent rating are in relative equipoise, the weight of the evidence is against an initial rating in excess of 70 percent for PTSD.  To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. 

Analysis of Rating for Hepatitis

In a December 1946 rating decision, the RO granted service connection and assigned an initial noncompensable rating for hepatitis.  The current appeal arises from a claim received at the RO on April 17, 2009.  The September 2009 rating decision on appeal assigned Diagnostic Code 7345, but denied a higher initial rating.  

Diagnostic Code 7345 is used to evaluate chronic liver disease without cirrhosis (including hepatitis B, chronic active hepatitis, autoimmune hepatitis, hemochromatosis, drug-induced hepatitis, etc., but excluding bile duct disorders and hepatitis C).  


A zero percent rating is for assignment where the condition is asymptomatic.  

A 10 percent rating requires symptoms of intermittent fatigue, malaise, and anorexia, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least one week, but less than two weeks, during the past 12-month period.  

A 20 percent rating requires symptoms of daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least two weeks, but less than four weeks, during the past 12-month period.  

A 40 percent rating requires symptoms of daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least four weeks, but less than six weeks, during the past 12-month period.  

A 60 percent rating requires symptoms of daily fatigue, malaise, and anorexia, with substantial weight loss (or other indication of malnutrition), and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least six weeks during the past 12-month period, but not occurring constantly.  

A 100 percent rating requires near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain).  See 38 C.F.R. § 4.114, Diagnostic Code 7345.  

Note (1): Evaluate sequelae, such as cirrhosis or malignancy of the liver, under an appropriate diagnostic code, but do not use the same signs and symptoms as the basis for evaluation under DC 7354 and under a diagnostic code for sequelae. (See § 4.14.).  

Note (2): For purposes of evaluating conditions under diagnostic code 7345, "incapacitating episode" means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician.  

Note (3): Hepatitis B infection must be confirmed by serologic testing in order to evaluate it under diagnostic code 7345.  

After a review of all of the evidence, the Board finds that the weight of the evidence demonstrates that there are no current residuals of the Veteran's in-service hepatitis B infection, nor have there been any such residuals during the period on appeal or at any time since service separation.  The report of VA examination in August 2009 reveals no current hepatitis and no residuals.  The examiner reviewed the record and noted no current treatment for hepatitis and no treatment of hepatitis or amebiasis since 1947.  The examiner found that the Veteran has never been jaundiced since discharge.  There have been no incapacitating episodes, no evidence of malnutrition, and no signs of liver disease of any kind.  

The Veteran does not appear to assert that he has current residuals.  He informed the VA examiner in August 2009 that he was seeking compensation for the in-service infection.  While service connection has been granted based on the in-service infection, a compensable rating requires some form of residual disability.  As established by the CAVC, the definition of disability comports with the everyday understanding, which is defined as an "inability to pursue an occupation because of physical or mental impairment."  Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991).  The Veteran has not described any residual disability, and the clinical evidence demonstrates no residual disability.  

As there are no current residuals of the Veteran's in-service hepatitis infection, the Board finds that the weight of the evidence is against a rating in excess of zero percent for hepatitis.  To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. 

Extraschedular Consideration

The potential application of the various other provisions of Title 38 of the Code of Federal Regulations have also been considered, including 38 C.F.R. § 3.321(b)(1) (2012), which provides procedures for referral or assignment of an extraschedular evaluation.  Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991).  The question of an extraschedular rating is a component of a claim for an increased rating.  See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996).  Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242 (2008).

The VA Compensation and Pension Service is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards."  38 C.F.R. § 3.321(b)(1).  If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular 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.  

Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd 572 F.3d 1366 (Fed. Cir. 2009).

In this case, the Board finds that the schedular rating criteria contemplate the Veteran's service-connected symptomatology.  As noted above, there is no residual disability of any kind associated with the in-service hepatitis infection.  Because there is no disability picture of any kind, there can be no exceptional or unusual disability picture to render impractical the application of the regular schedular standards.  For these reasons, the Board finds that the criteria for referral for extraschedular rating have not been met.  38 C.F.R. § 3.321(b)(1). 

Moreover, all the Veteran's PTSD symptoms are either explicitly part of the schedular rating criteria under the general formula for rating mental disorders at 38 C.F.R. § 4.130; are analogous to the schedular rating criteria (see 38 C.F.R. §§ 4.20, 4.21), or are "like or similar to" the schedular rating criteria (see Mauerhan at 442-43).  The schedular rating criteria, Diagnostic Code 9411, specifically provides for disability ratings based on a combination of history and clinical findings.  The Veteran's symptoms of irritability, social withdrawal, depressed mood, anxiety, chronic sleep impairment, and memory loss are specifically included in the rating schedule, and the assigned 70 percent disability rating specifically rates based on the degree of occupational and social impairment, including due to specific symptomatology.  A higher rating is available where symptomatology of the appropriate type and degree is shown.  The Board has found that it is not.  

Moreover, the GAF scores indicated in the DSM-IV, which reflect overall degree of impairment due to psychiatric disorders, and which the Board weighed and considered in this case, are part of the schedular rating criteria.  Because the schedular rating criteria are adequate to rate the Veteran's service-connected PTSD, there is no exceptional or unusual disability picture to render impractical the application of the regular schedular standards.  

For these reasons, the Board finds that the criteria for referral for extraschedular rating have not been met.  38 C.F.R. § 3.321(b)(1).



ORDER

An initial disability rating for PTSD of 70 percent, but not higher, is granted. 

A disability rating for hepatitis in excess of zero percent is denied. 


REMAND

A remand is required in this case to ensure that there is a complete record upon which to decide the Veteran's claim of entitlement to an increased rating for burns of the scalp, neck, back, shoulders, and arms.  VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(c), (d) (2012).

The only medical evidence describing the Veteran's burns pertinent to the period on appeal comes from a report of VA examination in August 2009.  For several reasons, the Board finds that this examination report is inadequate to evaluate the service-connected burns.  

While the examiner acknowledged burns in service to the scalp, face and neck, the presence and extent of residual scaring of the head, and neck was not described.  The examiner did state that there was no scarring to the right side of the face, but did not mention any other part of the face, or the scalp or neck.  

In addition, the examiner found no gross distortion or asymmetry of facial features, but made no findings regarding the factors of disfigurement listed under the rating schedule.  

The Board also notes that the examiner described service-connected and nonservice-connected scars; however, it was not entirely clear from the report which scars were from the service-connected injury, and which were related to later surgeries, such as a rotator cuff surgery.  

Also, the first sentence of the physical examination section begins "Scar is not painful; has no signs of skin breakdown; is deep."  However, the specific scar so described is not identified.  

In addition, the examiner noted that, the only limitation of motion is in the left arm when he tries to raise the arm.  However, elsewhere, the examiner noted that the Veteran cannot raise both arms above 80 degrees due to bilateral shoulder pain unrelated to the burns.  The extent of limitation of motion attributable to the burns, if any, is thus unclear.  

Finally, the examiner noted that "skin shows signs of inflammation, edema or keloid formation."  The use of "or" renders the meaning of this sentence unclear.  In other words, it is unclear whether the examiner did not know which condition was present, or whether he intended to report "no signs" of those conditions.  

In sum, the record does not contain adequate evidence to evaluate the Veteran's service-connected burns.  If an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for rating purposes. 38 C.F.R. § 4.2 (2012). 

Once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, VA must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  An inadequate examination frustrates judicial review.  Hicks v. Brown, 8 Vet. App. 417, 422 (1995).  

The separate issue of entitlement to TDIU is inextricably intertwined and the proposed development will encompass that issue.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation).

Accordingly, the issues of entitlement to an increased disability for burns of the scalp, neck, back, shoulders, and arms in excess of 40 percent and entitlement to TDIU are REMANDED for the following action:

1.  Schedule the Veteran for an examination to determine the current degree of severity of his service-connected burns of the scalp, neck, back, shoulders, and arms.  The claims folder must be made available to and reviewed by the examiner.  All indicated studies should be performed.  

The examiner is asked to conduct an examination in accordance with the current protocol for evaluating skin disabilities and scars.  Please address each of the Veteran's service-connected scars.  It is not necessary to describe nonservice-connected scars, but if they are described, please clearly differentiate them from service-connected scars.  

2.  Readjudicate the remanded issues of entitlement to an increased disability for burns of the scalp, neck, back, shoulders, and arms in excess of 40 percent and entitlement to TDIU.  If either benefit sought on appeal is not granted, the Veteran and his representative should be provided a supplemental statement of the case and an appropriate time period for response.  The case should then be returned to the Board for further consideration, if otherwise in order.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claims.  See 38 C.F.R. § 3.655 (2012). 

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. 2011).




____________________________________________
MARK W. GREENSTREET
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs