Citation Nr: 1316696 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 09-17 397 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial rating greater than 30 percent for posttraumatic stress disorder (PTSD) prior to September 7, 2012. 2. Entitlement to an initial rating greater than 70 percent for PTSD beginning September 7, 2012. 3 Entitlement to a total disability rating for compensation on the basis of individual unemployability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran served on active duty from June 1965 to June 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The claims file was subsequently transferred to the RO in Roanoke, Virginia. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to September 7, 2012, the Veteran's PTSD was manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as exaggerated startle response, irritability, sleep impairment, homicidal/suicidal ideation, moderate panic attacks occurring approximately twice per week, and short-term and long-term memory problems. 2. Beginning September 7, 2012, the Veteran's PTSD is manifested by occupational and social impairment, with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as avoidance, markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from others, restricted range of affect, irritability or outbursts of anger, difficulty concentrating, hypervigilance, exaggerated startle response, anxiety, suspiciousness, impairment of short-term memory, disturbances in motivation and mood, difficulty in adapting to stressful circumstances, and impaired impulse control. CONCLUSIONS OF LAW 1. The criteria for a rating of 50 percent, but no more, for PTSD prior to September 7, 2012, have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). 2. The criteria for an increased rating in excess of 70 percent for PTSD since September 7, 2012, have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2011). A February 2007 letter satisfied the duty to notify provisions with respect to his underlying service connection claims, to include notifying the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records and VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. VA examinations were conducted in December 2007 and September 2012; the record does not reflect that these examinations were inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The examination reports included a review of the Veteran's medical history, an interview as to his symptoms of greatest impairment, and a complete psychiatric examination. Accordingly, as the Veteran's current claims for increase are downstream issues from his original claims for service-connection, his disability will be rated based on the evidence of record. 38 C.F.R. § 3.655 (b) (2012). The Veteran also testified at a April 2013 Board hearing. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the April 2013 hearing, the Veteran was assisted by an accredited representative from the Veterans of Foreign Wars of the United States. The representative and the VLJ asked questions to ascertain the current severity of the Veteran's PTSD symptomatology. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for an increased rating. Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c) (2). There is no indication in the record that any additional evidence relevant to the issues adjudicated in this decision is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2012). Where the Rating Schedule does not provide for a noncompensable evaluation for a diagnostic code, a noncompensable evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (2012). The primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. VA has a duty to consider the possibility of assigning staged ratings in all claims for increase. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran initially filed a claim for entitlement to service connection for PTSD in December 2006. A November 2007 rating decision granted entitlement to service connection for PTSD and assigned a 30 percent evaluation effective December 13, 2006. By an October 2012 rating decision, the Veteran's PTSD was increased to a 70 percent rating effective September 7, 2012, under the General Rating Formula for Mental Disorders (General Rating Formula). Under the General Rating Formula, a 30 percent rating is warranted where the disorder is manifested by 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 normal conversation, due to such symptoms as: depressed mood, anxiety, suspiciousness, weekly or less often panic attacks, chronic sleep impairment, and mild memory loss, such as forgetting names, directions, recent events. 38 C.F.R. § 4.130, Diagnostic Code 9411, General Rating Formula. A 50 percent rating is warranted where the disorder is manifested by 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 for example, 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. Id. A 70 percent rating is warranted where the disorder is manifested by 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 that is 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 an inability to establish and maintain effective relationships. Id. The maximum 100 percent rating is warranted where the disorder is manifested by 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. Id. 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). A GAF score of 41-50 is assigned where there are 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). American Psychiatric Association, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM-IV) 47 (4th ed. 1994). A GAF score of 51-60 represents 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 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. Id. A GAF score does not automatically equate to any particular percentage in the Rating Schedule; rather, it is but one factor to be considered in conjunction with all the other evidence of record. 38 C.F.R. §§ 4.2, 4.6 (2012). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and a veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a) (2012). The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126(b). Further, ratings are assigned according to the manifestation of particular symptoms. However, 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). The Board finds that, prior to September 7, 2012, the Veteran's PTSD warrants a 50 percent rating, but no more. VA treatment records dated in September 2006 reveal that the Veteran's speech was logical, coherent, and of normal rate, rhythm, and volume. His eye contact was good, and he was oriented as to person, place, and time. However, his sleep was impaired due to nightmares, night sweats, and waking due to frequent urination. His energy was fair and his anxiety was mild. He exhibited anger problems manifested by occasional verbal conflicts, but did not conflict with any one person in particular. His concentration was variable, while he exhibited mild short-term memory problems. His thought processes were within normal limits, and his insight and judgment were intact. His mood was depressed and irritable, while his affect was appropriate. He did not endorse any current or former suicidal or homicidal ideation or plans. The Veteran reported regular nightmares of Vietnam, hypervigilance, social withdrawal, and irritability. The Veteran was provided with a VA PTSD examination in June 2007, at which time he was diagnosed as having PTSD, panic attacks, and alcohol dependence in remission. At that time, the Veteran reported improvement with anger management and a good relationship with his spouse. He continued to work as a District of Columbia public school teacher and track coach. The Veteran reported that he did not miss considerable time from work due to his psychiatric disorder. Upon objective examination, the Veteran did not exhibit impairment of thought process or communication, delusions, or hallucinations. His rate and flow of speech was normal. His behavior was appropriate. Although the Veteran denied any past suicidal or homicidal thoughts, he reported current suicidal or homicidal thoughts, ideation, plans, or intent. He was able to maintain personal hygiene and the activities of daily living, and he was oriented as to person, place, and time. He exhibited both short-term and long-term memories problems which were described as moderate in nature. There was no evidence of obsessive or ritualistic behavior which interfered with routine activities. He did report experiencing moderate panic attacks approximately once or twice per week, which were accompanied by a tingling sensation and temporary numbness in the hands. He also exhibited moderate chronic depression and anxiety. His impulse control was impaired in that he would have verbal outbursts and confrontations. He also experienced difficulty getting to sleep and staying asleep due to nightmares, night sweats, and intrusive thoughts, images, and recollections of prior combat trauma. However, his overall symptomatology was described as merely medium and sporadic. His employability was estimated to be good. The GAF scores assigned for this period were consistently 51-60 range, indicative of 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). Moreover, at the time of his June 2007 VA examination, the Veteran subjectively reported current homicidal/suicidal ideation as well as moderate panic attacks occurring approximately twice per week. In addition, the examiner noted both short-term and long-term memory problems which were described as moderate in nature. All of these symptoms support the assignment of a 50 percent rating for PTSD prior to June 7, 2012. See Mauerhan, supra. However, the Board finds that a PTSD rating in excess of 50 percent is not warranted prior to June 7, 2012. While occupational and social impairment with reduced reliability and productivity was evident, occupational and social impairment with deficiencies in most areas did not exist such that a 70 percent rating was warranted prior to September 7, 2012. To the contrary, the June 2007 VA examiner explicitly opined that the Veteran's employability was good, and the Veteran himself conceded that he did not miss considerable time from work due to his psychiatric disorder. As such, even though the Veteran subjectively reported suicidal or homicidal ideation and demonstrated impaired impulse control resulting in verbal outbursts and confrontations, these manifestations were not shown to cause occupational and social deficiencies in most areas. Moreover, there was no evidence of obsessional rituals, near-continuous panic or depression, or spatial disorientation. The Veteran's speech was normal in rate and rhythm, and he exhibited good personal appearance and hygiene. Significantly, he was able to establish and maintain effective relationships, as evidenced by his occupation as a teacher and coach as well as his relationship with his spouse. Thus, the evidence of record more closely contemplates the 50 percent rating for the period prior to September 7, 2012. 38 C.F.R. § 4.7 (2012). Beginning September 7, 2012, the Veteran's PTSD warrants no more than a 70 percent rating. The Veteran was provided a VA PTSD examination on that date, at which time he was diagnosed as having PTSD as well as depressive disorder, not otherwise specified. The examiner explained that the Veteran's anxiety symptoms were attributable to his service-connected PTSD, while his depressive symptoms were attributable to his depressive disorder. The examiner opined that the Veteran suffered from occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Veteran endorsed experiencing recurrent, distressing dreams of in-service events as well as acting or feelings as if the traumatic event were recurring. He also endorsed efforts to avoid thoughts, feelings, or conversations associated with the trauma as well as activities, places, or people that aroused recollections of the trauma. He reported markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from others, and restricted range of affect, as well as irritability or outbursts of anger, difficulty concentrating, hypervigilance, and exaggerated startle response. Objectively, the examiner noted that the Veteran exhibited depressed mood, anxiety, suspiciousness, impairment of short-term memory, disturbances in motivation and mood, difficulty in adapting to stressful circumstances, and impaired impulse control. The examiner assigned a GAF score of 60, indicative of 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). At his April 2013 Board hearing, the Veteran testified since the original VA examination in June 2007, he retired from his teaching position in 2009 for health reasons mainly involving his cardiac condition. Shortly after his retirement, his spouse passed away, causing his psychiatric symptomatology to exacerbate. The Veteran indicated that he currently resided with his daughter and two grandchildren. While the Veteran's ability to maintain social relationships and employment is impaired by his service-connected PTSD, total social and occupational impairment does not exist such that the maximum 100 percent rating is warranted since September 7, 2012. To the contrary, the September 2012 VA examiner explicitly opined that the Veteran suffered from occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioned satisfactorily, with normal routine behavior, self-care, and conversation. To that end, the Veteran's speech was not noted to be illogical, obscure, or irrelevant. There was no gross impairment in thought processes or communication noted, nor was there evidence of persistent delusions of hallucinations. He did not exhibit grossly inappropriate behavior, and he was not indicated to be in persistent danger of hurting himself or others. He was able to perform the activities of daily living, and was not disoriented as to time or place. Although he exhibited short-term memory impairment, this was not to the degree of forgetting the names of close relatives or his own name. Moreover, as the Veteran did not demonstrate an inability to establish and maintain effective relationships, as evidenced by the relationships with his daughter and grandchildren. Thus, the evidence of record more closely contemplates the 70 percent rating for the period beginning September 7, 2012. 38 C.F.R. § 4.7 (2012). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular evaluation. 38 C.F.R. § 3.321(b) (1) (2012). Otherwise, the schedular evaluation is adequate, and referral is not required. Thun, 22 Vet. App. at 116. The schedular ratings in this case are adequate. Ratings in excess of those assigned are provided for certain manifestations of PTSD, but those symptoms are not present. The diagnostic criteria also adequately describe the PTSD's severity and symptomatology over the appeal period, as higher evaluations exist within the rating criteria which contemplate a more serious level of social and occupational functioning not present in the Veteran. Therefore, the Veteran's disability picture is contemplated by the Rating Schedule; no extraschedular referral is required. The evidence of record supports the assignment of two separate ratings over the appeal period. See Hart, 21 Vet. App. at 507-08. However, for the reasons discussed above, the preponderance of the evidence is against the assignment of ratings greater than those previously assigned. There is no doubt to be resolved, and increased ratings beyond those assigned by this decision are not warranted. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an initial rating of 50 percent for PTSD prior to September 7, 2012, is granted. Entitlement to an initial rating greater than 70 percent for PTSD beginning September 7, 2012, is denied. REMAND VA will grant entitlement to a TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from securing or following a substantially gainful occupation. 38 C.F.R. § 4.16 (2012). A TDIU claim is part of an increased rating claim when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran is currently service connected for PTSD, rated at 70 percent, and atherosclerotic coronary disease, rated as 60 percent. The Veteran has indicated that he retired from his position as a public school teacher and track coach in 2009 due to health problems related to his service-connected disabilities, primarily his coronary disease. As the question of TDIU is raised by the record, it is appropriate for the Board to address the matter. However, because the record is inconsistent as to whether the Veteran's service-connected disabilities alone, and not in conjunction with his age or nonservice-connected disabilities, makes him unemployable for VA purposes, and contains no sufficient nexus opinion as to same, remand is required. Accordingly, the case is REMANDED for the following action: 1. Obtain all treatment records for the Veteran from the VA Medical Center in Washington DC dated from April 2009 to the present. All attempts to obtain these records must be documented in the claims file. 2. Contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim, to include any private treatment records pertaining to his cardiac disorder. Based on the Veteran's response, attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Document all attempts to secure this evidence in the claims file. In light of the changes to 38 U.S.C.A. § 5103A(2)(B), the RO/AMC must make two attempts for the relevant private treatment records or make a formal findings that a second request for such records would be futile. See Pub. L. No. 112-154, § 505, 126 Stat. 1165, 1193 (2012). If, after making reasonable efforts to obtain any of these records, the records are unavailable, notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those re cords; and (c) describe any further action to be taken by the RO with respect to the claim. Provide a reasonable amount of time in which the Veteran and his representative may respond. 2. Schedule the Veteran for an examination to determine whether his service-connected disabilities, PTSD and atherosclerotic coronary disease, together result in unemployability. The claims file and a copy of this Remand must be made available to and reviewed by the examiner. Following a review of the service and post-service medical records, the VA examiner must state whether the Veteran is unable to secure or follow a substantially gainful occupation due solely to his service-connected disabilities, consistent with his education and occupational experience, without consideration of his age and any nonservice-connected disabilities. The opinion must be based on the review of the claims file, to include the multiple VA examination reports of record. A complete rationale must be provided for any opinions expressed. The report must be typed. 2. Notify the Veteran that he must report for any scheduled examination and cooperate in the development of the claim. Failure to report for a VA examination without good cause may result in denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 3. Readjudicate the TDIU claim. If the benefit sought on appeal remains denied, provide a Supplemental Statement of the Case to the Veteran and his representative, and allow for an appropriate response period. Then, return the appeal to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs