Citation Nr: 1317474 Decision Date: 05/29/13 Archive Date: 06/06/13 DOCKET NO. 07-33 770 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to an extraschedular evaluation for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served on active duty from September 1967 to September 1970, October 1990 to July 1991, and from December 2003 to March 2005. He also served with the United States Army Reserves and retired in March 2008. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the Louisville, Kentucky, Department of Veterans Affairs (VA) Regional Office (RO), which in pertinent part, granted service connection for PTSD and assigned a 30 percent disability rating, effective March 2, 2005. By subsequent rating decisions, the RO increased the Veteran's disability rating for the service-connected PTSD to 70 percent disabling, effective March 2, 2005. The Veteran and his spouse testified at a hearing before the undersigned Veterans Law Judge (VLJ) in April 2009. The transcript of the hearing has been associated with the claims file. In August 2009, the Board denied entitlement to an initial schedular disability rating in excess of 70 percent for PTSD. At the time, the Board raised the issue of TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, because the Veteran and the evidence of record reasonably raised the question of whether he was unemployable due to the PTSD disability for which an increased rating was sought, the issue of whether a TDIU was warranted as a result of the PTSD was part and parcel of the increased rating claim. Id. Additionally, the Board determined that there was evidence indicating that the Veteran would retire early from the school system for which he worked because of his service-connected PTSD. The Board found that a referral of the PTSD claim to the Director of the VA Compensation and Pension Service for consideration of an extraschedular rating was warranted. 38 C.F.R. § 3.321(b)(1) (2012). In August 2009 the Board remanded the extraschedular and TDIU claims for extraschedular consideration. In September 2011, the Board again remanded the Veteran's claims in order to obtain any additional VA and private treatment records, determine whether the Veteran is in receipt of Social Security Administration (SSA) disability benefits for his PTSD, and provide the Veteran with VA examinations of his service-connected disabilities-including PTSD-to determine whether they render him unemployable. The issue of entitlement to a rating in excess of 70 percent for PTSD on a schedular basis has been raised by the record-see March 2012 VA examination report & November 2012 Appellate Brief Presentation-but has not been adjudicated by the Agency of Original Jurisdiction (AOJ) since the Board last denied the claim in August 2009. The Board does not have jurisdiction over it; thus, it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The severity and symptoms of the Veteran's PTSD are adequately described and contemplated by the established schedular criteria. 2. Prior to June 30, 2009, the Veteran's PTSD did not prevent him from securing and following substantially gainful employment. 3. As of June 30, 2009, the Veteran's PTSD has prevented him from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an extraschedular rating for the Veteran's PTSD are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.130, Diagnostic Code 9411 (2012). 2. Prior to June 30, 2009, the criteria for entitlement to TDIU were not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.16 (2012). 3. As of June 30, 2009, the criteria for entitlement to TDIU are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to provide the Veteran with notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements regarding an increased rating were accomplished in February 2006 and October 2009 letters that were provided before the most recent adjudication of the claim, a June 2012 supplemental statement of the case (SSOC). See also March 2010 SSOC. The letters notified the Veteran of the information and evidence needed to substantiate his claim. Additionally, a September 2006 letter provided notice of the type of evidence necessary to establish a disability rating or effective date for the disability under consideration, pursuant to the holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Accordingly, the Board finds that VA satisfied its duty to notify under the VCAA in accordance with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issues-including VA examination reports, VA treatment records, and SSA records-has been obtained. Golz v. Shinseki, 590 F.3d 1317, 1323 (2010). The Board remanded these claims in August 2009 and September 2011. There has been substantial compliance with the Board's remand directives, insofar as VA provided the Veteran with VCAA notice as to the issue of entitlement to a TDIU; referred the Veteran's PTSD claim to the Director of Compensation and Pension Service, who replied in March 2010; requested any outstanding private treatment records; obtained the Veteran's VA treatment records and SSA records; and provided the Veteran with VA examinations of his service-connected disabilities. D'Aries v. Peake, 22 Vet. App. 97 (2008); Stegall v. West, 11 Vet. App. 268 (1998). The Veteran has been provided with adequate VA examinations in connection with his present claims, including in June 2008 and March 2012. Specifically, the examiners based their opinions on consideration of the Veteran's prior medical history, described the disability in sufficient detail so that the Board's "'evaluation of the claimed disability will be a fully informed one,'" Ardison v. Brown, 6 Vet.App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet.App. 121, 124 (1991)), and supported their conclusions with an analysis that the Board can consider and weigh against contrary opinions. Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007). The Veteran has not indicated there are any additional records that VA should seek to obtain on his behalf. Therefore, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claims, and no further assistance to develop evidence is required. The Veteran has been afforded a hearing before a VLJ in which he and his spouse presented oral argument in support of his claims on appeal. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires the VLJ who chairs a hearing fully explain the issues and suggest the submission of evidence that may have been overlooked. Here, the VLJ identified the issues to the Veteran and asked specific questions directed at identifying whether he met the criteria for entitlement to a higher rating for PTSD and entitlement to a TDIU. Additionally, the Veteran volunteered his treatment history and symptoms since service. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claims, and the Veteran provided testimony relevant to those elements. As such, the Board finds the Veteran is not prejudiced by a decision at this time and that no further action pursuant to Bryant is necessary. As discussed above, the Board has considered and complied with applicable VCAA provisions. The Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process, and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis: Extraschedular Rating for PTSD As previously noted, in August 2009, the Board denied entitlement to an initial schedular disability rating in excess of 70 percent for PTSD. The Board found that the Veteran's PTSD symptoms were productive of 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); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. The Board determined that entitlement to a higher rating was not warranted because the Veteran's disability picture was not productive of 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; 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. However, the Board determined that there was evidence indicating that the Veteran would retire early from the school system for which he worked because of his service-connected PTSD. The Board found that a remand was warranted for referral of the PTSD claim to the Director of the VA Compensation and Pension Service for consideration of an extraschedular rating was warranted. 38 C.F.R. § 3.321(b)(1) (2012). In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: The first step is to determine whether the "evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." If the adjudicator determines that this is so, the second step of the inquiry requires the adjudicator to "determine whether the claimant's exceptional disability picture exhibits other related factors," such as marked interference with employment or frequent periods of hospitalization. Finally, if the first two steps of the inquiry have been satisfied, the third step requires the adjudicator to refer the claim to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether an extraschedular rating is warranted. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Veteran's PTSD is currently evaluated as 70 percent disabling under the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130, Diagnostic Code 9411. Under such regulation, ratings are assigned according to the manifestation of particular symptoms. The use of the term "such symptoms 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 has carefully compared the level of severity and symptomatology of the Veteran's service-connected PTSD with the established criteria found in the rating schedule. The Board finds that the Veteran's symptomatology as determined by the March 2012 VA examiner-e.g., depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; impairment of short- and long-term memory, for example, retention of only highly learned material, while forgetting to complete tasks; flattened affect; impaired abstract thinking; gross impairment in thought processes or communication; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; inability to establish and maintain effective relationships; impaired impulse control, such as unprovoked irritability with periods of violence; and neglect of personal appearance and hygiene-is fully addressed by the rating criteria under which PTSD is rated. See 38 C.F.R. § 4.130, Diagnostic Code 9411; see also Mauerhan, supra. Moreover, the March 2012 VA examiner, a psychologist, expressly found that the Veteran does not have any other symptoms attributable to PTSD. The March 2012 VA psychologist's opinion is competent because she is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1). Also, the VA psychologist's findings are credible based on their internal consistency and her duty to provide truthful opinions. The Board further finds that the March 2012 VA psychologist's findings are probative because she considered the Veteran's medical records and discussed his medical history and provided unequivocal and conclusive findings. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Furthermore, the Director of Compensation and Pension Service likewise found in a March 2010 Administrative Review that the Veteran's service-connected PTSD does not present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. While these findings were the result of a review of the claims file rather than a separate examination of the Veteran, the Board nevertheless finds that the Director's opinion warrants significant probative value with respect to the applicability of an extraschedular rating. The Board has considered the lay statements from the Veteran, his spouse, and his friends and colleagues, as well as his VA treatment records throughout the pendency of the claim. While the Board acknowledges that some such descriptions of the Veteran's symptoms are not expressly listed in the General Rating Formula for Mental Disorders, the Board finds that the reported symptoms are analogous to and encompassed by the General Rating Formula. 38 C.F.R. § 4.130. This is particularly true where, as here, the United States Court of Appeals for Veterans Claims (Court) has held that the descriptions therein are not intended to constitute an exhaustive list of the symptoms covered by the regulation. Mauerhan, supra. Therefore, based on the determinations of the March 2012 examining VA psychologist and the Director of Compensation and Pension, the Board finds that the rating criteria reasonably describe the Veteran's disability level and PTSD symptomatology. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. 38 C.F.R. § 3.321(b)(1). Analysis: TDIU Because the Veteran and the evidence of record reasonably raised the question of whether he was unemployable due to the PTSD disability, the issue of whether a TDIU was warranted was raised by the Board in 2009. Rice v. Shinseki, 22 Vet. App. 447 (2009). Additional development was required in 2009 and 2011. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The determination of a single disability as ratable at 60 or 40 percent or more includes consideration of disabilities involving one or more lower extremities as a single disability. Id. Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). A Veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Marginal employment-defined as when a Veteran's earned annual income does not exceed the poverty threshold for one person, or on a facts found basis (e.g., when employment is in a protected environment such as a family business or sheltered workshop)-shall not be considered substantially gainful employment. 38 C.F.R. §§ 4.16(a). The record reflects that the Veteran is currently unemployed and has reported that he ceased working in June 2009 due to his inability to perform the duties of his occupation as a school teacher due to his service-connected PTSD. See VA Form 21-8940, dated October 2009. A letter from the Veteran's supervisor from 2005 until his retirement in June 2009-the Assistant Principal and, subsequently, Principal of the school-confirms his June 2009 retirement "due to the progression of his PTSD." Similarly, SSA records obtained in response to the Board's September 2011 remand confirm that the Veteran's disability for SSA purposes began as of June 30, 2009. Although the SSA listed "affective (mood) disorders" rather than PTSD as his mental health diagnosis, the Board is not bound by the determinations of SSA, and service-connection for PTSD in the Veteran's case has already been established. Based on the foregoing, the Board finds that the Veteran was gainfully employed as a school teacher prior to June 30, 2009, and has been unemployed thereafter. Moreover, the record reflects that the Veteran is eligible for TDIU consideration on a schedular basis, as his combined disability rating is 80 percent for his various service-connected disabilities, including PTSD, rated 70 percent disabling; rotator cuff tendonitis of the right shoulder, rated 10 percent disabling; a fracture of the left calcaneus with plantar fasciitis, rated 10 percent disabling; and tinnitus, rated 10 percent disabling. The evidence also reflects that the Veteran's service-connected disabilities preclude him from obtaining or maintaining substantially gainful employment effective June 30, 2009, but not before that date. Specifically, as discussed above, the Veteran was gainfully employed as a school teacher prior to June 30, 2009, albeit with significant accommodations from his colleagues. Moreover, the June 2008 VA examiner, a psychologist, opined after a review of the claims file, thorough discussion of the Veteran's history, and an examination, that the Veteran did not have total occupational and social impairment due to PTSD signs and symptoms. Similarly, there was no evidence that the Veteran's remaining service-connected disabilities prevented him from maintaining his employment. As of June 30, 2009, however, the most probative evidence of record reflects that the Veteran's PTSD has prevented him from securing and following substantially gainful employment. In November 2011, the Veteran's treating VA clinical social worker opined that the Veteran "is without doubt totally and permanently disabled and unemployable due to the severity of his PTSD, chronic status and the associated difficulties related to this core and primary mental health condition." Furthermore, the March 2012 VA examiner likewise found after reviewing the claims file and interviewing the Veteran that his PTSD causes total occupational and social impairment. The lay statements from the Veteran's colleagues, family, and friends are also consistent with those determinations. The Board acknowledges that the finding of unemployability due to service-connected disabilities as of June 30, 2009 is not unanimous. Specifically, another March 2012 VA examiner, who conducted a general medical examination, opined: The veteran was employed as a teacher, but described symptoms relative to his shoulder condition which did impact his ability to perform the usual activities of the profession. Although the veteran's current medical disabilities would impact any job, it is conceivable that his medical disabilities would still permit employment in mostly sedentary office-type situations, although with some attendant difficulties due to his foot and shoulder conditions as described. Where, as here, conflicting competent opinions are of record, the Board can ascribe greater probative weight to one opinion over another, provided that a rational basis is given. Winsett v. West, 11 Vet. App. 420 (1998), aff'd 217 F.3d 854 (Fed. Cir. 1999). The Board finds that the VA psychologist's opinion warrants greater probative value because it is unclear whether the general medical examiner intended to include review of the Veteran's PTSD in his analysis. Furthermore, his conclusion that it is "conceivable" that the Veteran could be permitted employment is less definitive than those of the VA psychologist and social worker. Given the evidence of record regarding the severity of the Veteran's service-connected PTSD and its impact on his employability, the Veteran's supervisor's opinion that he retired on June 30, 2009 due to the progression of his PTSD, and the other evidence of record indicating the Veteran's employment and education history, the Board finds that entitlement to a TDIU is warranted as of the date of his unemployment, June 30, 2009, but not before. ORDER An extraschedular rating for PTSD is denied. Prior to June 30, 2009, a TDIU is denied. As of June 30, 2009, a TDIU is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs