Citation Nr: 1317513 Decision Date: 05/29/13 Archive Date: 06/06/13 DOCKET NO. 08-29 669 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to an initial rating higher than 50 percent before January 26, 2009, for posttraumatic stress disorder. 2. Entitlement to a total disability rating for compensation based on individual unemployability based on individual unemployability before January 26, 2009. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and S.S. ATTORNEY FOR THE BOARD Evan M. Deichert, Associate Counsel INTRODUCTION The Veteran, who is the Appellant, served on active duty from March 1968 to January 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions in April 2007 and in June 2009 of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2011, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. In a decision in October 2011, the Board granted an initial rating of 50 percent for for posttraumatic stress disorder before January 26, 2009, and denied an initial rating higher than 50 percent from January 26, 2009. The Board remanded the claim for a total disability rating for compensation based on individual unemployability. The Veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an order in January 2012 Order, the Court granted a Joint Motion for Partial Remand and vacated the Board's decision to the extent that it denied a rating higher than 50 percent. In August 2012, the Board remanded the claim for development consistent with the Joint Motion. In a rating decision in February 2013, VA increased the rating to 100 percent, effective January 26, 2009, which is the maximum rating. The remaining question on appeal is whether the criteria for a rating higher than 50 percent before January 26, 2009, had been met. Also the claim for a total disability rating for compensation based on individual unemployability before January 26, 2009, remains on appeal. As the Board's remand in August 2012 has been completed, no further action is needed to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). The claim for a total disability rating for compensation based on individual unemployability before January 26, 2009, is REMANDED to the RO via the Appeals Management Center, in Washington, DC. FINDING OF FACT Before January 26, 2009, posttraumatic stress disorder was manifested Throughout by a disability picture that equated to occupational and social impairment with reduced reliability and productivity under the General Rating Formula for Mental Disorders (General Rating Formula), including the symptoms associated with the diagnosis of posttraumatic stress disorder under the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, (DSM-IV), of the American Psychiatric Association, which is referred to in 38 C.F.R. § 4.130 (rating mental disorders), but not covered in the General Rating Formula. CONCLUSION OF LAW The criteria for a 50 percent rating for posttraumatic stress disorder before January 26, 2009, have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.130, Diagnostic Code 9411 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre-adjudication VCAA notice by letter, dated in June 2006, on the underlying claim of service connection for posttraumatic stress disorder. Where, as here, service connection has been granted and the initial ratings have been assigned, the claim of service connection has been more than substantiated, the claim has been proven, thereby rendering 38 U.S.C.A. §5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Once the claim of service connection have been substantiated, the filing of a notice of disagreement with the RO's decision, rating the disability, does not trigger additional 38 U.S.C.A. § 5103(a) notice. Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is no longer applicable in the claim for initial higher ratings. Goodwin v. Peake, 22 Vet. App. 128, 136 (2008). Duty to Assist Relevant to its obligation to assist a claimant, VA has also made reasonable efforts to identify and obtain relevant records in support of the claim. 38 U.S.C.A. § 5103A (a), (b) and (c). The RO has obtained VA records and records from the Social Security Administration . The Veteran was afforded VA examinations in September 2006, in January 2009, and in January 2013 to determine the severity of the disability. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. The Board finds the examinations were adequate as the VA examiners reviewed the Veteran's file, recorded the Veteran's current complaints, conducted an appropriate examination, and rendered an opinion. The Board therefore concludes that the evidence of record is adequate for rating the disability. As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDING AND CONCLUSION Rating Principles A disability rating is determined by application of VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Posttraumatic stress disorder is evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9411. Ratings are assigned according to the manifestation of particular symptoms. 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). Accordingly, the evidence considered in determining the level of impairment from posttraumatic stress disorder under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in Diagnostic Code 9411. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV. Posttraumatic stress disorder has been rated as 50 percent before January 26, 2009, and as 100 percent since January 26, 2009. The criteria for a 50 percent rating are: occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks (more than once a week); difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. The criteria for a 70 percent rating are: occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. The criteria for a 100 percent rating are: total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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. The Global Assessment of Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." DSM-IV at 32. GAF scores ranging from 61 to 70, for example, reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). Facts In April 2006, the Veteran stated that he had bad dreams, avoids crowds, experienced hypervigilance and anxiety. VA records in May 2006 and in June 2006 show the Veteran was well-groomed, his affect was full, reactive and euthymic. His speech was regular in rate and rhythm. He denied auditory and visual hallucinations. His thought process was linear and goal-directed. He denied obsessions, delusions, paranoia, and homicidal or suicidal ideations. Judgment and insight were limited by current illness. On VA examination in September 2006, the Veteran indicated that he was close friends with his brother-in-law. He stated that he had not worked since 1993, although he tried to work as a machinist for a few weeks in 1995 and was fired for poor performance. On mental status evaluation, the Veteran's affect was serious. His speech was nonpressured and his thought process was linear and goal directed. Communication, concentration and sleep were fine. He denied depression and suicidal or homicidal ideation. His short term memory was worse over the years. The Veteran denied visual hallucinations and any psychotic episodes since the mid 1990s. He stated that he had occasional nightmares about Vietnam, he felt anxious when having a memory about Vietnam and he avoided conversations about Vietnam. He had an increased startle reflex and was hypervigilant. The Veteran was oriented. The GAF score associated with posttraumatic stress disorder was 63. The VA examiner stated that the symptoms associated with posttraumatic stress disorder did not interfere with the Veteran's ability to be gainfully employed. In September 2007, the Veteran stated that he had impaired short term memory loss, that he had problems understanding commands and that he was disoriented. VA records show that in May 2007 the Veteran continued to have nightmares twice per week. In May 2008, the Veteran stated that his mood was stable and he continued to have nightmares twice per week. In November 2007, a VA physician who treated the Veteran for two and half years, stated that the Veteran continued to suffer with multiple symptoms to include irritability, anger, nightmares, avoidance, distrust, numbing, hypervigilance and hyperarousal. The VA physician stated that the Veteran's presentation was much improved with medication and since starting mental health treatment. In a statement in September 2008, the Veteran's spouse stated that the Veteran had severe anxiety, panic attacks, avoided people, and nightmares. She stated that the Veteran became anxious when memories about Vietnam and experienced short term memory loss. VA records show that in September 2008 the Veteran avoided people, had intermittent panic attacks and he was hypervigilant. He had not work for years and when he attempted to work as a machinist, he was unable to complete tasks due to anxiety and stress. The VA examiner concluded that the Veteran was unable to work due to chronic and persistent symptoms of posttraumatic stress disorder. On VA examination in January 2009, the Veteran admitted to having suicidal thoughts, but he had not developed a plan. He denied homicidal ideation. He indicated that he helped with house chores and that he avoided crowds. On mental status examination, the Veteran appeared neatly groomed. His speech was normal. His eye contact was good. His thought process was linear. His sleep was poor. The Veteran complained of short term and long term memory problems as well as problems with concentration and attention. The VA examiner indicated that symptoms associated with posttraumatic stress disorder also included hyperstartle reaction, hypervigilance, dissociative behavior, numbing, anger, irritability, and panic attacks. The GAF score was 50. The VA examiner stated that the symptoms of posttraumatic stress disorder were moderate and did not prevent all types of employment. In July 2011, the Veteran testified that he avoided social situations, that he had nightmares about three times per week, that he had intrusive memories of Vietnam, but he did not have homicidal thoughts or suicidal ideation without intent to act. The Veteran's spouse testified that the Veteran had a depressed mood, was anxious and hypervigilant. She indicated that he enjoyed raising dogs and got along with his sons-in-law. Analysis The evidence shows that the Veteran had symptomatology that is associated with the criteria under the General Rating Formula for Mental Disorders and symptoms associated with the diagnosis of posttraumatic stress disorder under DSM-IV, which is referred to in 38 C.F.R. Part 4, § 4.130 (rating mental disorders), but not covered in the rating criteria. All of the Veteran's symptoms are considered in this analysis. Neither the number of symptoms, nor the type of symptoms, nor the GAF score controls in determining whether the criteria for the next higher rating have been met. It is the overall effect of the symptoms that determines the rating. Before January 26, 2009, as for occupational impairment, the evidence shows the Veteran was unable to work due to his nonservice-connected bipolar disorder, as indicated by the VA examiner in September 2006 and due to posttraumatic stress disorder as shown in VA records in September 2008. During this period, statements from the Veteran and his spouse show he had short term memory loss, problems understanding commands and anxiety. During this period VA records show the Veteran was irritable, avoided people, had panic attacks, and judgment and insight were limited. As for social impairment, while the Veteran was close with his brother-in-law, he was socially isolated and avoided people and social settings. Therefore the evidence is consistent with difficulty in establishing and maintaining social relationships. As for the GAF scores, the record shows that during this period, the GAF score associated with posttraumatic stress disorder was 63 on VA examination in September 2006, which was indicative of mild symptoms in occupational and social functioning. Nevertheless, it is not the GAF score which determines whether the criteria for the next higher rating have been met, but it is the overall effect of the symptoms that determines the rating. Before January 26, 2009, based on the VA records, the report of VA examination, the statements of the Veteran and his spouse, the Veteran's symptomatology associated with the rating criteria under the General Rating Formula and symptomatology associated with the diagnosis of posttraumatic stress disorder under DSM-IV, equated to occupational and social impairment, resulting in reduced reliability and productivity, which met the criteria for a 50 percent rating. In addition to the evidence previously discussed, on VA examination in January 2009, the VA examiner commented that the Veteran was unemployable due both to nonservice-connected bipolar disorder and posttraumatic stress disorder and that posttraumatic stress disorder was moderate and did not prevent all types of employment. Although the Veteran was impaired by limited judgment and insight, memory problems, and difficulty dealing with people, the Veteran appeared well groomed, he had normal speech, and his thought process was goal-directed. He denied hallucinations, obsessions, delusions, paranoia, and homicidal ideation. While the Veteran indicated that he had suicidal ideation in the past, he never developed a plan to act. Although judgment and insight was limited it remained intact. The Veteran's mood ranged from being depressed to euthymic. His spouse testified that he enjoyed his hobby of raising dogs. As for social impairment, while the Veteran was uncomfortable in social situations and he avoided people, he had a close relationship with his brother-in-law and his immediate family. Based on the findings, the symptoms did not more nearly approximate or equate to a disability picture of occupational and social impairment with deficiencies in most areas such as work and family relations, judgment, thinking, or mood, the criteria for a 70 percent rating. As for symptoms associated with the diagnosis of posttraumatic stress under DSM-IV, such as nightmares, intrusive thoughts, avoidance, sleep disturbance, flashbacks, irritability and anger, detachment, difficulty concentrating, hypervigilance, and startle response, the symptoms in combination with other symptoms do not more nearly approximate or equate to occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood for the next higher rating. In summary, the preponderance of the evidence is against a rating higher than 50 percent before January 26, 2009. Extraschedular Consideration Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for a rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the disability levels and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned ratings are adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Comparing the Veteran's disability level and symptomatology before January 2009 to the Rating Schedule, the degree of disability was encompassed by the General Rating Formula for Mental Disorders and symptoms associated with the diagnosis of posttraumatic stress disorder under DSM-IV, and the assigned schedule rating was adequate. In other words, the Board finds that the rating criteria reasonably describe the Veteran's disability and symptomatology, and the Veteran did not have any symptomatology not already encompassed by the General Rating Formula or by DSM-IV. For this reason, referral for an extraschedular rating is not warranted under 38 C.F.R. § 3.321(b)(1). ORDER Before January 26, 2009, a disability rating higher than 50 percent for posttraumatic stress disorder is denied. REMAND In its remand in October 2011, the Board directed that the claim for a total disability rating for compensation based on individual unemployability be referred to the VA's Director of Compensation for extraschedular consideration under 38 C.F.R. § 4.16(b). As the claim has not yet been referred, the claim is REMANDED for the following action: 1. Before January 26, 2009, the Veteran's only service-connected disability, posttraumatic stress disorder, was rated 50 percent, but the Veteran asserted that he was unemployable due posttraumatic stress disorder. Pursuant to 38 C.F.R. § 4.16(b), refer the claim for a total disability rating for compensation based on individual unemployability before January 26, 2009, to VA's Director of Compensation for extraschedular consideration. 2. After the development is completed, adjudicate the claim on an extraschedular basis under 38 C.F.R. § 4.16(b). If the benefit sought is denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The 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). ______________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs