Citation Nr: 1319304	
Decision Date: 06/13/13    Archive Date: 06/21/13

DOCKET NO.  09-32 929	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to a disability evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) for the period from June 24, 2008, to February 21, 2012.

2.  Entitlement to a disability evaluation in excess of 70 percent for PTSD for the period from February 22, 2012, onward.

3. Entitlement to a total disability evaluation based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	North Carolina Division of Veterans Affairs


ATTORNEY FOR THE BOARD

A.E.H. Gibson, Associate Counsel
INTRODUCTION

The Veteran served on active duty from November 1995 to November 1998.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In that decision, the RO denied the Veteran's June 2008 claim for a disability evaluation higher than 50 percent for PTSD.

In January 2012, the Board remanded the claim for additional development, including the provision of a VA examination. Subsequently, the RO assigned a rating of 70 percent for the period from February 22, 2012, the date of the Veteran's VA examination. The Veteran has not indicated satisfaction with this disability evaluation, thus his appeal is still pending. See AB v. Brown, 6 Vet.App. 35 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). In February 2013, the Board again remanded the claim for additional development.

A review of the Virtual VA paperless claims processing system reveals additional medical records pertinent to the present appeal. The Veteran was apprised of receipt and consideration of these records in an April 2013 Supplemental Statement of the Case.

Although the Board presently grants the claim in part and awards a 70 percent rating for the entirety of the appeal period, recently-generated evidence suggests that the Veteran may be unemployable - independent of the question of an appropriate rating. Rice v. Shinseki, 22 Vet.App. 447 (2009)((holding that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating)).

The Board has therefore construed a claim for TDIU and will REMAND it for adjudication to the RO via the Appeals Management Center (AMC), in Washington, DC.

 
FINDINGS OF FACT

1.  Since June 24, 2008, the Veteran's PTSD is manifested by symptoms causing social and occupational impairment with reduced reliability and productivity, in approximate balance with symptoms indicating social and occupational impairment with deficiencies in most areas, such as mood, thinking, judgment, work, and family and social relations.

2. Since June 24, 2008, the Veteran's PTSD has not been manifested by symptoms causing total occupational and social impairment.


CONCLUSIONS OF LAW

1. The criteria for an evaluation of 70 percent for PTSD for the period from June 24, 2008, to February 21, 2012, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102 , 4.7, 4.130, Diagnostic Code 9411 (2012).

2. The criteria for an evaluation in excess of 70 percent for PTSD for the period from February 22, 2012, onward, have not been met. Id.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts.

VA is to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. 38 U.S.C.A. § 1154(a) (West 2002). The Federal Circuit held that medical evidence is not always or categorically required in every instance to establish the required nexus or linkage between the claimed disability and the Veteran's military service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); but see Waters v. Shinseki, 601 F.3d 1274 at 1278 (Fed. Cir. 2010) ("VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to"). Citing to its previous decisions in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) and Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit stated in Davidson that it has previously and explicitly rejected the view that competent medical evidence is always required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. See id. at 1316. 


The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:

(1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer);

(2) the layperson is reporting a contemporaneous medical diagnosis, or;

(3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. 

Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465 (1994). 

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). 

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").

The standard of proof to be applied in decisions on compensation claims is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 
See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet.App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet.App. 518 (1996).


Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and, (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). 

In a claim for an increased evaluation, the VCAA requirement is generic notice: the type of evidence needed to substantiate the claim, which consists of evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). 

The record reflects the RO provided the Veteran with the notice required under the VCAA and Vazquez-Flores by letters mailed August 8, 2008, and February 2, 2009.  The duty to notify has been satisfied.

VA also has a duty to assist in the development of the claim. This duty includes assisting in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. A VA examination and opinion shall be provided when there is "an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service," but there is "insufficient competent medical evidence on file for the Secretary to make a decision on the claim." See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). 

The RO has obtained the Veteran's STRs and post-service VA and private treatment records. The Veteran has not identified any additional records that he wished the RO to obtain. Further, VA examinations were conducted in August 2008 and February 2012. The Board finds these examination reports are adequate because the appropriate evaluations were conducted following a full review of the record. 

The RO/AMC complied with the Board's January 2012 and February 2013 remand directives. Stegall v. West, 11 Vet. App. 268 (1998); see D'Aries v. Peake, 22 Vet. App. 97 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). The RO/AMC attempted to obtain medical and employment records, scheduled the appropriate VA examination, and readjudicated the claim as necessary.

All necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Accordingly, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of this claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).



Increased Disability Evaluation Claim

Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Schedule). 38 C.F.R. Part 4 (2012). The percentage ratings contained in the 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 the residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2012). Separate diagnostic codes identify the various disabilities.

In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2011). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet.App. 282 (1991).

Where entitlement to compensation has already been established and an increase in the disability is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet.App. 55, 58 (1994). Consistent with the facts found, the rating may be higher or lower for periods of the time under review on appeal, that is, the rating may be "staged." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The Veteran's rating for the period under consideration has been staged, however, the Board does not find that there to be a material difference in the Veteran's symptoms over the course of the period, as discussed more fully below, and thus a uniform rating is warranted.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012).

When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. 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. 38 C.F.R. § 4.126(a). 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 solely on the basis of social impairment. 38 C.F.R. § 4.126(b).

The Board is to consider the Global Assessment of Functioning (GAF) scores that have been reported during the rating period for consideration. GAF scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness." See Carpenter v. Brown , 8 Vet.App. 240, 242 (1995); see also Richard v. Brown, 9 Vet.App. 266, 267 (1996) (citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (4th ed.), p. 32).

GAF scores from 91 to 100 represent superior functioning in a wide range of activities. GAF scores from 81 to 90 represent absent or minimal symptoms. GAF scores from 71 to 80 represent no more than slight impairment of in social, occupational or school functioning. GAF scores of 61 to 70 represent some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or schooling functioning (e.g., occasionally truancy, or theft within the household), but generally functioning pretty well, with some meaningful interpersonal relationships. GAF scores from 51 to 60 represent moderate symptoms, such as flat affect and circumstantial speech, and occasional panic attacks, or moderate difficulty in social, occupational, or school function (such as few friends, conflicts with peers or co-workers). GAF scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideations, 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 other children, is defiant at home, and is failing at school). A score from 21 to 30 is indicative of behavior which is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or inability to function in almost all areas. A score of 11 to 20 denotes some danger of hurting one's self or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement) or occasionally fails to maintain minimal personal hygiene (e.g., smears feces) or gross impairment in communication (e. g., largely incoherent or mute). A GAF score of 1 to 10 is assigned when the person is in persistent danger of severely hurting self or others (recurrent violence) or there is persistent inability to maintain minimal personal hygiene or serious suicidal acts with clear expectation of death. See 38 C.F.R. § 4.130 (incorporating by reference the VA's adoption of the American Psychiatric Association: DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), for rating purposes).

Pursuant to 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411, a 50 percent evaluation is warranted where there is 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and, difficultly in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, DC 9411.

A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood, due to such symptoms as: suicidal ideations; 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); and the inability to establish and maintain effective relationships. Id.

A 100 percent rating is warranted if there is 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. Id.

As noted above, the Veteran is seeking an increased disability evaluation for PTSD, which has been evaluated as 50 percent disabling for the period prior to February 22, 2012, and 70 percent disabling for the period from February 22, 2012, onward.

In October 2007, the Veteran complained of nightmares and intrusive thoughts about the traumatic incident, a ship collision, two to three times a week. He said he avoids ships. He was having trouble sleeping and difficulty concentrating, and was irritable and hypervigilant. The Veteran was then employed as a corrections officer in a federal prison. He said he had a violent altercation at work within the previous week, as well as one with his wife within the previous two months. He admitted to impulsive thoughts of hurting people when he is upset. His psychiatrist advised he dispose of his guns, and noted he was likely at some risk of harm to himself or others. His mood was depressed. He lost interest in things he used to enjoy. He had low energy, leaving him tired during the day. He described frequent anxiety with racing thoughts causing him to sweat and feel shaky. His insight and judgment were fair. He admitted to suicidal ideation, and the auditory hallucination of hearing his daughter when she is not there. His GAF was 50. See Mental health initial evaluation dated October 24, 2007.  

In January 2008, the Veteran reported he disposed of his guns and stopped carrying a firearm at work, because of continued suicidal ideation. He denied intent, noting his daughter would prevent him from taking his life. His GAF was 50. See VA treatment dated January 10, 2008.

In April 2008, the Veteran stopped taking his medication because he his symptoms had improved. His symptoms then returned, causing him to drink and argue with his wife. See VA treatment dated April 4, 2008. He also complained his job as a prison guard was quite stressful, leaving him irritable and unable to concentrate. He said the stress affected his marriage. His mood was depressed, which he attributed to recent reminders of memories and regrets of his period of service. His drinking increased. He was anxious. His psychiatrist noted he did not mention suicide during this appointment, but she also noted he was at some risk of harm to self or others. His GAF was 50. See VA treatment dated April 23, 2008.

In August 2008, the Veteran had a psychiatric evaluation. His mood was anxious and depressed. His thinking was relevant to the evaluation, and was characterized by uncertainty and a ruminative depressive quality. His affect was restricted and downcast, and he avoided eye contact. He described feeling hopeless and depressed most of the time, noting he has nothing to look forward to in the future. The Veteran had difficulty remembering basic historical information. His attention and concentration were adequate. Abstract reasoning and judgment appeared fair but insight appeared fair to marginal. He said he avoids thinking of the ship collision, but could not help but remember it. He complained of re-experiencing the incident. He said he wakes frequently and tosses and turns while sleeping. 

He reported suicidal ideation two to three times a month. He said he had no friends. His one pleasure was attending a monthly disabled veterans meeting. He had no hobbies, and preferred being alone.  

The evaluator diagnosed PTSD, major depression, and alcohol dependence, and opined that alcohol dependence and depression are secondary to his PTSD. His prominent PTSD symptoms were re-experiencing, sleep disturbance, avoidance, hyperarousal, and sense of a foreshortened future. His symptoms were worse than they were in November 2005, the date of an earlier PTSD evaluation. His GAF was 45. See Review examination dated August 25, 2008.

The Veteran entered a substance abuse treatment program in September 2008. At the intake, he said he had no friends. He said his drinking increases when he and his wife argue. When he drinks, he isolates himself from his family so as not to be seen, and also because he wants them to "stay out of his business." He said alcohol was relaxing and reduced his anxiety. He expressed doubt that he would be able to stop drinking. His GAF was 40. See VA SATP admission evaluation note dated September 8, 2008.

In November 2008, the Veteran was terminated from substance abuse counseling due to a failure to participate. See Letter dated November 24, 2008.

In December 2008, the Veteran admitted to suicidal ideation, but denied intent. He also said that he retrieved his guns because someone broke into his car. His psychiatrist urged him to dispose of them again, and the Veteran appeared amenable to that. He said his mood fluctuated, and that he was feeling good, but his affect appeared anxious and constricted. He admitted to drinking every day. His psychiatrist did not observe any evidence of psychosis, but thought he was at a low risk of harming himself or others. His GAF was 50.  See VA treatment dated December 10, 2008.

In August 2009, the Veteran's stress had increased, causing him to drink more. He had an altercation with one of the inmates at work. He was suspended for two days. He reported having very low energy with a sad mood, anhedonia, trouble concentrating, feelings of hopelessness, suicidal ideation, and poor sleep. He denied psychotic or manic symptoms. He had constricted affect. His psychiatrist assessed the depressive symptoms as moderate to severe, and that the Veteran was at moderate risk of hurting himself or others. The Veteran declined in-patient treatment because he worried about losing his job. His GAF was 50. See VA treatment dated August 17, 2009.

In November 2009, the Veteran reported he had been suspended from work in September 2009, due to his use of excessive force. He asked for a letter to give to his employer about whether he should be permitted to carry a gun. They discussed that it was not safe, due to his anger. He admitted having thoughts about hurting others, but denied intent to follow through with these desires. His psychiatrist found him to be at risk of harming others or himself, but she did not think he was then in imminent danger. She recommended that he completely abstain from alcohol, which increases the risk. His GAF was 50. See VA treatment dated November 30, 2009.

In May 2010, the Veteran reported he was suspended from work after threatening to cut a co-worker's throat. He denied current homicidal ideation. He told his psychiatrist that he did not give his employer the letter she wrote recommending that he not carry a gun for work. He complained of hearing noises and seeing things in his peripheral vision that are not there. Aside from that, his thought processes were organized and logical, but his insight was limited to poor. His judgment was generally fair, but limited to poor regarding alcohol use, and poor when he is angry.  See VA treatment dated May 20, 2010.

In June 2010, the Veteran reported that he was overwhelmed by problems at work and at home, and acknowledged he had a short temper. He complained of intrusive memories of traumatic events, and that he startled easily. Sleep was difficult without medication. See VA treatment dated June 3, 2010.

In August 2010, the Veteran said he stopped taking his medication because he did not think it was working. He said his difficulty at home and work increased since then, which included a violent altercation with an inmate and an angry outburst towards his supervisor. He took the week off from work in response because his  behavior was worsening. He said he felt better but depressed, and he appeared anxious and constricted. His judgment was fair, but limited to poor in regard to alcohol, and poor when angry. See VA treatment dated August 11, 2010.

In February 2011, the Veteran reported he had been recently taking one or two days off from work a week to deal with stress. See VA treatment dated February 9, 2011.

In May 2011, the Veteran indicated that he was feeling less depressed, and had not been drinking since February of that year. He was arguing less with his wife, but continued to have anger problems at work. He complained of difficulty sleeping, missed work at least once per week because he could not get up in the morning. He was anxious. He had no suicidal ideation in the previous two weeks but admitted to thoughts of harming one of the inmates at work. His psychiatrist found him at risk for harming himself or others. See VA treatment dated May 18, 2011.

In September 2011, the Veteran had used all of his sick leave by missing one to two days of work per week. He and his wife had an altercation, and he was avoiding her.  He tried to wait until she left to get ready for work, causing him to be late. He was worried about losing his job. He admitted to increased suicidal ideation, but declined in-patient treatment. He admitted to drinking alcohol on a daily basis. He said the last few months had been particularly bad for him. His psychiatrist advised attending a stabilization group, but he declined because of work. He assured her he would not harm himself. See VA treatment dated September 21, 2011.

In November 2011, the Veteran complained to his private therapist, whom he saw infrequently, about increased intrusive suicidal thoughts. He was vague about homicidal ideation, which the therapist was unable to exclude. His mood and affect were anxious, out of proportion for the situation. His therapist observed hypervigilant behavior, and poor abstract reasoning ability. He denied auditory or visual hallucinations. His therapist was very concerned about the Veteran's suicidal and homicidal ideation, and urged in-patient treatment. The Veteran declined, but it was agreed that he would take a month off work. The Veteran was advised that the therapist would take steps for an involuntary commitment if he did not follow up due to the risk of harming himself or others. His GAF was 25/30. See CWC dated November 22, 2011.

In December 2011, the Veteran explained that he had been living with his parents for a month, and seeing a therapist twice a week, who advised him to take a month off from work. He tried not to drink that month. He and his wife planned to separate. The Veteran did not have any recent angry outbursts, which he attributed to taking time off from work. His mood was fair.  He said that his suicidal ideation had decreased. His psychiatrist noted he had significant occupational and social impairment, including poor coping skills. His GAF was 45. See VA treatment dated December 21, 2011.

In a February 2012 statement, the Veteran's wife said she had known him since before he entered service, and attested to his changed behavior.  His dream had been to retire as an officer in the Navy. After returning from active duty, his behavior was different, and they grew apart. He stopped communicating and started isolating himself. He had mood swings and angry outbursts. She noted his altercations at work, and said that she is fearful that he will hurt himself or others. See Wife's statement dated February 10, 2012.

That same month, the Veteran was worried his employer would fire him due to the extent of his psychiatric disorders. He said that he is not comfortable around the prisoners or handling a firearm. He acknowledged that a prison was not a suitable environment for him to work in, but his psychologist did not think that he had the capacity or coping resources to follow through with a career change. She also did not think he had the psychological resources to engage in basic problem-solving due to his symptoms.  See PeakBHC dated February 18, 2012.

At the February 2012 VA examination, the Veteran was diagnosed with PTSD, major depressive disorder, and alcohol dependence in partial remission. He was assigned a GAF of 40. The examiner noted these diagnoses mutually exacerbate each other, and that no level of dysfunction can be assigned to any one of them as independent from the others, although it appeared that depression and alcohol dependence were secondary to PTSD. The examiner did not think that the symptoms could be differentiated from one another.

The VA examiner found the Veteran to have occupational and social impairment with deficiencies in most areas. He was almost totally isolating himself from his family, and preferred sitting in his room alone, often with no television or radio. He only left the house to work, and was irritable at home. He showed major impairment in psychosocial adjustment.  

Regarding employment, the Veteran missed almost all of the previous two months of work due to PTSD, including the recommended leave of absence and a suspension. He had increasing difficulty at work, including getting along with others, having enough energy to do his job, being angry and irritable, and having poor attention and concentration. The VA examiner did not think that he would be able to maintain his employment much longer.

The VA examiner assessed the Veteran's symptoms as worsening, and although he showed some improvement in 2011, his psychosocial adjustment was deteriorating. The Veteran's anxiety, depression, insomnia, irritability, and self-isolation had increased, as well as the number and frequency of flashbacks and nightmares. The Veteran admitted increasing suicidal ideation but denied current plans or intent. The VA examiner noted he did not find total occupational and social impairment because the Veteran was still attempting to work, which he did not think would continue for much longer. See VA examination dated February 22, 2012.

In April 2012, the Veteran reported that he was on light duty at work, temporarily working alone and away from the inmates, and that he and his wife separated. He said he would like to build up his leave at work so he could attend an in-patient program. He admitted to intermittent suicidal ideation but denied intent. He said his mother took his gun away from him. His coping skills were poor, and he had significant social and occupational impairment. His GAF was 45. See VA treatment dated April 5, 2012.

In July 2012, the Veteran was still on light duty at work, which was less stressful.  He asked for a note to try to maintain his light duty status. He was very depressed, and had suicidal ideation. He said attending therapy was difficult for him because of  his work schedule. He was anxious and dysphoric. His thoughts were organized, but his insight and judgment were limited to poor. His psychiatrist stated that the Veteran was at some risk of harming himself or others, and that he had significant occupational and social impairment with poor coping skills. His GAF was 45. See VA treatment dated July12, 2012.

In October 2012, the Veteran returned to regular duty at work. He noted his work evaluation was not good, and he was worried about losing his job. He said that he was giving his best effort. He stated that he had no friends, had lost his family, and was worried about losing his job too. He felt worthless. The Veteran admitted to suicidal ideation but denied intent, and said that he would seek help rather than harm himself. He appeared tired, and was unshaven. His eye contact was fair, and his speech was hesitant and soft.  He described his mood as depressed, and he said that he sometimes felt like, "throwing in the towel." He was not psychotic, but was anxious and dysphoric. His psychiatrist noted he was not in therapy, and would benefit from it. He agreed to try to find an arrangement that would work for him and his work schedule. He was assessed as significantly socially and occupationally impaired, and in chronic risk of harming himself or others. His GAF was 42. See VA treatment dated October 12, 2012.

In February 2013, the Veteran complained about work, and reported that he could not handle it any longer. He said his supervisor accommodates him but he would like a less stressful job. He does not want to retire, but he does fear losing his job. He isolates most of the time, although a friend convinced him to attend a party, which he enjoyed. He admitted suicidal ideation on a daily basis. He declined in-patient treatment, and said he would reach out for help if necessary. He did not appear to be psychotic. He complained of continued depression, and was anxious and dysphoric.  His psychiatrist assessed him as significantly socially and occupationally impaired with inadequate social support. He was in chronic risk of harming himself or others. His GAF was 42. See VA treatment dated February 6, 2013.

The Board will in part grant the claim, and will assign a 70 percent disability, and not higher, evaluation for the entire appellate period. With application of the benefit of the doubt in his favor, the Veteran's symptoms meet the criteria for a 70 percent evaluation because he has shown deficiencies in work, family and social relations, judgment, thinking, and mood. 

Specifically, he is almost always depressed. His thinking is frequently disrupted by intrusive thoughts that he cannot control, both of the traumatic incident and of committing suicide. He had occasional auditory and visual hallucinations. He isolates and has no friends, and the only activity he finds enjoyable is attending a disabled veterans group. He was found to have anhedonia. He has angry outbursts at home, and he and his wife separated due to his behavior. His job causes him extreme stress, causing him to occasionally violently react, both with co-workers and inmates. He thinks of hurting people or himself, and his wife feared he would act on these thoughts. His coping and problem-solving skills are compromised. His treatment providers described him as being at chronic risk of harm to himself or others, which is exacerbated by alcohol consumption, and as being significantly impaired. Accordingly, construed in a light most favorable to the Veteran, the assignment of a 70 percent disability rating for the entire period under review is appropriate. 

The Board finds the Veteran does not meet the criteria for a 100 percent rating because the evidence does not show that his symptoms render him totally occupationally and socially impaired, as set forth in DC 9411. See 38 C.F.R. § 4.130, DC 9411. There is no evidence that he has such symptoms as grossly impaired thought processes or communication, grossly inappropriate behavior, or that he suffers from other comparable symptoms. He has shown some concentration impairment, but this has not been shown to significantly affect his life. Although he has complained of some auditory or visual hallucinations, they are described as fleeting and infrequent. Further, although frequently having thoughts of suicide, there is no evidence of any attempts, he always denied intent, and always indicated he would seek help if he reached that level. He made the rational decision to restrict his access to a gun due to his anger. He has always been oriented to time and place, and he has always maintained basic hygiene. He is cognizant of his disability and the effect it has on his social, familial, and employment relations. He has remained employed in the same position for many years. Although he is unhappy in his current position, his disability has been accommodated. He expresses a desire to continue to work, which the February 2012 VA examiner indicated kept him from assessing total impairment. 

Furthermore, while the Veteran's GAF scores generally ranged from 40 to 50, with a score of 25/30 in November 2011, disability evaluations are not assigned based solely upon GAF scores, and the symptomatology described in the record fails to more nearly approximate the criteria for a 100 percent rating at any point during the course of the appeal.

Extraschedular Considerations

At no point since June 24, 2008, the date of receipt of the Veteran's claim for a higher disability evaluation, has the disability on appeal been shown to be so exceptional or unusual as to warrant the assignment of a rating, higher than that assigned above, on an extra-schedular basis. See 38 C.F.R. § 3.321.

The threshold factor for extra-schedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993); see also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedural Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, there must be a comparison between the level of severity and the symptomatology of the veteran's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the veteran's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996); Thun v. Peake, 22 Vet. App. 111 (2008).

If the rating schedule does not contemplate the veteran's level of disability and symptomatology, and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, supra.

The schedular criteria are adequate to rate the disability currently under consideration. The rating schedule fully contemplates the Veteran's described symptomatology, and provides for ratings higher than those assigned based on more significant functional impairment. The Board acknowledges the Veteran's suspensions and leaves of absence from work. The evidence does not show these instances have had a deleterious effect on his employment, as he has maintained the position despite his fears that he will be fired. Indeed, he has been on light duty to accommodate his symptoms. He has consistently declined in-patient treatment. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).



ORDER

A 70 percent evaluation for PTSD is granted for the period from June 24, 2008, to February 21, 2012.

A disability evaluation in excess of 70 percent for PTSD is denied for the period from February 22, 2012, onward.


REMAND

As noted, while the Veteran does not meet the schedular criteria for the assignment of a 100 percent rating for PTSD, recently-generated evidence suggests that his psychiatric disorder may cause him to be unemployable. Rice, above. 

A claim for TDIU is raised and must be adjudicated. The claim is therefore REMANDED to the RO/AMC for the following:

Develop and adjudicate a claim for TDIU in accordance with VA standard duty to notify and develop procedures.  If the claim is denied, issue the Veteran a Supplemental Statement of the Case, and return the claim 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).



____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs