Citation Nr: 1323612 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 13-07 990 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1943 to September 1945, including combat service in World War II. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which continued a 70 percent disability rating for PTSD and denied entitlement to a TDIU. By way of background, a December 2008 rating action granted an increased rating of 70 percent for PTSD effective August 8, 2008. Within one year of this determination, the Veteran did not express disagreement with this disability evaluation, nor was any relevant new and material evidence, medical or lay, physically or constructively received by VA prior to the expiration of the appellate period. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.156(b); 20.201 (2012); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011). As such, the December 2008 rating action became final. In his March 2013 notice of disagreement, the Veteran requested a hearing before a Veterans Law Judge. In July 2013, through his representative, he withdrew that request and asked that the Board proceed with the adjudication of his claim. As such, his hearing request is deemed withdrawn. In a January 2013 statement, the Veteran expressly claimed entitlement to special monthly pension based on the need for aid and attendance and housebound status, but these issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. For the entire appeal period, the Veteran's PTSD was manifested by nightmares, hypervigilance, avoidant behavior, depressed mood, and some social isolation; without any of the more severe manifestations that more nearly approximate total occupational and social impairment, such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. 2. The preponderance of the evidence shows that the Veteran's service-connected disabilities do not preclude him from securing and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.130, Diagnostic Code 9411 (2012). 2. The criteria for a TDIU are not met. 38 U.S.C.A. §§ 1154(a), 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The notice requirements apply to all five elements of a service connection claim, including Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on the claim for VA benefits. 38 U.S.C.A. § 5103(a) (West 2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. A December 2011 letter provided notice, before the initial unfavorable decision in December 2012, regarding what information and evidence was needed to substantiate his claims for increased rating and TDIU, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The same letter advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records, pertinent treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's VA treatment records have been obtained. Regrettably, the National Personnel Records Center indicated that the Veteran's service treatment records and service personnel records were destroyed in the 1973 fire in St. Louis, Missouri, and are thus unavailable. Further attempts to obtain such records would be futile. The Social Security Administration has verified that it has no disability-related records for the Veteran. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). The Veteran has not identified any additional outstanding records that VA should seek to obtain on his behalf. During the appeal period, the Veteran was provided with a VA PTSD examination in September 2012. He has not alleged that such is legally inadequate for adjudication purposes. Moreover, the Board finds that the examination is adequate in order to evaluate the Veteran's service-connected PTSD and TDIU claims as it includes a clinical interview of the Veteran and review of the claims file. The Veteran has not alleged, nor does the record show, that his service-connected PTSD has worsened in severity since the most recent examination in 2012. As such, a new examination is not required. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). The Board finds that all relevant facts have been properly developed, and 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. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. Increased Rating Claim Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. Separate diagnostic codes (DCs) identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Francisco v. Brown, 7 Vet. App. 55, 58 (1994. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). When there is evidence that a Veteran's service records have been lost or destroyed, as is the case here, VA has a heightened duty to consider the applicability of the benefit of the doubt rule, to assist a claimant in developing a claim, and to explain its findings and conclusions. Russo v. Brown, 9 Vet. App. 46, 51 (1996); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005). A. Analysis The Veteran's PTSD is rated as 70 percent disabling. In December 2011, he filed a claim for increased rating, contending that his symptoms have increased in severity and frequency. The Veteran's PTSD is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9411 (2012). Ratings are assigned according to the manifestation of particular symptoms. 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). Thus, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. 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 American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). Under the General Rating Formula for Mental Disorders, a 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals that 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. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (ADLs) (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. When determining the appropriate disability evaluation to assign, the Board's "primary consideration" is the Veteran's symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013) Following a review of the evidence of record relevant to the appeal period, which includes VA treatment records dated November 2007 to May 2013, the Veteran's lay statements, and the September 2012 VA examination report, the Board finds that the preponderance of the evidence is against an rating in excess of 70 percent. The Board concludes that the Veteran's overall disability picture and symptoms during the appeal period, taken as a whole and in combination with the objective mental status examination, did not more nearly approximate a rating in excess of 100 percent under the General Rating Formula, as his symptoms were not of such a severity or frequency to result in total occupational and social impairment. During the appeal period, the evidence does not show any of the characteristics of a 100 percent rating, including gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. In VA treatment records and at the VA examination, the Veteran was consistently found to be oriented in all spheres and adequately groomed with normal hygiene. He consistently denied suicidal or homicidal ideation, hallucinations, and delusions. His thought processes were normal, well-organized, goal directed, and relevant. His thought content was linear, logical, and goal-directed. His concentration was intact and behavior appropriate and he maintained his ADLs with the support of his daughters and the Vet Center. As to social impairment, during the appeal the Veteran lost his spouse of 71 years with whom he had a good relationship. He continued to grieve for her throughout the appeal. He lived with one of his daughters, who acted as a caretaker to him and his spouse. When that daughter had multiple major medical problems during the appeal period, another daughter came to live with them. His other children are long distance but visit him from time to time. He sees friends occasionally, and a friend drives him to appointments, but at the age of 95, most of his friends are gone. At the September 2012 VA examination, the Veteran was noted to have chronic and moderately severe nightmares every few weeks. He stated he could "pretty well fight" distressing memories triggered by cue. He had chronic mild avoidance of thinking or talking about the trauma. He avoided social gatherings and was "most always" hypervigilant. He denied intrusive memories, flashbacks, physical reactions to triggers for trauma, difficulty recalling important details from trauma, detachment, restricted range of affect, recent irritability or anger, or exaggerated startle response. As to memory loss, the examiner noted age-related concentration problems. In some VA treatment notes the Veteran complained of memory loss. However, there is no evidence that his memory loss is so severe that he forgets names of close relatives, his own occupation, or his own name. The VA examiner described the Veteran's current occupational and social impairment as being due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. The Board has also considered the Veteran's Global Assessment of Function (GAF) scores assigned during the course of the appeal. The GAF is a scale indicating the psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness. A GAF score between 31and 40 indicates 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, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). GAF 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). A GAF score between 51and 60 indicates 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 coworkers). GAF scores of 61 to 70 are indicative of 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, with some meaningful interpersonal relationships. A GAF score is highly probative as it relates directly to the Veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. DSM-IV; Massey v. Brown, 7 Vet. App. 204, 207 (1994). VA treatment records show that during the appeal Veteran was assigned GAFs ranging from 52 to 65. His GAF scores thus reflect moderate symptoms. The Board finds that the Veteran's symptomatology is accurately reflected by the GAFs. The scores do not reflect the kind of serious, major impairment that would more closely approximate the criteria required for a 100 percent rating. The evidence also shows that the Veteran has additional symptomatology that is not enumerated in the rating criteria, including nightmares, avoidant behavior, and hypervigilance. However, the Board finds that these symptoms are contemplated by his current 70 percent evaluation. Vazquez-Claudio v. Shinseki; Mauerhan. Based on the foregoing, the Board finds that the preponderance of the evidence shows that the Veteran is not totally occupationally and socially impaired. While he has been retired for more than 30 years, the VA examiner found that his PTSD does not prevent him from sedentary or physical work. He has good relationships with his children and sees friends occasionally. Therefore, the Board finds that the Veteran's symptomatology does not most closely approximate a 100 percent rating. In sum, the Board finds that the preponderance of the evidence is against a rating in excess of 70 percent for his PTSD. Thus an increased rating is not warranted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Other considerations The Board has considered whether staged ratings are appropriate for the Veteran's service-connected disability. However, the Board finds that the Veteran's overall symptomatology has been stable throughout the appeal period. Thus, assigning staged ratings are not warranted. See Fenderson; Francisco. 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: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's disability. The Veteran's PTSD is characterized by occupational and social impairment of mild to moderate levels due to such symptoms as depressed mood, mild memory loss, and some social isolation. These manifestations are contemplated in the applicable rating criteria. The Board has carefully compared the level of severity and symptomatology of the Veteran's PTSD with the criteria found in the rating schedule. The Board has also considered symptoms of nightmares, avoidant behavior, and hypervigilance, which are not found in the rating schedule. In sum, the Board finds that the Veteran has not described other functional effects that are "exceptional" or not otherwise contemplated by the assigned evaluation. Rather, his descriptions of PTSD symptoms are consistent with the degree of disability addressed by such evaluation. The rating criteria are therefore adequate to evaluate the Veteran's disability and referral for consideration of an extraschedular rating is not warranted. III. TDIU Total disability will be considered to exist when any impairment of mind or body is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2012). If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341 (2012). In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15 (2012). If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of non-service connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran's service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). 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, in 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); Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). For the entire appeal period, the Veteran was service-connected for PTSD rated at 70 percent and bilateral hearing loss rated at 0 percent. Therefore, he met the minimum schedular requirement of a single disability rating of 60 percent or more to be considered for a TDIU rating. 38 C.F.R. § 4.16(a). The question now becomes whether the Veteran's service-connected PTSD renders him unable to secure and follow a substantially gainful occupation. He has not contended that his hearing loss has any effect on his employability. In his December 2011 claim for TDIU, the Veteran stated that he would like to find some sort of work but his PTSD symptoms prevent him from employment and interaction with others. His application for TDIU states that he completed two years of college and last worked in October 1982 as a printer, and became too disabled to work by his service-connected PTSD in August 2008. He stated that he did not leave his last job because of his disability, and he has not tried to obtain employment since he became too disabled to work. In November 2008 the Veteran reported to a VA examiner that his usual occupation had been selling business forms and he retired because of eligibility by age or duration of work. The Board notes that the Veteran was 65 years of age at the time of his retirement. The Veteran reported to the September 2012 VA examiner that he retired in 1982 because his company went bankrupt. Based on the foregoing, the VA examiner opined that the Veteran's PTSD should not preclude physical or sedentary employment. The Board finds this opinion probative, as its conclusion is supported by and cites to the record. Moreover, it is consistent with the Board's finding in this decision that the Veteran is not totally occupationally or socially impaired due to his service-connected PTSD. In sum, the Board finds that the preponderance of the evidence is against a finding that Veteran's service-connected PTSD precludes him from securing and maintaining substantially gainful employment of a physical or sedentary nature. Thus, entitlement to a TDIU must be denied. 38 U.S.C.A. § 5107(b); Gilbert. ORDER A rating in excess of 70 percent for PTSD is denied. Entitlement to a TDIU is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs