Citation Nr: 1323647 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 07-34 104 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to an initial posttraumatic stress disorder (PTSD) evaluation higher than 30 percent, prior to June 10, 2009. 2. Entitlement to an initial PTSD evaluation higher than 70 percent. 3. Entitlement to a total disability rating based on individual unemployability (TDIU), prior to June 10, 2009. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). The Veteran had qualifying active duty service as a recognized guerilla in the Philippines from January 1945 to March 1945, and as a Philippine Scout from July 1946 to March 1949. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision by the Manila, Republic of the Philippines, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which granted service connection for PTSD, rated 30 percent disabling from May 31, 2006. The Veteran expressed his disagreement with both the assigned evaluation and the effective date of service connection. During the pendency of the appeal, in a June 2008 decision, the RO assigned an earlier effective date of April 26, 2005, for the grant of service connection. The Veteran elected to continue his appeal on both issues. In October 2009, the Board granted an earlier effective date of September 22, 2004, for the grant of service connection for PTSD. The increased rating claim for PTSD was remanded for additional development. In a June 2010 rating decision, the RO increased the rating for PTSD to 70 percent, effective June 10, 2009. Although the rating decision notes the effective date of the increase corresponded with the date of receipt of the claim for an increase, the December 2012 supplemental statement of the case notes the increase was based on VA examinations reflecting an increase in symptoms. Regardless, the appeal stems from the initial 30 percent evaluation assigned following the grant of service connection in the April 2007 rating decision. Because the increase to 70 percent does not represent a full grant of the benefit sought, the increased rating claim remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). A TDIU claim is part of an increased rating claim when such claim is raised by the record. An April 2011 rating decision reflects that a TDIU was granted from June 10, 2009, the effective date of the assignment of a 70 percent disability evaluation for PTSD. Because a 70 percent disability evaluation for PTSD is being granted in this decision , effective March 8, 2007, the issue of entitlement to a TDIU, prior to June 10, 2009, is raised. The issues have been recharacterized to comport with the evidence of record. The issue of entitlement to a TDIU, prior to June 10, 2009, being remanded is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. From March 8, 2007, PTSD is productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood. 2. Total social and occupational impairment due to PTSD is not shown. CONCLUSIONS OF LAW 1. The criteria for an initial 70 percent disability evaluation for PTSD, from March 8, 2007, are met. 38 U.S.C.A. §§ 1154(a), 1155, 5107, 5121A (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012). 2. The criteria for an initial disability evaluation higher than 70 percent for PTSD are not met. 38 U.S.C.A. §§ 1154(a), 1155, 5107, 5121A (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012). Duties to Notify and Assist The appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial and will not be discussed. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; he did not identify any additional treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran's Social Security Administration disability determination, and the records considered in that determination, were obtained in August 1997. 38 C.F.R. § 3.159 (c) (2). VA examinations were conducted in March 2007, March 2010, and January 2011; the Veteran has not argued, and the record does not reflect, that these examinations were inadequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c)(4). The examiners reviewed the claims file and rationales for the opinions provided are based on objective findings, sound reasoning, and reliable principles. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claim file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appeal stems from the initial 30 percent evaluation assigned in an April 2007 rating decision following the grant of service connection for PTSD. In June 2010, the evaluation was increased to 70 percent, effective June 10, 2009 Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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). To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Separate ratings for distinct periods of time, based on the facts are for consideration. In Fenderson v. West, 12 Vet. App. 119 (1999); see also See Hart v. Mansfield, 21 Vet. App. 505 (2007). Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). The Veteran's PTSD is currently rated pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. According to 38 C.F.R. § 4.126(a), a mental disorder shall be evaluated "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 examination." 38 C.F.R. § 4.126(a) (2012). Under Diagnostic Code 9411, the criteria for a 30 percent disability rating include: occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted if the evidence shows 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent evaluation is warranted if evidence shows occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and an inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted if evidence shows total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). In determining whether the Veteran meets the criteria for a higher rating, the Board must consider whether the Veteran has deficiencies in most of the following areas: work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11 (2001). In rating the severity of the Veteran's psychiatric disability under the criteria listed above, psychiatric health care providers have their own system for rating psychiatric disability. This is the Global Assessment of Functioning (GAF) rating scale, which is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV); Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing DSM-IV. The GAF scale score assigned does not determine the disability rating VA assigns, but it is one of the findings employed in that determination. As relevant to this case, a GAF of 41 to 50 is indicative of serious symptoms or any serious impairment in social, occupational, or school functioning. A GAF of 51 to 60 is defined as moderate or moderate difficulty in social, occupational, or school functioning. A May 2006 VA treatment record notes the Veteran was alert, oriented, and well-dressed and groomed. Speech was noted to be non-spontaneous but coherent, and only a mildly dysphoric mood was reported. Although some paranoid projections were noted, no suicidal or homicidal ideation was reported. A May 2006 VA behavioral health evaluation report reflects the Veteran's history of having been married to his current spouse since 1959. It was noted that he had few friends and rarely left him home due to physical problems. The examiner noted that the Veteran was casually dressed and well groomed. Affect was reported to be congruent with a depressed mood. Although the Veteran expressed having suicidal ideation since separation from service in 1944, he denied any suicide attempts. Cognitive functioning was reported to be intact, although it was noted to be difficult to assess due to the language difference. Talking with other Veteran's was noted to be helpful with the Veteran's feelings of sadness and isolation, however, his physical health - primarily debilitating chronic bronchitis and chronic pain, was reported to make it difficult for him to leave his home. Avoidance/mistrust of people was noted to possibly be a contributing factor. A June 2006 VA treatment record notes the Veteran was cooperative and that his grooming was appropriate. He was reported to be alert and oriented to person, place, time, and situation. Speech was spontaneous and of normal volume. Thought process was linear. No evidence of homicidal ideation was reported, and it was noted that he did not act upon ongoing suicidal ideation. Affect was appropriate to content, and mood was depressed. Insight and judgment were noted to be fair. An August 2006 record notes that he was active and social with other Filipino Veterans at the Filipino community center. VA treatment records, dated in October 2006 and February 2007, reflect that the Veteran was cooperative, and with appropriate grooming. He was alert and oriented to person, place, time, and situation. Speech was noted to be spontaneous and of normal volume. Thought processes were linear, and no evidence of current suicidal or homicidal ideation was noted. Affect was appropriate to content and mood was depressed. Insight and judgment were fair. Although a GAF score of 50 was assigned in VA treatment records in 2006, the March 2007 VA examination report reflects a GAF score of 55 indicating a moderate degree of impairment due to PTSD symptoms. Regardless, the GAF score alone is neither statutorily nor regulatory controlling in rating a psychiatric disorder; rather the rating is determined by the application of the Rating Schedule, 38 C.F.R. Part 4. Objective findings reported on VA examination on March 8, 2007, include incomprehensible speech, at times, and rather tangential thought processes. Affect was constricted and mood was noted to be anxious and guarded. The examiner added that it was not possible to accurately evaluate the Veteran's memory for recent and remote events because he was interested in talking about certain events and was difficult to redirect. Prior to March 8, 2007, only a mildly dysphoric mood was noted, and speech was reported to be coherent and of normal volume. Although insight and judgment were noted to be fair, thought process was linear and affect was appropriate to content. The evidence consistently reflects the Veteran was alert and oriented, and with appropriate grooming. He has been married for many years, and was noted to be active and social in the community, at least to some extent. Cognitive functioning was noted to be intact, and subsequent impairment has been attributed to dementia, not PTSD. The criteria for both a 30 percent and 70 percent evaluation require occupational and social impairment and, resolving all doubt in the Veteran's favor, the Board finds that symptoms associated with PTSD more nearly approximate the criteria for a 70 percent rating, from March 8, 2007, the date of the VA examination. The evidence establishes deficiencies in the most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). The records objectively confirm that PTSD and related symptoms affect the Veteran's ability to function independently and result in social and occupational impairment, from March 8, 2007, and no earlier. Accordingly, a 70 percent rating is warranted from March 8, 2007. Comparing his reported and documented symptoms of PTSD to the rating schedule, he does not manifest or nearly manifest the behavioral elements of 100 percent disability due to PTSD at any time during the appeal. The March 2010 VA examiner specifically determined there was not total occupational and social impairment due to PTSD. Although some findings reported, such as inability to maintain minimum personal hygiene and to do serial 7s, along with inappropriate behavior in the form of being verbally noncommunicative, would support a 100 percent rating under the diagnostic criteria, the examiner attributed impairment to his poor health, as well as a cognitive disorder, not otherwise specified. Corresponding with this finding is the GAF score of 50 assigned for PTSD, and the GAF score of 45 assigned based on the combination of PTSD and the cognitive disorder with memory and comprehension problems. The Veteran's only service-connected disability is PTSD, and the degree of impairment due to a nonservice-connected cognitive disorder, not otherwise specified, and/or physical disabilities, is not for consideration in the evaluation of the degree of impairment due to service-connected PTSD. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Consistent with the findings reported in March 2010 are the findings reported on VA examination in January 2011. The January 2011 report of examination notes the Veteran had become more impaired over the past year due to not only increased irritability but also profound hearing loss and difficulty with memory due to dementia. Speech was reported to be impoverished due to hearing loss and lack of facility in the English language, not PTSD. No hallucinations were reported, and no episodes of violence or suicidal or homicidal thoughts were noted. Good impulse control was reported. Although determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the diagnostic code, and even in consideration of the Veteran's depression noted to be secondary to PTSD, a higher rating is not warranted. The January 2011 VA examiner specifically concluded that the Veteran is not able to do any type of employment due to not only PTSD but also his age, profound hearing loss, and multiple physical ailments. Comparing his reported and documented symptoms of PTSD to the rating schedule, he does not manifest or nearly manifest the behavioral elements of 100 percent disability due to PTSD at any time during the appeal period. There is no competent, objective evidence of gross impairment of thought processes or communication due to PTSD, and no documented instance of the Veteran being a danger to himself or others, let alone persistence of such danger. Consistent with findings reported in both March 2010 and January 2011 are the findings reported on VA aid and attendance examination in August 2011. Impairments affecting his ability to protect himself from harm were noted to include dementia, PTSD, depression, osteoarthritis, spondylosis, chronic obstructive pulmonary disease (COPD) and severe hearing loss. The examiner determined that the Veteran is completely disabled and unemployable with multiple age-related co-morbidities, noting his condition was essentially unchanged since VA examination in January 2011. The 70 percent rating assigned in this decision contemplates serious symptoms or any serious impairment in social, occupational, or school functioning, as reflected in the GAF score of 50 due solely to PTSD. The 70 percent evaluation granted in this decision, effective March 8, 2007, contemplates impairment in earning capacity, including loss of time from exacerbations due to PTSD. 38 C.F.R. § 4.1 (2012). | The Veteran is competent to report his symptoms, and the Board has considered his statements as well as those of his spouse. The Board has accorded more probative value to the objective medical findings and opinions. The Board finds the Veteran's PTSD symptoms do not more closely approximate to the criteria for a 100 percent evaluation at any time during the appeal. The preponderance of the evidence is against a rating higher than 70 for PTSD; there is no doubt to be resolved; and a rating higher than 70 percent is not warranted. 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). Here, the applicable rating criteria adequately contemplate the manifestations of the Veteran's PTSD symptoms. The 70 percent evaluation assigned from March 8, 2007, contemplates impairment in earning capacity, including loss of time from exacerbations due to PTSD. 38 C.F.R. § 4.1 (2012). Because the criteria are adequate to evaluate the disability and contemplate occupational and social impairment. A TDIU was granted based solely on PTSD. ORDER An initial PTSD disability evaluation of 70 percent, from March 8, 2007, is granted. An initial PTSD disability evaluation higher than 70 percent is denied. REMAND The Veteran's only service-connected disability is PTSD, and although both the March 2010 and January 2011 VA examiners determined that there is not total social and occupational impairment due to PTSD, the April 2011 rating decision reflects that a TDIU was granted solely due to PTSD symptoms, effective June 10, 2009. The Board's determination that the criteria for a 70 percent rating have been met, from March 8, 2007, raises the issue of whether a TDIU is warranted prior to June 10, 2009. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Given the state of the record, the Veteran is to be afforded a VA examination with respect to the issue of entitlement to a TDIU, to include on an extraschedular basis, prior to June 10, 2009. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA psychiatric examination by an appropriate medical professional. The entire claim file (i.e., the paper claim file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review. The examiner is to conduct all indicated tests. The examiner is to provide an opinion as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that his service-connected PTSD renders him unable to secure or follow a substantially gainful occupation, prior to June 10, 2009. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 2. Then, readjudicate the appeal. If the benefit sought remains denied, issue 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). 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). ___________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs