Citation Nr: 1324567 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 09-03 689 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an initial disability rating in excess of 50 percent for service-connected acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) and depressive disorder prior to February 1, 2013. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to February 1, 2013. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from August 1969 to April 1971. These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in January 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board remanded these matters in November 2010 and May 2011 for further evidentiary development. The RO continued the denial of the claims as reflected in the May 2013 supplemental statement of the case (SSOC) and returned these matters to the Board for further appellate consideration. The Board notes that in a May 2013 rating decision the RO granted a 100 percent disability rating for service-connected acquired psychiatric disorder to include PTSD and depressive disorder, effective February 1, 2013. A 100 percent disability rating is the maximum rating possible under all potentially applicable rating criteria and the Veteran cannot be awarded more than100 percent at any given time. Accordingly, the Board finds that this is a total grant of benefits sought on appeal as of February 1, 2013 and it will not be discussed in the decision below. See AB v. Brown, 6. Vet. App. 35, 38 (1993). The issue of entitlement to a TDIU 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. FINDING OF FACT The evidence of record shows that prior to February 1, 2013 the Veteran's service-connected acquired psychiatric disorder to include PTSD and depressive disorder is manifested by deficiencies in most areas of social functioning and occupational functioning including depressed mood, difficulty falling and remaining asleep, nightmares that occur almost every night, hyperarousal, avoidance, anger and impaired impulse control; the Veteran was assigned a GAF score that ranged from 35 to 55. CONCLUSION OF LAW The criteria for an initial disability rating of 70 percent for service-connected acquired psychiatric disorder to include PTSD and depressive disorder have been met for the entire appeal period prior to February 1, 2013. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. 38 C.F.R. §§ 4.126, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance The United States Department of Veterans Affairs (VA) has a duty to notify and assist a claimant in developing a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran is appealing the initial disability rating assignment for an acquired psychiatric disability to include PTSD and depression. The January 2008 rating decision granted the Veteran's claim of entitlement to service connection and therefore, such claim is now substantiated. His filing of a notice of disagreement as to the initial rating assigned in the January 2008 decision does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). 38 C.F.R. § 3.159(b)(3). Rather, the Veteran's appeal as to the initial rating assignment triggers VA's statutory duties under 38 U.S.C.A. §§ 5104 and 7105, as well as regulatory duties under 38 C.F.R. § 3.103. Under 38 U.S.C.A. § 7105(d), upon receipt of a notice of disagreement in response to a decision on a claim, the agency of original jurisdiction must take development or review action it deems proper under applicable regulations and issue a statement of the case if the action does not resolve the disagreement either by grant of the benefits sought or withdrawal of the notice of disagreement. If VA receives a notice of disagreement in response to notice of its decision on a claim that raises a new issue, section 7105(d) requires VA to take proper action and issue a statement of the case if the disagreement is not resolved; however, section 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate the newly raised issue. See VAOPGCPREC 8-03 (December 22, 2003); 69 Fed. Reg. 25180 (2004); 38 C.F.R. § 3.159(b)(3) (2012). As a consequence, VA is only required to advise the Veteran of what is necessary to obtain the maximum benefit allowed by the evidence and the law. This has been accomplished here. The January 2009 statement of the case, under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," set forth the relevant diagnostic codes for rating mental disorders, and included a description of the rating formulas for all possible schedular ratings under these diagnostic codes. Therefore, the Veteran was informed of what was needed not only to achieve the next-higher schedular ratings, but also to obtain all schedular ratings above the initial evaluation that the RO assigned. Therefore, the Board finds that the Veteran has been informed of what was necessary to achieve a higher rating for the service-connected disability on appeal. With respect to VA's duty to assist, the Board finds that VA has fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment records, private treatment records, Social Security disability records, VA examination reports dated in January 2008, August 2009, December 2010 and February 2013 and lay statements from the Veteran. The VA examination reports reflect that the examiners reviewed the claims file, obtained an oral history from the Veteran of his mental health symptoms and evaluated the Veteran. The examiners documented in detail the claimed and observed symptoms and the effect those symptoms have on his daily life and employment. Accordingly, the VA examinations are adequate for rating purposes. This issue was previously remanded in November 2010 to provide the Veteran with another VA examination to determine the current severity of the Veteran's service-connected psychiatric disability to include how it affects employment. The claims file contains a December 2010 VA examination that documents the Veteran's symptoms of PTSD and depression. The report also discusses that the Veteran's service-connected psychiatric disability results in serious impairment of social and occupational functioning. The claim was remanded again in May 2011 as the examiner did not discuss whether the Veteran's service-connected psychiatric disability precludes employment. The Veteran was provided with another VA examination in February 2013. The examiner documented the Veteran's symptoms in detail and determined that it resulted in total occupational impairment. The examiner addressed the issues raised in the Board remands with respect to the schedular evaluation for a mental health disability. Accordingly, the Board finds that there has been substantial compliance with the November 2010 and May 2011 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Based on the foregoing, the record presents no basis for further development to create any additional evidence to be considered in connection with the issue currently under consideration. Under these circumstances, the Board finds that the Veteran is not prejudiced by appellate consideration of the claims on appeal at this juncture, without directing or accomplishing any additional notification and/or development action. II. Analysis Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2012). When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. 38 U.S.C.A. § 5107(b). In general, when an increase in the disability rating 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). However, when the current appeal arose from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating a mental disorder, VA 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 (2012). The Veteran's service-connected PTSD is presently assigned a 50 percent disability rating under 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). PTSD is rated pursuant to the General Rating Formula for Mental Disorders. Id. Under this rating criteria, a 50 percent rating is prescribed for 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; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating is prescribed 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 which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is prescribed 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 (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. When determining the appropriate disability evaluation to assign, the Board's primary consideration is a veteran's symptoms, but it must also make findings as to how those symptoms impact a veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that a veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. The Global Assessment of Functioning (GAF) Scale is used to report the clinician's judgment of the individual's overall level of functioning. The GAF Scale is to be rated with respect only to psychological, social and occupational functioning. Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, 1994 (DSM-IV), at 44. GAF scores range from 1-100 with the higher numbers representing higher levels of functioning. A GAF score ranging between 41 and 50 indicate serious symptoms (e.g., suicidal ideation, severe obsessional rituals, occasional panic attacks) or serious impairment in social, occupation or school functioning (e.g., no friends, unable to keep a job). A GAF score between 51 and 60 reflects moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupation, or school functioning (e.g., few friends, conflicts with peers or co-workers). A GAF score ranging from 61-70 reflects some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupation, or school functioning (e.g., occasional truancy or theft within the household), but generally functioning pretty well with some meaningful relationships. The relevant medical evidence of record consists of VA examination reports dated in January 2008, August 2009 and December 2010, VA treatment records, and SSA disability records. Furthermore, the claims file contains lay statements from the Veteran. The Board finds that this evidence, the most pertinent of which is summarized below, shows that the Veteran's condition as a whole more closely approximates the criteria for a 70 percent disability rating for the entire rating period prior to February 1, 2013. The evidence of record shows the Veteran's PTSD has a moderate to severe effect on his ability to function independently, appropriately and effectively. The Veteran has difficulty falling and staying asleep. He has nightmares almost every night, which include his experience in Vietnam. It is hard for him not to think about his time in Vietnam due to his therapy treatment and the Iraq War. The Veteran has symptoms of avoidance. Although there is evidence that the Veteran's thought process may occasionally be confused and tangential, the overall evidence of record indicates that the Veteran's thought content and process was rationale, logical, sequential and goal directed. The Veteran's wife often needs to help him with buttons and to shave due to nonservice-connected disability; however, he can do things that do not require fine motor control. The Veteran was appropriately dressed and groomed during the VA examinations and when he received treatment. The Board observes that there is some evidence of spatial disorientation. Specifically, during the August 2009 VA examination he was oriented to person and place, but not the current date. Furthermore, during two VA examinations, it appeared that the Veteran was unsure the reason for the mental evaluation. The medical evidence of record indicates that the Veteran has hypervigilence, impaired impulse control, difficulty adapting to stressful circumstances and depression. The Veteran reported that gunfire, which occurs almost nightly, remind him of Vietnam. During the August 2009 VA examination, the Veteran reported that whenever he would hear a noise he would jump up, grab his gun, walk around the perimeter of his home and check the doors. The evidence also indicates that the Veteran has difficulty controlling his anger and that this is one of the reasons he left his last job as barber. The Veteran has difficulty establishing and maintaining social relationships. He is on his second marriage to a women he has known for over twenty years. Typically, the Veteran does not leave the house while his wife goes to work. He will get up in the morning and eat breakfast with his wife and then he usually will go back to sleep until noon. In the afternoon, he will watch television. He will go outside or onto his front porch to get fresh air. He does not have any regular destinations or places to go. The Veteran has indicated that his wife "creates things for them to do," such as visiting his or her family. Generally, he prefers to be alone and the evidence indicates that he has no close friends. The Veteran's GAF score ranged between 35 and 55 prior to February 1, 2013. This range in GAF score reveals moderate to major impairment in social and occupational activities. Thus, the Veteran's GAF score is consistent with the Veteran's overall disability picture including symptoms reported at the VA examinations and discussed in the lay evidence indicating that the Veteran's disability picture more closely approximates a 70 percent rating. In finding that a 70 percent rating is warranted, the Board declines to grant a 100 percent rating prior to February 1, 2013. The claims file is negative for evidence of characteristics such as gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting self or others, disorientation to place; or memory loss for names of close relatives, own occupation, or own name. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Specifically, the evidence of record in general shows that the Veteran was alert and his speech was clear and coherent. Thought process and content were unremarkable. Although the Veteran was not oriented to time and situation during the August 2009 VA examination, the majority of the evidence before and after this examination indicate that the Veteran is oriented to person, place, time and situation. He has some recent and immediate memory impairment. The evidence of record does not suggest that the Veteran has memory loss for names of close relatives or his own name. Judgment, intelligence and insight were adequate. Although there is evidence that the Veteran has occasional suicidal ideation, the evidence does not show that the Veteran is in persistent danger of hurting himself or others. The Veteran's PTSD and depressive disorder cause severe impairment in social functioning, but not total social impairment as he maintains a relationship with his wife and family. The Veteran's symptoms of an acquired psychiatric disorder do not prevent the Veteran from performing activities of daily living. Furthermore, the Veteran's symptoms of irritability, anger and difficulty with impulse control have a significant impact on his occupational functioning. Accordingly, the evidence reveals that the Veteran's symptoms do not more closely approximate total occupational and social impairment due to an acquired psychiatric disorder. Thus, the criteria for a 100 percent rating have not been met prior to February 1. 2013. The Board has considered whether staged ratings are appropriate. The competent medical evidence of record shows that the Veteran's PTSD symptoms have not been so severe as to warrant a 100 percent disability rating at any time prior to February 1, 2013. The increase to a 70 percent disability rating is supported by the evidence throughout the appeal period prior to February 1, 2013. As such, a staged rating prior to February 1, 2013 is not warranted. The discussion above reflects that the rating criteria reasonably describes and contemplates the severity and symptomatology of the Veteran's service-connected psychiatric disability. The Veteran's disability is manifested by impairment in social and occupational functioning. The rating criteria contemplate these impairments; hence, referral for consideration of an extraschedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). ORDER Entitlement to an initial disability rating of 70 percent for service-connected acquired psychiatric disorder to include PTSD and depressive disorder for the entire appeal period prior to February 1, 2013 is granted. REMAND The Board regrets further delay in this appeal; however, after careful review of the record, it finds that another remand is necessary for further evidentiary development of the remaining issue on appeal. As indicated in the November 2010 and May 2011 Board remands, the Board has assumed jurisdiction over a claim for TDIU based on the evidence of record. See Mayhue v. Shinseki, 24 Vet. App. 273 (2011); Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board remands in November 2010 and May 2011 requested that the Veteran be provided with a VA examination to determine if the Veteran's service-connected psychiatric disability to include PTSD and depressive disorder causes him to be unable to obtain and retain substantially gainful employment. The VA examiners in December 2010 and February 2013 did not provide an opinion on whether the Veteran is unable to obtain and maintain employment due solely to his service-connected disability (at this time he is only service-connected for PTSD). Both VA examiners considered his nonservice-connected physical disabilities and his service-connected psychiatric disability in determining whether the Veteran is unemployable. Based on the foregoing, the Board finds that another VA examination and opinion is necessary to adequately address the Board's questions in the November 2010 and May 2011 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (remand by the Court or the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders). Furthermore, in order to properly adjudicate this claim, the Board finds that the Veteran should be notified as to how to substantiate a claim for TDIU. Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran with notice as to the evidence and information necessary to substantiate a claim for TDIU. Allow him a reasonable opportunity to respond. 2. After the above has been accomplished and any outstanding evidence has been associated with the claims file, forward the claims file to the VA examiner who conducted the February 2013 VA examination. Based on a review of the claims file to include the results of the February 2013 VA examination, the examiner must provide an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or more) that the Veteran is unable to obtain or maintain substantially gainful employment, at any time from October 15, 2004 to February 1, 2013, due only to his service-connected disabilities (at this time he is only service-connected for PTSD), consistent with his education and occupational experience, irrespective of age and any nonservice-connected disorders. An explanation should be provided as to why the examiner believes the Veteran is or is not employable due only to his service-connected disability. 3. If the examiner that conducted the February 2013 VA examination is not available, then schedule the Veteran for a VA examination by a psychologist or psychiatrist to ascertain whether the Veteran's PTSD makes the Veteran unemployable at any time from October 15, 2004 to February 1, 2013,. The claims file must be made available for review. All pertinent symptomatology and findings must be reported in detail. The examiner must elicit from the Veteran and record, for clinical purposes, a full work and educational history. The examiner should comment on the Veteran's level of occupational impairment caused by PTSD symptoms. Based on the interview, examination, and review of the claims file, the examiner must provide an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or more) that the Veteran is unable to obtain or maintain substantially gainful employment, at any time from October 15, 2004 to February 1, 2013, due only to his service-connected disabilities (at this time he is only service-connected for PTSD), consistent with his education and occupational experience, irrespective of age and any nonservice-connected disorders. An explanation should be provided as to why the examiner believes the Veteran is or is not employable due only to his service-connected disability. 4. Upon completion of the foregoing, readjudicate the Veteran's claim of entitlement to TDIU, prior to February 1, 2013, based on a review of the entire evidentiary record. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and the opportunity to respond thereto. Thereafter, subject to current appellate procedure, the case should be returned to the Board for further consideration, if in order. The appellant 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). ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs