Citation Nr: 1324753 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 09-42 146 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial rating higher than 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Adrian Jackson, Counsel INTRODUCTION The appellant is a Veteran that served on active duty from March 1962 to October 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Winston-Salem, North Carolina, Regional Office (RO), of the Department of Veterans Affairs (VA). The issue of entitlement to TDIU is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. FINDING OF FACT The Veteran's psychiatric disorder is manifested by occupational and social impairment with reduced reliability and productivity due to symptoms that include suicidal ideations, homicidal ideations, social isolation, paranoia, distrust of others, recurrent intrusive thoughts, startle response, irritability, hypervigilance, avoidance, diminished interest, depressed mood, and sleep impairment; without evidence of obsessional rituals; illogical, obscure, or irrelevant speech; near-continuous panic; impaired impulse control; or spatial disorientation. CONCLUSION OF LAW The schedular criteria for an initial rating higher than 50 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.3 and 4.7, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that symptoms of his service-connected psychiatric disorder warrant an increased disability evaluation. He maintains that the psychoneurotic symptomatology reduces his reliability, flexibility, and efficiency to such an extent as to warrant the assignment of a higher evaluation due to significant industrial and social impairment. In particular, it is asserted that the Veteran is unable to establish and maintain effective relationships. Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Here, letters in January 2006, March 2006, and May 2007 were sent to the Veteran regarding his initial service connection claim, prior to the January 2008 rating decision on appeal. In cases such as this, where service connection has been granted and an initial disability rating and effective date has been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 473; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The appellant bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements. Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008). Neither the appellant nor his representative has advanced any such arguments. The provisions of 38 U.S.C.A. § 7105(d) require VA to issue a statement of the case (SOC) if the disagreement is not resolved. This has been done; the Veteran has received both an SOC and supplemental statement of the case, discussing the downstream disability rating element of his claim, citing the applicable statutes and regulations, and discussing the reasons and bases for assigning the initial 50 percent rating versus a higher rating. Thus, based on the record as a whole, the Board finds that a reasonable person would have understood from the information that VA provided to the Veteran what was necessary to substantiate his claim, and as such, that he had a meaningful opportunity to participate in the adjudication of his claim such that the essential fairness of the adjudication was not affected. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (a); 38 C.F.R. § 3.159(c), (d). Here, the Veteran's VA medical treatment records and private medical records have been associated with the claims file. This includes review of VA's Compensation and Pension Record Interchange (CAPRI) system by way of "Virtual VA ". The Veteran was afforded VA medical examinations in October 2007, April 2008, and November 2011. These examinations were conducted by medical professionals, and the associated reports reflect review of the Veteran's prior medical history. The examinations included a report of the symptoms for the psychiatric disorder and demonstrated objective evaluations. The examiners were able to assess and record the clinical status of the Veteran's disorder. Further, the VA examination reports addressed the applicable rating criteria. See 38 C.F.R § 3.326; 38 C.F.R. § 3.327; Green v. Derwinski, 1 Vet. App. 121 (1991). Therefore, the Board concludes that the Veteran was afforded adequate examinations. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). All relevant facts with respect to the higher rating claim addressed in the decision below have been properly developed. Under the circumstances of this case, a remand would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. The evaluation assigned for the Veteran's service-connected disability is established by comparing the current manifestations as indicated in recent medical findings with the criteria in the VA Schedule for Rating Disabilities (Schedule). 38 C.F.R. Part 4. Essentially, these evaluations are based, in large degree, on the impairment that current clinical findings objectively show to be the result of a service-connected disability. Service connection is in effect for PTSD, and is assigned a 50 percent disability evaluation. The Board has reviewed the Veteran's complete clinical history to comprehensively assess the level of disability during the relevant time period. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Based on VA treatment records, a January 2008 rating action granted service connection for PTSD, assigning a 50 percent disability evaluation effective from April 24, 2007. The Veteran appealed the initial assignment of the evaluation for the service-connected PTSD. The Board has considered whether a "staged" rating is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The record does not support assigning different percentage disability ratings during the period in question. At no time have the manifestations of the Veteran's PTSD more nearly approximated the criteria for a higher rating than 50 percent. The General Rating Formula for Mental Disorders provides a 100 percent rating 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. A 70 percent rating is assigned 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 worklike setting); inability to establish and maintain effective relationships. A 50 percent rating is assigned 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. The Board notes that 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.7 provides that, 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. In regard to industrial impairment, at an August 2007 private examination, the Veteran reported that he worked for the federal government as a program analyst for 23 years. He retired in 2005. In regard to social abilities, he occasionally socialized with the family. At this examination he also described his symptoms which included intrusive thoughts, startle response, hypervigilance, paranoia, nightmares, weekly panic attacks, flashbacks, sleep impairment, memory impairment, conflicting emotions, feelings of helplessness, increased anger, and depression. He indicated that he heard noises in his home which he described as hallucinations. The examiner commented that the Veteran was moderately compromised in his ability to sustain social relationships and unable to sustain work relationships. He also considered him permanently and totally disabled and unemployable. The psychiatrist assigned a Global Assessment of Functioning (GAF) score of 40. VA examination was conducted in October 2007. The examiner noted that the Veteran re-experienced traumatic experiences in intrusive thoughts and nightmares. He also had symptoms of avoidance, social withdrawal, sleep impairment, startle response, irritable, and anxiety. The Veteran reported that he was retired for 2 years. However, he did not miss work because of psychiatric symptoms. A GAF score of 56 was assigned. A March 2008 private report shows that the Veteran complained of nightmares, flashbacks, intrusive thoughts, sleep impairment, startle response, paranoia, social isolation, memory loss, depression auditory hallucinations, anger, and confusion. The examiner found that the Veteran was moderately compromised in his ability to sustain social relationships and unable to sustain work relationships. He found the Veteran permanently and totally disabled by his psychiatric disorder. The Axis I diagnoses were chronic PTSD and dysthymic disorder. A GAF score of 40 was assigned. At VA examination in April 2008, the Veteran reported that he had not returned to work since his previous VA examination. He stated that he suppressed his PTSD in order to maintain his security clearance. However, he had homicidal thoughts toward his supervisor. The examiner added that the Veteran was unable to tolerate dishonesty. He stated that he would not return to work due to the stress, which he found intolerable. The Veteran reported symptoms that included social isolation, recurrent intrusive thoughts, diminished interest, feelings of detachment from others, irritability, difficulty concentrating, hypervigilance, road rage, avoidance, and suicidal thoughts without intentions. On examination he was appropriately dressed. His affect was normal and his mood was anxious. He was cooperative and relaxed. He was intact to person, time, and place. His intelligence, insight, and judgment were considered average. He reportedly had a severe problem with shopping as well as a moderate problem with driving. The examiner found that there was not total occupational and social impairment due to PTSD. The examiner assigned a GAF score of 52. An October 2009 private examination report indicates that the Veteran continued to have nightmares, flashbacks, intrusive thoughts, memory loss, emotional conflicts, and panic attacks. The examiner found that the Veteran was moderately compromised in his ability to sustain social relationships and again, unable to sustain work relationships. He found the Veteran permanently and totally disabled by his psychiatric disorder. The Axis I diagnoses were chronic PTSD and dysthymic disorder. A GAF score of 45 was assigned. A QTC (VA contract) examination was conducted in November 2011. The Veteran reported his military and social history. He reported increasing symptoms of social isolation, paranoia, distrust of others, recurrent intrusive thoughts, startle response, irritability, hypervigilance, avoidance, and diminished interest. The diagnosis included alcohol abuse in remission and PTSD. She assigned a GAF score of 50. While Axis IV psychosocial stressors included multiple medical problems and an inability to work, and the Veteran reported that he was unable to work due to irritability, the examiner concluded that the Veteran had occupational and social impairment with reduced reliability and productivity, thus mirroring the criteria for a 50 percent rating; and he found the Veteran's prognosis was good. The examiner did not find that the Veteran was unemployable due to PTSD. In reviewing the record, it is noted that the examiners have described the Veteran's disability as moderate with some severe symptoms. In commenting on the psychological evaluation, the private examiner has noted that the Veteran was moderately compromised socially and unable to sustain work relationships due to PTSD without further explanation. In considering the GAF score, the Board notes that it has been variously assessed over the years. Both private and VA psychological examiners have assigned GAF scores that range from 40 to 56. A GAF rating is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing American Psychiatric Association; Diagnostic and Statistical Manual of Mental Disorders, 4th Edition). A GAF score between 51 and 60 contemplates moderate symptoms (e.g., flattened affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with co-workers). Whereas a GAF between 41 and 50 is indicative of some serious impairment (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). See DSM-IV (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, 4th Edition) at 44-47. Although the reported findings are consistent with a 50 percent evaluation, the Board does not find manifestations that are indicative of a higher evaluation. When considering the entire evidentiary record, including the described depression, irritability, anxiety and social isolation, the service-connected psychiatric manifestations do not reflect occupational and social impairment with deficiencies in most areas or an inability to establish and maintain effective relationships. His thought processes were normal. His speech was within normal limits. His conversation was normal, not illogical, obscure or irrelevant. The VA records do not relate that he had problems in this regard. He was described usually as cooperative and maintaining good eye contact. Although he reported having temper issues, problems with impaired impulse control, evidenced by unprovoked irritability with periods of violence were not identified. Further, there was no reported evidence of near continuous panic or depression that affected his ability to function. In fact, the Veteran appeared to be able to function independently, appropriately and effectively. There was no evidence of spatial disorientation. He was described as oriented at the examination, rather than disoriented. There were no reported obsessional rituals, confusion or gross impairment in memory during this time period. Neither hallucinations nor delusional material were confirmed. On examination, there was no sign of psychosis. While there were reported homicidal thoughts in the past and occasional suicidal thoughts, they were passive and by the Veteran's own statements, he was able to control his thoughts for the sake of his security credentials when working. In this case, the VA examination reports notes impairment in memory; however, there was no evidence that memory loss was so significant that he forgot the names of close relatives, his own occupation or name. While there is reported evidence of sleep impairment, depressed moods and irritability, it is not shown that these manifestations have led to an inability to perform any occupational tasks. There was no reported inability to perform activities of daily living. The Board has taken into consideration that a private examiner reported that the Veteran was not capable of gainful employment. Significantly, however, the examiner does not give further explanation. The clinical notes also relate other impairment including diabetes mellitus with neuropathy, erectile dysfunction, hypertension, and cerebrovascular disease (CVA), and marked impairment due to physical limitations was noted on most recent VA examination. As noted, the Veteran in the past did not attribute his unemployability to his psychiatric problems. On VA examination in October 2007, the Veteran reported that he retired 2 years previously and did not miss any work because of his psychiatric symptoms although he claims that he retired in 2005 because of irritability. However, based on the symptomatology objectively shown in the record, the Board finds that the evidence as a whole does not support a conclusion that the Veteran is unemployable solely due to his PTSD. The Veteran does have PTSD, and it is recognized that it is a significant disability for him. The current 50 percent evaluation recognizes that it is manifested by occupational and social impairment. Still further, a 50 percent evaluation takes into consideration increased symptoms during periods of significant stress. Consideration has also been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the Veteran, including the possibility of referral for the assignment of an extraschedular evaluation. In exceptional cases where schedular evaluations are found to be inadequate, consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities" is made. 38 C.F.R. § 3.321(b)(1). The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. Id. This case does not present factors such as frequent periods of hospitalization or marked interference with employment. In regards to industrial impairment, as noted above, the Veteran has reported that he is no longer working. On review of the record does, the most probative evidence of record does not objectively show that this resulted from his service-connected psychiatric disability. Moreover, a review of the claims file does not show that this service-connected disorder has resulted in hospitalization . Although the Veteran is receiving continuing care, the records show that it is on a private outpatient basis. As discussed above, the medical evidence reveals that no more than a 50 percent disability evaluation is in order for the Veteran's PTSD. Neither his statements nor the medical records indicate that the disability warrants the assignment of an extraschedular evaluation. ORDER Entitlement to an initial rating higher than 50 percent for PTSD is denied. REMAND The Board finds that the Veteran should be afforded another VA compensation examination to assess the current degree of his service-connected disabilities. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran an opportunity to identify any additional healthcare provider who has treated him for his service-connected disabilities. And after securing any necessary authorization from him, by way of completion and submission of VA Form 21-4142, obtain all identified treatment records that are not already in the claims file. He also must be appropriately notified if unable to obtain any identified records. 38 C.F.R § 3.159(e). 2. Upon receipt of all additional records, schedule appropriate VA compensation examinations to obtain a medical opinion concerning whether the Veteran's service-connected disabilities (PTSD; diabetes mellitus; diabetic neuropathy of all four extremities; bilateral diabetic retinopathy; and erectile dysfunction), alone or in combination and without consideration of age and nonservice-connected disabilities, preclude him from engaging in substantially gainful employment. In making this determination, the examiner must consider the effect that all of the service-connected disabilities in combination have on employability. The examiner(s) must discuss the underlying rationale for all opinions expressed, whether favorable or unfavorable, if necessary citing to specific evidence in the file. The Veteran is hereby advised that failure to report for these scheduled VA examination(s), without good cause, may have detrimental consequences on his remaining claim. 38 C.F.R. § 3.655: 3. Then, based on the results of this additional VA examination and any other additional evidence submitted or otherwise obtained, readjudicate the TDIU claim. If this claim is not granted to his satisfaction, send him another a supplemental statement of the case (SSOC) and give him an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this remaining claim. The Veteran 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). _________________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).