Citation Nr: 1325646 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 07-20 443 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a disability rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD), for the period of time prior to February 26, 2010. 2. Entitlement to a disability rating in excess of 70 percent for service-connected PTSD. 3. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) for the period of time prior to February 26, 2010. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran served on active duty from May 1966 to May 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating determination of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Montgomery, Alabama, which in part, granted service connection for PTSD and assigned a 30 percent disability rating, effective from April 1, 2005, the dated of claim. The Veteran appealed the initial disability evaluation assigned for the PTSD. In February 2010, the Board determined that an increased rating to 50 percent, but no more, was warranted for the service-connected PTSD. The Veteran appealed the Board's February 2010 decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2012 Memorandum decision, the Court vacated that part of the Board's February 2010 decision which denied a rating in excess of 50 percent for PTSD and remanded the issue back for further proceeding consistent with the decision. A June 2013 rating decision granted a 70 percent rating for PTSD effective February 26, 2010. That rating decision also granted TDIU effective that same date. Accordingly, the issues indicated above are on appeal as a result of the Veteran's disagreement with the initial disability rating assigned. The Veteran testified before the undersigned at a travel Board hearing at the Montgomery, AL, RO, in November 2010. The transcript of the hearing is of record and has been reviewed. This appeal was processed in part using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The service-connected PTSD most nearly approximates a disability manifested by 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 inability to establish and maintain effective relationships. 2. The service-connected PTSD is not manifested by 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 as to time or place; and memory loss for names of close relatives, own occupation, or own name. 3. The Veteran's service-connected disabilities are: PTSD at a 70 percent disability rating, and scars as the residuals of a gunshot wound to the left posterior thigh at a 10 percent disability rating. This results in a combined disability rating of 70 percent. 4. The Veteran meets the threshold requirements for a consideration of a schedular TDIU. 5. The Veteran's service-connected PTSD and scar disabilities have rendered him unable to secure or follow a substantially gainful occupation since April 1, 2005. CONCLUSIONS OF LAW 1. The criteria for a 70 percent disability rating, but no greater, for PTSD have been met effective April 1, 2005. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.126, 4.130, Diagnostic Code 9411 (2013). 2. The criteria for a 100 percent disability rating for PTSD have not been met for any period of time covered by this appeal. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.126, 4.130, Diagnostic Code 9411 (2013). 3. The criteria for TDIU have been met effective April 1, 2005. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice with respect to his claim for service connection for PTSD by a letter(s) dated April 2005, which was prior to the initial rating decision which granted service connection. This notification letter substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. at 490-91 (2006). Accordingly, once service connection for PTSD was granted and the disability rating and effective date assigned, section 5103(a) notice was no longer required. The Board finds that VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claims and providing a VA examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4)(i). In this regard, the Veteran's service treatment records and VA treatment records are associated with the claims folder. The Board recognizes a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159(c)(4)(i) (2010); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran was afforded VA examinations in September 2005, February 2010, and April 2013. 38 C.F.R. § 3.159(c) (4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Additionally, an examination for rating purposes should contain sufficient detail and reflect the whole recorded history of a Veteran's disability, reconciling the various reports into a consistent picture. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); 38 C.F.R. § 4.2. The Board finds that the VA examinations and opinions obtained in this case are more than adequate, as they are predicated on a full reading of VA treatment records in the Veteran's claims file. The examiners consider all of the pertinent evidence of record and provide a complete rationale for the opinions stated, relying on and citing to the records reviewed and a thorough examination was provided with regard to the Veteran's increased rating claims. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c) (4). Under the circumstances of this case, "the record has been fully developed," and "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Therefore, the Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations and the record is ready for appellate review. II. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2010). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1 , 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran's claim is to be considered. In initial rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. 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. As discussed in the above Introduction, the Veteran was granted service connection for PTSD in December 2005 and assigned a 30 percent disability rating, effective April 1, 2005, the date of his claim. In evaluating this appeal, the Board has considered the propriety of this disability rating assignment. As a result of a June 2013 rating decision a 70 percent disability rating was assigned effective February 26, 2010. Accordingly, the Board must address the issue of entitlement to a disability rating in excess of 50 percent for PTSD, for the period of time prior to February 26, 2010, as well as entitlement to a disability rating in excess of 70 percent for PTSD for the entire period of the appeal. See, Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's PTSD is rated pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is assigned when there is evidence of 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, General Rating Formula for Mental Disorders. A 70 percent rating is prescribed when there is evidence of 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 inability to establish and maintain effective relationships. Id. A 100 percent rating is prescribed when there is evidence of 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 as to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. In addition to evidence regarding the Veteran's symptomatology and its impact on his social and occupational functioning, the evidence of record contains Global Assessment of Functioning (GAF) scores. The GAF is a scale reflecting the "'psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness'" from 0 to 100, with 100 representing superior functioning in a wide range of activities and no psychiatric symptoms. Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (quoting DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 32 (4th ed. 1994)). GAF scores ranging from 61 to 70 reflect 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, and has some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect more 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 co- workers). 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). Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school). See Quick Reference to the Diagnostic Criteria from DSM-IV at 47 (American Psychiatric Association 1994) ("QRDC DSM-IV"). GAF scores are just one component of the Veteran's disability picture, and that it does not have a 'formula' that it follows in assigning evaluations. Rather, the Board considers the Veteran's entire disability picture, including GAF scores. Under such circumstances Veterans with identical GAF scores may be assigned different evaluations based on each individual's symptomatology and level of functioning. Furthermore, the Board need not accept a GAF score as probative. See Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995) (it is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in so doing, the Board may accept one medical opinion and reject others). The Board has carefully reviewed the medical and lay evidence of record and considered the Veteran's statements and hearing testimony in the evaluation of his service-connected PTSD. VA treatment records for the period from of May 2005 to August 2012, have been reviewed. These records reveal that the Veteran consistently reported symptoms of anxiety, flashbacks, nightmares, and sleep disturbance. Treatment records reveal that the Veteran was prescribed psychotropic medication in an effort to alleviate his nightmares and sleep disturbance and the medication required constant adjustment. An August 2005 VA mental health outpatient treatment record specifically indicated difficulty interacting with people and crowds. He specifically indicated that he closed his barber shop business because of difficulty dealing with the noise of crowds. The Veteran's affect was restricted and his insight only fair. The diagnosis was PTSD and a GAF score of 55 was assigned. Three VA psychiatric Compensation and Pension examinations of the Veteran have been conducted in September 2005, February 2010, and April 2013. The findings on all three examination reports show that mental health examiners have routinely characterized his mood as depressed and his affect as restricted, and that the Veteran has difficulty dealing with his military experiences and anything that reminds him of his military experiences. The evidence of record, including all three examination reports, and outpatient treatment records, also clearly shows that the Veteran suffers from nightmares and flashbacks that affect his ability to sleep and irritability issues when he has to interact with other people. He has to take medication in order to sleep because his nightmares keep him awake. Review of the findings of all three Compensation and Pension examinations conducted in September 2005, February 2010, and April 2013 shows that the Veteran had consistent symptoms of PTSD dating from the earliest examination to the most recent. They all reveal that he suffers from a depressed and anxious mood with a restricted affect and some short-term memory issues. Each examiner further notes that the Veteran suffers nightly from sleep deprivation issues resulting from recurrent nightmares. Additionally it is noted that the Veteran suffers from flashbacks and must avoid any stimuli that reminds him of his experiences during the war. The Veteran is easily agitated and has an exaggerated startle response especially in the presence of loud noises. The Veteran generally avoids crowds and prefers to be alone due to nervousness and occasional panic attacks that cause hypervigilance. While it is acknowledged that the Veteran has normal, goal oriented thought processes with good insight and judgment and fair impulse control, the Veteran does still suffer from the occasional outburst of anger and some communication difficulties. The foregoing symptoms most nearly approximate the criteria contemplated by the assignment of a 70 percent disability rating and have been consistent throughout the entire period of the appeal. Accordingly, the evidence supports the assignment of a 70 percent disability rating for PTSD effective from April 1, 2005 the initial date of service connection; the 70 percent rating is warranted for the entire appeal period. The evidence does not support the assignment of a 100 percent disability rating for the Veteran's PTSD. While the evidence of record does show that the Veteran's PTSD has interfered with his ability to maintain employment, that fact is addressed in the section III below. The evidence of record does not show that the service-connected PTSD results in 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 as to time or place; and memory loss for names of close relatives, own occupation, or own name. While he has difficulty with relationships and employment, he still maintains some relationship with his wife despite separation. He indicates that he had trouble working with people when he did work, although there is no other evidence that his inability to get along with others adversely affected his employment. In regards to social relationships, during the period under consideration, it is noted that the Veteran has few social interactions, but there is an indication that he sees some of his friends at least once a month and has a relationship with 4 of his 5 children as well as his mother and sisters. The Board acknowledges that the Veteran has had the occasional passive suicidal and homicidal ideation, but there is no evidence that the Veteran consistently suffers from suicidal and homicidal ideation and therefore is not in persistent danger of hurting himself or others. Additionally, the Board notes that the Veteran was assigned GAF scores ranging from 55 to 65. Specifically the Veteran was assigned a GAF score of 66 by the September 2005 VA examiner which indicates that the Veteran has 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, and has some meaningful interpersonal relationships. The August 2005 VA mental health note as well as the February 2010 and April 2013 VA examination reports assigned the Veteran a GAF score of 55 which indicates that the Veteran has some 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 co- workers). Upon review of the competent evidence, the Board finds that the GAF score of 55 is most consistent with the medical evidence of record that addresses the Veteran's actual symptoms and level of functioning. The Board notes that the medical evidence more typically exhibits moderate symptoms or moderate difficulty in social functioning as indicated by the various VA psychological examination notes. Accordingly, such characterization does not warrant the assignment of a 100 percent schedular disability rating for the service-connected PTSD. The evidence does show that symptomatology associated with the Veteran's PTSD more nearly approximates the schedular criteria associated with a 70 percent disability rating for the entire appeal period. A staged rating is unwarranted. The preponderance of the evidence is against the claim for a disability rating in excess of 70 percent rating for service-connected PTSD for any period of time covered by this appeal; there is no doubt to be resolved; and a rating in excess of 70 percent is not warranted. 38 U.S.C.A. § 5107(b) , 38 C.F.R. Part 4, §4 .130, Diagnostic Code 9411. III. TDIU During the pendency of the claim for an increased initial disability rating for PTSD, the issue of entitlement to TDIU was raised by the evidence of record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340 , 3.341, 4.16(a). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a) . If the total rating is based on a disability or combination of disabilities for which the Schedule of 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(a) . When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran claims entitlement to TDIU. He asserts that his service-connected disabilities render him unemployable so as to warrant the assignment of a total, 100 percent, disability rating. Specifically, he asserts that he had to stop working primarily because of symptoms of his service-connected PTSD. Following the point at which it is determined that all relevant evidence has been obtained, it is the Board's principal responsibility to assess the credibility, and therefore the probative value of proffered evidence of record in its whole. Owens v. Brown, 7 Vet. App. 429, 433 (1995); see Elkins v. Gober, 229 F. 3d 1369 (Fed. Cir. 2000); Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997) (and cases cited therein); Guimond v. Brown, 6 Vet. App. 69, 72 (1993); Hensley v. Brown, 5 Vet. App. 155, 161 (1993). The Veteran is in receipt of service-connected compensation for: PTSD at a 70 percent disability rating, and scars as the residuals of a gunshot wound to the left posterior thigh at a 10 percent disability rating. The Veteran's service-connected disabilities result in a combined 70 percent disability rating. His service-connected PTSD is rated at 70 percent. Accordingly, the veteran meets the threshold rating criteria for consideration for a TDIU rating under 38 C.F.R. § 4.16(a) . The Veteran primarily asserts that his service-connected PTSD renders him unemployable. The Veteran is not presently employed and has not been employed since the date of claim for service connection for PTSD. In the medical evidence of record the Veteran has reported that he had to stop working primarily because symptoms of his PTSD made him unable to interact with crowds and customers in his barber shop business. At other times the Veteran reported he had to stop working as a result of a combination of his service-connected PTSD symptoms and low back and thigh pain. Resolving all doubt in the Veteran favor, the Board finds that the Veteran's service-connected PTSD symptoms render him unemployable, and have done so effective April 1, 2005, the effective date of service connection for PTSD. The criteria being met, entitlement to a TDIU is warranted effective April 1, 2005. ORDER A disability rating of 70 percent, but no greater, for service-connected PTSD is granted effective April 1, 2005. A disability rating in excess of 70 percent for service-connected PTSD is denied. TDIU is granted effective April 1, 2005. ____________________________________________ L. M. Barnard Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs