Citation Nr: 1325708 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 12-00 111 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an increase rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1942 to December 1945, including combat service during World War II and his decorations include the Purple Heart Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The Board notes that the case caption, above, has been amended to include the issue of whether a TDIU rating is warranted. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's PTSD has most nearly approximated deficiencies in most areas of work, school, family relationships, thinking, judgment, and mood; however, the preponderance of the evidence shows that the disability is not productive of total occupational and social impairment. 2. It is reasonably shown that the Veteran's service-connected PTSD precludes him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 70 percent for PTSD have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012). 2. The criteria for a grant of TDIU have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements regarding an increased rating were accomplished in a March 2011 letter that was provided before the adjudication of the claim. The letter notified the Veteran of the information and evidence needed to substantiate his increased rating claim. He was told that the evidence must show that his service-connected disability had increased in severity. The letter also provided notice of the type of evidence necessary to establish a disability rating or effective date for the disability under consideration, pursuant to the recent holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F. 3d 1311(Fed. Cir. 2007). Accordingly, the Board finds that VA satisfied its duty to notify under the VCAA in accordance with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1). The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issues has been obtained. The Veteran's service and VA treatment records have been obtained and he has been provided with a VA examination in connection with the present claim. The Veteran has not indicated there are any additional records that VA should seek to obtain on his behalf. Further, he declined a hearing related to his present claim. He was also afforded a formal VA psychiatric examination in April 2011 to evaluate the nature, extent and severity of this condition. Significantly, the Board observes that the Veteran does not report that the condition has worsened since that time, and thus a remand is not required solely due to the passage of time since the March 2004 VA examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Thus, the Board finds that reasonable efforts were made by VA to satisfy its duty assist and to obtain evidence necessary to substantiate the Veteran's claim. No further assistance to develop evidence is required. II. Increased Rating Disability ratings 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 ratings will be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In order 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). See also 38 C.F.R. §§ 4.1, 4.2. As such, the Board has considered all of the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. As is the case here, where entitlement to compensation has already been established and 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). Nevertheless, in Fenderson v. West, 12 Vet. App. 119, 126 (1999), the Court noted that where the question for consideration is propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). The Veteran's PTSD is currently rated pursuant to 38 C.F.R. § 4.130, Diagnostic Code (DC) 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). The General Rating Formula for Mental Disorders, including Diagnostic Code 9411, at 38 C.F.R. § 4.130 provides the following ratings for psychiatric disabilities. A 50 percent rating is warranted if it is productive 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. Id. A 70 percent rating contemplates 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 disability rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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. The use of the term 'such as' in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase 'such symptoms as,' followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each Veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. Id. In addition, the Veteran's statements and testimony describing the symptoms of his service-connected disability are deemed competent evidence. 38 C.F.R. § 3.159(a)(2) (2012). However, these statements must be considered with the clinical evidence of record and in conjunction with the pertinent rating criteria. In evaluating psychiatric disorders, the VA has adopted and employs the nomenclature in the rating schedule based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). See 38 C.F.R. § 4.130. As such, the diagnosis of a mental disorder should conform to DSM-IV. See 38 C.F.R. § 4,125(a). Diagnoses many times will include an Axis V diagnosis, or a Global Assessment of Functioning (GAF) score. The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). Scores ranging from 41 to 50 illustrate serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning. 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). PTSD As a foundational matter, the April 2011 VA examination report reflects at least an arguable opinion that the Veteran's noted social impairment symptoms may be attributable to the non-service connected condition of dementia. In providing the April 2011 VA examination opinion, the VA examiner specifically reports an inability to differentiate the social impairment symptoms attributable to service-connected PTSD and noted non-service connected condition. When it is not possible to separate the effects of the service-connected condition versus a nonservice-connected condition, 38 C.F.R. § 3.102 requires that reasonable doubt be resolved in the Veteran's favor, thus attributing such signs and symptoms to the service-connected disability. Mittleider v. West, 11 Vet. App. 181 (1998). As such, the Board's analysis of the Veteran's claim will proceed under the presumption that all noted psychiatric signs, symptoms and manifestations are attributable to his service-connected PTSD. VA outpatient treatment records dated March 11, 2010, indicated that the Veteran suffered from nightmares at least 2 times per month. The examiner noted that the Veteran had maintained an isolated lifestyle and preferred to be by himself. The Veteran was given a GAF score of 50. A January 2011 VA outpatient treatment record indicated that the Veteran had abnormal recent and remote memory and was given a GAF score of 50. The Veteran was afforded a VA psychological examination in April 2011. The examiner noted that the Veteran's sleep was disturbed by nightmares about World War II and that he continued to be irritable and argued with his wife. The examiner noted that he reexperiences military stressors in nightmares and in intrusive thoughts and memories. The Veteran reported increased arousal, to include insomnia and irritability, and signs and symptoms of avoidance. The examiner noted that the Veteran tries to avoid subjective and objective reminders of his military experience. The Veteran's mood was neutral and his speech was coherent and fluent. The examiner noted that he did not report suicidal or homicidal ideations or plans. The Veteran's scores were significantly impaired for cognitive function and long and short term recall. He did not report panic attacks obsessions or phobias. The Veteran's wife reported that the Veteran's symptoms have continued without remission, on a daily basis, since the last examination. Those symptoms included nightmares about combat, social withdrawal, a lack of interest in outside activities, and frequent depression. The April 2011 examiner noted that due to the Veteran's PTSD and symptoms, the Veteran had reduced reliability and productivity, recommended that he be rated as incompetent for VA compensation purposes and estimated that his GAF score was 45. A July 2011 VA outpatient treatment record shows that the Veteran's wife stated that the Veteran fights a battle with his nightmares, as though his experience in the war just happened. An October 2011 VA outpatient record shows that the Veteran's appearance and hygiene were poor. The Veteran stated that he continued to suffer from persistent PTSD and nightmares. He was given a GAF score of 45. The Veteran's PTSD is currently evaluated as 50 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9411. The Board notes that the criteria for both 50 a percent and 70 percent evaluation require occupational and social impairment and resolving all doubt in the Veteran's favor, the Board finds that his PTSD symptoms more nearly approximate the criteria for a 70 percent rating. In reaching this decision, the Board notes that the criteria for a 70 percent rating for PTSD are met when there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. See Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). The VA examination and treatment records reflect deficiencies in the relevant areas. The Veteran's PTSD was manifested by constant nightmares, depression, social withdrawal, a lack of interest in activities. The Veteran has reported preferring to do activities alone. The Veteran also reported that he frequently argued with his wife. In addition, the Veteran's GAF scores have ranged from 45 to 50. Such scores reflect serious symptoms or serious impairment in social, occupational, or school functioning. See DSM- IV. Such findings reflect symptoms productive of occupational and social impairment with deficiencies in most areas, which is consistent with criteria warranting a 70 percent disability rating under Diagnostic Code 9411. Accordingly, the criteria for a 70 percent rating have been met. Because the evidence shows that he does not have total occupational impairment and since the evidence affirmatively indicates that he does not suffer from delusions and hallucinations or other symptoms noted among the criteria for a 100 percent rating under Diagnostic Code 9411 such as persistent danger of hurting self or others, the preponderance of the evidence is against a 100 percent rating under that Diagnostic Code. III. TDIU A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. § 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran's master degree in education and his part-time work as a tutor). The Veteran's service-connected disabilities consist of the following: dermatophytosis of the feet with lichen simplex on the left ankle, rated 10 percent disabling; tinnitus, rated 10 percent disabling; bilateral hearing loss, rated as 10 percent disabling; shrapnel wound, right leg, rated 0 percent disabling; and PSTD, current rated as 70 percent disabling. In light of the favorable increase for the Veteran's PTSD disability above, the Veteran has met the threshold schedular requirements for an award of TDIU benefits under 38 C.F.R. § 4.16 (a). After a review of the evidence of record, the Board finds, resolving any reasonable doubt as mandated by law (38 U.S.C.A. § 5107; 38 C.F.R. § 3.102), the evidence supports the finding that the Veteran's service-connected PTSD prevents him from securing or following substantially gainful employment. The evidence shows that the Veteran's service-connected PTSD renders him unemployable. The Veteran's claims file contains VA treatment records and a VA compensation examination report. These records show his continuous treatment for his PTSD. Significantly, in the April 2011 VA examination report, it was noted that the Veteran's PTSD reduced reliability and productivity for occupational and social impairment. In addition, the examiner noted that the Veteran was no longer capable of managing benefits in his own interest. Further, the most frequently assigned GAF scores have predominantly ranged from 45 to 50. According to DSM-IV, scores ranging from 41 to 50 reflect serious symptoms, including serious impairment in social, occupational or school functioning, including an inability to keep a job. Thus, the Board finds that the totality of the evidence sufficiently reflects that the Veteran's PTSD is of such a severity that he would be unable to secure or follow a substantially gainful occupation. Hence, entitlement to TDIU is warranted. ORDER A disability rating of 70 percent for PTSD is granted, subject to statutory and regulatory provisions governing the payment of monetary benefits. A TDIU rating due solely to PTSD is granted, subject to the regulations controlling disbursement of VA monetary benefits. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs