Citation Nr: 1327178 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 11-11 319 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial 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: Heather E. Vanhoose, Esq. ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1998 to July 1998 and October 2004 to December 2005, including service in Iraq. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for PTSD and assigned a 50 percent disability evaluation. The issue of entitlement to a TDIU was not certified for appeal. However, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). As the evidence suggests that the Veteran may be unemployable due to symptoms of his service-connected PTSD, the issue of entitlement to a TDIU has been raised, is within the jurisdiction of the Board, and has been captioned above as an issue in appellate status. The Board notes that the Veteran requested hearings before both a Decision Review Officer and the Board. In September 2011 and November 2011, he withdrew these requests. His hearing requests are therefore deemed withdrawn. 38 C.F.R. § 20.704(e). The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are potentially relevant to the issue on appeal. Thus, any future consideration of this Veteran's case should take into account the existence of this electronic record. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO. VA will notify the Veteran if further action is required. FINDING OF FACT For the entire appeal period, the Veteran's PTSD was manifested by social and occupational impairment in most areas; total occupational and social impairment is not shown. CONCLUSION OF LAW The criteria for a rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp 2012)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The Veteran's claim arises from his disagreement with the initial evaluation following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include some of the Veteran's service personnel and treatment records, VA treatment records, private treatment records, lay statements, and VA examination reports. The remainder of the Veteran's service records has been formally found to be unavailable; thus further attempts to obtain such records would be futile. As discussed above, the Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was provided with a meaningful opportunity to participate in the claims process and has done so by providing evidence and argument. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, 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). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran's PTSD is currently rated 50 percent disabling. PTSD is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). Ratings are assigned according to the manifestation of particular symptoms. The use of the term "such as" 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 the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). Under the General Rating Formula for Mental Disorders, a 50 percent rating is warranted 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. A 70 percent rating is warranted 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 that 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 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment to 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. One factor which may be considered is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, Fourth Edition (DSM-IV)); see also Richard v. Brown, 9 Vet. App. 266 (1996). A GAF score of 11 to 20 indicates that there is some danger of hurting oneself or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement), or an occasional failure to maintain minimal personal hygiene, or gross impairment in communication. A GAF score of 21 to 30 indicates that behavior is considerably influenced by delusions or hallucinations, or serious impairment in communication or judgment (e.g., sometimes incoherent, acting grossly inappropriately, suicidal preoccupation), or an inability to function in almost all areas (e.g., stays in bed all day; no job, home, or friends). A GAF score of 31 to 40 indicates some impairment in reality testing or communication (e.g., speech at times illogical, obscure, or irrelevant), or where there is 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). A GAF score of 41 to 50 indicates 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). A GAF score of 51 to 60 indicates 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 peers or co-workers). While the Rating Schedule does indicate that the rating agency must be familiar with the DSM-IV, it does not assign disability percentages based solely on GAF scores. See 38 C.F.R. § 4.130 (2004). Both VA examiners noted that the Veteran has a history of at least two violent incidents, and the 2011 VA examiner noted impaired impulse control. Both VA examiners noted that the Veteran reported three past suicide attempts, the most recent of which was in 2009. In November 2010 he reported passive thoughts of suicide; however there is no other documented suicidal ideation during the appeal period. The VA examiners diagnosed PTSD with Global Assessment of Functioning (GAF) scores of 40 and 42. As noted by the 2011 VA examiner, these GAF scores reflect a serious impairment of the Veteran's social and occupational functioning. The Board notes that the evidence of record shows that the Veteran has additional symptomatology that is not enumerated in the rating criteria, including nightmares, intrusive thoughts, avoidant behavior, hypervigilance, and exaggerated startle response. However, the listed symptoms in the rating criteria are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan. Symptoms such as impaired impulse control and some suicidal ideation resulting in serious social and occupational impairment fall squarely within the criteria for a 70 percent rating. The Veteran's symptoms have resulted occupational and social impairment with deficiencies in most areas. Thus, the Board finds that the criteria for a 70 percent evaluation have been met during the course of the appeal. Conversely, the Board finds that the symptoms do not more nearly approximate a rating in excess of 70 percent under the General Rating Formula as they are not of such a severity or frequency to result in total occupational and social impairment. The Veteran does not exhibit symptoms indicative of a 100 percent rating, nor is there any evidence or medical opinion that the Veteran is totally occupationally and socially impaired. In this regard, there is no subjective or objective evidence of gross impairment to thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, disorientation to time or place, intermittent inability to perform activities of daily living, or memory loss for names of close relatives, own occupation, or own name. While the Veteran has had past incidents of violence, there is no evidence of any homicidal ideation. Additionally, although he has reported a recent suicide attempt, he denied active suicidal ideation or plan at both VA examinations and in all the treatment records during the appeal period. None of the psychiatrists or psychologists of record found him to be a persistent risk for suicide or for harming others. Indeed, the GAF scores assigned during the course of the appeal ranged from 40 to 55, well above a GAF score suggestive of the risk of potential harm to self or others. In this regard, a GAF score of 11 to 20 indicates that there is some danger of hurting oneself or others. DSM-IV. Therefore, the Board finds that he is not in persistent danger of hurting himself or others. Moreover, the evidence does not show total social impairment. The Veteran's lay statements and reports to physicians show that he has a good relationship with his mother and child, one good friend, and a long-term stable, if conflict-heavy, relationship with his spouse. While his social support system is limited, it does exist. Based on the foregoing, the Board finds that the Veteran's symptoms and functional impairment fall into the moderate to serious range. Likewise, the Veteran's PTSD results in no more than occupational and social impairment with deficiencies in most areas. Accordingly, his symptoms are most closely approximated by a 70 percent rating, rather than a 100 percent rating, during the course of the claim. Therefore, the Board finds that the Veteran is entitled to an initial rating of 70 percent, but no higher, for his PTSD. The preponderance of the evidence is against the assignment of any higher rating. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extraschedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology and provide for additional or more severe symptoms than currently shown by the evidence. The Board has already acknowledged that not all of his specific symptomatology is noted in the schedular criteria, pursuant to Mauerhan v. Principi, 16 Vet. App. 436 (2002); however, the focus in evaluating psychiatric claims is the overall impact a veteran's specific psychiatric symptoms have upon his level of occupational and social functioning. For the reasons stated above, the Board has concluded that the Veteran's level of such occupational and social impairment is adequately reflected by the 70 percent schedular rating. As such, the Board finds that the manifestations of the Veteran's PTSD are contemplated in the rating criteria. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. The Board acknowledges that the evidence is still being developed for the Veteran's inferred TDIU claim. However, as noted above, any impact on the Veteran's employment would need to be considered for extraschedular purposes only if the schedular criteria are inadequate to rate his service-connected disabilities. Id. at 118 ("[I]n cases regarding whether extraschedular referral is warranted, the threshold determination is whether the disability picture presented in the record is adequately contemplated by the rating schedule."). As the schedular ratings adequately contemplate the symptomatology from PTSD, referral for extraschedular consideration is not warranted and a remand of the issue decided herein is not required. ORDER An initial disability rating of 70 percent, but no higher, for PTSD is granted, subject to the law and regulations governing payment of monetary benefits. REMAND The record suggests that the Veteran is not working and may be unemployable due, at least in part, to his service-connected PTSD. Specifically, the Veteran asserts that he had trouble driving trucks because of anxiety driving in the desert, and has not been able to hold a steady job due to easy frustration, short temper, and an inability to trust coworkers. The 2009 VA examiner stated that some of his difficulty as a truck driver seems to be related to PTSD. When evidence of unemployability is submitted during the appeal from an assigned disability rating, a claim for TDIU benefits will be considered part of the claim for benefits for the underlying disability if raised by the record. Rice, 22 Vet. App. 447 The Board notes that the Veteran has not been provided with VCAA notice of the requirements for a TDIU claim. Such should be accomplished on remand. Additionally, the Veteran should be asked to complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. Accordingly, the case is REMANDED for the following actions: 1. Send the Veteran proper VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that advises the Veteran about what is needed to substantiate a claim for a TDIU. The Veteran should also be asked to fully complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. 2. After the above has been completed to the extent possible, the RO/AMC should adjudicate the claim for a TDIU. If additional development is necessary, such as obtaining a medical opinion, such should be accomplished. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC), which includes the relevant laws governing claims for TDIU, and be given a reasonable opportunity to respond. Thereafter, the issue should be returned to the Board if in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs