Citation Nr: 1327274 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 09-10 332 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to an initial increased rating for posttraumatic stress disorder (PTSD) in excess of 50 percent disabling, to include a total disability rating for individual unemployability (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Emily L. Tamlyn, Counsel INTRODUCTION The Veteran had active duty from June 2003 to November 2003; August 2004 to January 2006; and periods of unverified active duty for training and inactive duty training with the Army National Guard until January 2009. He received the Combat Action Badge. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In that decision, the RO granted the claim for service connection for PTSD and assigned a 10 percent rating (effective January 23, 2008). In January 2012, the RO increased the rating to 30 percent (effective January 23, 2008) and to 50 percent from August 15, 2011. In July 2012, the Board awarded a 50 percent rating for the earlier period on appeal and sustained the later rating. The Veteran appealed the Board's July 2012 decision to the United States Court of Appeals for Veterans Claims (Court). In December 2012, pursuant to a Joint Motion for Remand, the Court remanded the Board's decision "only to the extent that it denied entitlement to a rating in excess 50% for post-traumatic stress disorder for the entire period." As a result the issue is characterized as an initial increased rating in excess of 50 percent disabling on the title page. The Veteran appears to be asserting that a TDIU is warranted as to both his service-connected PTSD alone and as to all his service-connected disabilities combined (see June 2013 letter and private vocational rehabilitation opinion). As a result, TDIU is inferred and is part and parcel to the initial increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Please note the instructions of the July 2012 remand are undisturbed (minus the reference to a TDIU, which is granted in this decision) and the claim for service connection for a right knee disability remains pending. FINDINGS OF FACT 1. For the entire time period on appeal, occupational and social impairment with deficiencies in most areas has been shown due to symptoms such as anger; impaired impulse control and violence; irritability; alcohol abuse related to PTSD; and difficulty adapting to stressful circumstances (including work and a work like setting). 2. The Veteran is unable to secure and maintain substantially gainful employment as a result of all of his service-connected disabilities, to include PTSD. CONCLUSIONS OF LAW 1. For the entire time period on appeal, the criteria for an evaluation of 70 percent for PTSD have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.130, Diagnostic code (DC) 9411 (2012). 3. The criteria for a TDIU are met. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 3.340, 4.15, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veteran's attorney waived RO consideration of argument and evidence submitted in June 2013; further Veterans Claims Assistance Act of 2000 (VCAA) notice; and RO adjudication of the claim. This document also indicates acceptance of a 70 percent rating and entitlement to a TDIU. See AB v. Brown, 6 Vet. App. 35, 39 (1993). There is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, and the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); Shinseki v. Sanders, 556 U.S. 396, 408-409 (2009) (the burden is on the appellant to show that a notice error is harmful). The Veteran's claim arises from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as 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). The Board does find that in March 2008, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2011) and 38 C.F.R. § 3.159(b) (2012). Therefore, no further notice is needed under VCAA. The "duty to assist" contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4) (2012). Here, VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). Relevant service treatment, personnel and Social Security Administration (SSA) records are in the file. VA and private records are in the claims file. The Veteran was given VA medical examinations; the Board finds the VA examination reports to be fully adequate and explanatory. The Board also finds that the Board and Decision Review Officer hearings were conducted in compliance with 38 C.F.R. § 3.103(c)(2) (2012). See Bryant v. Shinseki, 23 Vet App 488 (2010) (VA personnel conducting a hearing should explain the issues and suggest the submission of relevant evidence). Neither the Veteran nor his attorney (his Veteran's Service Organization representative at the time was present at the hearings) has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2). The Board finds the duty to notify and assist has been met. Initial Rating for PTSD The Veteran contended in an April 2008 statement that he forgot where he was when driving sometimes, constantly lost his concentration/short memory, was easily angered and frightened, and was "grouchy." At the February 2010 DRO hearing, the Veteran stated that his relationship with his girlfriend was strained because she always wanted him to go places with her and he never wanted to go. He had two failed relationships since his return from Iraq due to his irritability. He had anger problems and stated that he had, "I guess, like put my hands on them." His relationship with his mother had not been the same. He stated that upon his return from Iraq, he had been staying with her and she "put him out" probably because he was irritable and she was scared of him. He had problems doing things with his children and with other people; he was isolating. He left his last job because they were always switching him around to work with different people and it irritated him. He admitted to missing some days due to drinking while trying to cope with his PTSD. He had not sought work since his last job and was on Social Security. At the March 2012 Board hearing, the Veteran stated he could not stand to be around people; he got irritated and angry. He lived with his girlfriend for the past two years. He stated they argued a lot and he was currently facing a domestic violence charge. He had to take an anger management class. He last worked five or six years ago in maintenance. He was fired because he did not get along with his boss and other employees; he would act out. He stated he did not really have a relationship with his family but would visit his mother a couple of times per month. He did not see his children often, but their age range was 17 to 25. He denied having any friends In a February 2013 statement, the Veteran stated he could not sleep, was scared and nervous, and did not want to be around people. His family did not want to be around him and he did not have good relationships. He had trouble driving, was isolating himself, and could not work. Police reports from before the appeal period show the Veteran was charged with disturbing the peace and simple assault in incidents involving a former girlfriend (see March and May 2007 reports). Municipal Court conviction documents from during the appeal period show the Veteran was found to have disorderly conduct and failed to comply with an officer; drove under the influence (his second "DUI"); and committed domestic violence/simple assault (see May 2008 and May 2009 documents). In October 2009, he received a driving under the influence and anger management course completion certificate. Further, in an undated statement, D.J., an "old friend" of the Veteran, stated the Veteran angered easily. D.J. recounted the time he saw the Veteran get into a fight with a stranger because someone parked their car too close to the Veteran's car. Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate DCs identify the various disabilities. 38 C.F.R. Part 4 (2012). When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2012). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the record shows service connection was originally granted for PTSD with an effective date of January 23, 2008. The Veteran is currently assigned a 50 percent rating for the entire time period on appeal. The Veteran's PTSD disability rated under the mental disorder schedule of ratings under 38 C.F.R. § 4.130 (2012). All mental disorders are rated under this code. The psychiatric symptoms listed in the below rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). When determining the appropriate disability evaluation to assign, however, the Board's "primary consideration" is the Veteran's symptoms. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). A 50 percent rating is assigned when there is occupational and social impairment with reduced reliability and productivity. Symptoms typifying this rating include 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 is assigned when the psychiatric condition produces occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Such symptoms typifying this rating include 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 maximum 100 percent rating is assigned when there is total occupational or social impairment. Typical symptoms are listed 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. 38 C.F.R. § 4.130, DC 9411 (2012). In this case, the Veteran has been assigned Global Assessment of Functioning (GAF) scores ranging from 48 (see May 2008 VA psychiatric record) through 65-70 (see July 2008 VA psychiatric record). The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. See Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV); Carpenter v. Brown, 8 Vet. App. 240 (1995) and 38 C.F.R. § 4.130 (incorporating by reference the VA's adoption of the DSM-IV, for rating purposes). An examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. 38 C.F.R. § 4.126 (2012); VA O.G.C. Prec. Op. No. 10-95 (Mar. 1995). According to the DSM-IV, GAF scores of 41 through 50 represents 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 51 to 60 reflect moderate symptoms (e.g. flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, and school functioning (e.g. few friends, conflicts with peers or co-workers). Id. Scores of 61 to 70 indicates 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, has some meaningful interpersonal relationships. The Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses' personal knowledge. Barr v. Nicholson, 21 Vet. App. 303 (2007). For example, in Barr, the Court held that varicose veins were a disability that was capable of lay observation for the purpose of establishing service connection. Under 38 C.F.R. § 3.159(a)(2) (2012), competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. Id. The Board must also assess the credibility, and therefore the probative value of the evidence of record in its whole. Owens v. Brown, 7 Vet. App. 429 (1995). In determining whether documents submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board finds that a 70 percent rating best typifies the Veteran's symptoms during the time period on appeal because he has consistently shown to be angry, irritable, and occasionally violent. VA examinations show he has typical PTSD symptoms plus impaired impulse control and difficulty in adapting to stressful circumstances (like the workplace). As explained below, the Board relies on the competent and credible evidence in the file in coming to this determination. The March 2008 VA examination report showed insomnia, nightmares, and general PTSD symptoms (like avoidance, flashbacks, and etcetera). He was afraid to have guns in his house, was tense and vigilant when driving, often lost temper and twice was violent with his past girlfriend. He would be sad when thinking of others serving in Iraq. His libido was decreased. The examiner stated the symptoms had been pretty continuous the past two years and were described as frequent as well as moderate to severe. Treatment was minimal and he had no hospitalizations. He was unemployed and had relationship and financial difficulties. He was able to do activities of daily living. He worked cutting yards after his return from deployment briefly, but was then laid off. Prior to deployment he worked at a Food Service company but did not want to return "because of people and knives." He had a remote history of a DUI and still drank but denied abuse. The mental status examination showed concentration was impaired. His GAF score was 60. In the summary, the examiner noted PTSD was causing severe social impairment. In October 2009, the VA examination showed the Veteran had trouble driving; he was slow and other cars bothered him. He avoided crowds. The frequency and severity of symptoms were judged to be daily, but they were mild. His symptoms were chronic, but his capacity to deal with them was adequate. He was partially disabled due to his mental health. He lived with his girlfriend of several years. He was close to his family and had some friends. He attended military reunions and sometimes went to church. He was irritable and had decreased attention and focus. He suffered from mild social withdrawal. Treatment was helping him stay calm. He lived with stepchild and girlfriend. The activities of daily living were pretty much normal (he visited his mother, watched television, did chores, walked in the morning and read the paper). His GAF score was 66. In August 2011, the VA examination report showed a GAF score of 60. The examiner noted that the Veteran had an alcohol dependence disability that was likely caused by PTSD. He had several public drunkenness and DUI charges (his third). The examiner summarized the Veteran's symptoms as having the impact of occupational and social impairment with reduced reliability and productivity. It was likely to result in a GAF score of 65 and the combined alcohol dependence reduced it to 60. Since the last examination, he had a new live-in girlfriend and denied having friends. He did not go to church unless it was for a funeral of a close friend. He reported his relationship with his kids was ok, but they did not associate much due to his irritability. He reported being in physical fights and alienating people; he did not go out socially with his girlfriend and his mother no longer trusted him not to be violent. He was still unemployed and stated if he went to work he would likely be irritable and have decreased attention. He had no treatment since October 2010. He took anger management classes for his domestic violence conviction. Heavy drinking began around 2007 and continued. He still had typical PTSD symptoms like avoidance, diminished interest in significant activities, distress at exposure to cue, estrangement, hypervigilance, etc. The symptoms caused clinically significant distress or impairment in social, occupational and other areas of functioning. He also was noted to have a depressed mood, anxiety, chronic sleep impairment, mild memory loss, difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances (like work) and impaired impulse control, such as unprovoked irritability with periods of violence. The examiner denied the presence of other symptoms. VA and National Guard records also note symptoms. For example a June 2008 questionnaire from the National Guard records showed the Veteran reported relationship problems, depressed/sad/overwhelmed feelings, and stress. He denied suicidal or homicidal ideation. A symptoms chart from March to October 2008 showed mostly normal mental status examinations but he did have sleep impairment. A January 2008 VA primary care record showed a normal mood and affect, but also depression. He reported panic attacks and anxiety driving at an April 2008 VA appointment. In May 2008, multiple symptoms, like being easily startled and emotionally numb, were noted but he did not have delusions, hallucinations, ideations (suicide or homicide), or obsession/compulsions. His GAF score was 55. The next appointment showed his symptoms were moderate to severe in intensity and he had significant depression. His GAF score was 48. In July 2008, however, his GAF score was 65 to 70 and denied a depressed mood. He was somewhat anxious, although insight and judgment were good. His memory also tested to be well. By September 2010, his PTSD was stable; he reported occasionally going to family outings and that it was too hot to go out walking or fishing. He still did not sleep well. A mental status evaluation was normal. An August 2008 SSA psychiatric review showed the Veteran to have anxiety-related disorders which were his primary disability. Difficulties in maintaining social functioning and concentration, persistence or pace were noted. A June 2013 private vocational rehabilitation opinion also noted the Veteran had problems driving, was easily startled, was unable to focus and was limited in activities of daily living. The Board finds the Veteran is competent to describe his symptoms and experiences regarding his PTSD because these are things he actually experiences. 38 C.F.R. § 3.159(a)(2). PTSD, however, is not like the varicose veins in Barr; clinical expertise is required to assess its severity. To the extent the Veteran has been competent, he has been relatively credible during the time period on appeal. Caluza, 7 Vet. App. 498. But his February 2013 statement referenced being in Vietnam instead of in Iraq (where he served) and he denied major alcohol use for years before he confessed at the August 2011 that he had been a heavy drinker since 2007. His statements are assigned limited weight. The Board does not find that total occupational and social impairment is warranted based on service-connected PTSD. As described above, only partial social and occupational impairment is found. Over time, the Veteran has consistently been in relationships with a significant other, even though there has been episodic violence. He maintains ties to his mother and children. For example, the October 2009 VA examination report and September 2010 VA records showed some social interaction. Also, he was able to complete an anger management and alcohol course in October 2009. Finally, his statement about going to funerals at the August 2011 VA examination reflects he still has people with which he remains close. The record does not tend to show symptoms such as problems with thought processes; communication; persistent delusions and hallucinations; persistent danger of hurting himself; grossly inappropriate behavior; disorientation; or memory loss for names of himself, his occupation or those around him. Other symptoms of this nature but not specifically enumerated in the DC are not shown. For this time period, the GAF scores were around 60 (with a low of 48 and high of 70); this is based on the VA examinations and records. The DSM-IV indicates a 60 represents moderate symptoms. The examples given by the DSM-IV do tend to apply to this Veteran; he does have few friends and conflicts with others. The Board finds this score supports the 70 percent rating in this case. The Board has contemplated whether the case should be referred for extra-schedular consideration. An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. The Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Here, the Board finds the rating schedule adequately addresses the symptoms of the service-connected PTSD, as described above. For example, the evidence shows the Veteran has some social and occupational impairment in most areas due to his symptoms. Such impairment is accounted for in the schedule. 38 C.F.R. § 4.130. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture and no further analysis is necessary. Thun, 22 Vet. App. at 115-16. The Board has concluded a rating of 70 percent is warranted for the entire time period on appeal. Hart, 21 Vet. App. 505. The weight of the credible evidence demonstrates that throughout the time period, PTSD warrants a 70 percent rating. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012) (stating any reasonable doubt is to be resolved in favor of the Veteran). TDIU In a June 2013 letter, the Veteran's attorney stated he was entitled to a TDIU and cited to a June 2013 report from a private vocational rehabilitation counselor who stated the Veteran was unable to secure and follow a substantially gainful occupation as a result of all his service-connected disabilities, as well PTSD alone. The Board finds that a total disability rating for individual unemployability (TDIU) is warranted. In Rice v. Shinseki, 22 Vet. App. 447, the Court held that a claim for a TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. 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. Here, the Board resolves doubt in the Veteran's favor and finds he is unable to maintain substantial and gainful employment. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2012). If the total rating is based on a disability or combination of disabilities for which the Schedule for 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) (2012). If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of non-service connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran's service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a) (2012). The Veteran now has a 70 percent rating for PTSD; a 40 percent rating for lumbago with disc degeneration; a 10 percent rating for status post right ankle sprain; a 10 percent rating for degenerative joint disease of the left knee; and a noncompensable rating for a healed stress fracture of the right tibia. The Board finds § 4.16(a) is applicable. Here, the Board finds the Veteran was still technically in the National Guard until January 2009. The March 2008 VA examination report showed that he was still serving in the National Guard and was believed to be employable if he was not working around a lot of people and not having stress. The October 2009 VA examination report stated he was unemployed and on SSA; reportedly due to PTSD and his back disability. The August 2011 VA examination report noted the Veteran continued to be unemployed due to PTSD and back problems. The Veteran reported that if he were to return to work, his mental health problems would likely lead to irritability, decreased attention and impaired focus. He had difficulty being around people. All of these things impaired employment functioning. The examiner stopped short of stating PTSD caused total occupational and social impairment. In June 2013, a private vocational rehabilitation counselor completed a report in which he stated that service-connected PTSD alone, as well as lumbago with disc degeneration, status post right ankle disability, and degenerative joint disease of the left knee combined rendered him unable to maintain a substantially gainful occupation. Based on the evidence, the Board will resolve doubt in the Veteran's favor and grant a TDIU. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). ORDER For the entire time period on appeal, a 70 percent rating for PTSD is awarded. Entitlement to a TDIU is granted. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs