Citation Nr: 1327417 Decision Date: 08/27/13 Archive Date: 09/05/13 DOCKET NO. 07-17 243 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia THE ISSUES 1. Entitlement to a rating in excess of 10 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1969 to December 1971. These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision, which continued a 10 percent rating for PTSD. In February 2011, the Board remanded the matters for additional development. FINDINGS OF FACT 1. It is reasonably shown that throughout the relevant appeal period (since June 13, 2005), the Veteran's PTSD has been manifested by symptoms productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks; at no time is it shown to have been manifested by occupational and social impairment with reduced reliability and productivity. 2. The Veteran's service-connected disability PTSD is not shown to render him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. A 30 percent (but no higher) schedular rating is warranted for the Veteran's PTSD from June 13, 2005. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.130, Diagnostic Code (Code) 9411 (2012). 2. The schedular rating criteria for a TDIU rating are not met; a TDIU rating is not warranted. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 3.340, 3.341, 4.15, 4.16, 4.18, 4.25 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA 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/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran was advised of VA's duties to notify and assist in the development of the claims prior to the initial adjudication of his claims. July 2006, December 2008, and September 2011 letters explained the evidence necessary to substantiate his claims, the evidence VA was responsible for providing, and the evidence he was responsible for providing. These letters also informed the appellant of disability rating and effective date criteria. He has had ample opportunity to respond/supplement the record, and has not alleged that notice in this case was less than adequate. The Veteran's pertinent treatment records have been secured. The RO arranged for VA PTSD examinations in July 2006 and April 2011, which will be discussed in greater detail below, though the Board finds these examinations to be adequate as they included a review of the Veteran's history and a mental status examination that included all necessary findings. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The Veteran has not identified any pertinent evidence that is outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file, and in Virtual VA, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000)(VA must review the entire record, but does not have to discuss each piece of evidence.) Hence, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claims. Increased Rating for PTSD Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. PTSD is rated under the General Rating Formula for Mental Disorders (General Formula). A 10 percent evaluation is warranted when the evidence demonstrates occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. A 30 percent rating is warranted when the evidence demonstrates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted when there is 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 when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Code 9411. The Veteran has been assigned various Global Assessment of Functioning (GAF) scores for his PTSD. 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). Lesser scores reflect increasingly severe levels of mental impairment. See 38 C.F.R. § 4.130 [incorporating by reference VA's adoption of the American Psychiatric Association: DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), for rating purposes]. The Veteran's claim for an increased rating for PTSD was received by VA on June 13, 2006; consequently the period for consideration is from June 2005. On July 2006 VA examination, the Veteran reported that medication was prescribed for his depression and anxiety. He admitted to moderate use of alcohol and drugs, and the examiner noted an extensive history of polysubstance abuse. He was divorced more than 30 years earlier and lived with a seven year old son (that he had with a girl-friend who left the two of them) . He had been unemployed for the past seven years; he last worked as a truck driver for approximately 28 years, off and on, having quit due to physical health problems and "mental stress". He reported that he had also worked as a general laborer on farms and construction. He reported symptoms including difficulty with social isolation, increased irritability, depressed mood, feelings of emotional detachment, and difficulty with daily living and problems. He denied any significant periods of symptom remission. On mental status examination, the Veteran was polite and cooperative but difficult to keep on track. He exhibited pressured speech and circumstantial responses. His mood appeared elevated. He was alert, oriented, relevant, and coherent, with no evident signs of psychosis. He did not show suicidal or homicidal thinking, and there was no impairment of his thought processes. He related his experiences, problems and symptoms in a sometimes contradictory and ambiguous manner, prompting the examiner to opine that his clinical features appeared to be due more to substance abuse than to psychiatric difficulties. The examiner opined that the estimated impact of the Veteran's psychiatric symptoms on his social and occupational functioning was mild to moderate in degree. The diagnoses included polysubstance dependence and PTSD; a GAF score of 58 was assigned. The Veteran was hospitalized for inpatient treatment of PTSD from January 8 to February 29, 2008. On the discharge summary, a GAF score of 50-55 was assigned. [A July 2008 rating decision assigned a temporary total rating for PTSD based for this period of hospitalization. Consequently, such period of time is not for consideration herein.] On December 2009 VA psychology consult, the Veteran denied any recent severe mental health problems but had a long history of chronic depression and PTSD. He had been treated twice in VA inpatient programs for PTSD but continued to have symptoms including nightmares, flashbacks, difficulty with trust, problems expressing emotion even to close loved ones, anger, and irritability. He reported that he was not a social person and had limited contact with his family except for his two children. He endorsed symptoms of depressed/irritable mood, sleep disturbance, fatigue, excessive feelings of guilt and worthlessness, short term memory impairment, and loss of appetite. He denied any suicidal attempts or serious ideation but admitted to previous passive thoughts about death, especially when his chronic pain or PTSD symptoms escalate. He was not taking any prescribed medications for mood or PTSD; he did not like the idea of taking medications on a long-term basis. On mental status examination, he was cooperative and his hygiene and grooming were good. His mood was good and his affect was euthymic. His speech was clear and his thoughts were goal directed and logical. He denied any past or current hallucinations, and there was no evidence of delusions. Insight and judgment were within normal limits. The diagnoses included chronic recurrent moderate major depressive disorder, and PTSD by history; a GAF score of 53 was assigned. On April 2011 VA examination, the Veteran reported that he had no friends and preferred not to associate with others, to include his own family. When asked about his activities and leisure pursuits, he replied that he stays at home. He denied any history of suicide attempts. He reported a history of being charged with violence, although he was not imprisoned for it. On mental status examination, the Veteran was casually dressed and his psychomotor activity was unremarkable. His speech was rambling on occasion but otherwise unremarkable. His attitude was cooperative, relaxed, and attentive; his affect was normal; and his mood was good. His attention was intact. His thought process and thought content were unremarkable. There was no evidence of delusions, hallucinations, or inappropriate behavior. His judgment and insight were adequate. He reported sleep impairment described as "interrupted sleep with islands of insomnia", as opposed to sleeping all day and feeling tired. He reported no obsessive or ritualistic behavior, no panic attacks, no homicidal thoughts, and no suicidal thoughts. His impulse control was good. He was able to maintain minimum personal hygiene and had no problem with activities of daily living. His remote, recent, and immediate memory was normal. His PTSD symptoms included recurrent distressing dreams, markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from others, restricted range of affect, difficulty falling or staying asleep, and irritability or outbursts of anger. The diagnosis was PTSD; the examiner assigned a GAF score of 60. The April 2011 VA examiner opined that the Veteran had a fair prognosis as he had gained some insight into his PTSD related functioning and was attempting to improve his relationships with some of his family members; he had a solitary lifestyle to avoid social interactive stress related problems. The examiner opined that the Veteran experienced PTSD signs and symptoms that are transient or mild and decrease his work efficiency and ability to perform occupational tasks only during periods of significant stress. VA treatment records from 2005 through 2011 reflect symptomatology largely similar to that found on the examinations above. The Board finds that the Veteran, his treating VA mental health personnel, and the VA examiners have reported symptoms associated with PTSD that reflect occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal). His symptoms have been noted to include depressed mood, anxiety, chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). Notably, while the April 2011 VA examiner indicated that the symptoms of the Veteran's PTSD were "mild or transient", that examiner (in the same report) also assigned a GAF score of 60 (signifying moderate symptoms). The Board finds no reason to question the credibility of the Veteran's own accounts; they are consistent with reports by his treating mental health personnel and the VA examiners. As the symptoms described meet (or at least approximate) the schedular criteria for a 30 percent rating under Code 9411, the Board finds that such rating is warranted throughout since June 13, 2005. 38 C.F.R. § 4.7. The evidence of record does not show that symptoms that meet (or approximate) the above-listed criteria for a 50 percent rating were manifest at any time during the evaluation period. At no time during the appeal period is it shown that the Veteran had 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; or other symptoms of similar gravity; no such symptoms have been noted or reported. Consequently, the Board finds that the criteria for a 50 percent rating are not met or approximated for any period of time under consideration. The Board finds that the GAF scores assigned do not provide a separate basis for an award of a rating in excess of 30 percent. The symptoms and level of impairment represented by the GAF scores of 53 to 60 reflect moderate (but not serious) disability, so as to warrant a 50 percent rating. Furthermore, the Board finds that the evidentiary record presents no reason to refer the case to the Compensation and Pension Service for consideration of an extra-schedular evaluation under 38 C.F.R. § 3.321(b). There is no evidence of symptoms or impairment not encompassed by the schedular criteria, so as to render those criteria inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). TDIU TDIU may be assigned when the veteran is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities (without regard to age). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). The central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability". Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Thus, the Board may not consider the effects of the Veteran's nonservice- connected disabilities on his ability to function. The United States Court of Appeals for Veterans Claims (Court) has stated: In determining whether [an] appellant is entitled to a total disability rating based upon individual unemployability, the appellant's advancing age may not be considered. See 38 C.F.R. § 3.341(a); Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992). The Board's task [is] to determine whether there are circumstances in this case apart from the non-service-connected conditions and advancing age which would justify a total disability rating based on unemployability. In other words, the BVA must determine if there are circumstances, apart from non-service-connected disabilities, that place this veteran in a different position than other veterans with an 80 percent combined disability rating. See 38 C.F.R. § 4.16(a) (1992). Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). A claim for a total disability rating based upon individual unemployability "presupposes that the rating for the [service-connected] condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." See Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In evaluating a veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). As further provided by 38 C.F.R. § 4.16(a), "marginal employment shall not be considered substantially gainful employment." In Moore, 1 Vet. App. at 359, the Court further discussed the meaning of "substantially gainful employment". The Court noted the following standard announced by the United States Court of Appeals for the Federal Circuit in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. The Veteran contends that he is unable to maintain substantially gainful employment due to his sole service-connected disability of PTSD. Such disability is now rated 30 percent (per the award above); therefore, the 38 C.F.R. § 4.16(a) schedular rating requirements for a TDIU rating are not met. Accordingly, the analysis must progress to whether the Veteran's PTSD nonetheless renders him unemployable, requiring that the case be referred to the VA Compensation and Pension Service Director for consideration of an extraschedular TDIU rating.. The Board finds no reason to refer the case to the Compensation and Pension Service for consideration of an extra-schedular evaluation under 38 C.F.R. § 3.321(b). The evidence of record does not support that the Veteran's service connected disability is of such nature and severity as to preclude all forms of substantially gainful employment. As stated by the Court, the record must reflect some factor that takes a particular case outside the norm in order for a claim for individual unemployability benefits to prevail. Van Hoose, supra. The fact that a veteran is unemployed or has difficulty obtaining employment is not enough. Id. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. The Veteran has not worked in several years. However, this fact, in and of itself, does not provide a basis to conclude that the Veteran's service-connected disability caused his unemployment. Notably, he has cited to several factors that may not be considered in determining his entitlement to a TDIU rating, including several nonservice connected disabilities. He has stated on more than one occasion that he stopped working due to [non-service connected] physical health problems: on July 2006 VA examination, he reported that he had quit working in 1999 due to physical health problems and "mental stress", and on April 2011 VA examination he reported that he had retired in 2004 due to medical problems including arthritis and poor vision. While the Veteran clearly has some occupational impairment due to PTSD, such impairment is the basis for the 30 percent rating that has been assigned. The record does not reflect that the PTSD is such as to preclude his participation in gainful employment. As was noted above, nonservice-connected physical disabilities may not be considered in deciding whether or not he is entitled to a TDIU rating. Nothing in the record suggests that the Veteran would be precluded by his service connected disability from obtaining or maintaining employment. In light of the foregoing, the Board finds that the preponderance of the evidence is against a finding that referral of this claim for extraschedular consideration is indicated. The Board has considered the Court's guidance in Bowling v. Principi, 15 Vet. App. 1 (2001). However, the facts in this case are distinguishable from Bowling. In Bowling, according to the Court, there was a plausible basis in the record for a conclusion that the veteran was unable to secure and follow a substantially gainful occupation due to a service connected disability. Here, unlike Bowling, the Veteran has not submitted supporting evidence of unemployability based on his service connected disability alone (without regard to other nonservice-connected disabilities, age, and/or the employment market). ORDER A 30 percent rating is granted for the Veteran's PTSD throughout, subject to the regulations governing payment of monetary awards. The appeal seeking a TDIU rating is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs