Citation Nr: 1328112 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 11-15 012 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an evaluation in excess of 50 percent for posttraumatic stress disorder with depressive disorder prior to May 21, 2012. 2. Entitlement to an evaluation in excess of 70 percent for posttraumatic stress disorder with depressive disorder effective from May 21, 2012. 3. Entitlement to a total disability rating based upon individual unemployability due to service-connected disability. REPRESENTATION Appellant represented by: Keith D. Snyder, Attorney at Law ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from January 1952 to January 1955. This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. This case was previously before the Board in January 2012, at which time it was remanded for additional development. While on remand, in a May 2013 rating decision the evaluation assigned for posttraumatic stress disorder was increased to 70 percent effective May 21, 2012. The case is now, once more, before the Board for appellate review. Good or sufficient cause having been shown, the Veteran's appeal has been advanced on the Board's docket under the provisions of 38 U.S.C.A. § 7101(a) (West 2002) and 38 C.F.R. § 20.900(c) (2012). The issue of entitlement to a total disability rating based upon individual unemployability is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. VA will notify you if further action is required on your part. FINDINGS OF FACT 1. Prior to May 21, 2012, the Veteran's posttraumatic stress disorder with depressive disorder was not manifested by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 2. Since May 21, 2012, the Veteran's posttraumatic stress disorder with depressive disorder has not been manifested by total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 50 percent for posttraumatic stress disorder with depressive disorder prior to May 21, 2012, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). 2. Since May 21, 2012, the Veteran's posttraumatic stress disorder with depressive disorder has not met the criteria for an evaluation in excess of 70 percent. 38 U.S.C.A. §§ 1155, 5103, 5103A; 38 C.F.R. § 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) In the case at hand, the requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. Currently, there is no issue as to whether the Veteran was provided an appropriate application form, or the completeness of his application. VA notified the Veteran in April and June 2010 of the information and evidence needed to substantiate and complete his claim, to include notice of what part of that evidence was to be provided by him, and what part VA would attempt to obtain. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claim, and, as warranted by law, affording VA examinations. Currently, there is no evidence that additional records have yet to be requested, or that additional examinations are in order. Moreover, there is currently no error or issue which precludes the Board from addressing the merits of the Veteran's appeal. Finally, in reaching this determination, the Board has reviewed all the evidence in the Veteran's claims file, which includes his multiple contentions, as well as both VA (including Virtual VA) treatment records and examination reports. 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 Veteran's claim, and what the evidence in the claims file shows, or fails to show, with respect to that claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000), and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Increased Rating The Veteran in this case seeks entitlement to an increased evaluation for posttraumatic stress disorder with depressive disorder. In pertinent part, it is contended that manifestations of that disability are more severe than presently evaluated, and productive of a greater degree of impairment than is reflected by the respective 50 percent and 70 percent evaluations now assigned for the periods at issue. In that regard, disability evaluations, in general, are intended to compensate for the average impairment of earning capacity resulting from a service-connected disability. They are primarily determined by comparing objective clinical findings with the criteria set forth in the Rating Schedule. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). Where there is a question as to which of two evaluations apply, the higher evaluation will be assigned where the disability picture more nearly approximates the criteria for the next higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. (2012). While the Board must consider the Veteran's medical history as required by various provisions under 38 C.F.R. Part 4, including 38 C.F.R. § 4.2 [see Schafrath v. Derwinski, 1 Vet. App. 589 (1991)], the degree of impairment resulting from a service-connected disability is a factual determination, with the Board's primary focus on such cases being upon the current severity of the service-connected disability. See Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Ratings are to be based as far as practicable upon the average impairment of earning capacity, with the additional proviso that the Secretary shall, from time to time, readjust the schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve, on the basis of the criteria set forth in 38 C.F.R. § 3.321 (2012), an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture, with such related factors as a marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular standards. Id. In the case at hand, in a rating decision of December 2010, the RO denied entitlement to an evaluation in excess of 50 percent for posttraumatic stress disorder with depressive disorder. The Veteran voiced his disagreement with that determination. In a May 2013 rating decision, the evaluation for posttraumatic stress disorder with depressive disorder was increased to 70 percent, effective from May 21, 2012, the date of a VA psychological examination. The current appeal continues. At a May 2010 VA psychological examination the Veteran reported that he attended group therapy every Friday, and had been doing so since 2007. According to the Veteran, while he had initially been seen individually for therapy, he then joined a group, which he attended "regularly." By the Veteran's own admission, he was not currently taking any psychotropic medication. When questioned regarding his symptomatology, the Veteran complained of a depressed mood "at times," as well as anhedonia. While the Veteran reportedly belonged to a number of organizations (e.g., The American Legion, AMVETS, and the 101st Airborne Chapter), he did not attend most of the meetings of those organizations. At the time of evaluation, it was noted that psychomotor agitation had been witnessed by the Veteran's wife. Also noted were problems with fatigue and a loss of energy. The Veteran denied any problems with suicidal ideation. Current complaints consisted of difficulty concentrating, "anger," and hypervigilence. Persistent anxiety reportedly "came and went," and the Veteran indicated that he tried to avoid thoughts and feelings which reminded him of events in Korea. He reported having problems with startle response, and that he did not go out on the Fourth of July. On mental status examination, the Veteran's appearance was appropriate, though his behavior was "tearful." The Veteran's attitude was cooperative and his motor activity calm. His mood was somewhat depressed and anxious. At the time of evaluation, the Veteran's affect was depressed and anxious, however, his speech was within normal limits, and perception showed no evidence of any impairment. Thought processes were coherent and intact, and there was no evidence of any suicidal or homicidal ideation. The Veteran was alert and well oriented. With the exception of dates, his memory was intact. Concentration was intact, though the Veteran reported "a lot of distractibility." Judgment and impulse control were intact, with insight described as only minimally impaired. The pertinent diagnosis noted was chronic posttraumatic stress disorder. A Global Assessment of Functioning Score of 50 was assigned. According to the examiner, while the Veteran felt relief at being able to discuss his symptoms and experiences with other veterans during therapy, his symptoms continued to exacerbate as he got older, and "lost several friends." The Veteran did have solid family relationships which helped him to cope. At a May 2012 VA psychological examination it was noted that there had been little change in the Veteran's social, marital, or family history since the time of his previous examination. Reportedly, the Veteran and his wife had celebrated their 50-year marriage, in honor of which the appellant's family had purchased a trip to Alaska for he and his wife, a trip they were beginning on Wednesday. According to the Veteran, he did not have any friends, and his only hobby/outlet was playing with his grandchildren. The Veteran did continue to attend church regularly, which he found "helpful." The examiner noted that the Veteran continued to attend weekly group therapy. He had not engaged in individual treatment or medication management since the time of his previous VA examination. However, according to the examiner, as a result of the Veteran's posttraumatic stress disorder symptomatology, he suffered clinically significant distress or impairment in his social, occupational, and/or other important areas of functioning. That symptomatology consisted of a depressed mood, anxiety, chronic sleep impairment, a flattened affect, disturbances of motivation and mood, difficulty in establishing or maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work-like setting. In the opinion of the examiner, as a result of the Veteran's service-connected psychiatric disability, he suffered from occupational and social impairment, with deficiencies in most areas, such as work, school, family relationships, judgment, thinking and/or mood. The examiner opined that the Veteran's symptoms appeared to have worsened somewhat since his last examination, most particularly, in the area of depressive symptomatology. According to the examiner, the Veteran isolated to an extreme degree, and had no hobbies or interest. Moreover, the appellant complained of nightmares, anxiety, and irritability, as well as physiological reactivity to triggers and an increased startle response. In the opinion of the examiner, the Veteran's symptomatology was impacting his functioning. The pertinent diagnosis noted was posttraumatic stress disorder, with a Global Assessment of Functioning Score of 50. VA outpatient treatment records covering the period up to and through May of 2013 show continued treatment for the Veteran's service-connected psychiatric disorder. Pursuant to applicable law and regulation, the 50 percent evaluation in effect prior to May 21, 2012 for the Veteran's service-connected posttraumatic stress disorder with depressive disorder contemplates the presence of occupational and social impairment, with reduced reliability and productivity due to such symptoms as: a 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; and/or difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). In contrast, the 70 percent evaluation in effect from May 21, 2012 requires demonstrated evidence of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and/or inability to establish and maintain effective relationships. Id. A 100 percent rating requires demonstrated evidence of total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting oneself or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and/or memory loss for names of closes relatives, one's own occupation, or one's own name. Id. Global Assessment of Functioning Scores are based on 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 the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), page 32]. A Global Assessment of Functioning Score of between 41 and 50 is defined as "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). Id. A Global Assessment of Functioning Score of between 51 and 60 are is defined as "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)." While the Rating Schedule does indicate that the rating agency must be familiar with the Diagnostic and Statistical Manual of Mental Disorders, it does not assign disability percentages based solely on Global Assessment of Functioning Scores. See 38 C.F.R. § 4.130 (2012). Rather, Global Assessment of Functioning Scores are but one factor to be considered in conjunction with all other pertinent evidence of record. The evidence in this case preponderates in demonstrating that, prior to May 21, 2012, no more than a 50 percent evaluation was warranted for the Veteran's service-connected posttraumatic stress disorder with depressive disorder. At no time prior to that date did the Veteran exhibit symptomatology consistent with a 70 percent evaluation, such as obsessional rituals which interfered with his routine activities; illogical, obscure, or irrelevant speech; near-continuous panic; spatial disorientation, or neglect of his personal appearance and hygiene. There was no evidence of suicidal ideation. Rather, for the period in question, the Veteran was most often described as alert and well oriented, with good concentration, coherent and intact thought processes, and "intact" judgment and impulse control. Not until the May 21, 2012 VA psychological examination was there documentation that the Veteran's psychiatric symptomatology had increased to the point where a 70 percent evaluation was in order. At the May 2012 evaluation, the Veteran was described as suffering from difficulty in adapting to stressful circumstances (including work or a work-like setting), symptomatology normally associated with a 70 percent evaluation. Moreover, in the opinion of the examiner, the Veteran's service-connected posttraumatic stress disorder with depressive disorder was productive of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. Also noted in May 2012 was that the Veteran's symptomatology, in particular, his depressive symptomatology, appeared to have worsened somewhat since the time of his last VA examination, such that he isolated to an extreme degree, and had no hobbies or interests. Such findings are commensurate with a 70 percent evaluation, but no more, for the appellant's posttraumatic stress disorder with depressive disorder effective the day of the examination, i.e., May 21, 2012. As regards the Veteran's potential entitlement to a greater than 70 percent evaluation, the evidence shows that following the May 2012 VA psychological examination the Veteran was assigned a Global Assessment of Functioning Score of 50, which is characteristic of "serious" impairment. However, at the time of that examination, there was no evidence of any gross impairment in thought processes or communication, or grossly inappropriate behavior. Nor was there evidence of persistent delusions or hallucinations, disorientation to time or place, or an intermittent inability to perform the activities of daily living. Moreover, there was no evidence demonstrating that the Veteran exhibits the total occupational and social impairment requisite to the assignment of a 100 percent schedular evaluation. Under the circumstances, the 50 percent evaluation in effect for posttraumatic stress disorder with depression prior to May 21, 2012 is appropriate, and an increased rating is not warranted. Similarly appropriate is the 70 percent evaluation in effect from that same date for the disorder. Accordingly, the Veteran's claim for an increased evaluation must be denied. A review of the entire evidence of record, the Board is of the opinion that the disability picture presented by the Veteran's service-connected posttraumatic stress disorder with depressive disorder is appropriately contemplated by the Rating Schedule, and that referral for consideration of an extraschedular evaluation is, therefore, not warranted. See Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). ORDER Entitlement to an evaluation in excess of 50 percent for service-connected posttraumatic stress disorder with depressive disorder prior to May 21, 2012 is denied. Entitlement to an evaluation in excess of 70 percent for service-connected posttraumatic stress disorder with depressive disorder from May 21, 2012 is denied. REMAND In addition to the above, the Veteran in this case seeks entitlement to a total disability rating based upon individual unemployability. In pertinent part, it is contended that the Veteran's service-connected disabilities, when taken in conjunction with his education and occupational experience, are sufficient to preclude his obtaining or retaining any form of substantially gainful employment. Service connection is currently in effect for posttraumatic stress disorder with depressive disorder, evaluated as 70 percent disabling; bilateral sensorineural hearing loss, evaluated as 40 percent disabling, and tinnitus, evaluated as 10 percent disabling, for a combined evaluation of 80 percent. Accordingly, the Veteran meets the schedular requirements for the award of a total disability rating based upon individual unemployability. What remains to be determined is whether, due solely to the Veteran's service-connected disabilities, he is precluded from all substantially gainful employment. In that regard, following a VA audiometric examination in May 2010, it was the opinion of the examining audiologist that the Veteran was "likely...employable," and should be able to function adequately in communicative situations where the environment was quiet, and he was wearing two hearing aids. Moreover, following the May 2012 VA psychological examination the examiner opined that while the Veteran's psychiatric symptomatology was impacting his functioning, that psychiatric symptomatology alone would not prevent his employment. Further, following an April 2013 VA audiometric examination the examining audiologist opined that the Veteran's hearing loss should not significantly affect his vocational potential or limit participation in most work activities, and that hearing loss did not preclude an individual from obtaining "gainful employment." As is clear from the above, each of the aforementioned opinions addresses the effect of one of the Veteran's service-connected disabilities on his ability to obtain and retain substantially gainful employment. However, no opinion specifically addresses the cumulative effect of all of the Veteran's service-connected disabilities on his ability to obtain and retain employment. It is this shortcoming, among other things, with which the Veteran's attorney has taken issue. Under the circumstances, the Board is of the opinion that further development of the evidence is necessary prior to a final adjudication of the Veteran's claim for a total disability rating based upon individual unemployability. Accordingly, in light of the aforementioned, the case is REMANDED to the AMC/RO for the following actions: 1. Any pertinent VA or other inpatient or outpatient treatment records, subsequent to May 2013 should be obtained and incorporated in the claims folder. The Veteran should be requested to sign the necessary authorization for release of any private medical records to the VA. All attempts to procure such records should be documented in the file. If the RO cannot locate such records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. The Veteran should then be afforded a VA social and industrial survey in order to more accurately determine the impact of his service-connected disabilities alone on his ability to obtain and retain substantially gainful employment. The Veteran is hereby notified that it is his responsibility to report for the examination, and to cooperate in the development of his claim. The Veteran is further to be advised that the consequences for failure to report for a VA examination without good cause may include denial of his claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned survey, documentation should be obtained which shows notice scheduling that survey was sent to his last known address. It should also be indicated whether any notice sent was returned as undeliverable. Following completion of the social and industrial survey, the examiner is to provide a detailed review of the Veteran's pertinent medical history and current complaints, as well as the severity of each of his service-connected disabilities, and the impact of those abilities on his employability. In particular, the examiner should offer an opinion as to whether the Veteran's service-connected disabilities, taken cumulatively, and in conjunction with his education and occupational experience, are sufficient to preclude his obtaining and retaining any form of substantially gainful (including sedentary) employment. A complete rationale must be provided for any opinion offered, and all information and opinions, once obtained, must be made a part of the Veteran's claims folder. The claims folder, to include Virtual VA, must be made available to and reviewed by the examining social worker prior to completion of the examination. The examining social worker must specify in his/her report that the claims file and Virtual VA records have been reviewed. 3. The AMC/RO should then review the social and industrial survey to insure that it is in complete compliance with the directives of this REMAND and that the examiner has documented their consideration of all records contained in Virtual VA. If the report is deficient in any manner, the AMC/RO must implement corrective procedures. 4. The AMC/RO should the readjudicate the Veteran's claim for a total disability rating based upon individual unemployability. Should the benefit sought on appeal remain denied, the Veteran and his attorney should be provided with a Supplemental Statement of the Case which must contain notice of all relevant action taken on the claim for benefits since May 2013. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome in this case. The Veteran need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters 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 of Veterans' Appeals 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). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs