Citation Nr: 1329092 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 12-24 146 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to a service connected disability (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Michael Sanford, Associate Counsel INTRODUCTION The Veteran had active military service from August 1965 to December 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In light of the Veteran's contentions that his PTSD renders him unemployable, the Board has amended the issues on appeal to include entitlement to TDIU as reflected above. Rice v. Shinseki, 22 Vet. App. 447 (2009). The issue of entitlement to TDIU addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's PTSD is manifested by depressed mood, flattened affect, impaired short-term memory, suicidal ideation, and difficulty in maintaining effective work and social relationships, resulting in no more than mild to moderate occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for an initial evaluation of 50 percent for PTSD have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In cases such as this, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The appellant bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008); see also Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009). There has been no allegation of such error in this case. In any event, the Veteran received notification prior to the initial AOJ decision through a notice letter dated September 2011. The content of the notice letter fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran was notified of the evidence not of record that was necessary to substantiate the claim, and was told that he needed to provide the names of the persons, agency, or company who had additional records to help decide his claim. He was also informed that VA would attempt to determine what additional information was needed to process his claim, and that VA would schedule a VA examination if appropriate, obtain VA medical records, obtain service records, and obtain private treatment reports as indicated. The duty to notify the Veteran was satisfied under the circumstances of this case. 38 U.S.C.A. § 5103 (2012). VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012). Service treatment records are associated with claims file. All other post-service treatment records and reports identified by the Veteran have also been obtained. The appellant has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. The Veteran has been afforded a VA examination for his PTSD on appeal. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The Board finds this examination is adequate for the purposes of the evaluating the Veteran's PTSD, as it involved a review of the Veteran's pertinent medical history as well as a clinical examination of the Veteran, and provided a review of relevant symptomatology related to the disability on appeal. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issues on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Merits Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Evidence to be considered in the appeal of an initial assignment of a disability rating is not limited to that reflecting the then current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In Fenderson, the Court discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's PTSD has been assigned an initial evaluation of 30 percent, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). Under this diagnostic code, a 30 percent evaluation is warranted when there is 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, mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent evaluation is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereo-typed 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 disability evaluation 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 worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent disability evaluation is warranted when there is total occupational and social impairment, due to such symptoms as: 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 and place; memory loss for names of close relatives, own occupation, or own name. Id. It is further noted that the nomenclature employed in the portion of VA's Schedule for Rating Disabilities ("the Schedule") that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (also known as "the DSM-IV"). 38 C.F.R. § 4.130 (2011). The DSM-IV contains a Global Assessment of Functioning (GAF) scale, with scores ranging between zero and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. GAF scores included in the record are 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). The DSM-IV contemplates that the GAF scale will be used to gauge a person's level of functioning at the time of the evaluation (i.e., the current period) because ratings of current functioning will generally reflect the need for treatment or care. The Board notes that while GAF scores are probative of the Veteran's level of impairment, they are not to be viewed outside the context of the entire record. Therefore, they will not be relied upon as the sole basis for an increased disability evaluation. Following a review of the evidence of record, including the records submitted after the Veteran's appeal was noted, the Board concludes that an initial evaluation of 50 percent, but no more, is warranted for the Veteran's service connected PTSD. VA treatment and examination records indicate that the Veteran's PTSD is characterized by a depressed mood, anxiety, self reported suicidal ideation, chronic sleep impairment and difficulty establishing and maintaining social and professional relationships. As will be discussed in more detail below, such symptoms indicate some occupational and social impairment and, as such, warrant an initial disability rating of 50 percent; however, they do not warrant a disability rating in excess of 50 percent. The Board observes that a higher rating is not warranted because the competent evidence of record does not demonstrate that the Veteran's symptoms more nearly approximate a 70 percent or higher initial rating. In this regard, the Veteran's treatment records do not contain evidence which supports a finding that the Veteran suffers from delusions or obsessive rituals. The September 2011 VA examination does note that the Veteran suffers from frequent nightmares. But, that examination also notes that the Veteran does not suffer hallucinations or illusions. Finally, no mention is made in the evidence of record of any obsessional rituals congruent with a higher evaluation. Higher ratings also take into account the inability to attend to basic personal appearance and hygiene, speech impairment, and impaired thought and judgment. The September 2011 VA examination indicates the Veteran appeared appropriately dressed with adequate hygiene. The Board also observes that the available records indicate that the Veteran does not suffer from any speech impairment. Indeed, the September 2011 VA examination report explicitly notes the Veteran's speech was easy to understand. Finally, the evidence shows the Veteran is oriented. The examination report states that the Veteran was oriented to time, place, person, and purpose. With regard to the Veteran's ability to establish and maintain personal relationships, the Board notes that the Veteran and his spouse have been married for over 43 years. It is evident, however, that the Veteran does have some difficulty establishing non-familial relationships. This is because, as the Veteran reported at his September 2011 VA examination, that he likes to be alone most of the time. However, the record reflects that he is capable of maintaining successful familial relationships as evidenced by his long-term marriage. Therefore, the Veteran's impairment in this area does not more closely approximate the criteria for a 70 percent rating. There is also some evidence that the Veteran has experienced some occupational impairment. At his September 2011 VA examination, the Veteran reported that his anger and irritability made it difficult to work during the time he was employed, until 2008. Additionally, the Veteran had difficulty with his supervisor. The Veteran asserted that he and his supervisor would have altercations due, in part, to the Veteran's anger. The Veteran also asserted that his nervousness made it difficult for the Veteran to drive in traffic and this ultimately forced the Veteran to retire from his job, where he was a driver. While this indicates some occupational impairment, the evidence does not show deficiencies in most areas (such as family relations, judgment, and mood) as is required for a 70 percent rating. The Board further notes that the Veteran has exhibited suicidal ideations, a symptom listed within the 70 percent rating criteria. At his September 2011 VA examination, the Veteran recounted an incident where he was holding a can of gas and he contemplated suicide. The Veteran also made clear that he no longer suffers suicidal ideations. While suicidal ideations are a symptom associated with the 70 percent rating, the Veteran's total disability picture more closely approximates the criteria for a 50 percent rating. Also of record is the Veteran's Global Assessment Functioning (GAF) score. The September 2011 VA exam examination notes a GAF score of 65. This score indicates some 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. However, the Board again notes that a GAF score is just one component of the Veteran's disability picture, and that it does not have a "formula" that it follows in assigning evaluations. Rather, the Board considers the Veteran's entire disability picture, including GAF scores. Furthermore, the Board need not accept a GAF score as probative. See Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995) (it is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same). As such, in viewing the evidence of record in its entirety, the Board finds that the Veteran's overall disability picture continues to most closely approximate that contemplated by a 50 percent evaluation. Overall, the Board concludes that the evidence discussed above, to include the GAF scores, supports no more than an initial 50 percent rating. In reaching its decision, the Board considered the benefit-of-the-doubt rule. However, the preponderance of the evidence is against an evaluation higher than 50 percent, and therefore, does not apply. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In making the above determination, the Board acknowledges the use of the term "such as" in 38 C.F.R. § 4.130, Diagnostic Code 9411, which 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 Diagnostic Code 9411 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms associated with the Veteran's PTSD that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV. Id. While the Veteran's PTSD may be manifested by some symptoms that are associated with the 70 percent rating or the maximum rating of 100 percent, specifically the Veteran's suicidal ideations (albeit not found objectively on VA examination of September 2011), the Board finds that the Veteran's PTSD disability picture did not more nearly approximate the criteria for either of those ratings at any time during this appeal. 38 C.F.R. § 4.7. As such, the Board finds that the criteria for a 50 percent rating, but not more, for the Veteran's service-connected PTSD have been met for the entire appellate period. 38 C.F.R. § 4.130, Diagnostic Code 9411. The record does not establish that the rating criteria are inadequate for rating the Veteran's PTSD such that an extraschedular rating is warranted. The Veteran's disability is manifested by impairment in social and occupational functioning. The effects of the Veteran's disability have been fully considered and are contemplated in the rating schedule. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). ORDER An initial rating of 50 percent, but no higher, is granted for PTSD, subject to the laws and regulations governing the payment of monetary benefits. REMAND At his September 2011 VA examination, the Veteran indicated that he stopped working as a driver in 2008 because the traffic made him nervous. Additionally, the examiner opined that the Veteran's anxiety and irritability make it difficult for the Veteran to work. Thus, the Board finds that the issue of entitlement to TDIU has been raised by the record. See Robertson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (once a Veteran submits evidence of medical disability and additionally submits evidence of unemployability, VA must consider total rating for compensation based upon individual unemployability). The Court held that a request for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). If the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total rating based on individual unemployability as a result of that disability is warranted. Id at 455. As such, the Veteran's claim of TDIU should be properly developed on remand. The duty to assist requires that VA obtain an examination which includes an opinion on the effect of the Veteran's service-connected disabilities on his ability to work. Friscia v. Brown, 7 Vet. App. 294 (1994). In this regard, no opinion has been obtained in this case. Therefore, in order to give the Veteran every consideration with respect to the present appeal, it is the Board's opinion that further development of the case is necessary. Accordingly, the case is REMANDED for the following action: 1. First, provide the Veteran with notice under 38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159, advising the Veteran what is necessary to substantiate a claim for entitlement to TDIU. 2. Next, provide the Veteran VA Form 21-8940 and request he provide details regarding his employment history. An appropriate period of time should be allowed for response. 3. Next, the Veteran's claims file should be referred to and reviewed by a VA examiner. The examiner is asked to provide an opinion as to whether it is at least as likely as not that the Veteran's service connected disabilities, either singularly or taken together, render him unable to secure or follow substantially gainful occupation. If it is determined that an additional examination of the Veteran is necessary in order to render this opinion, one is to be arranged. The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resorting to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claim based on the entirety of the evidence. If the benefits sought on appeal are not granted to the appellant's satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran 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). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs