Citation Nr: 1329511 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 08-25 891 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to an increased rating for posttraumatic stress disorder (PTSD), currently rated as 50 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Nathaniel J. Doan, Counsel INTRODUCTION The Veteran had active service in the United States Army from December 1964 to December 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In April 2010, the Veteran testified before the undersigned from the RO via videoconference. A transcript of that hearing is of record. Additional evidence has been associated with the claims file since the last adjudication by the RO, along with a waiver of RO jurisdiction over that evidence. The issue of entitlement to a TDIU is 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 During the entire appeal period, the Veteran's PTSD has been manifested by occupational and social impairment with deficiencies in most areas, due to such symptoms as panic attacks, social isolation, depression, anger issues, suicidal ideation, and an inability to maintain effective relationships. CONCLUSION OF LAW The criteria for an increased rating of 70 percent for PTSD, but no higher, have been met for the entire appeal period. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1-4.14, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Prior to consideration of the merits of the claim, the Board will address whether VA's duties to notify and assist the Veteran in his claim pursuant to the Veterans Claims Assistance Act of 2000 (VCAA) have been satisfied. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and 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. See 38 C.F.R. § 3.159(b)(1) (2012). In a claim for increase, VA must issue a generic notice that informs a Veteran of 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. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In a September 2006 letter prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for a higher rating, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The September 2006 letter, as well as a May 2008 letter, advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The claim was then readjudicated in July 2008. Accordingly, the duty to notify has been satisfied in this case. Additionally, all relevant evidence necessary for an equitable resolution of the issue on appeal has also been identified and obtained, to the extent possible. The evidence of record includes private medical records, VA treatment records, and hearing testimony. Additionally, the Veteran underwent VA examinations in April 2007 and April 2009. These examinations are found to be adequate in so far as they were conducted with a history obtained from the Veteran, and thoroughly and accurately portray the extent of the Veteran's PTSD. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In April 2010, the Veteran was provided an opportunity to set forth his contentions at a hearing before the undersigned. The record reflects that at this hearing the undersigned set forth the issue to be discussed at the hearing, focused on the evidence needed to substantiate the claim, and sought to identify any further development that was required to help substantiate the claim. These actions satisfied the duties a Veterans Law Judge has to explain fully the issue and to suggest the submission of evidence that may have been overlooked. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010) (holding that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board). Notably, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor have they identified any prejudice in the conduct of the hearing. Therefore, the Board finds that VA has also satisfied its duty to assist. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. § 4.1 (2012). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Court more recently held, however, that in claims for increased rating VA must consider that a claimant may experience multiple distinct degrees of disability, resulting in different levels of compensation, from the time the increased rating claim is filed to the time a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's PTSD is rated 50 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under Diagnostic Code 9411, a 50 percent is assignable for occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once per week; difficulty in understanding complex commands; impairment of short- and long-term memory (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 rating of 70 percent is assignable for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals 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 work like setting); inability to establish and maintain effective relationships. A rating of 100 percent is assignable for 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. When evaluating mental health disorders, the factors listed in the rating criteria are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating; analysis should not be limited solely to whether a Veteran exhibited the symptoms listed in the rating scheme. Rather, the determination should be based on all of a Veteran's symptoms affecting his level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The relevant evidence demonstrates social and occupational impairment that more nearly approximates the criteria listed in the 70 percent rating for the entire appeal period. See 38 C.F.R. §§ 4.7, 4.130 (2012). Specifically, the Veteran has competently and credibly testified that his PTSD results in constant panic attacks, depression, anger issues, and participation in obsessive rituals. The medical evidence of record confirms near-continuous depression and frequent panic attacks manifested by choking sensations, "knots in his stomach," nausea, and diarrhea. Both VA examination reports describe the Veteran's suicidal ideation. Additionally, there are numerous references in the record to the Veteran's significant marital difficulties and volatile interactions with his son. He has participated in anger management classes, and the 2009 VA examination report describes an incident where he had an altercation with a neighbor that resulted in violence. The 2007 VA examination report further describes his "long history of avoiding social contacts," a July 2007 letter from his therapist at the Vet Center discusses his "strong feelings of estrangement and detachment from others," and the 2009 VA examination report notes the Veteran's increased preference for isolation. Furthermore, the Veteran's Global Assessment of Functioning (GAF) scores assigned during the appeal period, which range from 51 to 57, confirms the Veteran's substantial social impairment due to PTSD. As noted above, the next higher, 100 percent rating criteria contemplates total social and occupational impairment, which is clearly not shown. The Veteran has not shown demonstrated gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting others, disorientation as to time or place, or memory loss of names of close relatives or his own name. Although the Veteran has testified that he sometimes goes a few days without showering or shaving, the preponderance of the evidence indicates that he is able to perform activities of daily living, to include maintenance of minimal personal hygiene. While the Board acknowledges that the Veteran's PTSD is shown to result in significant social impairment, as the Veteran has reported he tends to avoid people and isolate, the Board finds that this is already contemplated by the 70 percent rating assigned herein. The Board has considered whether the assignment of an extraschedular rating might be warranted in this case. See 38 C.F.R. § 3.321 (2012). The Court has set out a three- part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria discussed above contemplate the Veteran's PTSD. As noted above, the Veteran's symptoms primarily involve panic attacks, social isolation, depression, anger issues, suicidal ideation, and an inability to maintain effective relationships. The Veteran's symptoms and level of impairment are specifically contemplated by the rating criteria, which reasonably describes the Veteran's disability. The rating criteria are therefore adequate to evaluate the Veteran's disability and referral for consideration of extraschedular rating is not warranted. ORDER Entitlement to a 70 percent rating for PTSD is granted for the entire appeal period, subject to the laws and regulations governing payment of monetary benefits. REMAND Liberally construing the Veterans' statements and testimony, the Board finds that the Veteran has raised a claim of entitlement to a TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that where there is evidence of unemployability raised by the record during a rating appeal period, the TDIU is an element of an initial rating or increased rating). A remand for an examination and opinion on this issue is necessary in order to determine whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Additionally, rating decisions in the Veteran's electronic file contained in the Virtual VA system reflect a number of documents that are pertinent to the TDIU claim but are not of record, namely: an informal claim for TDIU dated March 16, 2010; a duty to assist letter dated April 2, 2010; a Statement in Support of Claim dated April 16, 2010; a formal application for TDIU (VA Form 21-8940) received March 21, 2011; a duty to assist letter dated June 16, 2011; and a VA treatment record and examinations for service-connected disabilities other than PTSD dated December 10, 2009; February 1, 2011; June 21, 2011 and June 22, 2011. These documents should be secured on remand. Accordingly, this remaining issue is REMANDED for the following actions: 1. Associate the following with the paper or electronic record: (a) an informal claim for TDIU dated March 16, 2010; (b) a duty to assist letter dated April 2, 2010; (c) a Statement in Support of Claim dated April 16, 2010; (d) a formal application for TDIU (VA Form 21-8940) received March 21, 2011; (e) a duty to assist letter dated June 16, 2011; (f) a VA treatment record dated February 1, 2011; and (f) VA examination reports dated December 10, 2009; June 21, 2011; and June 22, 2011. If any of these records are not available, the Veteran should be provided with notification of their unavailability in accordance with 38 C.F.R. § 3.159(e)(1). 2. After the action in Paragraph (1) has been completed, obtain a medical opinion from an appropriate VA clinician assessing the impact the Veteran's service-connected disabilities have, if any, on his ability to secure or follow a substantially gainful occupation. The entire claims file (i.e. both the paper claims file and any relevant medical records contained in Virtual VA), should be made available to and be reviewed by the examiner in conjunction with the examination, and the examiner should confirm that such records were available for review. Upon review of the Veteran's claims file, the examiner should opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is as likely as not (50 percent probability or greater) that his service-connected disabilities, either alone or in concert, render him unable to secure or follow a substantially gainful employment consistent with his education and employment background. A thorough rationale must be provided for any opinion expressed and conclusion reached. If the examiner determines that an examination of the Veteran is necessary to provide the requested opinion, then such examination should be scheduled. 3. After undertaking any additional development deemed appropriate, readjudicate the claim in light of any additional evidence added to the record. If the benefit sought on appeal remains denied, furnish the Veteran and his representative with a Supplemental Statement of the Case and allow him the opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter the Board is remanding. 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). ____________________________________________ Sonnet Gorham Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs