Citation Nr: 1330571 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 10-08 416 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1966 to January 1968. This appeal comes before the Board of Veterans' Appeals (Board) from a July 2009 rating decision by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision, the RO granted service connection for PTSD and assigned a disability rating of 30 percent effective July 25, 2008. In August 2012, the RO issued a rating decision awarding a 50 percent rating for PTSD effective July 25, 2008. As that award did not represent a full grant of the benefits sought on appeal, the claim remained in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). The U.S. Court of Appeals for Veterans Claims has held that TDIU may be a part of a claim for increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the question of entitlement to a TDIU was raised by the evidence of record. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are potentially relevant to the issue on appeal. Thus, any future consideration of this appellant's case should take into account the existence of this electronic record. 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. VA will notify the Veteran if further action is required on his part. FINDING OF FACT Since July 25, 2008, the Veteran's PTSD has more nearly approximated deficiencies in most areas. CONCLUSION OF LAW Effective July 25, 2008, the criteria for a disability rating of 70 percent for PTSD, but no higher, have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The Veteran's claim for an increase in the disability rating for a PTSD disorder arises from a disagreement with the initial evaluation that was assigned following the grant of service connection. Once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records, pertinent treatment records, and providing an examination when necessary. 38 C.F.R. § 5103A; 38 C.F.R. § 3.159. The record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment records, post service treatment records, and VA examination reports. The Board finds that all relevant facts have been properly developed, and all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim, and no further assistance to develop evidence is required. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Higher Rating Claim Disability ratings are based on the average impairment of earning capacity established in the Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Generally, the degrees of disability specified are considered adequate to compensate for loss of time from work proportionate to the severity of the disability. 38 C.F.R. § 4.1. A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The General Rating Formula for Mental Disorders, including Diagnostic Code 9411 for PTSD, provides the following ratings for psychiatric disabilities. 38 C.F.R. § 4.130. A 50 percent rating is warranted 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 a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating contemplates 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); inability to establish and maintain effective relationships. Id. A maximum 100 percent evaluation is warranted for a total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communications; 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 or close relatives, own occupation, or own name. Id. The use of the phrase "such as" in the general rating formula for mental disorders in 38 C.F.R. § 4.130 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 symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each Veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. Id. When determining the appropriate disability evaluation to assign, however, the Board's "primary consideration" is the Veteran's symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). One factor which may be considered is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, Fourth Edition (DSM-IV) page 32); see also Richard v. Brown, 9 Vet. App. 266 (1996). A GAF score of 11 to 20 indicates that there is some danger of hurting oneself or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement), or an occasional failure to maintain minimal personal hygiene, or gross impairment in communication. A GAF score of 21 to 30 indicates that behavior is considerably influenced by delusions or hallucinations, or serious impairment in communication or judgment (e.g., sometimes incoherent, acting grossly inappropriately, suicidal preoccupation), or an inability to function in almost all areas (e.g., stays in bed all day; no job, home, or friends). A GAF score of 31 to 40 indicates some impairment in reality testing or communication (e.g., speech at times illogical, obscure, or irrelevant), or where there is major impairment in several areas such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). A GAF score of 41 to 50 indicates 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). A GAF score of 51 to 60 indicates moderate symptoms (e.g., flattened 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 DSM IV, it does not assign disability percentages based solely on GAF scores. See 38 C.F.R. § 4.130 (2013). Based on the evidence of record, the Board finds that the Veteran's disability picture more closely approximates a 70 percent disability evaluation. A Vet Center treatment record dated in June 2008 reflects that the Veteran was diagnosed with chronic/severe PTSD and recurrent Major Depression. The Veteran stated that he worked as a helicopter repairman. The VA social worker noted that the Veteran was anxious, his memory was impaired and his affect was flat. The social worker indicated that the Veteran was extremely nervous, as if he was having a panic attack. The Veteran stated that he had a history of nightmares, irritability, restlessness, loss of interest in usual activities and exaggerated startled response to loud and unexpected noises. The Veteran was given a GAF score of 45. The Veteran was afforded a VA examination in June 2009. The examiner noted that the Veteran had been married since 1969 and had one son. The Veteran indicated that he spent most his time working on his car or working in the yard, but that he had lost interest in most other activities. The examiner noted that the Veteran's appearance was neat and his personal hygiene appeared good. He was logical and coherent. There were no thought impairments found and the Veteran denied hallucinations and rituals. The examiner reported that the Veteran's mood was depressed with sad affect and that the Veteran indicated that he felt depressed on a daily basis. The Veteran stated that he did not care about life. The Veteran stated that he had been taking antidepressants since 1970. The Veteran noted the he suffered from frequent anxiety accompanied by cold sweats, especially if he is in a crowd of people. He further reported frequent panic attacks and weekly suicidal ideations. The examiner indicated that the Veteran's impulse control appeared intact and his judgment was good; however, the Veteran's insight was poor. The Veteran stated that he would sleep for four to five hours a night, but would wake up two to three times. He reported dreams related to this Vietnam experiences. The examiner noted that the Veteran became tearful when discussing his active duty service. The Veteran stated that he had a startled response to loud noises or people walking up behind him. He reported becoming angry at television commercials and frustrated with his attempts at cooking. The examiner diagnosed with Veteran with chronic and moderate PTSD. A GAF score of 55 was provided. A private psychiatric evaluation dated in December 2009 showed that the Veteran was withdrawn, anxious and his mood was frustrated. The private psychiatrist noted that the Veteran's concentration was impaired, but that he did not present any delusional thinking or loose associations. His recent and remote memory were intact. The Veteran noted that he continued to have war-related nightmares and flashbacks and that he did not sleep well and woke up in a panic. He indicated that he had difficulty dealing with stress and cried a lot. He could not tolerate crowds, loud noises and preferred to be alone. He stated that he lost his temper easily. The physiatrist diagnosed the Veteran with profound PTSD and moderately-severe neurotic depression and a GAF score of 45 was provided. A July 2009 VA social work note reflects that the Veteran was guarded, watchful and anxious. A VA social worker note dated in January 2010 indicates that the Veteran had poor energy, little interest in normal activities and was depressed. He also reported poor sleep, nightmares and flashbacks. He noted that he was using distractions to help him cope with his symptoms. The Veteran was given a GAF score of 50. An April 2010 social work note reflects that the Veteran was managing his suicidal thoughts. The Veteran was given a GAF score of 48. A May 2010 VA mental health note shows that the Veteran was alert, but depressed and anxious. He stated that he tried to replace "bad" thoughts with "good" thoughts. VA psychology notes dated in May 2011 indicate that the Veteran was suffering from suicidal ideations. The Veteran underwent a VA examination in September 2012. The examiner diagnosed the Veteran with PTSD and recurrent moderate Major Depressive Disorder. He provided a GAF score of 45. The examiner noted that the Veteran's depressive disorder symptoms were directly related to this PTSD and affected his social and occupational functioning in tandem. The Veteran reported anger, irritability and volatility in his marriage. He reported being close to his son and a few neighbors, but stated that he was largely socially withdrawn. He noted "not trusting anybody" and that he had great difficulty forming relationships. He stated that when he was working, he struggled to function and frequently missed work or had to leave due to his symptoms. The examiner indicated that the Veteran suffered from recurrent distressing dreams, intense psychological distress, markedly diminished interest in significant activities, and restricted range of affect. The examiner also noted that the Veteran was irritable or had outbursts of anger, was hypervigilant and had exaggerated startled responses. The examination report reflects that the Veteran suffered from anxiety, a depressed mood, panic attacks more than once a week, mild memory loss, difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances. A June 2013 social work note indicated that the Veteran was depressed and had little interest in doing things. He noted that he had trouble concentrating and felt bad about himself. It was also determined that the Veteran was not an imminent risk of harming himself or others. Resolving all doubt in favor of the Veteran, the Board finds that the evidence shows that his PTSD more nearly approximates the criteria for a 70 percent rating for the entire period on appeal. The evidence reflects that his PTSD was manifested by disturbances in his mood, panic attacks, decreased ability to establish and maintain social relationships, suicidal ideations and difficulty adapting to stressful circumstances. During this time frame, the Veteran has been assigned GAF scores ranging from 45 to 55, with the majority of the scores illustrating serious symptoms and impairments. The Veteran has reported suicidal ideations throughout the pendency of the appeal. In the September 2012 VA examination, the examiner reported that the Veteran had difficulty adapting to stressful circumstances. As such, the Veteran's GAF scores and impairments are consistent with a 70 percent evaluation. However, a higher rating is not warranted. The Veteran has not had disorientation to time or place, or the severity of memory loss contemplated in the 100 percent rating. He is not shown to have difficulty maintaining minimal personal hygiene. In the June 2009 VA examination report, it is noted that the Veteran's appearance was neat and his personal hygiene appeared good. He has not been shown to have issues with activities of daily living, and is shown to be capable of engaging in activities such as yard work and fixing his car. In addition, the Veteran's speech and thought processes have not been grossly impaired, and he has not been shown to be affected by persistent hallucinations or delusions. The Veteran has been able to maintain a long term marriage with his wife for over 40 years. While suicidal ideation has been reported at times, the July 2013 VA psychology note reflects that the Veteran is not a danger to himself or others. Moreover, the GAF scores assigned during the course of the claim do not reflect that clinicians felt the Veteran was in some danger of hurting himself or others, had gross impairment in communication, or had serious impairment in communication or judgment. Accordingly, the preponderance of the evidence is against the assignment of a schedular disability rating of 100 percent for PTSD. The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2013); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology and provide for additional or more severe symptoms than currently shown by the evidence. As noted above, the Board has considered all of the Veteran's psychiatric symptomatology to determine his functional impairment, not just those listed in the rating criteria. See Mauerhan, supra. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. ORDER Effective July 25, 2008, a rating of 70 percent for PTSD is granted, subject to statutory and regulatory provisions governing the payment of monetary benefits. REMAND Finally, where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F. 3d 1378 (Fed. Cir. 2001). TDIU may be a part of a claim for increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, entitlement to a TDIU has been raised by evidence of record, and therefore must be addressed on remand. Revealed in a December 2009 private psychiatric record, the psychiatrist determined that the Veteran did not appear to be able to handle gainful employment. In a written statement received in March 2011, the Veteran states that he "absolutely cannot work due to my demeanor, reaction and interaction." At the September 2012 VA examination, it was noted that although the Veteran retired in 2005, he feels like his current level of service-connected PTSD and diagnosed Major Depressive Disorder symptoms would greatly impede his ability to secure and maintain gainful employment. The Veteran has not received notice pursuant to the VCAA concerning a claim for a TDIU. Such should be accomplished on remand. In addition, he should be asked to complete a TDIU claim form so he can provide information concerning his employment, education, training, and other relevant factors. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran proper VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that advises the Veteran about what is needed to substantiate a claim for a TDIU. The Veteran should be asked to fully complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. 2. After the above has been completed to the extent possible, the RO/AMC should adjudicate the claim for a TDIU. If additional development is necessary, such as obtaining a medical opinion as to whether the Veteran is unemployable due to his service-connected PTSD, such should be accomplished. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case, which includes the relevant laws governing claims for TDIU, and be given a reasonable opportunity to respond. Thereafter, the issue should be returned to the Board if in order. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs