Citation Nr: 1330771 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 11-02 947 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an increased disability rating in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability (TDIU). WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran served on active duty from May 1969 to July 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran testified at an August 2011 Travel Board hearing. A transcript of the hearing is of 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. FINDING OF FACT The Veteran's PTSD is productive of occupational and social impairment with reduced reliability and productivity due to such symptoms as panic attacks more than once a week, mild memory impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. CONCLUSION OF LAW Throughout the rating period on appeal, the criteria for a disability rating of 50 percent, but no higher, for PTSD have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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 (2006). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Further, with regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Prior to initial adjudication of the Veteran's claim, a letter dated in November 2009 informed the Veteran of its duty to assist him in substantiating his increased rating claim and the effect of this duty upon his claim. This letter also provided notice of the type of evidence necessary to establish a disability rating or an effective date for the disability on appeal. See Dingess/Hartman, 19 Vet. App. 473. The November 2009 letter further satisfied the requirements under Vazquez-Flores. The letter addressed the type of evidence needed to show that the Veteran's service-connected disability had worsened. The November 2009 letter also provided notice that should an increase in disability be found, a disability rating would be determined by applying relevant Diagnostic Codes based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. The Veteran was also notified of how the effective date is determined. The duty to notify has been satisfied. The Board also concludes that the duty to assist has been satisfied. VA has obtained records of relevant treatment reported by the Veteran, including service treatment records and records of VA treatment. In an April 2010 report of contact, the RO indicated that the Veteran was "now receiving Social Security." However, at the August 2011 hearing, the Veteran clarified that he has never applied for disability benefits from the Social Security Administration (SSA). No outstanding evidence has been identified that has not otherwise been included with the record. The Veteran was also afforded VA examinations with respect to his claim. The Board finds the VA examination reports to be thorough and adequate upon which to base a decision with regard to the Veteran's claim. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his service-connected disability under the applicable rating criteria. There is also no objective evidence indicating that there has been a material change in the severity of the Veteran's PTSD disability since the most recent October 2010 VA examination. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate. Washington v. Nicolson, 21 Vet. App. 191 (2007). There is no error or issue that precludes the Board from addressing the merits of this appeal, and there is no assertion to the contrary. Increased Rating for PTSD Disability evaluations are determined by the application of the schedule of ratings which is based on average impairment of earning capacity. See 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where an increase in the disability rating is at issue, the "present level" of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. Thus, VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's service-connected PTSD is rated as 30 percent disabling under the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" 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 the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). A 30 percent rating is warranted for occupational and social impairment with an 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). 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; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where there is objective evidence demonstrating occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to 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, or 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 the inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted 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; 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. Id. The Board notes that the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, the VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including (if applicable) those identified in the DSM-IV (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)). See Mauerhan, 16 Vet. App. 436. Within the DSM-IV, Global Assessment Functioning (GAF) scores 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); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996). While not determinative, a GAF score is highly probative as it relates directly to the Veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. See Massey v. Brown, 7 Vet. App. 204, 207 (1994). According to DSM-IV, a GAF score of 31 to 40 indicates some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or 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; child frequently beats up younger children, is defiant at home, and is failing at school). 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 between 51 and 60 indicates that the Veteran has "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)." GAF scores ranging between 61 and 70 reflect "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, and has some meaningful interpersonal relationships." A GAF score of 71 to 80 indicates, if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). See DSM-IV. During his August 2011 hearing, the Veteran testified to sleep disturbance with night sweats and nightmares, avoidance of crowds and of being a loner. He stated that he last worked as a barber but he left his job because he could not get along with the other barbers. In particular, he noted that he was easily startled and had frequent anger outbursts. The Veteran's statements describing his symptoms are considered to be competent evidence. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding Veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). These statements, however, must be viewed in conjunction with the objective medical evidence as required by the rating criteria. On VA examination in December 2008, the Veteran reported that he has been a loner since his service in Vietnam. He reported that he was uncomfortable around crowds and continued to have difficulty sleeping. He stated that he had difficulty initiating and maintaining sleep. He reported intrusive memories of faces and events that occurred to him in Vietnam. He indicated that is isolated and withdrawn from others and that he has increased difficulty remembering things. He was not currently working. He reported that he last worked in 2004 as a barber. He stated that he stopped working due to his poor concentration. On mental status examination, the Veteran was noted to be appropriately dressed and groomed. His speech was clear, coherent and goal-directed. He was cooperative and answered questions in a candid and spontaneous manner. He reported that he did not see or hear anything unusual, however, he did feel, at times, that people were talking about him. His insight and judgment were adequately developed. There was no evidence of any thought or perceptual disturbance. His thought process was linear and devoid of delusional content. The diagnosis was PTSD. The examiner assigned a GAF score of 55. The examiner concluded that the Veteran was currently experiencing a moderate level of impairment in social and occupational functioning. In a December 2008 addendum, the same VA examiner who conducted the December 2008 VA examination reported that upon review of the claims folder, the diagnosis of PTSD and a GAF score of 55 remain unchanged. An August 2009 VA mental health clinic note indicated that the Veteran endorsed feeling more depressed. His sleep was poor. He had difficulty falling asleep and experienced nightmares. He denied suicidal and homicidal ideation but was starting to feel somewhat hopeless. On mental status examination, he was noted to be well groomed and cooperative with intermittent eye contact. Motor testing and speech were normal. His thoughts were linear. His mood was depressed with congruent affect. He denied suicidal, homicidal, or audiovisual hallucinations. His judgment and insight were intact. His was oriented to person, place time and situation. His short and long term memory was intact. His concentration and attention were good. His impulse control was good. His ability for abstract thinking was intact. A September 2009 VA mental health clinic note indicated that the Veteran reported that he has continued to feel depressed. His social situation had deteriorated. He was moving from place to place. He stated that he often had trouble eating consistently. He denied suicidal ideation. His sleep was poor. He continued to have nightmares. Motor testing and speech were normal. His thoughts were linear. His mood was depressed with congruent affect. He denied suicidal, homicidal, or audiovisual hallucinations. His judgment and insight were intact. His was oriented to person, place time and situation. His short and long term memory was intact. His concentration and attention were good. His impulse control was good. His ability for abstract thinking was intact. On VA examination in October 2010, the Veteran reported that he last worked at a barber shop. He stated that he was let go from that job because of problems with irritability and difficulty getting along with the owner and customers. He indicated that he would sometimes "snap." With respect to relationships, he reported that he had been married twice but that he has been a widower since 2007. He has children and grandchildren with whom he has a fair relationship. He denied any close or casual friends. As for activities, he watched television, walked, did some cooking and cleaning, went to church once a month and ate out once a month. He reported intrusive thoughts 2 to 3 times a week, nightmares 1 to 2 times month and flashbacks twice a year. He described psychological and physiological reactivity to fireworks, loud music, car backfires and slamming doors. He reported that he avoided crowds and news about war and war movies. He described emotional attachment from others and less interest in activities. He reported being irritable and having trouble with concentration. He described an exaggerated startle reaction to loud noises and unexpected approaches by others. He also reported a hypervigilant style. He denied depressive symptoms. He denied any problems with activities of daily living such as feeding, bathing or toileting himself. On mental status examination, the Veteran was noted to alert, oriented and attentive. His mood appeared to by dysphoric and his affect was constricted. His speech was at a regular rate and rhythm. There was no evidence of psychomotor agitation or retardation. His eye contact was good. He was cooperative and pleasant with the examiner. His thought process was logical and coherent. His thought content was devoid of current auditory or visual hallucinations. There was no evidence of delusional content. He denied current thoughts of hurting himself or hurting others. He denied a history of suicide attempts. His memory was intact for immediate, recent and remote events. The diagnosis was PTSD. A GAF score of 54 was assigned. The examiner concluded that the Veteran was exhibiting moderate to considerable symptoms associated with PTSD. The examiner felt that the Veteran was moderately to considerably impaired with respect to social adaptability and interacting with others. The examiner also felt that the Veteran was moderately to considerably impaired with respect to his ability to maintain employment and perform job duties in a reliable, flexible and efficient manner. In weighing the evidence, the Board finds that the Veteran is entitled to a rating of 50 percent for the entire period on appeal because his symptoms more nearly approximate the criteria for that rating. 38 C.F.R. § 4.7. Specifically, the Veteran's PTSD symptoms include depressed mood, chronic sleep disturbances and nightmares, irritability, social isolation, hypervigilance and concentration problems. Moreover, the VA examiners have described the impairment due to the Veteran's PTSD as ranging from moderate to considerable. The Board recognizes that there is no evidence of flattened affect, abnormal speech, difficulty understanding complex commands, or impaired judgment or abstract thinking. However, the medical evidence shows that the Veteran has difficulty in establishing and maintaining effective work and social relationships. Thus, the Board concludes that the majority of his symptoms fall under the criteria for 50 percent disabling during the entire period on appeal. See 38 C.F.R. § 4.130. Furthermore, the GAF scores of 55 and 54 reported in the December 2008 and October 2012 VA examinations, respectively, are consistent with a 50 percent evaluation as such scores represent moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). The Board also finds that entitlement to a 70 percent disability evaluation has not been demonstrated. For example, the Veteran has not displayed any obsessional rituals that interfere with his routine activities; and his speech is not illogical or irrelevant. He is also not so depressed that his ability to function independently has been adversely affected. He has not displayed impaired impulse control. He has also been able to maintain his personal appearance. Further there is no evidence showing that the Veteran is a persistent danger to himself or others. The criteria for a higher evaluation have not been met. In sum, the record contains evidence showing the Veteran is entitled to a 50 percent rating for the entire appeal period. The Board has also considered whether a referral for extra-schedular rating is warranted. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule; therefore, the assigned schedular evaluation is adequate, and no referral is required. See VAOPGCPREC 6-96; see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) (a threshold finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate is required for extra-schedular consideration referral). The schedular evaluation for the Veteran's PTSD is adequate. The Veteran disagrees with the rating. In other words, he does not have any symptoms from his service-connected disorder that are unusual or are different from those contemplated by the schedular criteria. The Veteran does not have "exceptional or unusual" disabilities; he merely disagrees with the assigned evaluation for his level of impairment. The available schedular evaluation for this service-connected disability is adequate. Referral for extra-schedular consideration is not warranted. See VAOPGCPREC 6-96. Further inquiry into extra-schedular consideration is moot. See Thun, 22 Vet. App at 115. ORDER Entitlement to a 50 percent disability rating for service-connected PTSD is granted, subject to controlling regulations applicable to the payment of monetary benefits. REMAND In this case, the Veteran contends that he is unemployable due to his service-connected PTSD disability. A TDIU may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2013). 38 C.F.R. § 4.16(a) further provides that disabilities resulting from a common etiology or single accident will be considered one disability. If the required percentage requirements are not met, but the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, the Director of the VA Compensation and Pension Service should consider whether TDIU may be awarded on an extraschedular basis. 38 C.F.R. § 4.16(b). The Board cannot award TDIU on this basis in the first instance. The Veteran is currently in receipt of a 50 percent rating for his PTSD, which is his only service-connected disability. Therefore, he does not meet the percentage criteria for a schedular TDIU rating under 38 C.F.R. § 4.16(a) (2013). However, the Veteran's claim for a TDIU must also be considered on an extraschedular basis. See 38 C.F.R. § 4.16(b). In this case, the Veteran has indicated that he has not worked for several years due to his service-connected PTSD. In a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, received in January 2010, the Veteran's former employer indicated that the Veteran last worked as a barber in 2006 and that his employment was terminated due to disability. The employer did not specify the type of disability. However, the record reflects that the Veteran has consistently reported that he was not able to continue his work as a barber due to the severity of his PTSD symptoms. In particular, he states that he was irritable, had poor concentration and had difficulty getting along with his boss as well as customers. Further, the October 2008 VA examiner noted that the Veteran's PTSD has caused moderate to considerable impairment in his ability to maintain employment. In light of the aforementioned lay and clinical evidence suggesting that the Veteran is unable to work due to his service-connected PTSD, the Board finds that a remand is warranted in order for the RO to refer his TDIU claim for extraschedular consideration in the first instance. Accordingly, the case is REMANDED for the following action: 1. Refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service, for extraschedular consideration on the issue of entitlement to a TDIU. Thereafter, the RO must implement the determinations of the Director, Compensation and Pension Service, if so warranted. The claims file and a copy of this remand should be provided. 2. After the above actions have been completed, if the Veteran's claim for entitlement to TDIU remains denied, the Veteran must be provided a supplemental statement of the case. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs