Citation Nr: 1330818	
Decision Date: 09/25/13    Archive Date: 09/30/13

DOCKET NO.  13-08 008	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


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 service connected disability (TDIU).  


REPRESENTATION

Appellant represented by:	National Association of County Veterans Service Officers


ATTORNEY FOR THE BOARD

D. Havivi, Associate Counsel


INTRODUCTION

The Veteran had active military service from May 1966 to March 1968.  

This case comes before the Board of Veterans' Appeals (BVA or Board) on appeal of an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey.  In February 2013, a Statement of the Case (SOC) was issued which increased the rating from 10 percent to 30 percent.  The Veteran timely filed a VA-9 in March 2013, placing the rating decision in appellate status and therefore in the Board's jurisdiction.  38 C.F.R. § 20.202; See A.B. v. Brown, 6 Vet. App. 35 (1993).  

The Veteran requested a hearing in his March 2013 VA-9, but withdrew the request in a June 2013 mailing, received by the Board in July 2013.  

The issue of entitlement to TDIU due to service-connected disability 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 evidence demonstrates that the Veteran's PTSD has been manifested by occupational and social impairment with reduced reliability and productivity due to symptoms including isolative and avoidant behaviors, flattened affect, disturbances in motivation and mood, difficulty in establishing and maintaining relationships, chronic sleep impairment, anxiety, suspiciousness, hypervigilance and difficulty in adapting to stressful circumstances.  


CONCLUSION OF LAW

The criteria for an initial rating of 50 percent, but no higher, for PTSD have been satisfied.  38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.1-4.7, 4.10, 4.14, 4.125-4.126, 4.130, Diagnostic Code 9411 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013).  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183   (2002).  Proper notice from VA 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.  This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that notice under 38 U.S.C.A. § 5103(a)  and 38 C.F.R. § 3.159(b) includes notice that a disability rating and an effective date for the award of benefits will be assigned if the claim is granted.  

As this is an appeal arising from the initial grant of service connection, the notice that was provided in March 2011 before service connection was granted was legally sufficient and VA's duty to notify the Veteran in this case has been satisfied. See Hartman v. Nicholson, 483 F.3d 1311 (2007).  

VA also has a duty to assist the Veteran in the development of the claim which includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Veteran mentioned that he considered obtaining private treatment depending on availability and type of VA treatment.  However, after he received the SOC reminding him of his obligation to at least give the VA contact information in order to obtain it, the Veteran did not provide any further statements or evidence that he had in fact sought private treatment.  It has been held in this regard that "[t]he duty to assist is not always a one-way street.  If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  Here, the Board finds that all necessary development has been accomplished, as the record includes the Veteran's service treatment records, service personnel records, VA outpatient treatment records and the reports of VA examinations.  Therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).   

Additionally, the August 2011 VA examination obtained in this case is adequate, as it is predicated on a review of the Veteran's medical history, contains a description of the history of the disability at issue, documents and considers the Veteran's complaints and symptoms, and fully provides medical evidence that is relevant to the governing rating criteria.  Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed).  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).  

Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of his claims.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002). 




Merits of the Claim

The Veteran asserts that his PTSD is more severe than contemplated by the assigned evaluation.  Service connection for PTSD was granted by an August 2011 rating decision, and an initial 10 percent evaluation assigned under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9411.  38 C.F.R. § 4.130, Diagnostic Code 9411.  The Veteran filed a timely Notice of Disagreement (NOD) in January 2012.  In February 2013, an SOC was issued which increased the rating to 30 percent.  Thereafter, the Veteran filed a timely substantive appeal in March 2013, which will be discussed below.  Applicable law mandates that when an appellant seeks an increased rating, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded.  See A.B. v. Brown, 6 Vet. App. 35 (1993).  After reviewing the evidence, the Board is of the opinion that the Veteran is entitled to service connection for PTSD at a rating of 50 percent, but no higher.  

Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2013).  Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21 (2013); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002).  

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 cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to receive a staged rating.  That is, it is possible to be awarded separate percentage evaluations for separate periods, based on the facts found during the appeal period.  Id. at 126-28; See also Hart v. Mansfield, 21 Vet. App. 505 (2007) (in determining the present level of a disability for any increased evaluation claim, the Board must consider staged ratings).  

Diagnostic Code 9411 is subsumed into the General Rating Formula for Mental Disorders (General Rating Formula).  Under the General Rating Formula, the currently assigned 30 percent evaluation is warranted when the medical evidence of record shows 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, or mild memory loss (such as forgetting names, directions, and recent events).  38 C.F.R. § 4.130, Diagnostic Code 9411, General Rating Formula.  

A 50 percent evaluation is warranted where the disorder is manifested by 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 for example, 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 evaluation is warranted where the disorder is manifested by 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 that is intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control, such as unprovoked irritability with periods of violence; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances, including work or a work-like setting; and an 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: gross impairment in thought 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 and place; memory loss for names of close relatives, own occupation, or own name.  Id.  

The nomenclature employed in the rating schedule 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 (2013).  The DSM-IV contains a Global Assessment of Functioning (GAF) scale, with scores ranging between zero and 100 percent.  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.  Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition p. 44 (1994).  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.  38 C.F.R. § 4.2 (2013).  

The Veteran was afforded a VA examination in August 2011.  In the examination, the Veteran stated that he was a "Piney" from Pine Barrens as described himself and his wife as "rough-edged and avoidant of most people."  They live a very isolated existence in the Pine Barrens, and their interactions with others are rare.  They have been together at least 25 years, though they only married 5 years ago.  The examiner noted that this inability to establish and maintain effective relationships was because the Veteran was stressed by interactions with people and that his socialization was limited to family and close long-term friends.  Although the Veteran had relationships with each of his two siblings, he rarely saw them because of his isolative characteristics.  The examiner also stated that these isolative and avoidant behaviors extended to the Veteran's hobbies which he used to enjoy, such as fishing, boating and hunting.  The examiner described this as an isolative aspect of PTSD, and described occupational and social impairment due to mild or transient symptoms.  

The Veteran had a GAF score of 59, in the moderate range of symptoms.  While the Veteran has a long and stable work history as a residential electrician, he self-describes as "very difficult to get along with" despite working with a partner.  The examiner stated the Veteran's condition would not prevent employment, though the Veteran would do better if he worked in relative isolation.  The Veteran was laid off in January 2011 and remains unemployed.  He is unsure if he will return to work.  

The Veteran persistently reexperiences his stressors, by recurrent and distressing recollections including images, thoughts or perceptions and distressing dreams.  The Veteran also has hypervigilance and physiological reactivity on exposure to cues that symbolize or resemble an aspect of a stressor.  He has difficulty falling or staying asleep, irritability, outbursts of anger and an exaggerated startle response.  He also persistently avoids stimuli associated with the stressors by avoiding thoughts, feelings or conversations about them, and by avoiding activities, places or people that arouse recollections of stressors.  He has feelings of detachment or estrangement from others and a restricted range of affect.  The Veteran is also noted to have anxiety, suspiciousness, disturbances of motivation and mood, difficulty establishing and maintaining work and social relationships, difficulty adapting to stressful circumstances such as work environments and an inability to establish or maintain effective relationships.  

The record also contains two mental health consultations administered by the Brick, New Jersey Community-Based Outpatient Clinic (CBOC).  The first was given over the phone in April 2011, and the second in person in May 2011.  The April consultation was a five-minute phone call which noted that an in-person consultation was not urgent, that the Veteran denied suicidal and homicidal ideation and that there were no danger or acute risk factors.  

The May 2011 consultation explored the Veteran's history and stressors and stated that the Veteran displayed no severe anxiety and did not complain of insomnia.  It noted that he does chores around the house and is close with his daughter.  The Veteran generally denied psychiatric symptoms during the consultation.  The Veteran was laid off in January 2011 and has been unemployed since, partly because of medical issues.  

When there is a reasonable doubt regarding the degree of disability, such doubt is to be resolved in favor of the plaintiff.  38 C.F.R. § 4.3.  Also, when there is a question of which of two evaluations to apply, the higher should be assigned if the disability more nearly approximates the required criteria.  38 C.F.R. § 4.7.  Although the symptoms do not match the rating criteria precisely, there is no requirement to do so.  Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  Rather, it is the Board's duty to give a rating which most closely matches the impairment of the Veteran's social and occupational function.  38 C.F.R. § 4.21 (2013).  Here, the symptoms most nearly approximate a 50 percent rating.  

The Veteran's social and occupational impairment most nearly approximate a 50 percent rating.  The Veteran has social impairment as evidence by his isolation and his inability to socialize with anyone outside his family or long-term friends.  He also no longer partakes in hobbies he used to enjoy, such as fishing, boating and hunting.  He rarely interacts with other people and has difficulty establishing effective relationships.  He also has suspiciousness, anxiety, flattened affect and disturbances of motivation and mood, as noted at his August 2011 examination.  He is noted to have chronic sleep impairment and dreams where he reexperiences his stressors.  The Veteran is currently unemployed and has occupational impairment because he functions best in isolation and self-describes as someone with whom is it difficult to get along.  The Veteran has difficulty adapting to stressful circumstances such as work or a work-like setting.  

The Veteran's symptoms are not severe enough to reach a rating of 70 percent.  His GAF score is 59, placing him in the moderate range of functioning.  While he has a flattened affect, his speech is still logical and relevant.  He exhibits irritability and outbursts of anger, but these are not violent and he does not suffer from impaired impulse control.  While he reexperiences his stressors via images, thoughts and dreams, he does not suffer from panic attacks or spatial disorientation.  He has not neglected his personal appearance or hygiene and is generally functioning satisfactorily.  He lives in isolation and rarely interacts with others, but his family relations are good.  He lives with his wife, with whom he has been for 25 years, and he has relationships with their daughter and his siblings, though he does not see them often.  He does not exhibit suicidal or homicidal ideation, nor does he have deficiency in judgment or obsessional rituals which interfere with routine activities.  While he is currently unemployed, he does have a long work history as an electrician.  The evidence provided to VA most closely approximates a 50 percent disability rating.  

The Board has also considered whether the Veteran's PTSD warrants referral for extraschedular consideration.  In exceptional cases where schedular disability ratings are found to be inadequate, consideration of an extra-schedular disability rating is made.  38 C.F.R. § 3.321(b)(1).  There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate.  See Thun v. Peake, 22 Vet. App. 111 (2008).  First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule.  Id.  If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms."  Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization).  If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination concerning whether, to accord justice, the claimant's disability picture requires the assignment of an extra- schedular rating.  Id.  

In this case, the Veteran's symptoms are expressly contemplated by the rating schedule.  As outlined above, the Veteran has anxiety, suspiciousness, chronic sleep impairment, flattened affect, disturbances in motivation and mood, and difficulty in establishing and maintaining effective work and social relationships because of his symptoms.  Such symptoms are contemplated by the schedular criteria set forth in 38 C.F.R. § 4.130, Diagnostic Code 9411.  The regulations expressly consider each of these symptoms and further allow for other signs and symptoms of PTSD not expressly listed in the rating criteria which may result in occupational and social impairment.  In other words, Diagnostic Code 9411 adequately contemplates all of the Veteran's symptoms.  Therefore, the first step of Thun has not been met, and referral for the assignment of an extraschedular disability rating is not warranted.  


ORDER

An initial 50 percent rating, but no higher, for PTSD is granted, subject to the law and regulations governing the award of monetary benefits.  


REMAND

In the instant case, the record has raised a TDIU claim which has not yet been adjudicated.  The U.S. Court of Appeals for Veterans Claims (Court) has held that a request for a TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, is part of a claim for increased compensation.  Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  In other words, if a claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue of whether a TDIU is warranted as a result of that disability.  Id.  

In the present case, the record reflects that the Veteran was laid off January 2011.  The Veteran states he has not been able to find work partly due to his medical problems.  Prior to this, he had steady work as an electrician.  

In light of the above, the Board finds the Veteran has raised a claim for TDIU.  While a claim for TDIU has been raised, the Board notes that entitlement to a TDIU has not been developed or adjudicated by the RO.  In this regard, the RO/AMC should send the Veteran a VCAA notice letter for the TDIU claim.  This letter should notify the Veteran and his representative of any information, including lay or medical evidence, that was not previously provided and that is necessary to substantiate the TDIU claim.  The notice should also indicate what information or evidence should be provided by the Veteran and what information or evidence VA will attempt to obtain on the Veteran's behalf.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Accordingly, the case is REMANDED for the following action:

1.  Provide the Veteran with appropriate notice and assistance regarding the issue of entitlement to TDIU.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).

2.  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.  After completing the above and any other development deemed necessary, adjudicate the Veteran's claim for entitlement to TDIU, based on the entirety of the evidence.  If the benefits sought are not granted to the Veteran'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 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).



______________________________________________
CHERYL L. MASON
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs