Citation Nr: 1331948 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 09-18 748 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to a rating in excess of 50 percent for a psychiatric disability. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran served on active duty from February 1969 to February 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In September 2011, the Veteran testified during a hearing before the undersigned Veterans Law Judge at the RO. In a January 2012 decision, the Board granted a higher 50 percent rating for the Veteran's psychiatric disability for the entire appeal period at issue and remanded the claim for a total disability rating based on individual unemployability (TDIU) for further development. The Veteran appealed that Board decision to the United States Court of Appeals for Veterans Claims. Pursuant to a joint motion for partial remand, in an August 2012 Order, the Court vacated and remanded that part of the Board decision that denied a rating in excess of 50 percent for the psychiatric disability for readjudication in accordance with the joint motion. In a January 2012 rating decision, the RO implemented the Board's grant of a 50 percent rating for the Veteran's psychiatric disability. In March 2012, a VA examination report was added to the Veteran's electronic Virtual VA file. In September 2013, the Veteran's representative submitted a waiver of RO review of that report, along with any other evidence added to the record since the issuance of the June 2011 supplemental statement of the case. Thus, the report will be considered as part of the appeal. In September 2013, after the representative's submission of the waiver, additional VA medical records were added to the Veteran's Virtual VA file. A review of that evidence shows that those records are merely cumulative of other evidence previously of record and considered. Thus, that evidence will also be considered as part of the appeal. The issue of entitlement to a TDIU is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDING OF FACT For the entire appeal period at issue, the Veteran's PTSD and adjustment disorder have been manifested by occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, and mood. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, for the entire appeal period at issue, the criteria for a rating of 70 percent, but not higher, for a psychiatric disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant and his or her representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2013); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice requirements apply to all five elements of a service-connection claim, to include Veteran status, existence of a disability, a connection between service and the disability, degree of disability, and effective date of the disability. Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded should be included. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's claim arises from an appeal of the initial rating 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). Thus, no further notice is needed. The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the Veteran of any evidence that could not be obtained. The Veteran has not referred to any additional, unobtained, relevant, available evidence. VA has obtained examinations with respect to the claim. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2013). A Veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will consider entitlement to staged ratings to compensate for any times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran claims that his PTSD and adjustment disorder warrant a rating in excess of 50 percent. The Veteran's PTSD and adjustment disorder have been rated under Diagnostic Code 9411. 38 C.F.R. § 4.130 (2013). The criteria of Diagnostic Code 9411 provide for a 100 percent rating where the evidence shows total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions of 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. The criteria provide for a 70 percent rating where the evidence shows 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 worklike setting); inability to establish and maintain effective relationships. The criteria provide for a 50 percent rating where the evidence shows 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. The psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Global Assessment of Functioning (GAF) score is a scale indicating the psychological, social, and occupational functioning on a hypothetical continuum of mental health and illness. A GAF score of 51 to 60 is defined as 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). A GAF score of 41 to 50 is defined as 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 31 to 40 contemplates 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). A GAF score of 21 to 30 is defined as behavior that is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriate, suicidal preoccupation) or inability to function in almost all areas (e.g., stays in bed all day, no job, home, or friends). Richard v. Brown, 9 Vet. App. 266 (1996); American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). VA outpatient treatment reports show that the Veteran has been consistently appropriately dressed and well-groomed. His voice has been consistently normal in rate and rhythm. His mood has ranged from depressed with irritable and anxious features to euthymic. His thought content has generally been described as linear, logical, and goal-directed. He has consistently denied suicidal and homicidal ideations. He has often endorsed irritability and anger. His insight and judgment have been poor on numerous occasions. His memory has consistently been poor. In August 2005, he indicated having auditory hallucinations. In September 2008, he indicated having auditory and visual hallucinations, but the examiner noted that it was unclear whether they were truly psychotic symptoms or due to chronic sleep deprivation combined with significant hypervigilance. His affect has ranged from normal to angry. His GAF scores have ranged from 28 to 50. Examiners have provided varying descriptions of the severity of his PTSD. It was described as of low to moderate severity in June 2001 but causing marked occupational employment in July 2001. It was described as mild in June 2003. In a May 2007 letter, Dr. Sullivan indicated that he had six sessions of individual counseling with the Veteran for the time period from May 2001 to September 2002. He noted that the Veteran endorsed moderate to severe symptoms of PTSD. He stated that the Veteran's PTSD symptoms caused clinically significant distress and impairment in social and occupational functioning. At a May 2008 VA examination, the Veteran was noted to be oriented to time and place. He was dressed in a black jacket and his hair was combed. He endorsed depression and anger. The examiner noted that the Veteran's speech was tangential and the Veteran reported problems with concentration and memory. The Veteran noted that he experienced anxiety attacks while in stressful situations and indicated that he was very suspicious of people. The examiner noted that, while the Veteran reported that he had seen shadows in the past, he had no delusions, hallucinations, obsessions, or compulsions. The examiner stated that the Veteran was able to abstract proverbs well. The Veteran reported that he had no suicidal thoughts but had passive death wishes and no homicidal thoughts. The examiner indicated that the Veteran has no difficulty performing personal grooming and personal care but had not been able to establish and maintain effective work relationships. The examiner concluded that the Veteran's psychiatric symptoms caused occupational and social impairment with deficiencies in most areas such as work, school, family relations, adjustment, thinking, and mood and problems adapting to stressful situations. The examiner also noted that the Veteran has difficulty understanding complex commands. The examiner assigned a GAF score of 50 to 55. In a March 2009 letter, Dr. Sullivan reported that the Veteran had major symptoms of hyperarousal, with intense anger, mistrust, sleep disturbance, avoidance with isolation, withdrawal and estrangement, and intrusive and obsessive reexperiencing with distressing war related memories, angst, and survivor's guilt which had contributed to extreme difficulty in adapting to stressful circumstances including work or worklike settings. Dr. Sullivan concluded that the Veteran had shown gross and sustained occupational and social impairment with deficiencies in most areas including work, family relations, judgment, thinking, mood, and behavior. At an April 2011 VA examination, the Veteran was oriented to time and place but did not understand the purpose of the examination. His appearance, hygiene, and behavior were appropriate. His affect and mood reflected anxiety, depression, and irritability. His communication and speech were within normal limits, but he showed impairment in focus and attention and was often distractible. Panic attacks were reported to occur less than once per week. There was no report of delusions or hallucinations and no delusions or hallucinations were observed. His thought processes were impaired with slowness of thought and difficulty understanding directions. His thinking was concrete based on his responses to proverbs. His judgment was impaired and his abstract thinking was abnormal. His memory was noted to be moderately impaired. His GAF score was 51. The examiner concluded that the Veteran's psychiatric symptoms caused occupational and social impairment with reduced reliability and productivity due to impairment of short- and long-term memory, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner noted that the Veteran was unable to work around others and preferred solitary activity and work. The examiner also noted that the Veteran had few friends although he was able to maintain effective family role functioning. The examiner noted that the Veteran had a sporadic work history and had been unemployed for ten years. At the September 2011 hearing before the Board, the Veteran indicated that he checked his house any time he left and returned home. He testified that he was married, but his PTSD caused the demise of his marriage and severely affected his personal relationships. He reported difficulty being around large groups of people. He also indicated that he could not work with other people or supervisors. He endorsed memory loss, nightmares, anger, and a history of getting many driving while under the influence (DUI) charges. He reported panic attacks and poor sleep. At a March 2012 VA examination, the Veteran presented promptly on time for his scheduled appointment. He was dressed in casual attire, clean, and groomed. He was oriented in all spheres. His responses to questions of content were short but complete, and demonstrated an average fund of knowledge. His speech was of a regular rhythm and volume. His thought processes were direct and appropriate. There was no indication of psychotic processes, delusions, or loosened associations. His affect was moderately restricted. His dominant mood was moderately depressed. He denied any suicidal or homicidal ideation, plans, or intent. He reported last being seen at the VA in December 2008. He reported being seen by Dr. Sullivan but stated that he has not been seen for any mental health treatment for a number of years. He reported very little social interaction, secondary to irritability associated with PTSD and chronic pain. He reported periods of depression, anhedonia, difficulty with concentration and memory, and difficulty with motivation secondary to chronic pain, PTSD, and residuals from an April 1999 subdural hematoma. He had very little positive expectations for future events and lacked any positive expectations for social interactions. There was evidence of hyperarousal indicated by irritability, at least moderate vigilance, sleep disturbance secondary to PTSD and chronic pain, and cognitive disorder associated with a subdural hematoma. The examiner provided diagnoses of moderately severe to severe PTSD, depression secondary to PTSD, and cognitive disorder associated with a subdural hematoma. The examiner assigned a GAF score of 48 to 50 and noted that represented the highest level in the past six months. The examiner concluded that the Veteran's psychiatric disability resulted in deficiencies in most areas including occupation and social and family interactions. The Veteran's psychiatric disability has been described as causing mild impairment; low to moderate impairment; occupational and social impairment with reduced reliability and productivity; significant impairment in social and occupational functioning; marked occupational employment; occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking, and mood; gross occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking, and mood; and deficiencies in most areas such as occupation and social interactions. The Board also notes that the Veteran has been unemployed throughout the rating period. Resolving doubt in the Veteran's favor, the Board finds that his psychiatric disability has been manifested by occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking, and mood. Therefore, a higher 70 percent rating is warranted for the entire appeal period at issue. However, the Board finds that a higher 100 percent rating is not warranted. No physician has opined that the Veteran's psychiatric disability causes total occupational and social impairment. The Board notes that the Veteran has been unemployed for over a decade. However, that is not shown by the evidence of record to be solely due to the service-connected psychiatric disability. The Veteran is shown to have a few friends and maintain a role in his family. Therefore, his disability does not cause total social impairment, which is also required for a 100 percent rating. As for his symptoms, even if the Veteran is having some persistent hallucinations, which has been questioned by examiners, there is no evidence of gross impairment in thought processes or communication, persistent delusions, grossly inappropriate behavior, persistent danger of hurting himself or others, an intermittent inability to perform activities of daily living, disorientation to time or place, or memory loss for names of close relatives, own occupation or own name. Thus, the Veteran's symptoms do not more nearly approximate the criteria for a 100 percent rating. The Board notes that the Veteran's GAF score has been found to be as low as between 21 and 30, which indicates behavior that is considerably influenced by delusions or hallucinations, serious impairment in communication or judgment, or an inability to function in almost all areas. However, the Board notes that GAF scores are not, in and of themselves, the dispositive element in rating a disability, and the Board generally places more probative weight on the specific clinical findings noted on examination. In this case, the clinical findings during the time period at issue do not substantiate such low GAF scores. With no delusions or any indication that his occasional hallucinations have considerably impacted his behavior, there is no evidence that his behavior has been considerably influenced by delusions or hallucinations. There is no evidence of any serious impairment in communication or judgment such as being incoherent, acting grossly inappropriate, or having a suicidal preoccupation. Lastly, although the Veteran has no job, there is no evidence of an inability to function in almost all areas such as staying in bed all day, or having no home or friends. Thus, a higher rating is not warranted based on his GAF scores. Accordingly, the Board finds that a 70 percent rating for the entire appeal period at issue is warranted. However, as the preponderance of the evidence is against a higher rating, that aspect of the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has considered whether referral for consideration of an extraschedular rating is warranted. The threshold factor for extraschedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability are inadequate. If so, factors for consideration in determining whether referral for an extraschedular rating is necessary include marked interference with employment or frequent periods of hospitalization that indicate that application of the regular schedular standards would be impracticable. Thun v. Peake, 22 Vet. App. 111 (2008); Fisher v. Principi, 4 Vet. App. 57 (1993); 38 C.F.R. § 3.321(b)(1) (2013). The Board finds that referral is not appropriate in this case. The disability at issue has not been shown to markedly interfere with employment beyond that contemplated in the assigned rating, to warrant frequent periods of hospitalization, or to otherwise render impractical the application of the regular schedular standards. Undoubtedly, the Veteran's PTSD negatively impacts his ability to work. While the Veteran has been unemployed for over ten years, it is not clear that is due solely to his psychiatric disorder. Moreover, the Veteran's psychiatric disorder has not resulted in frequent periods of hospitalization. Therefore, the Board finds that referral for consideration of an extraschedular rating is not warranted. 38 C.F.R. § 3.321(b)(1) (2013); Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). ORDER A 70 percent rating for a psychiatric disability, but not higher, is granted. REMAND The Board finds that due process requires a remand of the claim for a TDIU. In the remand portion of the January 2012 decision, the Board requested that any outstanding VA medical records be obtained and the Veteran be afforded a VA examination to determine whether he is unemployable solely due to his service-connected psychiatric disability. The Veteran was afforded an examination in March 2012. However, the AOJ has yet to adjudicate the claim for a TDIU. On remand, the AOJ should consider the Board's grant of a 70 percent rating for the Veteran's psychiatric disability. He now meets the schedular percentage criteria to be considered for a TDIU. 38 C.F.R. § 4.16(a) (2013). Also, the March 2012 VA examination report does not contain the requested opinion on whether the Veteran's psychiatric disability renders him unable to secure or follow a substantially gainful occupation. Thus, an addendum should be obtained from the examiner. The record contains VA treatment notes dated through April 2013. Thus, any VA treatment notes dated since April 2013 should be obtained. Accordingly, the case is REMANDED for the following actions: 1. Obtain any VA treatment records dated since April 2013. 2. Then, arrange for the Veteran's claims file to be reviewed by the examiner who provided the March 2012 VA examination (or a qualified substitute) for an addendum. The examiner must review the claims file and must note that review in the report. The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected psychiatric disability, without consideration of any nonservice-connected disabilities, renders him unable to secure or follow a substantially gainful occupation. If the Veteran is found capable of employment, the examiner should state what type of employment and what accommodations would be needed due to the service-connected psychiatric disability. The rationale for the requested opinions should be provided. 3. Then, adjudicate the claim for a TDIU. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs