Citation Nr: 1332103 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 10-31 687 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a higher initial rating for posttraumatic stress disorder (PTSD), currently evaluated as 30 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected PTSD. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1968 to November 1975 and from December 1975 to November 1978. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) which, in part, granted service connection for PTSD and assigned it a 30 percent rating effective April 30, 2007, the date of the claim. A subsequent rating decision, issued in April 2009, continued the Veteran's 30 percent rating. The Veteran then filed a notice of disagreement in June 2009. A statement of the case was issued in May 2010 and a substantive appeal was received in July 2010. A Travel Board hearing was held in October 2012. The Board notes that the Veteran submitted a joint statement from a VA psychologist and a VA psychiatrist in June 2010. Although this evidence was not initially reviewed by the RO or accompanied by a waiver, there is no prejudice to the Veteran by proceeding with a decision, as this evidence is duplicative of a previous statement already in the record. In addition, the Board finds that the issue of entitlement to a TDIU has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In this regard, the Veteran testified that he retired in 2005, but that PTSD affected his employment. He stated, "I was getting to where I couldn't deal with the other employees." Further, his wife submitted a statement indicating that her husband "lost all capability of holding down a job." She stated that "his reactions to situations and his unreliability make it impossible for him to be employed." As this matter has not been adjudicated by the AOJ/RO, a remand is necessary. Further, for purposes of clarity, this issue is listed on the first page of this decision. The issue of entitlement to a TDIU is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Throughout the period on appeal, the Veteran's PTSD has been productive of occupational and social impairment, with deficiencies in most areas, such as family relations, judgment, thinking and mood, due to such symptoms as near continuous panic or depression, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances, and an inability to establish and maintain effective relationships. CONCLUSION OF LAW The criteria for a disability evaluation of 70 percent (but no higher) for PTSD have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.130 and Code 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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 v. Nicholson, 19 Vet. App. 473 (2006). The record shows that in May 2007 and September 2009 VCAA letters, the appellant was informed of the information and evidence necessary to warrant entitlement to the benefit sought on appeal. The appellant was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The United States Court of Appeals for Veterans Claims' decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. In this case, the RO provided VCAA notice to the Veteran in May 2007, prior to the December 2007 rating decision. Accordingly, the requirements the Court set out in Pelegrini have been satisfied. The Board also stresses that since the issue of entitlement to a higher initial rating is a downstream issue from that of service connection (for which a VCAA letter was duly sent in May 2007), another VCAA notice is not required. VAOPGCPREC 8-2003 (Dec. 22, 2003). It appears that the United States Court of Appeals for Veterans Claims has also determined that the statutory scheme does not require another VCAA notice letter in a case such as this where the Veteran was furnished proper VCAA notice with regard to the claim of service connection itself. See Dingess v. Nicholson, 19 Vet. App. 473, 491 (2006). In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). VA also has a duty to assist a claimant under the VCAA. VA has obtained pertinent treatment records; assisted the Veteran in obtaining evidence; examined the Veteran for PTSD in December 2007 and April 2009; and afforded the Veteran the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has fully complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Additionally, the Board notes that it has reviewed all the evidence in the Veteran's claims file and in Virtual VA. Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. Rather, the Board's analysis will focus specifically on the evidence pertinent to the claim, and what it shows, or fails to show, with respect to the claim. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Legal Criteria, Factual Background, and Analysis Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.7 provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The Veteran's PTSD is currently evaluated as 30 percent disabling during the period on appeal. A 30 percent evaluation is warranted when there is 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, mild memory loss (such as forgetting names, directions, recent events). A 50 percent evaluation is warranted if the Veteran experiences 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. A 70 percent evaluation is warranted where there is 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; intermittently illogical obscure, or irrelevant speech; 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. A 100 percent evaluation is warranted where there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. See 38 C.F.R. § 4.130, Code 9411. The symptoms listed in VA's general rating formula for mental disorders is 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). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Global Assessment of Functioning (GAF) scale reflects the psychological, social and occupational functioning under a hypothetical continuum of mental illness. See American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). See also Carpenter v. Brown, 8 Vet. App. 240, 243 (1995); 38 C.F.R. § 4.130. According to the DSM-IV, a GAF score of 61-70 denotes 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, has some meaningful interpersonal relationships. A GAF score of 51-60 indicates 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 41-50 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 31-40 indicates some impairment in reality testing or communications or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. A July 2007 VA treatment record noted that the Veteran was tearful at times, but otherwise was "so constricted, almost blunted." A GAF score of 50 was provided. On September 2007 VA treatment record, the psychologist noted that the Veteran's "overall presentation and mental status appeared as though he may have attempted to minimize his symptoms...(possibly related to the stigma of seeking mental health treatment)." On December 2007 VA examination, the examiner noted that the Veteran is currently on his fourth marriage and has little contact with his children. The Veteran admitted to feeling detached. He indicated that his prior marriages ended because of his irritability and depression. A mental status examination revealed the Veteran had good hygiene and is alert and oriented times three. The examiner noted he appeared "somewhat sad and withdrawn" and that he speaks in a "very slow monotonous tone of voice." The examiner noted that his responses are hesitant and minimal. The Veteran admitted to having a continuing sense of guilt and to feeling down and depressed. He denied suicidal thoughts. The examiner noted that his affect is "almost blunted," however, his cognitive functions are within normal range (although he complained of poor concentration and short-term problems). A GAF score of 55 was provided and the examiner stated that the Veteran does have impairments both in areas of social and occupational functioning. She noted that he remains socially isolated, gets startled easily, has problems with depression and stays withdrawn and depressed a lot. A September 2008 VA treatment record noted a diagnosis of chronic PTSD and a GAF score of 51. In February 2009, a mental status evaluation revealed he was neatly groomed and cooperative. He was oriented times three and exhibited normal speech and no agitation or retardation. It was noted that his affect and mood was constricted with some fullness, but remains improved overall. His thought process was logical and goal directed and he exhibited no suicidal/homicidal ideation, no delusions and no hallucinations. A GAF score of 50 was provided. A March 2009 treatment record noted that the Veteran was experiencing a major depressive episode, which led to resurgence in intrusive thoughts at nighttime, increased restless sleep, and a reduced ability to "tolerate, modulate, and self-soothe." The psychologist noted that his appetite was dramatically reduced and he appeared cognitively confused with psychomotor retardation. The Veteran denied suicidal/homicidal ideation. In April 2009, the Veteran requested an increased dose of his medication as his "depressive symptoms do not seem any better and he does not have the motivation that he had." On April 2009 VA examination, the Veteran reported recurrent and intrusive distressing recollections of the event, including images, thoughts or perceptions, effectors to avoid thoughts, feelings or conversations associated with the trauma, markedly diminished interest or participation in significant activities, irritability or outbursts of anger, difficulty concentrating, hypervigilance, and exaggerated startle response. He stated he has experienced these symptoms weekly to daily in frequency, currently at a mild frequency. The Veteran's wife reported that "he tends to downplay a lot of his symptoms" and further, that she has a hard time getting him to get out of bed, shower, or brush his teeth. On mental status evaluation, the examiner noted he was fully oriented and mildly unkempt (unshaven). He denied suicidal intent or planning, homicidal ideation, hallucinations and delusions. It was noted that his attention, memory, and judgment appeared to be within normal limits. A GAF score of 55 was provided. In September 2009, the Veteran's treating VA psychologist, Dr. S.H. and treating VA psychiatrist, Dr. L.L. submitted a joint statement requesting a reconsideration of the Veteran's current 30 percent rating for PTSD. They stated that it is their opinion that "the persistency and severity of his symptoms clearly exceed 'occasional'." In support of their opinion, they noted that he suffers severe, persistent, and pervasive disturbances in mood and motivation; that he has had four marriages, estrangement from his siblings, and strained acquaintances. They explained that the evidence shows he has an inability to establish and maintain effective work and social relationships. In November 2009, the Veteran's sister-in-law submitted a statement indicating that since the Veteran retired in 2005, she "began to see a real change." She stated that it was "like he just quit." She said it seemed as if he drank more to help him forget and that he admitted to her that there were times when he thought about suicide (although stated he would not do it). In June 2010, Dr. S.H. and Dr. L.L. submitted another statement regarding the severity of the Veteran's PTSD. They stated that they both believe his PTSD symptoms result in "severe, persistent, and pervasive disturbances in mood and motivation." In September 2012, the Veteran again submitted a statement from Dr. S.H., who opined that, "it is clear that the persistency and severity of his symptoms clearly exceed 'occasional' and clearly result in severe, persistent, and pervasive disturbances in mood and motivation." Dr. S.H. stated that the Veteran "experiences near continuous panic and/or depression, is often 'wired tired,' and these symptoms clearly impact his ability to function appropriately and effectively." Dr. S.H. noted that the Veteran is prone to neglect his personal appearance, despite his wife's insistence, has difficulty adapting to stressful circumstances, and struggles to maintain effective relationships. In October 2012, the Veteran testified that his PTSD has worsened "because the depression has gotten worse." He stated that he has no interests, has withdrawn from friends, has a hard time concentrating, and suffers short term memory loss. He indicated that he has been married four times and that PTSD had an effect on his family and interpersonal relationships. His wife also testified that her husband suffers panic attacks "easily five days out of a week" and suffers nightmares "pretty much every night." Both the Veteran and his wife stated that he struggles to maintain personal hygiene and that he regularly goes five to seven days between showering, brushing his teeth, etc. The Veteran's wife further stated that he often goes a long time without eating. The Veteran's wife submitted several statements regarding her life with him. She stated that her husband relives memories from Vietnam daily and also dreams about them. She stated that the only thing that helps dampen these memories is alcohol. She noted that the Veteran has several rituals and routines and is hypervigilant. She stated, "When I get home, I have to yell out, loudly, as I enter the house or stand the chance that he thinks I'm an intruder." She further noted that her husband has inappropriate reactions and responses to things and that his attention to personal hygiene is "practically non-existent." In this regard, she noted that he will frequently go a week or more without showering, shaving, or even brushing his teeth." The Board believes it clear that the Veteran's PTSD impairment is significant, although some of the evidence paints a more severe disability picture than other evidence. After careful review of the evidence with attention to the severity of the resulting impairment, the Board finds that the evidence supports a finding that a 70 percent rating is warranted throughout the period on appeal. In this regard, the Board notes the statements submitted by the Veteran's psychologist and psychiatrist. These providers continually opined that the Veteran suffers from severe, persistent disturbances in mood and motivation and that he has an inability to establish and maintain effective work and social relationships. Notably, in September 2012, Dr. S.H. indicated that the Veteran experiences near continuous panic and/or depression, is prone to neglect his personal appearance, has difficulty adapting to stressful circumstances, and struggles to maintain effective relationships. Regarding the Veteran's ability to maintain effective relationships, the Board notes that he has been married four times and has attributed his previous failed relationships to the effects of his PTSD. He also indicated that he does not have close relationships with his children and has withdrawn from his friends. The Board finds particularly significant and credible the testimony from the Veteran and his wife. Their testimony describing the severity of the Veteran's symptomatology was supported by specific examples of how his PTSD affects him and the lives of others (including his family). In addition, their testimony is corroborated by the statements submitted by the Veteran's VA psychologist and psychiatrist. Specifically, the Board points to the testimony from the Veteran's wife, who stated that her husband suffers panic attacks at least five times a week and nightmares almost every night. Further both she and the Veteran testified that he struggles to maintain personal hygiene and can go for a week without showering or brushing his teeth, and he has lost interest in eating. The Board acknowledges that the VA examination reports from December 2007 and April 2009 present a less severe picture than is shown by the other evidence of record; however, the Board finds that the Veteran may have tried to minimize the severity of his symptoms. The Board notes a July 2007 VA treatment record, in which the psychologist noted that the Veteran may have attempted to minimize his symptoms, in addition to a notation on April 2009 VA examination, when the Veteran's wife reported the same thing. Further, the Board finds it significant that even if the Veteran minimized his symptoms, the December 2007 VA examiner still stated that the Veteran remains socially isolated, is withdrawn and depressed, and is startled easily. Therefore, in light of the above evidence indicating serious symptoms or serious impairment in social and occupational functioning, and resolving the benefit of the doubt in favor of the Veteran, the Board concludes that the Veteran's PTSD warrants a 70 percent disability rating throughout the period on appeal. The Board has considered whether an even higher rating, a 100 percent rating, is warranted; however, the Board finds that the evidence does not support a disability picture of total occupational and social impairment. Here, the Board notes that the Veteran is currently married. Further, there is no evidence showing that he exhibits grossly inappropriate behavior, disorientation to time or place, or that he has exhibited suicidal/homicidal ideation. In fact, the evidence consistently shows he is oriented in all spheres and has denied suicidal ideation. The Veteran's wife also specifically stated that while he has talked of wanting to die, she acknowledged that he does not have a plan or intent. For these reasons, the Board finds that the Veteran's disability picture does not more nearly approximate the criteria for a 100 percent rating, and instead that the preponderance of the evidence supports finding that a 70 percent rating is warranted throughout the period on appeal. The Board has also considered whether an extraschedular rating is warranted. Here, the evidence shows that the Veteran is currently being compensated with a 70 percent rating for PTSD. The rating criteria (specifically the criteria under Code 9411) describe the Veteran's symptomatology in that they address the manifestations of his psychiatric disability, to include depression, panic attacks, neglect of personal appearance and hygiene, sleep impairment, deficiencies in mood and an inability to establish and maintain effective relationships. The Veteran has not complained of any symptomatology for which the rating criteria does not provide. Accordingly, the symptoms and associated impairment of the Veteran's PTSD are entirely encompassed by the regular schedular criteria; consequently, those criteria are not inadequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Hence, referral for extraschedular consideration is not warranted. The matter of entitlement to TDIU is addressed in the remand below. ORDER Entitlement to a 70 percent rating, but no higher, for the Veteran's service-connected PTSD is warranted. To this extent, the appeal is granted, subject to laws and regulations governing payment of VA monetary benefits. REMAND As noted in the introduction, the Veteran's claim for an increased rating includes the issue of entitlement to a TDIU. The Board acknowledges the judicial holding in Rice, in which the United States Court of Appeals for Veterans Claims 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, can be part of a claim for increased compensation. In other words, if the 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. The Board finds that additional development is required with regard to the issue of entitlement to a TDIU. Specifically, the AMC/RO must provide the Veteran with appropriate notice and formally adjudicate the TDIU claim. Accordingly, the case is REMANDED for the following actions: 1. The AMC/RO should provide the Veteran appropriate notice under the VCAA specific to a TDIU claim. 2. After completion of the above and any further development deemed necessary, the AMC/RO should formally adjudicate the TDIU claim. The Veteran should then be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review. 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 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). ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs