Citation Nr: 1332590 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 10-16 917 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to a higher initial rating (evaluation) greater than 50 percent for Posttraumatic Stress Disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Aaron Bill, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from July 1967 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision which granted service connection for PTSD with an evaluation for 50 percent effective December 16, 2008. In reviewing this case, the Board has not only reviewed the Veteran's physical claims file, but also the file on the "Virtual VA" system to ensure a total review of the evidence. The issue of 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 Throughout the entire initial rating period from December 16, 2008, PTSD has been productive of occupational and social impairment with deficiencies in most areas such as work, family relations, and mood due to symptoms such as recurrent Vietnam-related intrusive thoughts in the form of nightmares and flashbacks; hypervigilance; suicidal thoughts; difficulty in adapting to stressful circumstances; and impaired impulse control. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for an initial rating of 70 percent for PTSD have been met throughout the rating period on appeal from December 16, 2008. 38 U.S.C.A. §§ 1110, 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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 & Supp. 2012); 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 or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2013). The Veteran's appeal arises from an appeal of the initial evaluation 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); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims). Based on the foregoing, adequate notice was provided to the Veteran prior to the transfer and certification of this case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), and no further notice is needed under VCAA. Notice regarding disability ratings and effective dates was provided in July 2009. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Next, VA has a duty to assist a veteran in the development of the claim. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see Golz v. Shinseki, 590 F.3d 1317, 1320-21 (2010) (stating that the "duty to assist is not boundless in its scope" and "not all medical records . . . must be sought - only those that are relevant to the veteran's claim"). In this case, service records have been obtained, as have records of VA treatment, a VA examination report, and private mental health treatment records. These pertinent records have been associated with the Veteran's claims file and reviewed in consideration of the issue before the Board. The Veteran was afforded a VA examination in July 2009, during which the examiner was provided the Veteran's claims file for review, took down the Veteran's history, considered the lay evidence presented, laid a factual foundation for the conclusions reached, and reached conclusions based on the examination that are consistent with the record. Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations and opinions has been met. 38 C.F.R. § 3.159(c)(4); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of their opinion). The Board notes that on his June 2010 VA Form 9, the Veteran stated that his PTSD symptoms were worse than the initial rating evaluation indicated but did not assert worsening of PTSD since the VA examination. Neither the Veteran nor his representative has taken issue with the examination as conducted. The Veteran contends his current evaluation is lower than it should be, but has not asserted a worsening of PTSD since the last VA examination. Accordingly, as there is neither an assertion or evidence of worsening since the last VA examination, an additional examination is not needed at this time in order to properly adjudicate the initial rating on appeal. The Board has reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For these reasons, the Board finds that the duties to notify and assist the Veteran in the development of this claim have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Initial Rating for PTSD Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2013). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. At the outset, the Board notes that the Veteran's appeal for a higher rating for PTSD is an appeal from the initial assignment of a disability rating in July 2009. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Such separate disability ratings are known as staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned). Here, as the evidence discussed below shows, the disability has not significantly changed over the course of the period on appeal and a uniform evaluation is warranted. In a July 2009 rating decision, the Veteran was awarded service connection for PTSD and granted an initial evaluation of 50 percent effective December 16, 2008. PTSD is evaluated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Code (DC or Code) 9411. Under this general rating formula, a 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as a 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; or difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); or the inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned 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; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for the names of close relatives, own occupation, or own name. Id. In evaluating the Veteran's level of disability, the Board has considered the Global Assessment of Functioning (GAF) scale score as one component of the overall disability picture. GAF is a scale used by mental health professional and reflects psychological, social, and occupational functioning on a hypothetical continuum of mental health illness and is relevant in evaluating mental disability. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). In this case, the Veteran's GAF score during the period on appeal was a 57, as scored by the VA examiner in July 2009. Scores between 51 and 60 represent 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). Id. The VA Secretary, acting within his authority to "adopt and apply a schedule of ratings," chose to create one general rating formula for mental disorders. 38 U.S.C.A. § 1155; see 38 U.S.C.A. § 501 (West 2002 & Supp. 2012); 38 C.F.R. § 4.130. By establishing one general formula to be used in rating more than 30 mental disorders, there can be no doubt that the Secretary anticipated that any list of symptoms justifying a particular rating would in many situations be either under- or over-inclusive. The Secretary's use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002) (holding that "the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, the rating specialist is to consider all symptoms of a claimant's condition that affect the level of occupational and social impairment"). The evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, the rating specialist is to 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. See 38 C.F.R. § 4.126 (2013). If the evidence demonstrates that a veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned. Mauerhan, 16 Vet. App. 436. The Board has reviewed all the lay and medical evidence in the claims folder, and finds that the Veteran is competent to report many of the symptoms and impairments associated with his service-connected PTSD, including symptoms which are observable such as poor sleep with nightmares, feelings of anxiety, and feelings of panic. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (holding that lay statements may serve to support a claim by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability that are susceptible of lay observation). The Board has not discounted any lay evidence regarding the severity of the Veteran's PTSD merely because it is lay evidence or because it was reported by the Veteran. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (holding that a history given by a veteran that has not been found by the Board to be inaccurate is not a basis for discounting an opinion based on that history). The Veteran contends that his PTSD has been more than 50 percent disabling, with difficulty adapting to stressful circumstances, poor sleep with nightmares, anxiety, isolation, anger and frustration, and occasional inability to control emotions. To the extent that these are observable symptoms, the Veteran's endorsements are competent. Davidson, 581 F.3d 1313; Jandreau, 492 F.3d 1372. After reviewing the entire claims file, the Board finds that throughout the period on appeal the Veteran's PTSD has more nearly approximated the criteria for a 70 percent rating for the entire rating period from December 16, 2008 under DC 9411. 38 C.F.R. § 4.130. The Board finds that for the entire rating period PTSD has been productive of occasional suicidal ideation, sleep disturbance with nightmares, anxiety, suspiciousness, difficulty concentrating, impaired impulse control, and difficulty adapting to stressful circumstances that results in occupational and social impairment with deficiencies in most areas. On VA treatment in December 2009, the Veteran reported difficulty sleeping at night and problems becoming more emotional to the point of "crying for no reason at all." The Veteran was interviewed and assessed by a medical student and then seen by a VA psychologist after the initial assessment was complete. No GAF score was assigned at this time. In July 2009, the Veteran was afforded a VA examination where he reported symptoms of panic attacks to the examiner. The examiner then assigned a GAF score of 57, which would indicate moderate symptoms or moderate difficulty in social and/or occupational functioning. The Veteran then submitted private treatment records from September 2010 showing the severity of his symptoms that indicate they are worse than what was observed by the VA examiner and addressed in the rating decision. The Veteran reported depression including sleep disturbance with nightmares multiple times a week as well as intrusive thoughts of Vietnam and combat events. The medical professional stated the Veteran was hypervigilant, startled easily, and was describing flashbacks triggered by loud noises, closed in places, or helicopter sounds, and this occurs four or five times per month. The Veteran reported that he was overly nervous in public places and isolated by choice, as well as became uncomfortable even around familiar people. He then reported forgetfulness, difficult concentrating, an inability to stay on course and finish a task he begins, and overall memory loss. He stated he gets easily frustrated and angered, causing him to lash out at people when cornered and wants to be left alone, becomes easily upset and tearful and was also fearful of losing emotional control causing him to hurt someone in response to a comment he perceives is against him. The Veteran reported he was constantly depressed and nervous and had thoughts of self harm but was not going to carry it out because he did not "want to hurt (his) family," though he has been neglecting family duties and rarely helps out around the house. No GAF score was assigned at this time. Therefore, resolving reasonable doubt in the Veteran's favor, the criteria for an initial rating of 70 percent for PTSD have been met throughout the rating period on appeal from December 16, 2008. 38 C.F.R. §§ 4.3, 4.7. The Board finds that a 100 percent rating is not warranted for any period. The Veteran's judgment has remained essentially intact and, while impulse control has been impaired and the Veteran has had difficulty concentrating, his thought processes have been logical and goal-oriented and there has been no evidence of thought disorder and he has been well oriented. While the Veteran reported in July 2009 that he had panic attacks more than once a week, the evidence does not show near-continuous panic, or that the panic attacks affect the ability to function independently, appropriately, and effectively. The overall disability picture is more closely reflected by the rating criteria for a 70 percent evaluation than that of a 100 percent evaluation. The Veteran's symptomatology and degree of occupational and social impairment in this case is well encompassed by the rating schedule criteria for a 70 percent rating, which rates based on occupational and social impairment in most areas. The PTSD has manifested in other symptoms contemplated by the 70 percent rating criteria, namely, suicidal ideation, impaired impulse control, and difficulty in adapting to stressful circumstances. While the reported suicidal ideation is potentially a more serious symptom, suicidal ideation is a 70 percent rating criterion. The other symptomatology and overall degree of occupational and social impairment is like or similar to that listed in the 70 percent criteria. Throughout the entire initial rating period, PTSD has been productive of difficulty concentrating (like or similar to difficulty in understanding complex commands or short-term memory impairment or impaired abstract thinking) and panic attacks more than once a week that are contemplated even by the 50 percent rating criteria. The PTSD symptoms the Veteran does experience, including suicidal ideation, do not more nearly approximate total occupational and social impairment as contemplated by a 100 percent rating under DC 9411. See 38 C.F.R. § 4.130. Accordingly, resolving reasonable doubt in the Veteran's favor, the Board concludes that the Veteran's PTSD has been 70 percent disabling, but no higher, throughout the entire initial rating period on appeal. 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration The Board has also considered whether referral for a rating based on extraschedular considerations is warranted. An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b) (2013); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is, thus, found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedular is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the VA Director of the Compensation and Pension Service to determine whether the veteran's disability picture requires the assignment of an extraschedular rating. Turning to the first step of the extra-schedular analysis, the Board finds that all the symptomatology and occupational and social impairment caused by the service-connected PTSD during the period on appeal is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The Veteran's PTSD has been manifested by symptoms such as recurrent Vietnam-related nightmares, flashbacks, and intrusive thoughts; hypervigilance; suicidal thoughts; difficulty in adapting to stressful circumstances; and impaired impulse control. The schedular rating criteria at DC 9411 specifically provide for disability ratings based on a combination of lay and medical history and clinical findings. In this case, considering the lay and medical evidence, the Veteran's PTSD has more nearly approximated a manifestation of occupational and social impairment in most areas due to the psychiatric symptomatology during the appeal period. The schedular rating criteria specifically include occupational and social impairment in most areas as caused by specific psychiatric symptoms. The schedular rating criteria at 38 C.F.R. § 4.130 also include analogous symptoms that are "like or similar to" listed schedular rating criteria. Mauerhan, at 442; see also 38 C.F.R. § 4.21. Additionally, the Board has considered GAF scores, which are incorporated through the DSM-IV as part of the schedular rating criteria, as reflective of the degree of severity of psychiatric symptoms or overall functional impairment caused by PTSD. For these reasons, the Board finds that the schedular rating criteria are adequate to rate the Veteran's PTSD during the period on appeal, and referral for consideration of an extra-schedular evaluation is not warranted. ORDER An initial rating of 70 percent for PTSD, for the entire rating period from December 16, 2008, is granted. REMAND During the pendency of this appeal, the Veteran has asserted that his PTSD has prevented him from working. In a statement from his representative in June 2010, the Veteran stated that his PTSD was the cause of his termination from employment due to an altercation at work. A claim for TDIU may be considered implicitly within a current increased rating claim. See Comers v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009) (a TDIU claim is "implicitly raised whenever a . . . veteran, who presents cogent evidence of unemployability, seeks to obtain a higher disability rating"); Rice v. Shinseki, 22 Vet. App. 447 (2009) (suggesting, in an effective date appeal, that an appeal for higher rating somehow includes TDIU, or that a TDIU must arise from an increased rating claim, unless it is the veteran who raises the TDIU claim). Entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met). VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from obtaining or maintaining "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2013); VAOPGCPREC 75-91. A threshold requirement for eligibility for a TDIU under 38 C.F.R. § 4.16(a) is that, if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). In the present case, the agency of original jurisdiction (AOJ) has not considered the Veteran's TDIU claim in light of the recent award of an initial rating to 70 percent for PTSD for the period from December 16, 2008. Therefore, remand is required to afford the Veteran such initial consideration of TDIU by the AOJ. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Accordingly, the issue of TDIU is REMANDED for the following action: 1. Contact the Veteran and request he file a completed VA Form 21-8940. He should be asked to provide a complete work history, whether he filed any workmen's compensation claims, and any other information regarding his employment or attempts to obtain employment. 2. After undertaking any additional development deemed appropriate, adjudicate the claim for a TDIU in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case, and should be afforded the applicable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs