Citation Nr: 1333097	
Decision Date: 10/22/13    Archive Date: 10/24/13

DOCKET NO.  09-02 523	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD).

2.  Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities.

3.  Entitlement to special monthly pension based on the need for aid and attendance or housebound status.


REPRESENTATION

Appellant represented by:	Michael J. Celeste, Jr., Attorney


ATTORNEY FOR THE BOARD

David Gratz, Counsel


INTRODUCTION

The Veteran served on active duty from May 1967 to February 1971, including service in the Republic of Vietnam from August 1970 to October 1970.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied entitlement to special monthly pension.  This matter also comes before the Board on appeal from an April 2008 rating decision from the VA RO in St. Petersburg, Florida, which granted service connection for PTSD and assigned a 50 percent disability rating as of the October 16, 2007, date of claim.

In August 2012, the Board took jurisdiction of the issue of entitlement to a TDIU due to service-connected disabilities pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) and remanded this case for further development.  The case has returned to the Board for appellate review.

In July 2013, the Board requested the opinion of a medical specialist from the Veterans Health Administration (VHA) as to the question of entitlement to a TDIU due to service-connected disabilities.  The requested opinion was received in September 2013.  As the opinion was positive and that issue is being granted in full, the Board need not delay the matter by waiting 60 days for a response thereto.


FINDINGS OF FACT

1.  The Veteran's PTSD is manifested by difficulty being around a lot of people, difficulty trusting people, assaultiveness, isolation and withdrawal from others, insomnia, panic attacks, suicidal thoughts, flashbacks; intrusive and recurrent thoughts, hypervigilance, avoidance of certain trauma-related stimuli, reexperiencing, arousal, nightmares, depressed mood, anxious mood, restricted range of affect, difficulty sleeping, irritability or outbursts of anger, headaches, emotional and psychological distress, paranoid ideation, lack of motivation, anhedonia, a sense of foreshortened future, poor concentration, and markedly diminished interest or participation in significant activities; however, the preponderance of the evidence shows that his PTSD is not productive of total occupational or social impairment.

2.  The Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation.

3.  On October 23, 2012, prior to the promulgation of a decision in the appeal, the Veteran notified VA that a withdrawal of his appeal of the issue of entitlement to special monthly pension based on the need for aid and attendance or housebound status is requested.


CONCLUSIONS OF LAW

1.  The criteria for an initial 70 percent rating, but no higher, for PTSD have been met.  38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2012).

2.  The criteria for a grant of TDIU have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19 (2012).

3.  The criteria for withdrawal of an appeal of the issue of entitlement to special monthly pension based on the need for aid and attendance or housebound status by the appellant have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012).





REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

Regarding the issue of entitlement to a TDIU due to service-connected disabilities, the Board grants that benefit herein.  As to the issue of entitlement to special monthly pension based on the need for aid and attendance or housebound status, the Veteran has withdrawn that issue.  As such, no discussion of VA's duty to notify and assist as to those issues is necessary.

Regarding the issue of entitlement to an initial disability rating in excess of 50 percent for PTSD, VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b).

This claim arises from a disagreement with the initial disability rating that was assigned following the grant of service connection.  Courts have held that 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).  Additionally, VA provided the Veteran with notice regarding increased ratings and how it determines disability ratings and effective dates in a November 2012 letter which it sent to the Veteran prior to the most recent readjudication of the claim in May 2013.

VA also has a duty to assist the Veteran in the development of the claim.  This duty 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 Board finds that all relevant facts have been properly developed, and that all available evidence necessary for equitable resolution of the issue has been obtained.  The Veteran's service treatment records, VA treatment records, Social Security Administration (SSA) records, and lay statements have been obtained.

A VA medical opinion will be considered adequate if it (1) is based upon consideration of the Veteran's prior medical history, (2) describes the disability in sufficient detail so that the Board's "'evaluation of the claimed disability will be a fully informed one,'" Ardison v. Brown, 6 Vet.App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet.App. 121, 124 (1991)), and (3) "supports its conclusion with an analysis that the Board can consider and weigh against contrary opinions."  Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  The Board finds that the March 2008, September 2010, and February 2013 VA examination reports as to the Veteran's PTSD are adequate because the examiners discussed the Veteran's medical history, described the service-connected disability and its effect on employability in sufficient detail, and supported all conclusions with analysis and, where possible, objective test results.

This claim was remanded by the Board for additional development in August 2012.  There has been substantial, if not full, compliance with the Board's remand directives, insofar as VA provided the Veteran with additional notice in November 2012, obtained recent treatment records, and provided him with a new VA examination of his PTSD in February 2013.  D'Aries v. Peake, 22 Vet. App. 97 (2008); Stegall v. West, 11 Vet. App. 268 (1998).

The Veteran has not indicated there are any additional records that VA should seek to obtain on his behalf.  Thus, the Board finds that VA made reasonable efforts to satisfy its duty assist and to obtain evidence necessary to substantiate the Veteran's claim.  No further assistance to develop evidence is required.

Analysis: Initial Rating for PTSD

The Veteran contends in his January 2009 substantive appeal that his PTSD warrants a higher rating based on treatment records showing that VA clinicians assigned him Global Assessment of Functioning (GAF) scores of 30 on November 15, 2006; 30 on May 11, 2007; 35 on May 15, 2007; and 35 on May 18, 2007.  

Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4.  The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations.  38 U.S.C.A. § 1155.  The disability must be viewed in relation to its history.  38 C.F.R. § 4.1.  A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation.  38 C.F.R. § 4.7.  Where, as here, the question for consideration is the propriety of the initial evaluations assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged ratings" is required.  Fenderson v. West 12 Vet. App. 119, 126 (1999).

The Board notes that the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."  See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as the veteran's relevant medical history, his current diagnosis, and demonstrated symptomatology.  Any change in diagnostic code by a VA adjudicator must be specifically explained.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).

The Veteran is currently rated at 50 percent under DC 9411 for PTSD as of October 16, 2007-the date of his claim for service connection.

The Veteran's PTSD has been evaluated under the General Rating Formula for Mental Disorder.  38 C.F.R. § 4.130, DC 9411.  Under the General Rating Formula, a 50 percent rating is warranted when there is 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; and difficulty in establishing and maintaining effective work and social relationships.  Id.

A 70 percent disability rating is warranted when 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; 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.  Id.

A 100 percent disability rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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.  Id.

The symptoms listed in Diagnostic Code 9411 are not intended to constitute an exhaustive list, but rather 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).  In addition, in Mittleider v. West, 11 Vet. App. 181 (1998), the U.S. Court of Appeals for Veterans Claims (Court) held that VA regulations require that when the symptoms and/or degree of impairment due to a veteran's service-connected psychiatric disability cannot be distinguished from any other diagnosed psychiatric disorders, VA must consider all psychiatric symptoms in the adjudication of the claim.

In evaluating psychiatric disorders, the VA has adopted and employs the nomenclature in the rating schedule based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV).  See 38 C.F.R. § 4.130.  As such, the diagnosis of a mental disorder should conform to DSM-IV.  See 38 C.F.R. § 4.125(a).  Diagnoses many times will include an Axis V diagnosis, or a Global Assessment of Functioning (GAF) score.  The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness.  See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994).

GAF scores ranging between 71 and 80 reflect that if symptoms are present they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork).  A GAF of 61 to 70 is indicative of 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 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 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 to 40 is meant to reflect an examiner's assessment of 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).

Following a review of the evidence of record, the Board finds that an initial 70 percent rating is warranted throughout the Veteran's appeal-e.g., as of the October 16, 2007 date of claim.

VA provided the Veteran with an examination of his PTSD in March 2008.  The Veteran described his stressors as going through the windshield in an in-service motor vehicle accident, serving on a ship which took enemy fire in Vietnam, and serving as a minesweeper.  The Veteran reported that he was hospitalized for a mental disorder from May 11, 2007 through May 18, 2007; from July 11, 2007 through July 26, 2007; from August 4, 2007 through August 10, 2007; from December 5, 2007 through December 11, 2007; and from February 19, 2008 through February 22, 2008.  He further reported that he has only two friends because he has difficulty being around a lot of people, and difficulty trusting people.  He reported assaulting a female friend by putting her in a headlock subsequent to a verbal altercation in August 2007.  He reported isolating and withdrawing from others.  He reported having insomnia and frequent awakenings.  He reported having panic attacks when sitting in the front of a vehicle, and when speaking about his Vietnam experiences.  The Veteran had a history of suicidal thoughts, but no homicidal thoughts.  He reported having flashbacks, intrusive thoughts, hypervigilance, avoidance of certain trauma-related stimuli, reexperiencing, arousal, avoidance, and nightmares.  He reported having a depressed and anxious mood.  On examination, the examiner found that the Veteran was intact to person, time, and place; had unremarkable thought process and content; had no delusions, hallucinations, or inappropriate or obsessive/ritualistic behavior; and had normal memory.  The VA examiner diagnosed the Veteran with PTSD and major depressive disorder, assigned a GAF score of 50, and found total occupational and social impairment due to PTSD signs and symptoms.

VA provided the Veteran with another examination of his PTSD in September 2010.  The Veteran reported that he had not been hospitalized for a mental disorder.  He reported having a roommate and a couple of other friends.  He reported making no suicide attempts, and having a couple of minor fights.  He also reported reexperiencing, avoidance, restricted range of affect, difficulty sleeping, irritability or outbursts of anger, nightmares, headaches, and emotional distress.  The examiner found that the Veteran had a normal affect and anxious mood, and was intact to person, time, and place.  The Veteran had paranoid ideation and sleep impairment, but no hallucinations or inappropriate behavior.  The Veteran had no homicidal or suicidal thoughts.  The VA examiner diagnosed the Veteran with PTSD, assigned a GAF score of 55, and found an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to PTSD signs and symptoms, but generally satisfactory functioning.

VA provided the Veteran with another examination of his PTSD in February 2013.  The VA examiner listed his GAF history as 65 on March 4, 2010; 55 on October 6, 2010; 55 on September 16, 2011; 60 on December 20, 2011; 60 on February 28, 2012; 60 on December 26, 2012; and 60 on February 19, 2013.  The examiner found occupational and social impairment with reduced reliability and productivity.  The Veteran reported that he had retired from his job of 17 1/2 years with the phone company due to medical issues, and stated that he had gotten along well with his colleagues and had no issues with his performance at work.  The Veteran stated that his current depression and lack of motivation would prevent him from returning to work.  The Veteran reported having difficulty sleeping, fatigue, lack of motivation, intrusive thoughts, nightmares, psychological distress, avoidance, anhedonia, social withdrawal, intermittent suicidal ideation, irritability, a sense of foreshortened future, and poor concentration.  He denied homicidal ideation.  He reported having recurrent thoughts and dreams of his stressor event, efforts to avoid thoughts, markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from others, irritability or outbursts of anger, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances.  The examiner found that the Veteran appeared dysthymic and anxious, and was oriented to four spheres.  The VA examiner diagnosed the Veteran with PTSD, assigned a GAF score of 60.

Based on the evidence of record described above, the Board finds that the Veteran's PTSD results in occupational and social impairment, with deficiencies in most areas, such as work, thinking, and mood, due to such symptoms as: suicidal ideation; 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); difficulty in adapting to stressful circumstances (including work or a worklike setting); and an inability to establish and maintain effective relationships.  Thus, a 70 percent rating is assigned.

The Board cannot conclude based on the psychiatric symptomatology that the Veteran's PTSD is of such a severity as to produce total occupational and social impairment as required for a 100 percent rating.  The evidence does not show symptoms such 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 names of close relatives, own occupation, or own name.  Although the Veteran was found to have some history of assaultiveness and suicidal ideation, the assault was a headlock and the suicidal ideation was unaccompanied by any attempts.  The Veteran simply does not show the overall severity necessary for a 100 percent rating.  Thus, the 70 percent rating being assigned adequately addresses his PTSD symptomatology throughout the appeal.

In exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321.  The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  

Here, the applicable rating criteria adequately contemplate the manifestations of the Veteran's PTSD, including his symptoms and their impact on his employment.  The rating criteria are therefore adequate to evaluate the PTSD, and referral for consideration of an extraschedular rating is not warranted.  The Board thus finds that the manifestations of the Veteran's symptoms do not qualify as an exceptional or unusual disability picture.

Analysis: TDIU

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a).  The determination of a single disability as ratable at 60 or 40 percent or more includes consideration of disabilities involving one or more lower extremities as a single disability.  Id.  Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating.  38 C.F.R. § 4.19.  There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability.  38 C.F.R. §§ 3.340, 3.341, 4.16.

Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances."  Rice v. Shinseki, 22 Vet. App. 447, 452 (2009).  Therefore, when adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history.  Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor).

The Veteran informed the February 2013 VA general medical examiner that he retired on disability 12 years ago-i.e., in 2001-due to a neck injury incurred in a motor vehicle accident.  The Veteran stated that what impairs him from working is his emotional condition.  Similarly, he informed a September 2008 VA examiner that he retired in 2007 due to a right shoulder injury.  The Veteran's SSA records show that he has been unemployable since approximately September 2006 due to ischemic heart disease and diabetes mellitus.

Moreover, the record reflects that the Veteran is eligible for TDIU consideration on a schedular basis, as his combined disability rating is 90 percent for his various service-connected disabilities, including PTSD, rated 70 percent disabling; diabetes mellitus type 2 with diabetic retinopathy, diabetic macular edema, and premature cataracts, rated 20 percent disabling; weakness of the right superior rectus ocular muscle, rated 10 percent disabling; disfiguring scars of the face, rated 10 percent disabling; psychophysiologic gastrointestinal reaction, rated 10 percent disabling; coronary artery disease status post bypass, rated 10 percent disabling; and peripheral neuropathy of the left lower extremity, rated 10 percent disabling.  38 C.F.R. §§ 4.16(a), 4.25 (2012).

The evidence also reflects that the Veteran's service-connected disabilities preclude him from obtaining or maintaining substantially gainful employment.  The Veteran reported that his vocational experience includes working as a student assistant; preparing sandwiches at a convenience store; and dispatching telephone technicians, tow trucks, cable installation technicians, and limousines.  See, e.g., January 2008 SSA decision.  After reviewing this evidence, as well as the Veteran's VA examination reports and other records, a VHA medical expert opined in September 2013 that it is more likely than not that the Veteran is fully unemployable due to an aggregate of his mental and physical service-connected disabilities.  The Board finds that the VHA medical expert's opinion, which is the sole report of record which incorporates review of unemployability based on all of the Veteran's service-connected disorders at their current level of severity, is competent, credible, and highly probative based on the author's expertise and discussion of the record.  Furthermore, the Board finds that the severity of the Veteran's PTSD, when combined with his vision difficulties, would render him unable to secure or follow a substantially gainful occupation in those, or similar, fields.  38 C.F.R. § 4.16(a) (2012).

Given (1) the evidence of record regarding the severity of the Veteran's service-connected PTSD; diabetes mellitus type 2 with diabetic retinopathy, diabetic macular edema, and premature cataracts; weakness of the right superior rectus ocular muscle; disfiguring scars of the face; psychophysiologic gastrointestinal reaction; coronary artery disease status post bypass; and peripheral neuropathy of the left lower extremity; (2) their impact on his mobility, vision, endurance, and psychiatric status; and (3) the September 2013 VHA medical expert's opinion that it is more likely than not that the Veteran is fully unemployable due to an aggregate of his mental and physical service-connected disabilities, the Board finds that entitlement to a TDIU is warranted.  Accordingly, the Veteran's appeal of this issue is granted.

Analysis: Special Monthly Pension

The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105 (West 2002).  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204 (2012).  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.  Here, as the AOJ indicated in a November 2012 letter acknowledging receipt of the Veteran's October 23, 2012, letter of withdrawal, he had withdrawn his appeal of the issue of entitlement to special monthly pension based on the need for aid and attendance or housebound status.  Hence, there remain no allegations of errors of fact or law for appellate consideration as to that issue.  As such, the Board does not have jurisdiction to review the appeal of that issue, and it is dismissed.


ORDER

An initial rating of 70 percent, but no higher, for PTSD is granted, subject to the applicable criteria governing the payment of monetary benefits.

Subject to the law and regulations governing payment of monetary benefits, a TDIU is granted.

The appeal of the issue of entitlement to special monthly pension based on the need for aid and attendance or housebound status is dismissed.



______________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs