Citation Nr: 1333132 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 09-14 270 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to an initial rating higher than 30 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Connecticut Department of Veterans Affairs ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to March 1969. These matters come before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. In October 2007, the RO denied entitlement to an increased rating for diabetes. In March 2012, the Board denied that claim but found that the issue of entitlement to TDIU had been raised as part of the increased rating claim, and remanded the claim for a TDIU. Separately, in September 2012, the RO granted entitlement to service connection for PTSD and assigned a 30 percent rating. The Veteran timely appealed the assigned rating and that issue is before the Board as well. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the symptoms of the Veteran's PTSD have throughout the appeal period most nearly approximated occupational and social impairment with reduced reliability and productivity, reflecting difficulty in establishing and maintaining effective work and social relationships rather than an inability to do so. 2. The evidence is at least evenly balanced as to whether the Veteran's service connected disabilities preclude him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for a rating of 50 percent, but no higher, for PTSD have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411 (2013). 2. With reasonable doubt resolved in favor of the Veteran, the criteria for a TDIU have been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Clams Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2013). As the Board is granting the claim for a TDIU, however, further discussion of the VCAA is unnecessary with regard to this claim. Wensch v. Principi, 15 Vet. App. 362, 367-368 (2001). As to the claim for an increased rating for PTSD, the Veteran indicated in his September 2012 notice of disagreement (NOD) that he wanted a 50 percent rating and the Board is granting the requested rating. Further discussion of the VCAA with regard to this claim is therefore unnecessary as well. The Board notes, however, that the requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met with regard to the claim for an increased rating for PTSD. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in April 2012, prior to adjudication of the claim, of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. VA also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim and affording him an August 2012 VA examination. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. The Board will therefore proceed to the merits of the appeal. Analysis PTSD Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. 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 an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate ratings may be assigned for separate periods of time based on the facts found. In other words, the ratings may be staged. Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, however, as shown below, the evidence warrants a uniform 50 percent rating. The Veteran is in receipt of a 30 percent rating for PTSD pursuant to 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. All psychiatric disabilities are evaluated under a general rating formula for mental disorders. Under the general rating formula, a 30 percent rating requires a showing of 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 de-pressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, and recent events). A 50 percent rating is warranted for 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 effective work and social relationships. A 70 percent rating is warranted when the psychiatric disorder results in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, 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 an unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships. A total schedular rating of 100 percent is warranted when the disorder results in 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 mental and personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. When determining the appropriate disability evaluation to assign, the Board's primary consideration is the veteran's symptoms, but it must also make findings as to how those symptoms impact the veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. Another factor to take into consideration is the GAF (Global Assessment of Functioning) scale, which reflects psychological, social, and occupational functioning of a hypothetical continuum of mental health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). A 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 peer or coworkers). During the appeal period, the Veteran has had symptoms listed in the criteria for the 30 through 100 percent ratings. For the following reasons, the Board finds that the overall impairment caused by the Veteran's PTSD symptoms most nearly approximates impairment warranting the 50 percent rating he has requested. The primary evidence during the appeal consists of the August 2012 VA examination report and the treatment records of psychologist "E.M.," who appears to have been previously employed by VA. On the August 2012 VA examination, there were symptoms of recurrent dreams and recollections on the event, acting or feeling as if the traumatic event were recurring, including reliving the experience, illusions, hallucinations, and dissociative flashback episodes, efforts to avoid thoughts, feelings, or conversations associated with the trauma and efforts to avoid activities, places, or people that arouse recollections of the trauma, feelings of detachment or estrangement, and restricted range of affect. There was also difficulty sleeping, irritability, difficulty concentrating, depressed mood, anxiety, chronic sleep impairment, mild memory loss, and disturbances of mood and motivation. The GAF score was 55. The examiner checked the box indicating that occupational and social impairment was best summarized by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation, i.e., the criteria for a 30 percent rating. The examiner also indicated that the PTSD symptoms cause clinically significant distress or impairment in social or occupational functioning. Dr. E.M.'s treatment notes from during the appeal period generally noted dysthymic affect, depression, and that the Veteran was stable, with an April 2012 treatment note indicating good future perspective. The above evidence reflects that the Veteran is entitled to the 50 percent rating he has requested for his PTSD. There have been symptoms listed in the criteria for a 30 percent rating such as chronic sleep impairment, mild memory loss, anxiety, and depression, as well as symptoms listed in or similar to those in the criteria for a 50 percent rating, such as abnormal affect and disturbances of mood and motivation. While the August 2012 VA examiner selected the criteria for a 30 percent rating as best summarizing the Veteran's level of occupational and social impairment, a medical examiner is responsible for evaluating the Veteran's disability from a medical perspective while VA is responsible for interpreting medical reports to arrive at the legal conclusion of which rating is most appropriate for the disability. Moore v. Nicholson, 21 Vet. App. 211, 218 (2007), rev'd on other grounds sub nom. Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). In this case, the evidence is at least evenly balanced as to whether the overall impairment caused by the Veteran's symptoms more nearly approximates the occupational and social impairment with reduced reliability and productivity required for a 50 percent rating. As accurately indicated by the VA examiner, the Veteran's PTSD symptoms cause clinically significant impairment in social or occupational functioning, and this is consistent with the level of impairment indicated by the criteria for a 50 percent rating, as is the GAF score of 55 indicating moderate difficulty in social and occupational functioning. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to an initial rating of 50 percent for PTSD is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. As noted above, the Veteran specifically requested a 50 percent rating in his NOD. As the Board is granting this request in full, consideration of an even higher rating is not required. See AB v. Brown, 6 Vet. App. 35, 39 (1993) (a veteran is presumed to be seeking the maximum possible rating unless he indicates otherwise) (emphasis added). The Board notes, in any event, that the VA examination report and private treatment records reflect that, while the Veteran had the difficulty in adapting to stressful circumstances listed in the criteria for a 70 percent rating and the hallucinations listed in the criteria for a 100 percent rating, his PTSD symptoms did not cause or more nearly approximate the inability to establish and maintain effective relationships indicated by the 70 percent criteria or the total occupational impairment indicated by the criteria for a 100 percent rating, as reflected in his report on the August 2012 VA examination of a "pretty good" relationship with his two sons and daughters and that he has "a few friends," despite his difficulty in keeping a long term relationship. Moreover, an extra-schedular rating is not warranted because, as shown above, the Veteran's PTSD symptoms are fully contemplated by the applicable rating criteria, which include both the symptoms listed and the overall level of impairment. The courts have indicated that the general rating formula requires an analysis of whether the symptoms or others of similar severity, frequency, and duration cause the level of impairment required for the appropriate rating, and the Board has thus considered all psychiatric symptoms and not only those listed in the general rating formula, as well as the overall level of impairment, in arriving at the 50 percent rating. Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is therefore not required. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). TDIU VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under the applicable regulations, a TDIU may be granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining or obtaining of substantially gainful employment. Under 38 C.F.R. § 4.16, if there are two or more service connected disabilities, there must 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 Veteran is in receipt of service connection for PTSD now rated 50 percent disabling, residuals of left neck shrapnel wound with retained fragments rated 20 percent, cervical arthritis rated 20 percent, diabetes rated 20 percent, bilateral upper and lower extremity peripheral neuropathy each extremity rated 20 percent, neck scar rated 10 percent and diabetic retinopathy rated 10 percent. He thus meets the criteria for consideration of a TDIU on a schedular basis. The Veteran has been afforded two VA examinations as to the effect of his service connected disabilities on his employability. On the June 2013 VA examination (which focused on his PTSD), the Veteran indicated that he worked for over 20 years as a teacher aide for special needs children at a training school. He indicated that he accepted an early retirement offer because his diabetes-related symptoms impaired his mobility. He also noted that he was irritable at work although he was able to control himself. The examiner found that the Veteran was not likely unemployable due to his PTSD because he was able to maintain consistent employment, there was no evidence that his retirement or ongoing employment was related to his psychiatric symptoms, and there was no evidence that he was not able to control his irritability or that it affected his work. The May 2013 VA examiner found that there was no evidence to suggest the Veteran was unemployable due to his service connected disabilities. The examiner acknowledged his diabetes was not controlled since 2005, but that despite this poor control and his other service connected disabilities, he had been able to attend his VA appointments, drive, and perform the activities of daily living. The examiner noted that the Veteran had good strength, grip, and reflexes on his November 2012 VA examination, with evidence of moderate lower extremity peripheral neuropathy. She acknowledged that the Veteran was not likely able to perform physical employment as a result of this, but it was as likely as not that he could perform sedentary activity. On the November 2012 VA diabetes examination, the Veteran indicated that he retired in 2001 due to the inability to perform his job caused by his diabetic neuropathy. Although the two VA examiners opined that the Veteran's service connected disabilities they examined did not render him unemployable, as noted above, it is for the Board to make this legal determination based on the effect that his service connected disabilities have on his employability, in light of his educational and occupational experience, and without regard to age. Moore, 21 Vet. App. at 218. The Board finds the Veteran's statements that his diabetes and neuropathy impaired his ability to perform his job to be credible and he is competent to so testify. Although the record does not contain extensive information regarding the Veteran's education or employment background, the evidence reflects that the Veteran has multiple service connected disabilities that significantly impair him physically and psychologically and which would, in combination, preclude him from obtaining and maintaining any form of gainful employment of the type for which he would be qualified based on his prior employment as a teacher aide and the education consistent with such employment. As the evidence is at least evenly balanced as to whether the Veteran would be so precluded from substantially gainful employment due to all service connected disorders, the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, warranting entitlement to a TDIU. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to an initial rating of 50 percent, but no higher, for PTSD is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to a TDIU is granted, subject to controlling regulations governing the payment of monetary awards. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs