Citation Nr: 1333535 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 13-17 274 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial rating in excess of 70 percent for service-connected posttraumatic stress disorder (PTSD) prior to February 21, 2013. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to February 21, 2013. ATTORNEY FOR THE BOARD C. Boyd, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1982 to July 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston Salem, North Carolina, which granted service-connection for PTSD with an evaluation of 50 percent effective June 4, 2010. Subsequently, in a May 2013 Statement of the Case (SOC), the RO increased the initial evaluation for PTSD to 70 percent disabling and a 100 percent evaluation was recognized from February 21, 2013. In addition to a paper claims file, there is a Virtual VA electronic file. The Board has reviewed both files prior to reaching this decision. The issue of an earlier effective date for a permanent disability rating has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 2. Prior to February 21, 2013, the evidence of record demonstrates impairment in functioning in most areas due to PTSD symptomatology, but does not suggest total impairment as required for a schedular rating of 100 percent disabled. 3. Prior to February 21, 2013, the evidence suggests the Veteran's service-connected PTSD prevented him from retaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 70 percent for PTSD prior to February 21, 2013 have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2013). 2. Resolving the benefit of the doubt in favor of the Veteran, the criteria for entitlement to a TDIU rating prior to February 21, 2013 have been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.340 , 3.341, 4.16, 4.19 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, notice was provided to the Veteran in August 2010 before service connection was granted in April 2011. Furthermore, the RO sent a letter in November 2011 following the Veteran's filing of an NOD seeking an increased initial rating and a claim for TDIU and prior to the RO's submission of an SOC addressing those issues. The RO provided notice to the Veteran explaining what information and evidence was needed to substantiate a claim for an increased initial rating for his service-connected PTSD and what the evidence must show for a TDIU rating, including what he needed to provide and what would be obtained by VA. The record also reflects that VA has made reasonable efforts to obtain all relevant records pertinent to the matters on appeal, including the Veteran's service treatment records and VA treatment records. The Veteran has not identified any outstanding medical evidence. Appropriate VA examinations were conducted in connection with the claims. The examiners who conducted the February 2011 and February 2013 VA examinations had access to and reviewed all the evidence in the claims file, recorded the Veteran's subjective complaints, and provided detailed and comprehensive opinions regarding the severity of the Veteran's PTSD symptoms. The examination reports were thorough, detailed and supported by an adequate rationale. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that a medical opinion is adequate only if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). The Board finds that no additional RO action to further develop the record in connection with this claim, prior to appellate consideration, is warranted. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices, the appellant has been notified and made aware of the evidence needed to substantiate the claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). II. Entitlement to an initial rating in excess of 70 percent for PTSD Service connection for PTSD was established in an April 2011 rating decision and a 50 percent rating was assigned, effective June 2010, the date of the service connection claim. The Veteran filed a NOD in November 2011 requesting a maximum initial rating for PTSD or, in the alternative, TDIU from the date of the NOD. The RO considered the NOD to be a claim for an increased initial rating and adjudicated that issue prior to submitting an SOC in which they granted an increased initial rating of 70 percent from June 2010, denied TDIU, and assigned a rating of 100 percent from February 21, 2013. After considering the evidence of record under the laws and regulations as set forth above, the Board finds that a disability rating in excess of 70 percent prior to February 21, 2013 is not warranted. PTSD is rated under the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130, Diagnostic Code 9411. Evaluations are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are 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. Under the provisions for rating psychiatric disorders, 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; obsessive 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 work like setting); inability to establish and maintain effective relationships. Id. 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. Id. The evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, the VA must 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 (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)). See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Within the DSM-IV, Global Assessment Functioning (GAF) scores are 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). While not determinative, a GAF score is highly probative as it relates directly to the Veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. See Massey v. Brown, 7 Vet. App. 204, 207 (1994). Under the DSM-IV, GAF scores ranging between 61 to 70 reflect 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, and has some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect more 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). Scores ranging from 41 to 50 reflect 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). In this case, a rating in excess of 70 percent is not warranted because total impairment due to such symptoms as gross impairment of daily functioning, impairment in thought processes, disorientation, and the inability to perform activities of daily living, were not shown prior to February 2013. The reported symptoms and associated impairment demonstrated by the evidence of record most closely approximate the disability picture encompassed by a 70 percent rating prior to February 2013. In February 2011, the Veteran submitted to a VA examination. At this examination, the Veteran was found to experience difficulties in most areas such as work, family relations, judgment and mood. Poor impulse control was noted, as well as difficulty trusting others and hyper vigilance. The Veteran did not indicate a problem dealing with the activities of daily living and his memory appeared normal. Although he appeared anxious and agitated and suffered from a short attention span, the Veteran was found to be intact as to person, time and place. The Veteran reported having held multiple jobs since service, many of which ended in his firing due to his irritability, angry outbursts and poor interactions with others. A GAF score of 45 was assigned by the examiner; however, there was no finding that the Veteran suffered from total occupational and social impairment. The Veteran visited VA for therapy sessions in November 2011, May 2012, September 2012 and January 2013. A November 2011 treatment record demonstrates that the Veteran's PTSD symptoms impacted his capacity to maintain employment; he specifically stated that he walked away from work the prior week in anger. The report indicated the Veteran continued to struggle with irritability, avoidance, emotional withdraw, suspiciousness and inability to trust. He reported increasing frequency of auditory hallucinations and reports of nocturnal hyper vigilance. He stated that he was not taking his medications due to fears of not hearing when someone enters his room and that the medications would slow his reaction time. The Veteran denied any planning or intent to commit suicide, although he had a few "bouts of suicidal thinking." The Veteran stated that he carries a firearm and would defend himself if he felt threatened. In May 2012, the Veteran's symptoms were similar. He related a physical altercation with a boss that caused him to lose his job. The examiner determined that the Veteran remained "at moderate risk of suicide and chronically elevated risk of aggression toward others if he is provoked or feels threatened," although he denied homicidal ideations. In September 2012, the Veteran again demonstrated similar symptoms. He declined medication management or referrals for psychotherapy. The examiner noted that the Veteran was currently working as a contractor for Direct TV. The Veteran was dressed for work with a cell phone earpiece in place. His affect was reported as less irritable than at his last visit and that his thought process seemed goal directed and linear. There was no finding that the Veteran's PTSD symptoms were causing total occupational and social impairment. In January 2013, the Veteran reported continuing detachment from his wife and increasing emotional separation from his children. He stated he had increasing auditory nocturnal hallucinations, reduced appetite, and slept little due to hyper vigilance. He reported that he continues to work "here and there as [I] can for satellite TV installation." The examiner reported the Veteran remained at risk of aggression if provoked or threatened. The Veteran denied suicidal or homicidal ideations and the examiner noted he was not irritable or paranoid and that his thought process was goal directed and linear. At a February 2013 VA psychological examination, the Veteran appeared agitated and stood in the corner or paced the room "constantly scanning for threats." His eye contact was fleeting and his affect was restricted. At the end of the interview, the Veteran insisted on leaving first so he could scan for possible threats around "each corner, door etc." The Veteran endorsed daily hallucinations related to his military stressors and experienced a hallucination wherein he heard the voice of his lieutenant friend who was killed in combat during the examination. He exhibited avoidance behaviors and emotional numbing and detachment from others. The examiner concluded the Veteran was "unable to sustain meaningful relationships with anyone" with the exception of his sister-in-law who was present with him in the examination room. In addition, the examiner noted difficulty maintaining personal hygiene relating that the Veteran only showered weekly to every week and a half because he is scared the scent put off by soap would attract an enemy. In addition, his clothes were torn in places. The Veteran's sister in law indicated the Veteran "goes missing" at least three days per week and typically will live out in his truck which he parks in open spaces so he can "scan for threats" at night. He reported sleeping only 1 to 2 hours per night due to hyper vigilance. The examiner assigned a GAF score of 45 and concluded that the Veteran suffered from total occupational and social impairment, including unemployment due to difficulty managing psychiatric symptoms. Reviewing the evidence of record in light of the regulatory rating criteria and the rule in Mauerhan, the Board concludes that the evidence dated prior to February 21, 2013 demonstrates impairment in functioning due to PTSD, but it does not suggest that the impairment is total. The February 2013 VA examination record reports symptoms and findings more serious that those presented in the prior evidence, to include endorsement of daily hallucinations, obsessional rituals, neglect of personal appearance and hygiene, and near-continuous panic affecting the ability to function appropriately or affectively and a finding of unemployability due to PTSD symptomatology. The medical evidence demonstrates that between February 2011 and February 2013 the Veteran had deficiencies in most areas, including work and with family relations; however, his hallucinations were not daily, he appeared oriented to time and place and appeared able to handle activities of daily living. In addition, he was not exhibiting obsessive behaviors that affected his functioning. He did endorse periodic suicidal ideations, although he had no plan or concrete intent. His symptoms were fully contemplated by a 70 percent schedular rating prior to February 21, 2013. Whether an extra-schedular rating is appropriate has also been considered. See Barringer v. Peake, 22 Vet. App. 242 (2008); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extra-schedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008); see Fisher v. Principi, 4 Vet. App. 57, 60 (1993); 38 C.F.R. § 3.321(b)(1). Factors for consideration in determining whether referral for an extra-schedular rating is warranted include marked interference with employment or frequent periods of hospitalization that indicate that application of the regular schedular standards would be impracticable. Thun, 22 Vet. App. 111. In the present case, there is no evidence of any hospitalizations due to the Veteran's PTSD. The Veteran has lost many contract jobs over the years because of angry outbursts and an inability to work well with others; however, the schedule contemplates occupational impairment and difficulty in adapting to stressful circumstances (including work or a worklike setting). While the Board recognizes continuing problems with maintaining employment, his symptoms are within those contemplated by the rating schedule. Therefore, further consideration of an extra-schedular rating is not warranted. III. Entitlement to a TDIU rating prior to February 21, 2013 The Veteran contends he is entitled to a TDIU rating prior to February 2013 because he has been unemployed since November 2011 on account of his PTSD symptoms. See June 2013 Form 9. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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, as here, this disability shall be ratable at 60 percent or more. 38 C.F.R. § 4.16(a). VA will grant a total rating for compensation purposes based on unemployability 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. Consideration may be given to a Veteran's level of education, special training, and previous work experience, but not to his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341 , 4.16, 4.19. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In this case, the Veteran was assigned a 70 percent disability rating for PTSD effective June 2010 to February 2013 when a 100 percent rating became effective. For the period between June 2010 and February 2013, the Veteran meets the schedular requirements necessary for the assignment of a TDIU under 38 C.F.R. § 4.16(a) (2012). Thus, the question becomes whether the Veteran's service-connected PTSD precluded him from engaging in substantially gainful employment (i.e., work that is more than marginal, which permits an individual to earn a 'living wage') between June 2010 and February 2013. See Moore v. Derwinski, 1 Vet. App. 356 (1991). In this case, there is evidence indicating that the Veteran has had problems for many years maintaining gainful employment due to his PTSD symptoms, specifically his inability to work well with others given his proclivity to respond in anger and provoke altercations with his superiors. The February 2013 VA examiner noted that the Veteran had "lost multiple jobs over the past 15 years due to behavioral problems associated with anger management and hyper vigilance." The Board acknowledges that the Veteran was working as a contractor as recently as September 2012 and that he stated in January 2013 that he continued to work "here and there" installing satellite TVs. However, the overall evidence of record indicates a continual, consistent and on-going struggle with maintaining employment due to PTSD symptoms. The Board finds that, although the Veteran has not, in fact, been unemployed since November 2011, there is a consistent pattern over a period of years of an inability to sustain employment due to PTSD symptoms and that he has lost his most recent jobs due to those symptoms. This conclusion is supported by the finding during the February 2013 examination that the Veteran has "repeatedly been fired from, or 'walked out' on, jobs due to his difficulty managing anger and angry outbursts (toward supervisors multiple times in the past)." In addition, the record documents the assignment of GAF scores corresponding to serious symptoms, such as inability to keep a job. When viewed as a whole, the Board finds that the evidence is at least in equipoise with regard to whether the Veteran's service-connected disability rendered him unemployable and unable to sustain gainful employment. Therefore, the benefit of the doubt should be given to the Veteran, and a TDIU should be granted. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). Lastly, the Veteran's stated on his June 2013 Form 9 that he was seeking an "[e]arlier effective date for a permanent disability rating." Concerning this, the Board notes that, because the RO decided that the 100 percent schedular rating awarded in this case was permanent, the Veteran received ancillary benefits such as entitlement to DEA benefits. The AOJ will have to make an initial adjudicative determination as to any benefits being sought by the Veteran in his request for permanency prior to February 21, 2013. Accordingly, this issue has been referred to the RO for appropriate action in the Introduction to this decision. ORDER 1. Entitlement to initial rating in excess of 70 percent for service-connected posttraumatic stress disorder (PTSD) prior to February 21, 2013 is denied. 2. Entitlement to a TDIU rating prior to February 21, 2013 is granted, subject to regulations governing the award of monetary benefits. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs