Citation Nr: 1334216 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 07-07 908 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability evaluation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION The Veteran served on active duty from May 1968 to August 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA), regional office (RO), in Waco, Texas. In pertinent part, an April 2006 rating decision granted service connection for PTSD and assigned an initial 30 percent rating, and a February 2010 rating decision denied his claim for TDIU. The Veteran provided testimony at a videoconference hearing before the undersigned Acting Veterans Law Judge in August 2012; a transcript of the hearing is of record. The issue of entitlement to TDIU is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Throughout the appeals period, the disability picture associated with the Veteran's PTSD has most closely approximated occupational and social impairment with reduced reliability and productivity and difficulty in establishing and maintaining effective work and social relationships, but not occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for an initial 50 percent disability evaluation, and no higher, for PTSD have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The appeal arises from the Veteran's disagreement with 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 and will not be discussed. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). In any event, the appellant has not identified any prejudice due to error in the content or timing of the notice provided. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Veteran's service treatment records, VA medical treatment records, and Social Security Administration records have been obtained; he did not identify any additional private/VA treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. VA psychiatric examinations were conducted in April 2006, July 2008, July 2009, November 2011, and January 2012. While the Veteran testified before the undersigned that he believed the January 2012 VA examination was too brief and did not reflect the true severity of his symptoms, the Board finds that that examination, when combined with the other VA examinations and outpatient records in the claim file, provides a sufficient basis to evaluate the Veteran's claim. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c)(4). Additionally, while the Veteran testified that his disability may have "slightly" worsened since the January 2012 VA examination, the record contains an outpatient record dated in May 2012 that indicates that the disability had not significantly worsened to the point that another examination was required. The appellant was afforded a hearing before the Board. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the VLJ who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, the VLJ identified the issues to the claimant and asked specific questions directed at identifying whether the appellant met the criteria for service connection. Additionally, the appellant volunteered his history and symptoms since service. The appellant has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claims, and the appellant provided testimony relevant to those elements. As such, the Board finds that no further action pursuant to Bryant is necessary, and the appellant is not prejudiced by a decision at this time. There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claim file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). 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 Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). Evaluation of PTSD The Veteran's PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. He asserts that his symptoms are worse than reflected by the initial 30 percent rating assigned. Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Separate ratings for distinct periods of time, based on the facts are for consideration. Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). According to 38 C.F.R. § 4.126(a), a mental disorder shall be evaluated "based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of examination." 38 C.F.R. § 4.126(a) (2013). Under Diagnostic Code 9411, the criteria for a 30 percent disability rating include: occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. 4.130, Diagnostic Code 9411 (2013). A 50 percent rating is warranted if the evidence shows 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent evaluation is warranted if the evidence shows 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); and an inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted if evidence shows 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; and memory loss for names of close relatives, own occupation, or own name. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). In determining whether the Veteran meets the criteria for a higher rating, the Board must consider whether the Veteran has deficiencies in most of the following areas: work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11 (2001). In rating the severity of the Veteran's psychiatric disability under the criteria listed above, psychiatric health care providers have their own system for rating psychiatric disability. This is the Global Assessment of Functioning (GAF) rating scale, which is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM- IV); Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing DSM-IV. The GAF scale score assigned does not determine the disability rating VA assigns, but it is one of the findings employed in that determination. A GAF score ranging from 51 to 60 reflects 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). GAF scores ranging from 41 to 50 indicate 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). An August 2005 VA mental health assessment noted that the Veteran was divorced and unemployed. He reported problems staying asleep. He had no suicidal or homicidal ideations at present. On examination, he was dressed appropriately, answered questions appropriately, and was affable. There was no history of racing thoughts, paranoid thinking, or hallucinations. He had problems with long and short term memory but was oriented to person, place, and time. A GAF score of 50 was assigned. On VA examination in April 2006, the Veteran reported that he had last worked one year earlier and had lost his job in a layoff. He had been married and divorced five times and did not have any children. The Veteran lived by himself and did not socialize; he considered himself a hermit. He enjoyed woodworking and music. On examination, there was no impairment of thought processes or communications. The Veteran denied hallucinations or delusions. He showed good eye contact and was cooperative. The Veteran denied any suicidal or homicidal thoughts, ideations, plans, or intent. He was able to maintain personal hygiene and activities of daily living. He was oriented to person, place, and time, and there was no evidence of memory loss. The Veteran denied obsessive or ritualistic behavior. Speech was logical and of normal rate and volume. There was no evidence of panic attacks, but the Veteran reported that he got anxious frequently. The Veteran reported a depressed mood. He stated that he had problems getting in fights in the past but had his impulses under better control now. The Veteran reported problems with sleep. The examiner diagnosed PTSD and depression, not otherwise specified; a GAF score of 45 was assigned. On VA examination in July 2008, the Veteran reported that he lived an isolated life, with no friends; he "hardly goes out," and his only companions are the television and books. On examination, he was clean and appropriately dressed, with unremarkable speech. His attitude toward the examiner was cooperative, relaxed, and attentive. His affect was blunted and his mood depressed. He was oriented to person, place, and time. There were no delusions present, and the Veteran understood the outcome of his behavior. The Veteran reported insomnia due to intermittent nightmares, limiting him to four to six hours of sleep per night. There was no evidence of ritualistic behavior, panic attacks, or homicidal or suicidal thoughts. The Veteran's impulse control was fair and there were no episodes of violence. His memory was normal. The GAF was noted as 45. On VA examination in July 2009, the Veteran reported feeling depressed all the time. He enjoyed walking, playing music, and woodworking. He had no suicidal or homicidal ideations. The Veteran reported that he had one friend who visited approximately five times per year. He assisted an elderly neighbor with errands and small home repairs. He had no history of violence. On examination, he was clean and neatly groomed. He was cooperative and friendly, with normal affect and dysphoric mood. He was intact to person, place, and time. Thought processes and content were unremarkable, with no delusions present. The Veteran did not have panic attacks. Memory was normal. A GAF score of 55 was assigned. Outpatient treatment records dated in January 2010, January 2011, and May 2012 all noted GAF scores of 60. On VA examination in November 2011, the examiner noted 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. The examiner noted anxiety, suspiciousness, chronic sleep impairment, mild memory loss, and difficulty in establishing and maintaining effective work and social relationships. On VA examination in January 2012, the Veteran reported that he continued to take his elderly neighbor to her appointments/errands. He had no psychotic symptoms and his anxiety was under control since he avoided most social situations. He had no suicidal or homicidal ideations, had neat grooming and hygiene, and unimpaired judgment and impulse control. The examiner assigned a GAF score of 60. At his videoconference hearing before the undersigned in August 2012, the Veteran reported that he isolated himself, had anger issues, had no social life, and checked the perimeter of his property daily. The evidence supports a 50 percent disability rating for the Veteran's PTSD throughout the rating period on appeal, as the Veteran has experienced impairment in social and occupational functioning due to his PTSD for such time. GAF scores during the appeal period have ranged from 45-60; a score of 41 to 50 indicates serious impairment in social, occupational or school functioning, while a score of 51 to 60 denotes moderate difficulty in social, occupational, or school functioning. The VA examinations have shown depressed mood, anxiety, sleep impairment, and suspiciousness; these symptoms are specifically included in the criteria for a 30 percent evaluation. However, the assigned GAF scores of 45 noted in April 2006 and July 2008 indicate that the Veteran's PTSD disability warrants more than a 30 percent rating. In this regard, the November 2011 VA examiner endorsed "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," which are criteria included in the 30 percent evaluation. However, this examiner also noted "difficulty in establishing and maintaining effective work and social relationships," which is a criterion for a 50 percent evaluation. 38 C.F.R. § 4.130, Diagnostic Code 9411. In sum, resolving all doubt in favor of the Veteran, the aforementioned VA examinations and treatment records are consistent with moderate PTSD versus mild PTSD, as they denote occupational and social impairment with reduced reliability and productivity. Thus, a 50 percent disability rating is warranted for the Veteran's PTSD disability. The evidence does not show the symptomatology required for a 70 percent rating under the rating schedule. Without evidence of occupational and social impairment with deficiencies in most areas, due to such symptoms as suicidal ideation, obsessional rituals, speech intermittently illogical, near-continuous panic or depression affecting the ability to function independently, impaired impulse control neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances, or the inability to establish and maintain effective relationships, a 70 percent schedular rating for PTSD is not warranted for any period during the appeal. While the Veteran is not currently gainfully employed, the July 2009 VA examiner stated that it was less likely than not that he was unemployable due to PTSD. Moreover, while the Veteran isolates himself socially, he has reported having one friend that visits five times per year, and he maintains a relationship with his elderly neighbor. Consequently, the Veteran's total PTSD disability picture warrants a 50 percent disability rating, but no more. The evidence shows that the Veteran's service-connected PTSD results in occupational and social impairment with reduced reliability and productivity; the rating criteria considered in this case reasonably describe the Veteran's disability level and these symptoms. The rating criteria for psychiatric disability contemplate the numerous manifestations of the Veteran's PTSD. The Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation for the service-connected PTSD is adequate, and referral for extra-schedular consideration is not required. Thun v. Peake, 22 Vet. App. 111 (2008); 38 C.F.R. § 3.321(b)(1). ORDER An initial 50 percent evaluation for PTSD, and not in excess thereof, is granted. REMAND The Veteran contends that he is unable to work due to his service connected disabilities, which consist of PTSD, right humeral fracture residuals, diabetes mellitus, peripheral neuropathy of the right upper extremity, and residuals of cerebrovascular accident. Given the above grant of a 50 percent rating for PTSD, the Veteran now meets the schedular requirements for a TDIU under 38 C.F.R. § 4.16 (a). It remains to be determined whether he is unable to secure or follow a substantially gainful occupation as a result of his service connected disabilities. The VA examinations of record that have addressed employability have focused on either the service connected physical disabilities or PTSD; a comprehensive opinion addressing the impact of the combination of the service connected physical and psychiatric disabilities on his ability to work has not been obtained and is necessary in order to properly evaluate the TDIU claim. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for VA examination by a physiatrist (specialist in rehabilitation) to determine whether the current level of impairment of his service-connected disabilities, PTSD, right humeral fracture residuals, diabetes mellitus, peripheral neuropathy of the right upper extremity, and residuals of cerebrovascular accident, taken together, preclude him from obtaining and maintaining gainful employment. The examiner must specifically describe the impact of the disabilities in the aggregate on activities of daily living and occupational functioning. 2. Then, readjudicate the claim of entitlement to TDIU. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and return the case to the Board. By this remand the Board intimates no opinion as to any final outcome warranted. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ______________________________________________ JOHN H. NILON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs