Citation Nr: 1334262 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 10-12 868 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wichita, Kansas THE ISSUES 1. Entitlement to an initial disability rating higher than 30 percent for post-traumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from March 1962 to May 1965. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2009 rating decision by the Wichita, Kansas Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision the RO granted service connection for PTSD and assigned a 30 percent disability rating. In an August 2013 brief the Veteran, through his representative, requested that the Board address the issue of entitlement to a TDIU. The Veteran asserted that VA examination findings confirm that his PTSD makes him unable to work. In Rice v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim cannot be considered separate and apart from an increased rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Court found that when entitlement to a TDIU is raised during the adjudicatory process of an underlying disability, it is part of the claim for benefits for the underlying disability. Id. A TDIU claim, the Court held, is an attempt to obtain an appropriate rating for a service-connected disability. Id. Considering the Veteran's request for consideration of a TDIU, and consistent with the Court's opinion in Rice, a claim for TDIU has been added to this appeal. The Board has reviewed both the Veteran's paper claims file and the Veteran's file on the Virtual VA electronic file system, to ensure a total review of the evidence. FINDINGS OF FACT 1. The Veteran's PTSD has produced occupational and social impairment with deficiencies in work, family relations, judgment. 2. From August 7, 2008, the Veteran's PTSD has made him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The Veteran's PTSD has met the criteria for a 70 percent disability rating. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2013). 2. The Veteran's PTSD has met the criteria for a total disability rating based on individual unemployability due to service connected disability. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appeal presently before the Board is the Veteran's appeal of the initial 30 percent disability rating that the RO assigned for his PTSD. A brief account of history related to the PTSD claim will aid clarity. The Veteran reportedly sustained head injury during service. In 1995 he sought service connection for several disorders, including "head trauma with residual severe headaches, nightmares, memory loss, and personality change." Service connection was eventually established, effective in August 1995, for head trauma residuals with headaches, nightmares, and personality changes. In 2006 the Veteran submitted a claim for service connection for PTSD. The Veteran attributed his PTSD to head injury sustained in service. In the May 2009 rating decision the RO granted service connection, effective in August 2008, for PTSD. The RO assigned a 30 percent disability rating for PTSD. In the same rating decision the RO decreased the rating for head injury residuals to 0 percent, indicating that some symptoms previously evaluated as head injury residuals would thenceforward be evaluated as PTSD symptoms. The Veteran essentially contends that his PTSD warrants a rating higher than 30 percent. VA assigns disability ratings by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10. If two ratings are potentially applicable, the higher rating 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. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. The Court has held that, at the time of the assignment of an initial rating for a disability following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). As the Veteran appealed the initial rating that the RO assigned for PTSD, the Board will consider the evidence for the entire period since August 7, 2008, the effective date of service connection for PTSD. The Board will consider whether a higher rating is warranted for any part of that period. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The rating schedule provides for evaluating mental disorders such as PTSD under a General Rating Formula for Mental Disorders, which follows: 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 .......................... 100 percent 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 ............................................. 70 percent 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 and maintaining effective work and social relationships ........................... 50 percent 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) ..................................................... 30 percent Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication ............................. 10 percent A mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication ................................ 0 percent 38 C.F.R. § 4.130. In treating and evaluating mental disorders, mental health professionals sometimes assign a Global Assessment of Functioning (GAF) score. The GAF scale is a scale of psychological, social, and occupational functioning a hypothetical continuum of mental health and illness. It is provided in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, 4th edition (DSM-IV). Assessments on the GAF scale are not to include impairment in functioning due to physical or environmental limitations. Clinicians have assigned the Veteran GAF scores of 40 through 52 over the years, and 40 through 45 from 2008 forward. GAF scores of 51 to 60 are for 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 of 41 to 50 are for serious symptoms (e.g., suicidal ideation, severe obsessional rituals) or any serious impairment in social, occupation, or school functioning (e.g., no friends, unable to keep a job). GAF scores of 31 to 40 are for some impairment in reality resting 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). DSM-IV. VA regulations allow for the assignment of a total disability rating based on individual unemployability (TDIU) when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain combinations of ratings for service-connected disabilities. If there is only one service-connected disability, that disability must be ratable at 60 percent for a TDIU to be assigned. If there was 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 disability to 70 percent or more. 38 C.F.R. § 4.16(a). In the Veteran's case service connection is established for PTSD, currently rated at 30 percent, residuals of right wrist fracture, currently rated at 20 percent, residuals of fracture of the second metatarsal of the left foot, currently rated at 0 percent, and residuals of head injury with headaches, nightmares, and personality changes, currently rated at 0 percent. The current combined rating is 40 percent. Even if service-connected disabilities fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), referral to the Director of the VA Compensation and Pension Service for extraschedular consideration of a TDIU is warranted if the veteran nonetheless is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(b). The claims file contains records of mental health and alcohol abuse evaluations and treatment from the 1990s forward. In October 1995 the Veteran had a VA vocational rehabilitation screening. He reported that he had worked as a painter, but had not been able to work in that field for the preceding two years. He reported having physical problems including back, right foot, and right hand problems, and mental problems including depression and alcohol problems, providing evidence against this claim as it indicates a large number or problems other than PTSD. He expressed the belief that he was unemployable at that time. VA treatment notes from 1995 reflect a long history of heavy alcohol use. On VA mental disorders examination in October 1999, the Veteran reported depression, impairment of short term memory, decreased concentration, low energy, decreased appetite, and psychomotor retardation. The examiner listed diagnoses of alcohol dependence, major depressive disorder, and cognitive disorder. The examiner assigned a GAF score of 41. For a period over parts of 2000 and 2001 VA found that the Veteran was not competent to handle his own funds. In VA treatment in April 2001 the Veteran reported having vivid nightmares and increased sleep disturbance. On VA examination in May 2003 the examiner noted that CT scans of the head in 1996 and 2000 showed findings consistent with an infarct. The Veteran reported increasing nightmares and severe memory impairment. He indicated that he awakened multiple times at night and was tired during the day. He stated that his memory problems and back problems made him unable to work. He reported being irritable. The examiner observed that the Veteran was slightly disheveled and had a depressed affect. The examiner found that the Veteran's thought processes were not impaired, but that he had difficulty with communication, with somewhat obscure speech, in some part due to memory loss. The Veteran denied suicidal ideation, hallucinations, or panic attacks. The examiner listed a diagnosis of multi-infarct dementia with nocturnal parasomnia. The examiner expressed the opinion that the Veteran's symptoms interfered to some degree with his employability, but did not make him unemployable. The examiner assigned a GAF score of 52. On VA mental disorders examination in May 2004 the Veteran reported further deterioration of his memory. He indicated that he was on two antidepressant medications. The examiner found that the Veteran spoke slowly and had a sparse flow of thought. There was evidence of very poor memory that impeded communication. There was no indication of delusions, hallucinations, panic attacks, or suicidal thoughts. The Veteran's mood and affect were flat to blunted. The examiner assigned a GAF score of 43. In a September 2004 addendum the examiner stated that the Veteran had serious impairment, in that he could not learn a new job because he was unable to retain any required skills. The examiner stated that the Veteran must be considered unemployable because with his terrible memory loss he could not learn a trade or retain skills. In a VA psychology evaluation in October 2006, the Veteran reported that, since a head injury in service, his behavior had been at times violent and at times detached. He stated that he had difficulty interacting with others. He reported an extensive alcohol abuse history. He indicated that he had been divorced three times, and that he had difficult relationships with his grown children. The examiner indicated that there were questions about the reliability of the Veteran's answers to evaluation questions. The Veteran reported problems with attention, concentration, and memory. The examiner found that the Veteran's symptoms were consistent with PTSD and depression. The examiner assigned a GAF score of 49. In 2007 persons who know the Veteran described his mental and psychological impairment. The Veteran's girlfriend reported that she had seen him have panic attacks and had seen him wail and scream in his sleep. She stated that he had depression, memory loss, severe headaches, and increasingly mean behavior toward some people. The Veteran's grown daughter stated that the Veteran had a long history of anxiety, depression, alcohol dependence, and memory loss, all uncontrolled despite treatment. She reported that these problems made him increasingly isolated from family and friends. A long term friend reported that the Veteran had nightmares, was terrified by the sight of blood, had frequent headaches, and isolated himself from others. Another long term friend stated that the Veteran had nightmares, headaches, and memory loss, and that he related having had these problems since sustaining a head injury during service. In VA mental health treatment in May 2008 the Veteran reported ongoing PTSD symptoms. He stated that he did not socialize, and that he stayed at home by himself most of the time. He indicated that he had a short fuse, had been in numerous physical fights, and had engaged in domestic violence. The treating clinician observed that the Veteran had a depressed mood and slow speech. There was no evidence of delusions, hallucinations, or suicidal or homicidal ideation. The clinician listed a diagnosis of PTSD and assigned a GAF score of 40. On VA PTSD examination in October 2008, the examiner reported having reviewed the Veteran's claims file. It was noted that the Veteran was in individual psychotherapy and was on three antidepressant or other psychiatric medications. The Veteran reported that after service he worked as a painter and retired on disability at the age of 50. He stated that when he worked he had difficulty getting along with others. He indicated that he got in verbal and physical altercations with coworkers and supervisors. He stated that he had traumatic memories while working, and addressed this by sneaking away and drinking. He reported history of three divorces and of criminal charges for fighting, domestic violence, and drunk driving. He stated that his relationships with his grown children were filled with conflict. He reported that he had no friends and avoided social interaction. He stated that he did not leave home except for medical appointments and grocery shopping. He reported that he had abstained from drinking the most recent two years. The examiner found that the Veteran was oriented and had normal speech and thought process. The Veteran described his mood as a little down, and the examiner observed that his affect was flat. The Veteran reported occasional panic attacks. He reported a regularly depressed mood and episodes of severe depression, during which he isolated himself, lost his appetite, and neglected his hygiene. He reported daily anxiety. He stated that he was awakened by nightmares. He indicated that he sometimes avoided sleep to avoid nightmares. He stated that he generally got little sleep and felt tired, irritable, and anxious. The examiner listed a diagnosis of PTSD and assigned a GAF score of 45. In July 2009 the Veteran wrote that he had severe nightmares, restless sleep, and memory loss. He stated that he had periods of severe depression, anxiety, and inability to get along with other people. He indicated that because of his PTSD he had suicidal thoughts and did not have social relationships. He stated that most days he did not care about anything. VA treatment notes from 2009 and 2010 reflect ongoing PTSD symptoms. On VA PTSD examination in January 2010, the Veteran reported that he had few friends and did not leave home much. He stated that he stayed home and watched television. He related that he had stopped working years earlier due to alcohol abuse and back problems. He indicated he had not used alcohol for the last three years. He reported that he awakened every hour or two at night, and then slept during the day. He stated that he had panic attacks once or twice a month. He related irritability, appetite disruption, and problems with mood regulation. He reported problems with social interaction, difficulty with relationships, and poor relationships with family. He stated that he would rather be alone, even though he felt lonely, and indicated that he was afraid he would hurt someone, especially emotionally. The examiner observed that the Veteran had clear speech, a depressed mood, a flat affect, and lethargic psychomotor activity. There was no evidence of delusions. The examiner found that the Veteran had very concrete thinking, with limited abstraction ability. There was evidence of mild attention and memory problems. The examiner listed diagnoses of PTSD and of alcohol dependence in remission. The examiner noted that the Veteran had limited social interaction, few relationships, conflicts in his family, and was unable to work. The examiner assigned a GAF score of 40. In a March 2010 statement the Veteran asserted that his PTSD symptoms warrant a higher rating. He stated that he had panic attacks weekly and sometimes more often. He indicated that he had gross memory impairment. He stated that he often neglected his personal hygiene, although he made himself presentable for VA treatment visits. The rating for the Veteran's PTSD from August 7, 2008, is at issue. Examination reports, treatment records, and statements from the Veteran and persons who know him indicate that during that period the Veteran's PTSD has produced occupational and social impairment with deficiencies in capacity for work, family relations, judgment, and mood. His symptoms have included panic attacks of varying frequency, near continuous depression and anxiety, episodes of more severe depression, a history of violence, self-isolation to avoid perpetrating violence or emotional abuse, and severe difficulty establishing and maintaining effective work and social relationships. His symptoms have been somewhat compatible with the criteria for a 50 percent rating and those for a 70 percent criteria. Considering the extent of his occupational and social impairment, the overall disability picture more nearly approximates the criteria for a 70 percent rating. The Board therefore grants a 70 percent rating. The evidence does not tend to show that the Veteran PTSD has produced total occupational and social impairment. He has not reported or been noted to have (for example only) 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. His PTSD therefore does not warrant a 100 percent on a schedular basis. As noted above, the Veteran claims that a TDIU is warranted by his impairment due to PTSD. He contends that his PTSD makes him unable to work. The evidence indicates that the Veteran has not held substantially gainful employment since the 1990s. The evidence indicates that mental, emotional, and behavioral problems precipitated, or at least substantially shared in, his leaving employment. In recent years clinicians have endorsed the Veteran's assertion that his mental and psychological impairments make him unable to hold employment. In this regard, the Board notes that there are significant nonservice connected disabilities, however, the Board sees no practical manner to distinguish between the Veteran's service connected problems and his non-service connected issues. Further, the Board must consider the benefit-of-the-doubt and the Veteran's education as well as previous employment experience in making this determination. His service connected right wrist disability would make any career in painting highly unlikely at this point in the Veteran's lifetime. The evidence supports a conclusion that the Veteran's service connected disabilities, as a whole, has made him unable to secure or follow a substantially gainful occupation. The Board therefore grants a TDIU. When there is an exceptional disability picture, such that the rating schedule criteria do not reasonably describe a claimant's disability level and symptomatology, an RO may refer a case to the VA Under Secretary for Benefits or to the Director of the VA Compensation and Pension Service for consideration of an extraschedular rating. See 38 C.F.R. § 3.321(b)(1) (2012); see also Thun v. Peake, 22 Vet. App. 111, 115 (2008). Extraschedular ratings are limited to cases in which it is impractical to apply the regular standards of the rating schedule because there is an exceptional or unusual disability picture, with such related factors as frequent hospitalizations or marked interference with employment. 38 C.F.R. § 3.321(b)(1). The Veteran's PTSD has not required frequent hospitalizations. His PTSD has markedly interfered with employment. That interference is appropriately and adequately addressed, however, by the 70 percent schedular rating and the TDIU that the Board is assigning in this decision. The rating criteria provide for a higher, 100 percent, schedular rating for manifestations and effects more severe than are present in this case. Therefore it is not necessary to refer the rating of the Veteran's PTSD for consideration of extraschedular ratings. 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 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim for VA benefits. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The Court has stated that the requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). Insufficiency in the timing or content of VCAA notice is harmless, however, if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). VA provided the Veteran with VCAA notice in letters issued in April 2007 and November 2007. In those letters the RO addressed the information and evidence necessary to substantiate claims for service connection, including service connection for PTSD, and claims for increased disability ratings. The RO informed the Veteran how VA assigns effective dates. The notice also addressed who was to provide the evidence. The record regarding the Veteran's claims (including the paper claims file and information in electronic form) contains service treatment records, records of post-service treatment and examinations, and statements from the Veteran and persons who know him. The Veteran has had VA examinations that addressed the manifestations and effects of his PTSD, including the effects of that disability on his capacity for employment. The examinations were performed by qualified clinicians. The examiners provided observations and findings relevant to evaluating PTSD. The record thus contains examinations and examination reports that are adequate for rating the Veteran's PTSD. The Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claim, as well as the avenues through which he might obtain such evidence, and the allocation of responsibilities between him and VA in obtaining such evidence. The Veteran actively participated in the claims process by providing evidence and argument. Thus, the Veteran was provided with a meaningful opportunity to participate in the claims process, and he has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication nor to have caused injury to the Veteran's interests. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless, and does not prohibit consideration of the claim. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). ORDER A 70 percent disability rating for PTSD is granted, subject to the laws and regulations controlling the disbursement of monetary benefits. A total disability rating based on individual unemployability (TDIU) is granted, subject to the laws and regulations controlling the disbursement of monetary benefits. ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs