Citation Nr: 1334536 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 10-34 443 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a higher initial rating for posttraumatic stress disorder (PTSD) with dysthymia, currently evaluated as 70 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected PTSD. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1968 to October 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) which, in part, granted service connection for PTSD and assigned it a 30 percent rating effective from February 17, 2009, the date of the claim. A notice of disagreement was received in August 2009, a statement of the case was issued in June 2010 and a substantive appeal was received in August 2010. Thereafter, in November 2011, the RO increased the Veteran's rating for his service-connected PTSD to 70 percent, effective from February 17, 2009. A videoconference hearing was held before the undersigned in March 2012. Applicable law provides that absent a waiver, a claimant seeking a disabling rating greater than assigned will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and that a claim remains in controversy where less than the maximum available benefits are awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran has not withdrawn the appeal as to the issue of the disability rating greater than assigned, and the issue therefore remains in appellate status. In addition, the Board finds that the issue of entitlement to a TDIU has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In this regard, the Veteran testified that she was not pursuing a claim for TDIU at that time, as she was currently working. However, since the hearing, the Veteran has submitted a statement indicating that she terminated her employment, effective May 31, 2012, as a result of her psychiatric struggles. See May 2012 statement. As it is now unclear whether the Veteran wishes to pursue a claim for a total disability rating based on individual unemployability, the Board finds that a remand is appropriate. Accordingly, for purposes of clarity, this issue is listed on the first page of this decision. The issue of entitlement to a TDIU is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Throughout the course of the appeal, the Veteran's service-connected PTSD was not manifested by total occupational and social impairment. CONCLUSION OF LAW The criteria for entitlement to a disability evaluation in excess of 70 percent for the Veteran's service-connected PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.130 and Code 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; (3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record shows that in an April 2009 VCAA letter, the appellant was informed of the information and evidence necessary to warrant entitlement to the benefit sought on appeal. The appellant was also advised of the types of evidence VA would assist her in obtaining as well as her own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The United States Court of Appeals for Veterans Claims' decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. In this case, the RO provided VCAA notice to the Veteran in April 2009, prior to the July 2009 rating decision. Accordingly, the requirements the Court set out in Pelegrini have been satisfied. The Board also stresses that since the issue of entitlement to a higher initial rating is a downstream issue from that of service connection (for which a VCAA letter was duly sent in April 2009), another VCAA notice is not required. VAOPGCPREC 8-2003 (Dec. 22, 2003). It appears that the United States Court of Appeals for Veterans Claims has also determined that the statutory scheme does not require another VCAA notice letter in a case such as this where the Veteran was furnished proper VCAA notice with regard to the claim of service connection itself. See Dingess v. Nicholson, 19 Vet. App. 473, 491 (2006). In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of her claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. 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). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). VA also has a duty to assist a claimant under the VCAA. VA has obtained service treatment and service personnel records; assisted the Veteran in obtaining evidence; examined the Veteran for PTSD in June 2009 and October 2011; and afforded the Veteran the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has fully complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Additionally, the Board notes that it has reviewed all the evidence in the Veteran's claims file and in Virtual VA. Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. Rather, the Board's analysis will focus specifically on the evidence pertinent to the claim, and what it shows, or fails to show, with respect to the claim. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Legal Criteria, Factual Background, and Analysis Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.7 provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 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, as here, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The Veteran's PTSD is currently evaluated as 70 percent disabling during the rating period. 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; obsessional 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 worklike setting); inability to establish and maintain effective relationships. 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. See 38 C.F.R. § 4.130, Diagnostic Code 9411. The symptoms listed in VA's general rating formula for mental disorders is 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. Mauerhan v. Principi, 16 Vet. App. 436 (2002). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). In addition, the evaluation must be 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 the examination. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Global Assessment of Functioning (GAF) scale reflects the psychological, social and occupational functioning under a hypothetical continuum of mental illness. See American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). See also Carpenter v. Brown, 8 Vet. App. 240, 243 (1995); 38 C.F.R. § 4.130. According to the DSM-IV, a GAF score of 61-70 denotes some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. A GAF score of 51-60 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 peers or co-workers). A GAF score of 41-50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF score of 31-40 indicates some impairment in reality testing or communications or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. A February 2007 VA record noted that the Veteran's mood is improved and she is getting good benefit from her medications. It was further noted that she attends therapy sessions and continues to have marital problems. In August 2007, it was noted that the Veteran's mood is stable with the help of medications, but that she is having a sleep problem and is concerned about her marriage. An April 2008 record noted that she still attends therapy sessions and has low to fair energy and motivation. In September 2008, the Veteran reported feeling depressed and having some work related stress due to scheduling. She reported no energy or motivation and an increased appetite. She indicated that she was "sleeping all right" and is planning a trip with her friends for a couple of days. She reported no change in her marital relationship. An April 2009 record noted that the Veteran's mood is down and depressed. The Veteran reported that she is beginning to deal with the sexual assault she suffered in the military. She reported crying a lot at home and feeling very exposed. It was noted that her concentration was decreased. She denied suicidal and homicidal thoughts, in addition to delusions and hallucinations; she had no paranoia. On June 2009 VA examination, the Veteran claimed "she cannot hide it anymore and can't stop the memories anymore." She reported that things trigger her bad memories. The examiner noted that she shows relationship problems, does not enjoy sex, has lost concentration and can't sleep. She reported the severity of her symptoms as severe. On mental status examination, no impairment in thought process or communication was noted. The examiner stated that the Veteran has no delusions, hallucinations, or inappropriate behavior. She has no suicidal/homicidal plans or intent and has the ability to maintain minimal personal hygiene and other basic activities of daily living. She was oriented times three and has no memory loss or impairment. It was further noted that she had no obsessive or ritualistic behavior that interferes with routine activities and does not have any irrelevant, illogical or obscure speech patterns. The examiner noted that the Veteran does not have panic attacks. It was noted that she suffers from depression/depressed mood a few times per week, and that her mild depression does not appear to interfere with employment and social functioning. It was also noted that she suffers from anxiety a few times weekly, but that this doesn't interfere with her employment and social functioning. The examiner noted that the Veteran did not have impaired impulse control, but does have sleep impairment. A GAF score of 75 was provided. In June 2009, the Veteran submitted a statement indicating that her previous VA examination was inadequate as the examiner only spent a short amount of time with her. A July 2009 VA treatment record noted a diagnosis of depression and PTSD and indicated that the risk assessment of harm to self and others was low. In November 2009, it was noted that the Veteran's mood has not been good lately due to a work situation. She reported "sleeping all right" and denied tearful episodes. She further denied paranoid thoughts, delusions, hallucinations, and suicidal/homicidal thoughts. It was noted that the Veteran reported that her attitude has changed toward sex and that she now feels it's something she shouldn't do. She reported thinking about sexual trauma more because she finally started talking about it. A December 2009 VA treatment record noted that the Veteran exhibited a linear thought process and had normal speech. Her mood was noted as 3-4/10 and her affect was euthymic. She denied suicidal ideations, including active plans or intent to harm herself; however it was noted that she has a history of passive suicidal ideation. She also denied homicidal ideation, hallucinations, and delusions. She reported feeling anxious and paranoid especially at night and stated that she has feelings of low self worth whenever she feels that she has let people down. Her insight and judgment were noted as fair. A January 2010 counseling note indicated that the Veteran has mild anxiety and low energy and motivation, but is sleeping well. She reported continuing to have PTSD symptoms, including still seeing shadows, occasional intrusive thoughts, and feeling that she could be attacked. She was oriented times three and her speech was normal in rate, rhythm and tone. Her affect was euthymic and her mood was 4/10 and noted to fluctuate. No suicidal/homicidal thoughts were noted and her thought process was coherent and logical. Additionally, no obsessive-compulsive thoughts or behaviors were noted. As for her perceptions, she reported intermittently seeing shadows in her car or while walking from her building at work. Her memory was noted to be decreased and her concentration fair; however, her insight and judgment were good. A risk assessment revealed she was a low risk for harm to herself and to others. Another January 2010 VA treatment record noted that the Veteran is watchful and mistakes shadows for people, feeling anxious that she could be attacked. It was noted that she has nightmares every couple of months. She reported having a distant relationship with her husband; however, she stated that she attends church regularly and spends time with her friends. In February 2010, a counseling note indicated that the Veteran had mild depression and anxiety. On March 2010 mental status evaluation, the Veteran was oriented in all three spheres. Her mood was rated as 3/10 and her affect was euthymic. She had no suicidal/homicidal thoughts and her thought process was coherent and logical. She exhibited no obsessive-compulsive thoughts or behaviors and denied hallucinations. Her memory was decreased and concentration fair. Her insight and judgment were noted to be good. A risk assessment revealed that her risk of harm to herself and others was low. In April 2010, the Veteran's mood was noted to be fluctuating. She had fair energy and motivation. She denied tearful episodes and reported irregular sleep. She stated that she has a fair appetite and denied paranoid thoughts, however, she stated that she doesn't like going out in the dark. She denied delusions, hallucinations and suicidal/homicidal thoughts. It was also noted that the Veteran's thoughts are still easily triggered by environmental cues related to her military sexual trauma. She reported using appropriate coping strategies and noted that her marital relationship is not stressful at this time. An April 2010 psychological evaluation report noted that the Veteran is lucid and aware of her situation. It was noted that she poses no imminent risk to herself or others; she is insightful. A GAF score of 55 was given. In August 2010, the Veteran submitted a statement indicating that she suffers from panic attacks a couple times a week and suffers from short term memory loss. She also reported that she has a fear that when she gets into her car, someone will be in there. She said this fear causes her to walk to her car several times to ensure her doors are locked. She also stated that she sees shadows that don't exist, particularly when walking to her car, and that she prays to die in her sleep. She further explained that she has difficulty understanding and completing commands. On October 2011 VA examination, it was noted that the Veteran suffers from occupational and social impairment with reduced reliability and productivity. Her symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The examiner also noted that the Veteran was persistent in reporting that she experienced "visual hallucinations" of person-like figures whenever it was dark; however, the examiner noted that these experiences do not meet the criteria for visual hallucinations, as they do not occur within the context of a clear sensorium. The examiner concluded that results from psychological testing indicated moderate to severe levels of depressive and PTSD symptoms. He stated that this testing also indicated that although she was likely somewhat exaggerating the degree of severity, her self-reported symptoms were essentially accurate. A GAF score of 58 was provided. A March 2012 police record notes that the Veteran called the police reporting that she saw a prowler on her porch at night. In March 2012, the Veteran also testified at a hearing. She reported that she is still married, but that she suffers from a lack of sexual drive which has impeded her ability to be sexually involved with her husband. She also indicated that she "can't deal with people" and has a hard time being around a lot of men. She described suffering from extreme hypervigilance. As for friends, she reported having two friends, but stated that she cannot go out at night with them. She stated that she has no male friends. During the hearing, her representative contended that the previous VA examination was inadequate, as it was performed by a male examiner who "may not have been necessarily emphatic to the situation and the symptomatology" of the Veteran. With regard to this contention, the Board notes that a close review of the October 2011VA examination report shows that the examiner's findings were made after a review of the Veteran's claims file, in consideration of her military and mental health history, and after an evaluation. There is no evidence to suggest or support the contentions that such examination is inadequate. In March 2012, the Veteran's husband submitted a statement indicating that he has been married to the Veteran for almost 40 years and that she has never been a very sexual person, which he attributes to the rape she suffered while in service. In May 2012, the Veteran submitted a statement indicating that she resigned from her job because she is "just not mentally there" and because she is "unable to perform my duties in a manner expected." The Board has carefully considered the evidence of the severity of the PTSD and resulting impairment that the Veteran suffers. The evidence clearly shows significant impairment, and the Board does not in any manner doubt that the PTSD have a major impact on the Veteran's social and occupational functioning. However, it is stressed that there is now persuasive evidence of both total social and occupational functioning due to the types of symptoms set forth as examples for a 100 percent schedular rating. In this regard, it is stressed that there is no evidence of gross impairment in thought processes or communication or evidence of persistent delusions, hallucinations, or grossly inappropriate behavior. See June 2009 VA examination report. It is not shown that her PTSD results in a persistent danger of hurting herself or others. In fact, the evidence of records shows consistent low risk assessments. With regard to hallucinations, the Board acknowledges the Veteran's reports of seeing figures in the dark, which she terms visual hallucinations, but the Board notes that a psychologist on VA examination determined that these did in fact not meet the criteria for visual hallucinations. Further, the evidence shows that the Veteran has consistently been oriented in all three spheres and has shown the ability to maintain minimal personal hygiene. There is also no evidence that she has suffered memory loss for names of close relatives, her own occupation, or her own name. The Board acknowledges that the Veteran has claimed some memory loss and this has been noted in her treatment records. However, the memory loss does not seem to be of the severity of forgetting her name or job or the names of those close to her. The Board finds particularly probative the fact that the Veteran has been married for over 40 years and maintains contact with friends. Notably, a September 2008 record noted the Veteran was planning a trip with her friends. Additionally, the Board notes that the Veteran has maintained a full-time job, until apparently May 2012. See May 2012 statement. Moreover, the Board notes that the GAF scores of record indicate impairment which is already contemplated by the current 70 percent rating. The Board stresses to the Veteran that a significant level of impairment due to the PTSD has already been recognized by assignment of the 70 percent rating. The Board further acknowledges the Veteran's statements as to the severity of her psychiatric symptoms; however, the Board is bound to apply the regulatory criteria for rating PTSD, and for the reasons set forth above, the Board finds that the preponderance of the evidence is against assignment of a rating in excess of 70 percent. The Board has also considered whether an extraschedular rating is warranted. Here, the evidence shows that the Veteran is currently being compensated with a 70 percent rating for PTSD with dysthymia. The rating criteria (specifically the criteria under Code 9411) describe the Veteran's symptomatology in that they address the manifestations of her psychiatric disability, to include depression, difficulty in adapting to stressful circumstances, and the inability to establish and maintain effective relationships. Further, the rating criteria provides for symptomatology more serious than exhibited by the Veteran. Accordingly, the symptoms and associated impairment of the Veteran's PTSD are entirely encompassed by the regular schedular criteria; consequently, those criteria are not inadequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Hence, referral for extraschedular consideration is not warranted. The matter of entitlement to TDIU is addressed in the remand below. ORDER Entitlement to a rating in excess of 70 percent for service-connected PTSD with dysthymia is not warranted. The appeal is denied to this extent. REMAND As noted in the introduction, the Veteran's claim for an increased rating includes the issue of entitlement to a TDIU. The Board acknowledges the judicial holding in Rice, in which the United States Court of Appeals for Veterans Claims held that a request for a TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue of whether a TDIU is warranted as a result of that disability. Recent information from the Veteran is to the effect that she has given up her employment, and she contends that decision was a result of her PTSD impairment. The TDIU issue has now been raised. The Board finds that additional development is required with regard to the issue of entitlement to a TDIU. Accordingly, the case is REMANDED for the following actions: 1. The AMC/RO should provide the Veteran appropriate notice under the VCAA specific to a TDIU claim. 2. After completion of the above and any further development deemed necessary, the AMC/RO should formally adjudicate the TDIU claim. The Veteran should then be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review. 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 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). ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs