Citation Nr: 1334538 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 11-23 194 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD) prior to May 11, 2011, and in excess of 70 percent thereafter. 2. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Colin E. Kemmerly ATTORNEY FOR THE BOARD A. VanValkenburg, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1966 to April 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from the April 2009 decision by the Montgomery, Alabama, Regional Office (RO) of the United States Department of Veteran Affairs (VA), which granted service connection for PTSD rated at 30 percent effective August 27, 2008. During the pendency of the appeal, the Montgomery, Alabama, RO issued a December 2012 decision that which increased the Veteran's PTSD rating from 30 to 70 percent effective May 11, 2011. As this action does not represent a total grant of benefits sought on appeal, the claim for a higher evaluation remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The Veteran requested a hearing before the Board in June 2011. The Veteran was scheduled for a hearing June 19, 2013. The Veteran subsequently withdrew his request in May 2013. 38 C.F.R. § 20.704(e) (2013). The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to ensure complete review of the evidence of record. Aside from the partial grant described below, the Board has determined that this case must be REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. Also, for reasons further described below, the Board finds that this appeal includes a TDIU claim for which a remand is also required. FINDING OF FACT Prior to May 11, 2011, the Veteran's PTSD was manifested by symptoms that were, at a minimum, consistent with occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The Veteran has met the criteria for an initial increased rating of 50 percent for PTSD prior to May 11, 2011. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Preliminarily, the Board notes that discussion of VA's duties to notify and assist is not necessary in this instance, as the only final adjudication by the Board in this decision is entirely favorable. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2013); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2013); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2013); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2013). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). An appeal from the initial assignment of a disability rating requires consideration of the entire time period involved, and contemplates "staged ratings" where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's psychiatric disorder is currently rated under 38 C.F.R. § 4.130, Diagnostic Code 9411 (2013). PTSD is to be rated under the general rating formula for mental disorders under 38 C.F.R. § 4.130. Ratings are assigned according to the manifestation of particular symptoms. Notably, the term "such as" in 38 C.F.R. § 4.130 precedes lists of symptoms that are not exhaustive, but rather serve as examples of the type and degree of symptoms and their effects that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, 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, VA must consider all symptoms of a claimant's disability that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). The pertinent provisions of 38 C.F.R. § 4.130 concerning the rating of psychiatric disabilities is as follows: 30 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, and mild memory loss (such as forgetting names, directions, recent events). 50 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 establishing effective work and social relationships. 70 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 work-like setting); inability to establish and maintain effective relationships. 100 Percent: 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 (2013). After a review of the evidence, the Board finds the Veteran is entitled to an initial rating of 50 percent for his service connected PTSD for the period dated prior to May 11, 2011. During this period, the evidence (e.g., an October 2008 VA examination report) shows symptoms most consistent with occupational and social impairment with reduced reliability and productivity due to such symptoms as disturbances in motivation and mood as contemplated by a 50 percent rating. In this regard, the Veteran's manifestations of PTSD during the October 2008 examination included depression, blunted affect, intrusive recollections, nervousness, sleep disturbances, nightmares, hopelessness, helplessness, irritability or outbursts of anger, difficulty concentrating, exaggerated startle response, hypervigilance, flashbacks, and isolation. The Board notes the Veteran need not have shown all of the symptomatology consistent with the assignment of a 50 percent rating for such rating to be assigned. For reasons described in further detail below, the Board finds that it would be premature to determine whether higher ratings (over 50 percent prior to May 11, 2011, and over 70 percent thereafter) are warranted for PTSD. The question of whether consideration under 38 C.F.R. § 3.321(b)(1) for an extra-schedular rating is warranted will also be deferred pending remand. In summary, the Board has concluded that a 50 percent evaluation was warranted for PTSD for the period prior to May 11, 2011. To this extent only, the appeal is granted. ORDER Entitlement to a rating of 50 percent for service-connected PTSD prior to May 11, 2011, is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND The Board is remanding this case because it finds the Veteran's November 2012 VA examination report to be inadequate in light of a private psychologist's opinion from June 2011. This rather detailed opinion contains several significant findings, notably that the Veteran is not a good candidate "at present" for reemployment, employment, rapid access, or self-employment; and is unemployable due to PTSD. Moreover, a Global Assessment of Functioning Score of 40, which can signify the inability to work, was assigned. The November 2012 VA examiner marked several entries in a Disability Benefits Questionnaire suggesting a lower level of disability, albeit without any rationale provided and without reference to the seemingly more favorable June 2011 private opinion. The Board finds that a new VA examination that reflects a more thorough consideration of the evidence of record, notably the June 2011 opinion, is thus "necessary" under 38 C.F.R. § 3.159(c)(4). The Board also finds, in light of the aforementioned evidence suggesting unemployability due to PTSD, that a TDIU claim (separately denied in March 2013) is part of the underlying claim and should be included with the appeal. Further evidentiary development in this regard is warranted as well. Rice v. Shinseki, 22 Vet. App. 447 (2009) (when entitlement to TDIU is raised during the appeal of a rating for a disability, it is part of the claim for benefits for the underlying disability). Accordingly, this case is REMANDED for the following action: 1. The Veteran must be furnished with a 38 C.F.R. § 3.159(b) letter addressing the TDIU claim now on appeal. 2. The Veteran must then be afforded a VA psychiatric examination, with an examiner who has reviewed the entire claims file (physical and virtual). The examiner must describe all current symptoms and render a multi-axial diagnosis, with a GAF score assigned. This score must be described in terms of social and occupational impairment, and the examiner must address whether the Veteran's PTSD, along with the other service-connected phiyscial disorders listed in his March 2013 rating decision, render him unable to secure or follow a substantially gainful occupation. These findings and opinions must be supported with a complete rationale in a typewritten report. 3. Then, the claims for increased evaluations for PTSD and for TDIU must be readjudicated. If either benefit remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal 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). _________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs