Citation Nr: 1337292 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 11-24 286 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder. 2. Entitlement to a total disability rating based on individual employability due to a service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty from June 1970 to January 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by the RO. In July 2013, the Veteran testified before the undersigned during a videoconference hearing, which he requested in lieu of a Travel Board hearing; a transcript of this hearing is located in the Virtual VA electronic records system (Virtual VA). For reasons explained in the remand below, the TDIU claim is found to be a component of the increased rating claim for PTSD. Thus, the Board assumes jurisdiction over the TDIU claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The issue of a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part concerning this matter. FINDING OF FACT Throughout the appeal, symptoms associated with the Veteran's PTSD are productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks; deficiencies in most areas are not shown. CONCLUSION OF LAW The criteria for an initial rating in excess of 50 percent for the PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.130, Code 9411 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). As the June 2011 rating decision on appeal granted service connection for PTSD, and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). As for the "downstream" issue on appeal, the VA Office of General Counsel in VAOPGCPREC 8-2003 (Dec. 22, 2003) held that, in such circumstances, a Statement of the Case (SOC) was required in cases involving a "downstream" issue; 38 U.S.C.A. § 5103(a) did not require separate notice of the information and evidence necessary to substantiate the newly raised issue. Id. Here, the necessary SOC was issued in August 2011. The claimant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to either of these "downstream elements." See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). The Veteran testified at a video conference hearing in July 2013. According to 38 C.F.R. § 3.103(c)(2) (2012), it is the responsibility of the presiding hearing officer to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be advantageous to his position. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court explained the two-fold responsibility of the presiding hearing officer. During the videoconference hearing, the undersigned identified the issue on appeal, determined there were no additional treatment records to obtain, and allowed the Veteran the opportunity to seek treatment and submit those records within 90 days of the hearing. The Board finds the two-fold responsibility has been met. Reasonable efforts were made to assist the Veteran in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002). No treatment records were sought because the Veteran denied receiving treatment. Although he testified in July 2013 that he planned to get treatment in the future and the undersigned left the record open for 90 days to allow him to get treatment and submit the records, no treatment records were received. Furthermore, since the hearing was held the Veteran has not reported getting treatment. Thus, there is no evidence that pertinent outstanding treatment records exist. The Veteran was afforded a VA examination adequate to rate the disability. Legal Criteria and Analysis Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2013). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. See 38 C.F.R. § 4.7 (2013). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of a Veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation in that the rating is "staged". Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's service-connected PTSD is rated in according to the General Rating Formula for Mental Disorders (General Formula). A 50 percent rating is warranted where the disorder is manifested by 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 rating is warranted where the disorder is manifested by 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 that is 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); and an inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms associated with each rating in 38 C.F.R. § 4.130 are not intended to constitute an exhaustive list, but rather are to serve as mere examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002) (citing use of the phrase "such symptoms as...."). Thus, 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. See id. Rather, VA must consider all symptoms of a claimant's condition that affect his 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). Mauerhan, 16 Vet. App. at 443. If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned. Id. In this regard, VA shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126 (2013). While VA considers the level of social impairment, it shall not assign an evaluation based solely on social impairment. Id. Mental health records will frequently include a Global Assessment of Functioning (GAF) score, which is a "scaled rating reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness." See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing DSM-IV. The DSM-IV contains a GAF scale, with scores ranging from 0 to 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. Higher scores correspond to better functioning of the individual. An examiner's classification of the level of psychiatric impairment, by words or by a GAF score, is to be considered but is not determinative of the percentage rating to be assigned. See VAOPGCPREC 10-95. A GAF score 51-60 generally 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 coworkers). See Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV). Applying the rating criteria to the facts of this case, the Board finds the disability picture throughout the appeal period more closely approximates occupational and social impairment with reduced reliability and productivity due to such symptoms as disturbances in motivation and mood, and difficulty in establishing and maintaining effective work and social relations. This is supported by symptoms and findings in the April 2011 VA examination report and it is consistent with what was noted by the examining psychologist. The Board considered whether there was any distinct period in which to assign a higher rating but found none, therefore, the evidence does not support a staged rating. Fenderson, supra. To assign the next higher rating of 70 percent, the PTSD must more closely resemble occupational and social impairment with deficiencies in most areas. On April 2011 VA examination, the Veteran reported living alone and avoiding going out as much as possible. He had been divorced for many years and he never sought treatment for his symptoms. He used to drink alcohol to control his symptoms, but stopped drinking two weeks and has since noticed an increase in symptoms. He endorsed symptoms of anxiety, depressed mood, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances including work and work-like settings, and an inability to establish and maintain effective relationships. The examiner noted the Veteran had a limited ability to tolerate stress and indicated even limited contact with others would lead to stress. The Veteran reported having difficulty during a recent job interview due to increased anxiety and that in the past when his stress built up he had flashbacks at work that led to taking 2 or 3 days off from work to calm down. He also had some memory impairment and decreased motivation due to alcohol use, which the examiner indicated was secondary to the Veteran's PTSD. His memory loss was considered mild and he did not have difficulty in understanding complex commands or impairment in short- and long-term memory. The examiner assigned a GAF score of 56 and indicated the Veteran had 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. During the July 2013 hearing, the Veteran reported he could not and did not work due to his PTSD. He reportedly lost his last job, which he held 2 years for 2 months earlier, due to an inability to learn the job; he added he was essentially too worried about the people around him to listen carefully to instructions. See pages 2 to 4 of the hearing transcript. His symptoms included being easily angered and impulsive. He resumed drinking alcohol to self-medicate his symptoms and drank 3 to 4 times per week. He talked to his daughters and he had a few friends. See pages 6 and 7 of the hearing transcript. Based on the record, some difficulty is indicated in work, school, and family relations. The record shows the Veteran's only immediate family is made up of his two grown daughters. Prior to the VA examination, he reported getting together with friends. See VA records in March 2011 and December 2009. Although the Veteran reported became more withdrawn recently, the record shows he has maintained relationships with his daughters and friends. Therefore, no deficiency in family relations is shown. There are obvious inconsistencies between the Veteran's testimony regarding why he left his last job and what he reported while obtaining treatment. Because an individual is more likely to accurately report information during the course of obtaining treatment, the Veteran's testimony regarding the degree to which his PTSD symptoms impacted past employment is not credible, therefore, it is less probative. Therefore, while it is likely the Veteran's PTSD symptoms would impact his employment it is less likely to be to the degree he suggests. His memory problems are mild and he does not have difficulty understanding complex commands. According to his hearing testimony his Social Security Administration disability benefits are unrelated to his PTSD. See page 4 of the hearing transcript. Although the VA examiner indicated the disability created difficulty in adapting to stressful circumstances such as a work-like setting, she also indicated the Veteran had previously worked successfully in a more isolated setting. Therefore, the Board concludes that during periods of stress the Veteran's PTSD would produce occasional decrease in work efficiency and include intermittent periods of an inability to perform occupational tasks, but that overall he would generally function satisfactorily. Therefore, no deficiency is shown. The Veteran is also not shown to have symptoms that would produce a deficiency in the Veteran's judgment or thinking and he is shown to not have suicidal ideation, obsessional rituals, or feelings of hopelessness regarding the present or future. See April 2011 VA examination report and a July 2011 VA medical record. Regarding the Veteran's mood, the Veteran is only shown to have symptoms since he stopped drinking alcohol, as prior records show he denied having any anxiety or depression. See December 2009 and March 2011 VA medical records. However, on the VA examination, the Veteran endorsed some symptoms that the examiner viewed as productive of disturbances of motivation and mood. The Veteran had a depressed mood and anxiety, but depression and anxiety were not so severe as to result in near-continuous panic or depression that affected his ability to function independently, appropriately, and effectively. This is also demonstrated by the fact that the Veteran lived alone and functioned and appeared to do take care of his needs without assistance. He also did not have impaired impulse control or neglect personal hygiene. See April 2011 VA examination report. Notably, more recent evidence shows he resumed alcohol intake to control his symptoms. Because the criteria requires deficiency in most areas, a deficiency in one, two, or even three areas is insufficient to assign a higher rating. The Federal Circuit held, "[i]n the context of a 70 percent rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas . . . [a]lthough the veteran's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran's level of impairment in "most areas." (emphasis added). Vazques-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). As explained above, deficiency in most areas is not shown. The record reflects the Veteran's symptoms are representative of no more than moderate occupational and social impairment, which is also reflected in his GAF score. In short, the more serious symptoms and level of impairment contemplated in a higher rating of 70 percent are not shown. As a preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply an initial rating in excess of 70 percent is not assigned. ORDER An initial rating in excess of 50 percent for PTSD is denied. REMAND The evidence of record raises the issue of entitlement to a TDIU. The record shows the Veteran is unemployed and during his July 2013 hearing he indicated his PTSD prevents him from working. Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran about (1) the information and evidence not of record that is necessary to substantiate his claim for a TDIU; (2) the information and evidence that VA will seek to obtain on his behalf; and (3) the information or evidence that he is expected to provide. A copy of this notification must be associated with the claims folder. 2. Next, undertake any development deemed necessary regarding this claim. 3. Finally, readjudicate the claim on appeal. If the claim is denied, provide the Veteran and his representative with a Supplemental Statement of the Case and allow an appropriate time for response. 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. 2013). ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs