Citation Nr: 1337755 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 11-30 049 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an increased rating for posttraumatic stress disorder with mood disorder (PTSD), previously evaluated as bipolar disorder and moderate depression, currently evaluated as 50 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Chris Miller, Associate Counsel INTRODUCTION The Veteran served on active duty June 2004 to June 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. That rating decision granted service connection for the Veteran's March 9, 2010, PTSD claim, reclassified as PTSD with a mood disorder. The RO continued the Veteran's 50 percent disability rating from a January 2008 rating decision, which had granted service connection for bipolar disorder with moderate depression. The Board is therefore construing the instant appeal as a claim for an increased rating, inasmuch as the Veteran already had a preexisting 50 percent rating prior to his claim for PTSD, and because mental health disorders are all evaluated by VA using the same rating criteria. See 38 C.F.R. § 4.130, Diagnostic Codes 9201 through 9440. As an increased rating claim, the period on appeal dates to March 9, 2009, one year prior to the filing of the instant claim. 38 C.F.R. § 3.400(o)2. The Board also notes that the Veteran has been deemed incompetent by VA since April 2008. The Veteran's mother is his custodian. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. The documents in this virtual file were reviewed in conjunction with this appeal. When evidence of unemployability is submitted during the course of an appeal from a rating assigned for a disability, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Here, the Veteran's file contains an October 2011 statement from the Veteran, wherein he notes that employment has been difficult, and that one of his VA counselors recommended that he file for unemployability. The issue of entitlement to a TDIU due to service-connected disability has therefore been raised by the record, and is under the Board's jurisdiction. However, the RO has not developed or adjudicated the issue of entitlement to a TDIU. The issue of entitlement to 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. FINDINGS OF FACT For the entire period on appeal, the symptoms of the veteran's PTSD have resulted in occupational and social impairment, with deficiencies in most areas. CONCLUSION OF LAW The Veteran's PTSD meets the criteria for an increased 70 percent rating for the entire period on appeal. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.125, 4.126, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not in the record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002). These notice requirements apply to all elements of a claim, including degree of disability and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Proper VCAA notice must be provided to a claimant prior to the initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). Here, the Veteran, via his custodian, was notified in March 2010 of the evidence and information necessary to substantiate his claim, the responsibilities of the Veteran and VA in obtaining such evidence, and the evidence and information necessary to establish a disability rating and effective date, in accordance with Dingess/Hartman. Therefore, the Board finds that no further notice is required in this case. VA's duty to assist includes assisting in the procurement of pertinent treatment records and providing an examination when necessary. 38 C.F.R. § 3.159. The Veteran's service treatment records and post-service VA records have been obtained and considered. Further, the Veteran was afforded VA mental health examination in April 2010 and March 2013. Neither the Veteran nor his representative have argued that these examinations are inadequate for rating purposes, and a review of the examination report reveals no inadequacies. For the foregoing reasons, the Board finds that the medical evidence of record is sufficient to decide the Veteran's claim. In the circumstances of this case, a remand would serve no useful purpose, as it would unnecessarily impose additional burdens on VA with no benefit to the Veteran. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). VA has satisfied its duties to inform and assist the Veteran. II. Analysis As noted above, the Veteran was initially granted a 50 percent rating for bipolar disorder in January 2008. He is now seeking an increased rating, after being granted service connection for PTSD with mood disorder in May 2010, at a continued rating of 50 percent. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). All potential applicable diagnostic codes, whether or not raised by a claimant, must be considered. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Consideration must be given to staged ratings, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). In the event that nonservice-connected symptoms cannot be separated from a Veteran's service-connected disability, VA must presume that all impairment shown is part and parcel of the service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Evaluation of a mental disorder requires consideration of the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. Evaluations will be assigned based on all evidence of record that bears on occupational and social impairment, rather than solely on an examiner's assessment of the level of disability at the moment of the examination. The extent of social impairment shall also be considered, but an evaluation may not be assigned based solely on the basis of social impairment. 38 C.F.R. § 4.126. Under 38 C.F.R. § 4.130, certain mental health disabilities, including PTSD, are rated pursuant to the General Rating Formula for Mental Disorders. The criteria for a 50 percent rating are: 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. The criteria for a 70 percent rating are: 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. The criteria for a 100 percent rating are: 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. 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. The symptoms listed in 38 C.F.R. § 4.130 are not intended to constitute an exhaustive list but, rather, serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating for a mental disorder. In addition to the symptoms listed in the rating schedule, VA must consider all symptoms of a claimant's condition 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). See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The DSM-IV provides for a global assessment of functioning (GAF), a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (quoting the DSM-IV). On May 7, 2009, the Veteran and his guardian were the subjects of a VA field examination, which was held to determine whether the Veteran was still incompetent. The examiner found the Veteran clean and well groomed. He admitted minor memory impairment. While the Veteran understood his expenses, the examiner noted that the Veteran is not capable of handling funds independently and paying bills on time. It was suggested that he cannot protect himself from hazards incidental to his daily life, and may need a custodian long term. However, he was attending school part time, and reported a social life. A VA examination was held in February 2010, inasmuch as the RO had reserved the right to revise the Veteran's disability rating in its January 2008 rating decision. The Veteran reported sleepless nights several times a week. He reported anger outbursts and impulse control problems several times per week, with episodes of violence. He reported alcohol use ranging from four to twelve drinks at a time. The examiner described the Veteran as having a flat affect and dysphoric mood. The Veteran was in school full time, with seasonal work at UPS over the previous holiday season. He was licensed as a realtor, but never worked in that field. The Veteran had stopped mental health treatment, and self-medicated with alcohol. The examiner found neither total occupational and social impairment, nor deficiencies in areas such as work, judgment, thinking, relations, mood, work or school. He did find reduced reliability and productivity. He assigned the Veteran a GAF score of 55. Another VA examination was held in April 2010 after the Veteran filed his PTSD claim. Along with symptoms reported in the February 2010 exam, the Veteran reported a bad relationship with his girlfriend, no social life, trouble with familial relationships, insomnia, nightmares, flashbacks, homicidal ideation, avoidance behavior, and anxiety attacks. The Veteran did not report hallucinations, obsessive behavior, or inappropriate behavior. The examiner noted that the Veteran is unable to maintain a job, and stated that he could not hold a job due to irritability and altercations. The examiner assigned a GAF score of 48, and gave a poor prognosis if the Veteran did not seek treatment. VA conducted another competency field examination in May 2010. The Veteran was clean but unshaven, and reported mildly problematic memory. He was not seeking any treatment, was self-medicating with alcohol, and was not pursuing stable employment. A review of his credit card showed numerous alcohol purchases, and that the Veteran uses it until he reached his credit limit, upon which he would call his mother for help. Medical bills were unpaid, and it was stated that the Veteran does not use his funds prudently. The Veteran's social companions were described as other unemployed individuals with alcohol abuse problems. The VA examiner noted that he personally had previously served as an alcohol and drug counselor in the Navy. He then described the Veteran as alcohol dependent, not pursuing any form of recovery, and "admittedly [on] a very self-destructive path" even though he was capable of employment. It was noted that the Veteran was attending school part time. The Veteran stated that he sold the motorcycle that he previously owned because he feared serious injury or death due to his own irresponsibility. In October 2011, the Veteran submitted a statement. He stated that he has difficulty with work and school, and that one of his VA counselors recommended that he apply for unemployability. The Board has also examined recent VA treatment records from February 2012. The Veteran stated that he was not interested in counseling, even though VA vocational rehabilitation staff suggested that he resume mental health treatment due to his educational difficulties. The Veteran noted that he had taken a few semesters off school. He described himself as reckless and impulsive, and he stated that he is not comfortable going out to eat or dealing with people because of his frustration with what he considers their stupidity. He reported a poor relationship with his mother and brother, and that he lost his most recent job because he would argue with his supervisor. The examiner reported that the Veteran dressed sloppily and had a tense affect. He was assigned a GAF score of 55. Another VA examination was held in March 2013. The examiner noted that the Veteran was diagnosed with a traumatic brain injury (TBI) in 2007, after he had left service, and that his TBI problems could not be separated from his mental health problems. He found occupational and social impairment with reduced reliability and productivity. The examiner noted that the Veteran recently had a son and stated he would be getting married. The Veteran had limited social contacts, and was working in his third job in one year. He was not currently on medication, and reported heavy drinking. The Veteran reported recurrent dreams and thoughts, flashbacks, avoidance behavior, detachment, restricted affect, sleep disorders, hypervigilance, irritability and outbursts of anger, anxiety, mild memory loss, and mood disturbances. The examiner stated that the Veteran's symptom acuity shows some improvement, but that the Veteran still drinks heavily-though less on work days-and was not currently seeking treatment. He assigned a GAF score of 60. VA held another competency field examination in April 2013. The Veteran stated that he had been working full time for three months, that he consumes one case of beer per week, and was engaged to be married. The examiner stated that the Veteran is still incapable of handling VA funds and still requires a fiduciary. Based on all lay and medical evidence of record, and resolving all reasonable doubt in the Veteran's favor, the Board finds that he is entitled to a rating of 70 percent, but no higher, for the entire period on appeal. The evidence establishes unprovoked irritability with periods of violence. He is consistently unable to retain a job or stay in school, which demonstrates occupational impairment and a difficulty in adapting to a work or school settings. He consistently abuses alcohol to self-medicate. The Veteran has few friends, and trouble maintaining relationships with his family. Moreover, since April 2008, the Veteran has been deemed incompetent to handle his own funds. The Board notes that the evidence reflects some symptoms that are contemplated by a rating of 100 percent for PTSD, a danger of hurting others. However, even considering these symptoms, the Board finds that the Veteran's overall disability most nearly approximates a 70 percent disability rating. The Veteran does not have delusions or hallucinations. The reports of the Veteran posing a danger to others do not rise to a persistent frequency, and the Veteran was cognizant enough to sell his own motorcycle because of the danger he would put himself in. While there are indications that he has memory troubles, there is no indication that he does not remember names of close relatives, his own occupation, or his own name. There is also no indication that the Veteran has a consistent inability to maintain minimal personal hygiene. Additionally, the Veteran does not have total social impairment. He is engaged to be married, has a son, and lives with his mother. While the Veteran self-medicates with alcohol, there is no indication that this creates an intermittent inability to perform activities of daily living. In summary, while the evidence reflects some symptoms that are contemplated by the higher ratings for mental disability, the Board finds that the Veteran's overall disability picture most nearly approximates a 70 percent rating for PTSD for the period beginning March 9, 2009. See 38 C.F.R. § 4.7. The Board notes the Veteran's TBI diagnosis. However, because his TBI symptoms cannot be separated from the symptoms of his service-connected disability, VA must presume that all impairment shown is part and parcel of the service-connected disability. See Mittleider, 11 Vet. App. at 182. In making this determination, the Board has considered all potentially applicable diagnostic codes, and finds no basis upon which to assign an evaluation in excess of the rating assigned herein for PTSD under any alternate code. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The Board has further considered whether this case should be referred for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1). However, this case does not present such an exceptional or unusual disability picture, with such related factors as marked interference with employment or frequent periods of hospitalization, that it would be impracticable to apply the schedular standards. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). In short, the Veteran has occupational and social impairment due to the symptoms discussed above, which are contemplated by the rating criteria. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. Therefore, it is unnecessary to determine whether there are any related factors such as hospitalization or interference with employment. As discussed below, the Board finds that a claim for entitlement to a total disability rating based on individual unemployability due the Veteran's service-connected disability can be inferred, inasmuch as there is an assertion of unemployability by the Veteran. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Finally, the Board has considered the applicability of the benefit of the doubt doctrine. The Veteran's claim has been granted to the extent discussed above, based in part on such doctrine. However, the preponderance of the evidence is against an increased rating in excess of 70. As such, the benefit of the doubt doctrine does not apply, and the Veteran's claim must be denied to this extent. 38 C.F.R. § 4.3. ORDER An increased rating of 70 percent, but no higher, for PTSD is granted for the entire period on appeal. REMAND As noted above, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability on appeal. Rice, 22 Vet. App. at 453-54. The Veteran's claims file contains statement from the Veteran where he notes that he has difficulty with employment and that one of his VA counselors recommended that he file for unemployability. Based on this report of employment difficulties, a claim for a TDIU will be inferred from the Veteran's file. A TDIU may be granted where the schedular rating is less than 100 percent if the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Substantially gainful employment does not include marginal employment, such as in a protected environment or family business under certain circumstances. See 38 C.F.R. § 4.16(a). Generally, to be eligible for a TDIU, the following percentage thresholds must be met: if there is only one service-connected disability, it shall be ratable at 60 percent or more; if there are two or more service-connected disabilities, there must be at least one disability rated at 40 percent or more and sufficient additional disabilities to bring the combined overall rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran currently meets the 60 percent threshold for a schedular TDIU under 38 C.F.R. § 4.16(a), as he is service-connected for PTSD with a new rating of 70 percent. Upon remand, the Veteran should be provided with proper notice as to the elements and information necessary to substantiate his claim for a TDIU. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.340, 3.341, 4.16. After development upon remand, the RO should adjudicate his TDIU claim in the first instance. Accordingly, the case is REMANDED to the AMC for the following action: 1. Send the Veteran and his representative a notice letter that explains how to establish entitlement to a TDIU. Afford the Veteran the opportunity to submit additional evidence or argument in furtherance of his claims. Associate any records or responses received with the claims file, and undertake any reasonable indicated development. 2. Obtain any outstanding pertinent VA treatment records from December 2012 forward. 3. All efforts to obtain federal records must be documented in the claims file. Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. If any records cannot be obtained after appropriate efforts have been expended, the Veteran should be notified and allowed an opportunity to provide such records. 4. Take appropriate action to develop and adjudicate the Veteran's claim for a TDIU, to include, if deemed necessary: a VA examination to address the question of whether the Veteran's PTSD with mood disorder renders him unable to secure and maintain substantially gainful employment; a Social and Industrial Survey of the Veteran; and, an examination of the Veteran's work history via copies of VA Form 21-4192 sent to his current and previous employers. 5. When the development requested has been completed, the case should be reviewed on the basis of additional evidence. The Veteran and his representative should then be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the case is returned to the Board for further review. No action is required of the Veteran until he is notified by the RO/AMC; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655. The Veteran 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. _________________________________________________ J.A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b). Department of Veterans Affairs