Citation Nr: 1337850	
Decision Date: 11/19/13    Archive Date: 12/06/13

DOCKET NO.  10-00 221A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1. Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) for the period prior to May 8, 2012. 

2.  Entitlement to an initial disability rating in excess of 50 percent for PTSD for the period from May 8, 2012.

3. Entitlement to a total rating based upon individual unemployability based on service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

L. McCurdy, Associate Counsel

INTRODUCTION

The Veteran served on active duty from February 1968 to October 1971.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida that assigned a 30 percent rating for PTSD, after granting service connection for the same.  The Veteran appealed the assigned rating. 

The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in December 2011.  A transcript of that hearing is of record and associated with the claims folder.

The matter was remanded by the Board for additional development in May 2012. That development was completed by the Appeals Management Center (AMC) in Washington, D.C.  The AMC issued a rating decision in September 2012 that increased the 30 percent rating to 50 percent, effective May 8, 2012.  The Veteran continued to disagree with the rating provided.

It is noted that the Veteran contends his service-connected disability interferes with his employment.  The Veteran originally filed a separate claim for TDIU in February 2010 but never perfected an appeal of the rating decision denying that benefit.  In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record.  The Board finds that the issue of TDIU has been reasonably raised by the record and, thus, is properly before the Board by virtue of his increased-rating claim for PTSD pursuant to Rice.

The issue of total disability based upon individual unemployability 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

1. Prior to May 8, 2012, the Veteran's PTSD resulted in occupational and social impairment with reduced reliability and productivity due to symptoms such as impaired judgment, impaired abstract thinking, difficulty understanding complex commands, forgetting to complete tasks, sleep impairment, and depressed mood.

2. Throughout the entire appeal period, the Veteran's PTSD has not resulted in occupational and social impairment with deficiencies in most areas such as work, work, school, relations, judgment, thinking, or mood and has been shown to result in an inability to establish and maintain effective relationships.


CONCLUSIONS OF LAW

1. The criteria for an initial 50 percent rating for PTSD have been met for the period prior to May 8, 2012.  38 U.S.C.A. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.1-4.14, 4.130, Diagnostic Code 9411 (2013).

2. The criteria for an initial rating in excess of 50 percent for PTSD have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.1-4 .14, 4.130, Diagnostic Code 9411 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A (West 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2013).

Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of 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. 38 U.S.C.A. § 5103(a) ; 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  These notice 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 v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id.   

Here, an October 2007 letter from the RO satisfied these criteria.  The RO advised the Veteran of the basic criteria for service connection and explained VA's duties to assist him in obtaining evidence relevant to the claim.  Moreover, as it pertains to the claim for a higher initial rating, where, as here, service connection has been granted and the initial rating has been assigned, the claim of entitlement to service connection has been more than substantiated, as it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required, since the purpose that the notice was intended to serve has been fulfilled.  Once a claim for service connection has been substantiated, the filing of a notice of disagreement with the rating of the disability does not trigger additional  38 U.S.C.A. § 5103(a)  notice.  See Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream elements).

VA also has a duty to assist the Veteran in the development of his claims.  This duty includes assisting him in the procurement of service treatment records, private treatment records, and other pertinent VA treatment records, and providing an examination when necessary.  38 U.S.C.A. § 5103A (West 2012); 38 C.F.R. § 3.159 (2013).  The RO associated the Veteran's service treatment records, private treatment records, Social Security disability records, and VA treatment records with the claims file.  No outstanding evidence has been identified.

The Board is aware of a November 2008 letter from the Tampa Vet Center noting that the Veteran had been receiving treatment at that facility since August 2008, and that records from that facility are not on record.  There is no prejudice to the Veteran, however.  Indeed, notwithstanding the fact that the Veteran has not requested that VA obtain records from that facility, while being repeatedly advised to identify his care providers, the November 2008 letter provides a detailed description of the Veteran's mental state.  Any notes of individual or group counseling sessions would do nothing more than echo the findings made in the November 2008 letter.  The Veteran is now an active participant in VA's mental health care system.  Records from those facilities are of record.  A Remand for the Vet Center records would provide no benefit to the Veteran but instead needlessly delay the adjudication of the appeal.

The Veteran was afforded VA examinations in June 2008, March 2009, and May 2012.  The Board finds the VA examination reports were thorough and an adequate basis upon which a decision with regard to the Veteran's PTSD claim may be made.  The VA examiner personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information necessary to evaluate the Veteran's disability under the applicable rating criteria.  

Further, the Veteran was provided an opportunity to set forth his contentions at a Travel Board hearing in December 2011 before the undersigned.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the RO Decision Review Officer or Veteran's Law Judge (VLJ) who chairs a hearing fulfill two duties to comply with the above regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.

Here, the undersigned VLJ identified the issue on appeal.  The VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Symptoms related to the Veteran's PTSD were discussed as well. Therefore, not only were the issues "explained in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained.  See Bryant, 23 Vet. App. at 497.  As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claims based on the current record.

The Board concludes that all the available records and medical evidence have been obtained in order to make an adequate determination as to this claim.  Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the PTSD claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Increased Rating for PTSD

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Separate diagnostic codes identify the various disabilities.  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.

In determining the level of impairment, the disability must be considered in the context of the whole recorded history.  38 C.F.R. §§ 4.2, 4.41 (2013).  An evaluation of the level of disability present also includes consideration of the functional impairment of the appellant's ability to engage in ordinary activities, including employment.  38 C.F.R. § 4.10 (2013).

As is the case here, where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern and past medical reports do not take precedence over current findings.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

Service connection for PTSD was granted in a June 2008 rating decision.  A 30 percent rating was assigned.  Additional and relevant evidence was received in October 2008.  A rating decision was issued in April 2009 that continued the 30 percent rating.  However, such necessitated a readjudication of the Veteran's claim rather than de novo consideration.  38 C.F.R. § 3.156(b).  The Veteran then filed a timely notice disagreement to the April 2009 decision and perfected his appeal after being furnished a statement of the case.  Then, by a rating decision dated September 2012, the AMC increased the 30 percent rating to 50 percent, effective May 8, 2012.  This created a staged rating.

The Veteran's PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411, for PTSD.  Under the General Rating Formula for Mental Disorders, Diagnostic Code 9411, 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, is rated 100 percent disabling. 38 C.F.R. § 4.130.

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 is to be rated 70 percent disabling.  38 C.F.R. § 4.130.

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 is to be rated 50 percent disabling.  38 C.F.R. § 4.130.

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) is to be evaluated as 30 percent disabling.  38 C.F.R. § 4.130.

The use of the term 'such as' in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.  See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings.  Id.  The use of the phrase 'such symptoms as,' followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation. Id.  

In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration."  It was further noted that "§ 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."

The Global Assessment of Functioning (GAF) scale is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness."  Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994).

GAF scores ranging from 41 to 50 reflect 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).  Scores ranging from 51 to 60 reflect more 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).  Scores ranging between 61 and 70 reflect 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, and has some meaningful interpersonal relationships.  See Quick Reference to the Diagnostic Criteria from DSM-IV at 47 (American Psychiatric Association 1994).

Analysis 

After scrutinizing the evidence, which includes VA outpatient treatment records, Social Security disability records, and VA examination reports, the Board finds that the totality of the evidence supports the assignment of a 50 percent rating for the Veteran's PTSD prior to May 8, 2012.  A rating higher than 50 percent is not warranted, however.  

The Veteran underwent a VA examination in June 2008.  He was diagnosed with PTSD and reported feeling insecure and depressed with sporadic sleep disruptions the Veteran relates to his PTSD.  He was found to have fair concentration and memory although he reported prior drug and alcohol abuse.  The Veteran stated that he has been separated from his wife for over 30 years but "occasionally talks with her."  He also has 2 grown children.  A mental status examination revealed the Veteran to be cooperative, neatly groomed, and appropriately dressed.  His speech was found to be unremarkable and his attention was intact.  His affect was constricted, his mood depressed, and his immediate memory mildly impaired.  The Veteran reported that he "cannot deal with people of Asian dissent, especially if armed" as they remind him of Vietnam.  He did not report any homicidal thoughts, suicidal thoughts, or panic attacks.  The Veteran was not employed at the time of the exam, but reported being in a compensated work therapy (CWT) program and stated he "has not been hired because of having felony convictions."  Overall, the examiner found that the Veteran's symptoms indicated that he had moderate PTSD.  His GAF score was 59.   

The Veteran submitted a letter from a team leader at the Tampa Vet Center (Center) dated in October 2008.  This letter indicated that the Veteran had been receiving psychological counseling at the Center since August of 2008 for a diagnosis of PTSD.  The team leader stated that the Veteran experiences nightmares and intrusive recollections of Vietnam "throughout the day."  Additionally, the letter indicates that the Veteran has "acquired a chronic pattern of avoidance" and "has problems with anger management and low frustration tolerance that has impaired his ability to function occupationally."  The team leader also stated that the Veteran "has depression which is related to his PTSD" and that he has no friends and avoids family, showing "very little ability to experience affection."  The team leader stated that the Veteran is "receiving individual counseling at the Tampa Vet Center but is functioning marginally at the best of times."    

The Veteran underwent a VA examination in March 2009.  During this examination, the Veteran indicated that he was taking medication and enrolled in individual and group therapy for his PTSD.  He stated that he found group therapy "enjoyable" and that the medications "help him sleep a little bit better."  He reported symptoms of isolation, poor sleep, past suicidal ideations, low energy, and feeling helpless and hopeless daily.  The Veteran stated that he was terminated from his last job in housekeeping at the James A. Haley VA Medical Center, through the CWT program, because of an incident with another employee.  He also stated that he "has been seeing his children since he has been in recovery" and "talks to them on the phone once a month."  Although he has had "some contact with his family of origin...he generally does not interact with his family."  He reported having very few friends but was dating a woman he met in his substance abuse treatment.  

The psychological evaluation showed the Veteran was clean and appropriately dressed with a constricted affect and dysphoric mood.  His attention was intact and his thought process and speech were unremarkable.  He did not indicate that he experienced suicidal thoughts, homicidal thoughts, or panic attacks.  He did report feeling detached, hypervigilance, and difficulty concentrating.  The Veteran was taking Prazosin and Bupropion for his PTSD.  The examiner described the severity of the Veteran's symptoms as "mild to moderate" and his GAF score was 59.  

A Homeless Care Note was added to the Veteran's file dated in October 2008, indicating that the Veteran's neighbor "came over one weekend to watch sports on TV" and the Veteran "enjoyed the visit." 

A Nursing Emergency Department Triage Note from the VA Medical Center in Tampa dated in October 2008 shows that the Veteran was taken to the hospital complaining of bad dreams and thoughts.  He denied suicidal or homicidal ideations "unless he is confronted with a foreigner, someone who does not speak English towards him, then he could possibly become violent towards them because they all seem like Vietnamese."  He was then directed to the PTSD clinic.

The Veteran's PTSD Clinic report dated in November 2008 describes how the Veteran "has no family or friends here" and that the Veteran is estranged from his two children "due to [a] past substance abuse problem."  He also stated that "he cannot be around any Asian people" and that he has quite a bit of disturbing memories from his military service.  He stated he has lost interest in activities that he used to enjoy, has trouble falling asleep, feels irritable, has difficulty concentrating, and feels easily startled.  The examiner found the Veteran to be significantly depressed.  His GAF score was 51. 

VA treatment records from January 2010 describe the Veteran as being clean and appropriately dressed.  He was alert and oriented in all four spheres.  His speech was clear and coherent, and there were no signs of psychosis, delusional thinking, or suicidal or homicidal ideation.  The Veteran was pleasant and displayed appropriate emotional reactions.  He said he was adjusting well to his new apartment, and that he was trying to go out for bike rides.

The Veteran testified at a Travel Board hearing in December 2011.  He indicated that he was going to the mental health clinic and a weekly PTSD support group.  He also stated that he has panic attacks "at least a couple times" each day, triggered by loud noises or when he comes into contact with a foreigner.  He indicated that he regularly forgets things and his symptoms were increasing in severity.  

Because the Veteran indicated that his symptoms had gotten worse since his previous VA examination, the claim was remanded for the Veteran to undergo an additional VA examination in May 2012.  The examiner found that the Veteran had occupational and social impairment with reduced reliability and productivity as a result of his PTSD.  Additionally, the examiner credited the Veteran's memory loss to a cognitive disorder, not otherwise specified.  The examiner noted the Veteran's anxiety, depressed mood, irritability, hypervigilance, nightmares and chronic sleep impairment and found them to be caused by PTSD.  The Veteran also indicated difficulty in establishing and maintaining effective work and social relationships. His psychotropic medication dosages were increased from the March 2009 examination.  Behavioral observations showed the Veteran's appearance was clean and he was appropriately dressed.  His concentration and thought progression were within normal limits and his language was good.  His GAF score was 55.

A VA mental health note dated in April 2012, which was received post-Remand, described the Veteran as being alert and oriented.  He was dressed in civilian clothing.  His grooming and hygiene were fair.  His memory and cognition were grossly intact.  There were no signs of psychosis, delusions, or hallucinations.  The Veteran's speech was logical, coherent, and goal directed.  He was socially appropriate.  Similar findings were made in an earlier October 2011 note.  

There are also multiple notes showing that the Veteran receives routine group therapy.  None of those records depict the Veteran's mental status of any greater severity than that mention in the May 2012 VA examination or the above mental health notes.

The foregoing evidence establishes the Veteran has clearly demonstrated "difficulty" in establishing and maintaining effective work and social relationships.  He is shown to have few social relationships.  There is also an indication that his PTSD results in sleep impairment and that it has interfered with his ability to work efficiently.  Depression seems to be a predominant characteristic of his PTSD.  Such has been present throughout the course of the appeal.  In sum, the Board finds that the Veteran's disability more nearly approximates a 50 percent disability rating for his PTSD for the entire appeal period, including prior to May 8, 2012.  

However, the evidence fails to show that he suffered from occupational and social impairment with deficiencies in most areas so as to warrant a 70 percent rating.  The evidence of record does not demonstrate suicidal ideation.  During the June 2008, March 2009, and May 2012 VA examinations, the Veteran denied any homicidal or suicidal ideations.  During the December 2011 hearing, he further indicated that he had no intention of harming himself.  Nor does the evidence of record indicate that Veteran experienced obsessional rituals.  Further, the evidence does not show that his speech was intermittently illogic, obscure, or irrelevant.  The contrary has been consistently shown.  His thought process has been described as unremarkable.  He displays good judgment, to include the desire to quit smoking so that he can live a longer and healthier life.  There is likewise the objective evidence of record fails to demonstrate near-continuous panic attacks or depression which affected his ability to function independently.  It is true that the Veteran does experience significant anxiety and depression.  However, the weight of evidence does not support a determination that they affected his ability to function independently.  The record instead shows that the Veteran is now livening independently in his own apartment.  He manages all of his financial and personal matter.  He did not appear to have impaired impulse control nor any problems with spatial orientation.  VA treatment records and his VA examinations noted normal personal appearance and hygiene.  

As previously discussed, the evidence reveals that he clearly had difficulty in maintaining effective relationships.  The Veteran reports that he and his wife had been separated for over 30 years and they only spoke "occasionally."  Also, the Veteran described his relationship with his children as "distant" and said he was "estranged" from his family.  The record repeatedly discussed his problems relating to others and significant social isolation.   However, there is evidence suggesting he does not have an "inability" to establish effective relationships, as he described dating a woman from his substance abuse treatment, having an "enjoy[able]" visit from his neighbor, and engaging in routine group therapy sessions.  These findings are consistent with a 50 percent rating.

Crucially, the presence of certain symptoms is not necessarily determinative. These symptoms must also cause the occupational and social impairment in the referenced areas.  See Vazquez-Claudio, supra.  The treatment records and multiple VA examination reports were not indicative of occupational and social impairment that approximate the criteria for a 70 percent or higher rating.  Rather, the findings of the VA examiners and treatment records demonstrated that the Veteran had occupational and social impairment with reduced reliability and productivity. 

In concluding that a disability rating in excess of 50 percent is not warranted for the entire appeal period, the Board has also considered the Veteran's Global Assessment of Functioning (GAF) score assigned in his various VA outpatient treatment records and at his August VA examination.  Here, the records reveal the following scores: June 2008 (GAF 59), November 2008 (GAF 51), March 2009 (GAF 59), July 2011 (GAF 58), and May 2012 (GAF 55).  The Veteran's GAF scores for the appeal period therefore range from 51 to 59, which is indicative of 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).  Such is in line with the overall symptomatology discussed above.

In deciding this claim, the Board acknowledges that the Veteran is competent to report symptoms of his psychiatric disability.  See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994).  Additionally, he is credible in his reports of symptoms and their effect on his activities.  He is not however competent to identify a specific level of disability of his disability according to the appropriate diagnostic code.  Such competent evidence concerning the nature and extent of the Veteran's service-connected psychiatric disability has been provided by VA medical professionals who have examined him.  The medical findings directly address the criteria under which this disability is evaluated.  The Board finds these records to be the only competent and probative evidence of record, and therefore is accorded greater weight than the Veteran's subjective complaints of increased symptomatology.  See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991).  

The above determination is based upon consideration of applicable rating provisions.  It should also be pointed out that there is no showing that the Veteran's PTSD has reflected so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (2013).  The symptoms of his PTSD have been accurately reflected by the schedular criteria.  Without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral for a determination of whether the Veteran's disability picture requires the assignment of an extra-schedular rating is not warranted.  See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008).


ORDER

A 50 percent rating for PTSD is granted prior to May 8, 2012, subject to the laws and regulations governing the award of monetary benefits.

Entitlement to an initial rating in excess of 50 percent for PTSD is denied.





REMAND

The issue of entitlement to a TDIU is raised by the record as part and parcel of the Veteran's increased rating claim for his PTSD disability.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  The Veteran indicated that he has not worked since 2009 and suggested that this was related to his PTSD.  There has also been a change in his overall disability rating since the issue of entitlement to a TDIU was last considered. Additionally, the Veteran's representative argued in the October 2013 appellate brief that the Veteran was entitled to TDIU.  Therefore, the issue of entitlement to TDIU, as it is encompassed in his increase rating claim, is also in appellate status.

At present, the Veteran is service-connected for PTSD, with a 50 percent disability rating.  The Veteran also currently has a 30 percent disability rating for his service-connected ischemic heart disease under 38 C.F.R. § 4.104, Diagnostic Code (DC) 7005-06.  Accordingly, he has a combined rating of 70 percent, with one disability (PTSD) being rated at greater than 40 percent, making him eligible for schedular TDIU consideration.  See 38 C.F.R. § 4.16(a).

It is unclear to the Board whether any present unemployment or retirement would be due solely to the Veteran's service-connected disabilities - PTSD and ischemic heart disease.  As the RO never provided an employability examination in development of his former TDIU claim, this aspect of his higher rating claim for PTSD, pursuant to Rice, will be remanded to the AMC for further development, including an examination to determine whether the Veteran is unable to secure and follow substantially gainful employment by reason of his service-connected disabilities.

Accordingly, the case is REMANDED for the following action:

1. 	The RO/AMC shall provide the Veteran and his representative with a letter pertaining to his TDIU claim that complies with the notification requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).  The letter shall explain what information or evidence (medical or lay) is necessary to substantiate the TDIU element of the Veteran's claim.  It shall indicate the information and evidence that is to be provided by the Veteran, including a formal application form and an employment information form, and what information VA will attempt to obtain on his behalf.  It also shall include information concerning the assignment of disability ratings and effective dates.

2. 	The RO/AMC shall contact the Veteran and his representative and ask them to specify all private and VA medical care providers who have treated him for his claimed ischemic heart disease and PTSD disorders.  The RO/AMC shall then attempt to obtain and associate with the claims file any records identified by the Veteran that are not already associated with the claims file, in particular any records of treatment or evaluation from the Tampa VAMC during the period from June 2012 to the present.  All attempts to procure records should be documented in the file.  The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review.

3. 	After the above has been completed, the Veteran should also be afforded an appropriate VA examination to determine if his service-connected disabilities render him unemployable.  All indicated tests and studies are to be performed.  Prior to the examination, the claims folder and a copy of this remand must be made available to the examiner for review of the case.  A notation to the effect that this record review took place should be included in the report of the examiner. 

	Based on a review of the claims folder, examination of the Veteran, and utilizing sound medical principles, the examiner should determine, without taking age into account, whether it is as least as likely as not that the Veteran is precluded from obtaining or maintaining substantially gainful employment (consistent with his education and occupational experience) solely due to his service-connected disabilities either jointly or singularly. 

	In doing so, the examiner should specifically address the Veteran's statements asserting unemployability, the relevance of any non-service connected disorders, and the findings contained in the VA examination reports and VA and private treatment notes of record.  Rationale for all requested opinions shall be provided.  If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so.  In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).

4.   After all development has been completed the RO/AMC shall adjudicate the Veteran's TDIU claim.  If the benefits sought on appeal remain denied, the Veteran and his representative shall be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response.

The appellant has the right to submit additional evidence and argument on the matter or matters 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. 2012).



______________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs