Citation Nr: 1338018 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 12-00 515 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to an increased rating for posttraumatic stress disorder (PTSD), currently rated as 50 percent disabling, to include the matter of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from June 1965 to June 1967. This matter comes to the Board of Veterans Appeals (Board) from an August 2009 rating decision of the Huntington, West Virginia, Department of Veterans Affairs (VA) Regional Office (RO). In January 2013, the Veteran testified before the undersigned via video conference from the RO. As explained below, the Veteran raised the issue of entitlement to TDIU as part of his increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). FINDINGS OF FACT 1. The Veteran's PTSD causes occupational and social impairment, with deficiencies in most areas. 2. The Veteran meets the schedular criteria for TDIU and the Veteran's service-connected PTSD precludes him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating of 70 percent for PTSD are met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2013). 2. The Veteran is individually unemployable by reason of his service-connected PTSD. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.340, 3.341(a), 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) Under the VCAA, when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2013). Here, the Veteran was provided with the relevant notice and information in an August 2009 letter prior to the initial adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The Veteran has not alleged any notice deficiency during the adjudication of the claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's VA records, and identified private treatment records have been obtained and associated with the record. The Veteran was also provided with VA examinations which, collectively, are adequate as the record was reviewed, the examiner reviewed the pertinent history, examined the Veteran provided findings in sufficient detail, and provided rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran was specifically examined to assess and then reassess the severity of this disability in question. See Caffrey v. Brown, 6 Vet. App. 377 (1994); Olsen v. Principi, 3 Vet. App. 480, 482 (1992); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); and Allday v. Brown, 7 Vet. App. 517, 526 (1995). The records satisfy 38 C.F.R. § 3.326. Finally, the Veteran testified at a Board hearing. The hearing was adequate as the Veterans Law Judge who conducted the hearing explained the issue and identified possible sources of evidence that may have been overlooked. 38 C.F.R. 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). In summary, the Board finds that it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate the claim. Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran). Ratings Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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 closely approximates the criteria for the higher rating. 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. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. However, if VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. Thus, VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending. Cf. McClain v. Nicholson, 21 Vet. App. 319, 323 (2007) (Board finding that veteran had disability "at some point during the processing of his claim," satisfied service connection requirement for manifestation of current disability); Moore v. Nicholson, 21 Vet. App. 211, 216-17 (2007). In Hart v. Mansfield, 21 Vet. App. 505 (2007), the United States Court of Appeals for Veterans Claims ("the Court") found no basis for drawing a distinction between initial ratings and increased rating claims for applying staged ratings. Accordingly, it was held that ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. In this case, there has not been a material change in the disability level and a uniform rating is warranted. The Veteran submitted correspondence in August 2009 in which he requested an increased rating for PTSD. In September 2009, he was afforded a VA examination. At that time, the Veteran described being depressed and anxious. He also reported that he was nervous and had problems watching the news. He described experiencing nightmares and palpitations. He related that he did not like being around people, was distrustful, kept to himself, and rarely went out. He last worked in 2001 in the coal mines. Mental status examination revealed that he Veteran was neat, tidy, cooperative, and spoke normally. His mood was appropriate. He was dysphoric. He was apprehensive and exhibited paranoia. He was a little guarded, but psychosis was not seen. There was no bizarre thought process, tangential or circumstantial. His abstract thinking showed some concreteness and appeared a bit intense due to the social situation. His memory appeared slightly impaired. There were no visual or auditory ideations. There were no loose associations. Insight and judgment were fair. The examiner indicated that the Veteran stayed with his wife and tried to help with his disabled brother-in-law. He played pool, but lacked relaxation. He rates went to church. He felt that his drinking was getting out of hand. The diagnosis was PTSD and global assessment of functioning (GAF) was 50-55. The examiner further noted that the Veteran had poor interpersonal relationships and was strongly advised to develop some interests. In February 2011, the Veteran was afforded another examination. The Veteran described having increased anger which was causing strain on his marriage. He felt like he was on edge and tense. He reported that he had threatened his wife. His nightmares were increasing. He continued to indicate that he remained isolated with feelings of paranoia and suspiciousness. He was hypervigilant. He further stated that he felt hopeless and helpless. Mental status examination was consistent with the prior examination, with reports of fleeting homicidal and suicidal thoughts. His GAF was 45. The examiner indicated that the Veteran's PTSD was severe. The Veteran has also presented written and oral contentions. He asserts that his PTSD results in nightmares, panic episodes, isolation, and periods of anger and rage. He was taking medication. His spouse indicates that they have been married 47-48 years and she takes care of things and keeps the Veteran on track. She states that he has anger issues and exhibits compulsive behavior. The Veteran reports that he occasionally plays poker or goes to the dog track with his wife, but relates that he doesn't like crowds. The Veteran maintains like he likes to argue, even with family. They both attest to his sleep disturbance and nightmares. The Veteran indicates that when he worked in the mines, he primarily worked the night shift. The regulations for mental disorders are found in 38 C.F.R. §§ 4.125-4.130. The Board notes that psychiatric disabilities evaluated under Diagnostic Code 9411 are rated according to the General Rating Formula for Mental Disorders. A 50 percent rating is provided for 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. A 70 percent rating is provided for 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. A 100 percent rating is provided 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. 38 C.F.R. §§ 4.125-4.130. The Board further notes that a GAF rating is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994). The Board notes that an examiner's classification of the level of psychiatric impairment, by a GAF score, is to be considered but is not determinative of the percentage rating to be assigned. VAOPGCPREC 10-95. GAF scores ranging between 81 and 90 reflect absent or minimal symptoms (e.g., mild anxiety before an exam), good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns (e.g., an occasional argument with family members). GAF scores ranging between 71 and 80 reflect that if symptoms are present they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument; no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). GAF scores ranging between 61 to 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. 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 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). See 38 C.F.R. § 4.130 [incorporating by reference the VA's adoption of the DSM-IV, for rating purposes]. Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school). A score from 21 to 30 is indicative of behavior which is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or inability to function in almost all areas. A score of 11 to 20 denotes some danger of hurting one's self or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement) or occasionally fails to maintain minimal personal hygiene (e.g., smears feces) or gross impairment in communication (e. g., largely incoherent or mute). A GAF score of 1 to 10 is assigned when the person is in persistent danger of severely hurting self or others (recurrent violence) or there is persistent inability to maintain minimal personal hygiene or serious suicidal acts with clear expectation of death. See 38 C.F.R. § 4.130. The Board finds that the Veteran's PTSD results in occupational and social impairment, with deficiencies in most areas. He has expressed some suicidal ideation. His wife described compulsive behavior. He also indicated that he has panic and depression affecting the ability to function independently, appropriately and effectively. In addition, a primarily area of concern is his anger/rage feelings. He has difficulty in adapting to stressful circumstances and an inability to establish and maintain effective relationships. However, a 100 percent rating is not warranted because the Veteran does not have gross impairment in thought processes or communication. He does not suffer from persistent delusions or hallucinations. His behavior is not grossly inappropriate. He is able to perform activities of daily living, including maintenance of minimal personal hygiene. The Veteran is oriented to time and place. The Veteran has some memory impairment, but he does not have memory loss for names of close relatives, own occupation, or own name. The Board is aware that the symptoms listed under the 100 percent evaluation are essentially examples of the type and degree of symptoms for that evaluation, and that the Veteran need not demonstrate those exact symptoms to warrant a 100 percent evaluation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, the Board finds that the preponderance of the evidence, including the clinical findings and the GAF scores which showed serious but no higher impairment, reflect that the Veteran's PTSD symptoms more nearly approximate occupational and social impairment with deficiencies in most areas. In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran's claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the evidence supports a higher rating of 70 percent. In considering the claim for a higher rating, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The symptoms associated with the Veteran's PTSD are not shown to cause any impairment that is not already contemplated by the relevant diagnostic code, as cited above, and the Board finds that the rating criteria reasonably describe his disability. Therefore, referral for consideration of an extraschedular rating is not warranted. The Court has held that a request for a TDIU whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for higher compensation. In Roberson v. Principi, 251 F.3d 1378, 1384 (2001), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit Court) held that once a claimant: (1)submits evidence of a medical disability, (2) makes a claim for the highest possible rating, and (3) submits evidence of unemployability, an informal TDIU claim is raised under 38 C.F.R. § 3.155(a). However, there must be cogent evidence of unemployability in the record. See Rice, citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). The Board has jurisdiction to consider entitlement to a TDIU in an appealed claim for an higher rating when the issue is raised by assertion or reasonably indicated by the evidence, regardless of whether the RO expressly addressed the issue. See VAOPGCPREC 6-96 (Aug. 16, 1996).; see also Caffrey v. Brown, 6 Vet. App. 377, 382 (1994); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). However, the question of TDIU entitlement may be considered a component of an appealed higher rating claim only if the TDIU claim is based solely upon the disability or disabilities that are the subject of the higher rating claim. VAOPGCPREC 6-96. Here, the Veteran has expressly stated that he is unemployable and cannot be around others. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a). Thus, the Veteran meets the schedular criteria, per 38 C.F.R. § 4.16(a), based on his PTSD. Thus, the issue is whether his service-connected PTSD precludes him from engaging in substantially gainful employment (i.e., work that is more than marginal, which permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). For the Veteran to prevail in his claim for TDIU, the record must reflect circumstances, apart from non-service-connected conditions, that place him in a different position than other veterans who meet the basic schedular criteria. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the Veteran, in light of his service-connected disorders, is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran is unemployed and has been for years. The question is whether PTSD alone renders him unemployable. In viewing the medical evidence of record, as well as the Veteran's statements, the Board finds that a TDIU is warranted. The Veteran is unemployable based on the nature and severity of the service-connected PTSD. The Veteran and his wife are competent to testify as to the limitations caused by the Veteran's PTSD and the Board finds their testimony credible. Likewise, the clinical evidence shows that the PTSD results in nearly complete isolation of the Veteran due to his anger outbursts and other symptoms. The Veteran is to be afforded every reasonable doubt. See 38 U.S.C.A. § 5107. The Board has resolved all reasonable doubt in this case in the Veteran's favor. Accordingly, a TDIU is warranted. ORDER Entitlement to a 70 percent rating for PTSD is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to a TDIU is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs