Citation Nr: 1338203 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 08-32 432 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating due to individual unemployability (TDIU) prior to January 3, 2008. REPRESENTATION Appellant represented by: Mrs. Marcheta L. Gillam, Attorney at Law ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from December 1966 to December 1975. The matters on appeal come to the Board of Veterans' Appeals (Board) from a March 2006 rating decision by the Department of Veterans Affairs, Regional Office, located in Cleveland, Ohio, which implemented a January 2006 Board decision that granted service connected for PTSD, and assigned a noncompensable evaluation, effective from August 30, 1998. The Veteran appealed the initial assigned rating. By the way of an August 2008 rating decision, the RO increased the initial assigned evaluation for PTSD from noncompensable to 30 percent disabling, effective from August 30, 1998. As the Veteran has continued to express his desire to seek to a higher initial rating for his PTSD disability, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board notes that in the report of a March 1997 VA psychiatric examination report, the VA examiner noted that the Veteran was unable to work, in part, because of his PTSD disability. Moreover, the Veteran has consistently asserted that he is totally disabled from his PTSD disability. A TDIU is a part of a claim for increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Pertinently, the Board observes that the Veteran has been assigned a 100 percent, total, evaluation for his service-connected lung disability as of January 3, 2008. Thus, the issue of TDIU prior to January 3, 2008, has been raised by the record. As noted previously, an effective date of August 30, 1996, was assigned for service connection for PTSD in the March 2006 rating decision. Notice of this action was furnished to the Veteran by letter dated in April 2006. On a VA Form 9, received by the RO in August 2009, the Veteran's counsel asserted that an effective date of October 18, 1993, should have been awarded for the grant of service connection. As the matter of entitlement to an effective date for the grant of service connection for PTSD prior to January 3, 2008, is not currently before the Board, the matter is referred to the RO or AMC for consideration. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. The issue of entitlement to 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. FINDING OF FACT Since August 30, 1996, the Veteran's disability due to his PTSD has been manifested by symptoms consistent with occupational and social impairment with reduced reliability and productivity; neither occupational and social impairment with deficiencies in most areas nor total occupational and social impairment is shown. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 50 percent, and no higher, for major depressive disorder have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9434 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Notify and Assist Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. In the notice, VA will inform the claimant which information and evidence, if any, that the claimant is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (2008); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Notice should also address the rating criteria and effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, the Veteran is challenging the initial evaluation assigned following the grant of service connection for PTSD. In Dingess, the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. See also VAOPGCPREC 8- 2003 (December 22, 2003). Thus, VA's duty to notify has been satisfied with respect to the issue of entitlement to a higher initial evaluation for PTSD. Concerning VA's duty to assist, the Board notes that the VA has obtained the Veteran's service personnel records, post-service VA and private treatment records, and his testimony and lay statements. With respect to the VA examinations conducted in conjunction with this appeal, the Board observes that the findings contained therein are more than adequate to adjudicate the Veteran's claims. The Veteran was afforded VA psychiatric examinations in March 1997 and March 2012. These examination reports reflect that the Veteran's past medical history and his complaints were considered as well as the findings obtained from the clinical examination. Each examiner rendered appropriate diagnosis and medical conclusions consistent with the other evidence of record. Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations or opinions concerning the issues on appeal have been met. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303 (2007). In short, the Board has carefully considered the provisions of the VCAA, in light of the record on appeal and, for the reasons expressed above, finds that the development of the Veteran's claims has been consistent with said provisions. The Board is satisfied that any procedural errors in the originating agency's development and consideration of the claims were insignificant and nonprejudicial to the Veteran. The Veteran has been accorded ample opportunity to present evidence and argument in support of his claims. See 38 C.F.R. § 3.103. He has retained the services of a representative, and he declined the opportunity for a personal hearing before a member of the Board. Accordingly, the Board will address the claims on appeal. Legal Criteria Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4. Where a veteran appeals the initial rating assigned for a disability when a claim for service connection for that disability has been granted, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous . . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id.; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (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). The Veteran seeks a higher initial evaluation in excess of 30 percent of his PTSD disability. His disability is currently rated under a general set of criteria applicable to psychiatric disabilities found at 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the criteria found at Diagnostic Code 9411, a 30 percent rating is warranted when psychiatric disability causes occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss. A 50 percent evaluation requires 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 may be assigned where there is 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; obsessed 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 100 percent rating is warranted where there is 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 9411. In rating the severity of the Veteran's service-connected psychiatric disability under the criteria listed above, the Board is aware of the fact that psychiatric health care providers have their own system for rating psychiatric disability. This is the Global Assessment of Functioning (GAF) rating scale, and it is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM- IV); Richard v. Brown, 9 Vet. App. 266, 267 (1996)(citing DSM-IV). The GAF scale score assigned does not determine the disability rating VA assigns, however, it is one of the medical findings that may be employed in that determination, and it is highly probative, as it relates directly to the Veteran's level of impairment of social and industrial adaptability. VAOPGCPREC 10-95; See Massey v. Brown, 7 Vet. App. 204, 207 (1994). Under DSM-IV, a GAF score of 61 to 70 indicates the examinee has some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functions pretty well with some meaningful interpersonal relationships. See Quick Reference to the Diagnostic Criteria from DSM-IV, 46-47 (1994). A GAF score from 51 to 60 represents moderate symptoms, or moderate difficulty in social or occupational functioning. A GAF score from 41 - 50 is indicative of serious symptoms or any serious impairment in social, occupational, or school functioning. Id. The symptoms and manifestations listed under the above rating formula are not requirements for a particular evaluation, but are examples providing guidance as to the type and degree of severity of these symptoms. Consideration also must be given to factors outside the rating criteria in determining the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Analysis A review of the record shows that the Veteran has undergone two VA psychiatric during the period under appeal. The record also contains his VA mental health service treatment records. The Veteran was first afforded a VA psychiatric examination in March 1997 in conjunction with his claim for service connection. The examination report shows the Veteran complained of nightmares, intrusive thoughts, being easily startled, irritability, anger problems, and sleep impairment. On mental status examination, the examiner observed that the Veteran was nervous and restless, but cooperative, during the clinical evaluation. His speech was rapid, but he could be understood. There was no evidence of psychotic thought process, mood disorder, or perceptional disorder. His memory was intact and he denied any suicidal or homicidal thoughts. The Veteran's insight and judgment was considered"at least fair." A diagnosis of PTSD was provided and the Veteran was assigned a GAF scaled score of 50-55. The examiner opined that the Veteran was "currently unable to work mostly because of physical problems, but he also has substantial mental health symptoms." In October 1996, the VA examiner provided a supplemental medical statement in which he noted that the Veteran complained of sleep impairment, depression, memory problems, anxiety, and unconsciousness. The examiner confirmed a diagnosis of PTSD. VA treatment records show that the Veteran started receiving regular mental health treatment in 2004. A March 2004 VA mental health treatment note shows the Veteran complained of nightmares, intrusive thoughts, irritability, anger problems, impulse control, sleep impairment, and avoidance of places or images that reminded him of Vietnam. He reported that he spends most of his days inside, but he visited with a lady friend who lives in the same building. He also told the treating physician that he checked the locks and windows at least three times a day, in part, because he lives in a high crime area. A July 2004 VA initial mental health assessment shows that on mental status examination, the Veteran had depressed mood and affect most days, he had passive suicidal thoughts, but no intention to act upon them, and he complained of memory problems, insomnia, feeling worthlessness, and irritability. He reported having had experienced some auditory and visual hallucinations, but there was no observation of perceptional disorder on clinical examination. The Veteran stated that he socialized with his female friend, his sister, and his sister's children. It was noted that neuropsychiatric testing revealed mild cognitive disorder and depression. The Veteran was diagnosed with PTSD and he was assigned a GAF scaled score of 50. Subsequent VA treatment records show that the Veteran attended group therapy sessions and monthly individual sessions. A September 2004 VA mental health treatment note shows that the Veteran's mood was evaluated as "stable" and it was felt that he had "PTSD, somewhat improved, mild depression stable." A November 2004 VA mental health treatment note shows that the Veteran reported that his mood was "50/50" where he was not too depressed and he was not too happy. His mood and affect were observed to be mildly depressed. In December 2004, the Veteran complained of having "crazy dreams" that were a mixture of his present life and events from Vietnam. He was evaluated as moderately depressed. February and April 2005 VA treatment notes show that the Veteran was assigned a GAF scaled score of 47, although the Veteran had reported that he was feeling "pretty well" and his medication helped him with his anxiety problems. Subsequent VA treatment records in 2005 and 2006 show that the Veteran was assigned a GAF scaled score of 50. An August 2007 VA mental health treatment record shows that the Veteran had a pleasant affect, but his self-described mood was "not worth two cents." He had no current suicidal or homicidal ideations, but it was noted that he had passive thoughts about death with no intent to act upon his thoughts. The Veteran's speech was normal and his insight and judgment were evaluated as fair. His short-term memory was poor, and he had some concentration impairment. The Veteran complained of sleep impairment, depression, and anxiety. He reported that his last panic attack had been prior to his lung surgery in 2006. The Veteran denied any severe mood swings. Subsequent VA treatment records show that the Veteran continued to attend group therapy sessions. In March 2012, the Veteran was afforded a VA psychiatric examination to evaluate the severity of his PTSD disability. The examination report shows that the Veteran complained of feeling down, low interest, low energy, impaired memory, and concentration problems. The Veteran reported that he has had a female companion for over 20 years and he described their relationship as "great." He reported that he talked with friends only once a month because of lack of interest in socializing more with them. The Veteran reported that he spends most of his days at home because medical conditions affecting his legs and breathing. He also reported that he has not worked in 20 years because of memory problems and medical problems affecting his ability to walk. Based on clinical examination, the examiner observed that the Veteran's PTSD was manifested by depressed mood, anxiety, sleep impairment, and mild memory impairment. There was no evidence of suicidal thoughts, hallucinations, panic attacks or poor hygiene. The VA examiner confirmed that the Veteran met the DMS-IV criteria for a diagnosis of PTSD. The Veteran was assigned a GAF scaled score of 70. The VA examiner opined that the Veteran's PTSD disability causes him mild social and occupational impairment. Here, the Veteran seeks a higher initial evaluation for his PTSD disability. He asserts that his disability is manifested by symptomatology that is more severe than associated with a 30 percent evaluation under Diagnostic Code 9411. At the onset, the Board notes that while there has been some variation in the severity of the Veteran's PTSD symptoms during the appeal period, the severity of the Veteran's symptomatology has been relatively constant throughout the period of this appeal, therefore, "staged" ratings are not warranted. 38 C.F.R. § 4.71a; Hart, 21 Vet. App. 505. By this decision, the Board is resolving any doubt in the Veteran's favor to award an increased rating for disability due to PTSD to 50 percent over the entire appeal period (i.e. from the Veteran's August 30, 1996 claim to reopen), despite the fact that at times during the appeal period, the symptoms may not have always met the criteria for the 50 percent rating. The medical evidence of record does not indicate that the Veteran's symptomatology had worsened to a level more severe than 50 percent disabling at any point during this appeal period. See 38 C.F.R. § 4.1. Collectively, the aforementioned medical evidence reflects that the Veteran's PTSD was manifested predominantly by symptoms no more severe than the following: depressed mood and affect, anxiety, nightmares, intrusive thoughts, being easily startled, irritability, anger problems, memory problems, impaired concentration, passive thoughts about death, and sleep impairment. These symptoms more closely approximate the criteria for a 50 percent disability rating. 38 C.F.R. § 4.130, Diagnostic Code 9434. At no point during the appeal period does the Veteran's overall PTSD symptomatology meet the criteria for a rating in excess of 50 percent. In this regard, the medical evidence does not show the Veteran has exhibited the severity of symptomatology required to approach the criteria for the next higher, 70 percent, rating. Specifically, the evidence does not show that the Veteran has obsessive 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, spatial disorientation, or neglect of personal appearance and hygiene. The Board acknowledges that the Veteran has reported having occasional suicidal thoughts, but he continuously denied any intent of suicide. Also, while the Veteran reported experiencing occasional auditory and visual hallucinations, there was no objective evidence of perception disorder on clinical examination. Moreover, he has not described or been noted to have persistent hallucinations. The fact that he may have shown one or two symptoms listed among the criteria for one of the higher ratings at 38 C.F.R. § 4.130 does not mean that his overall disability picture more closely approximates the criteria for either of the higher ratings. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). With respect to the Veteran's employment history, the Board notes that the Veteran reported that he had retired from working because of memory problems and physical problems that affected his ability to walk and breath. Even though he reported having a "short-fuse" at times, he did not report having problems with his co-workers or supervisors. Also, the Veteran consistently reported that he has a good relationship with female companion of over twenty years. Although he only socializes with his friends about once a month, he stated that this was due to lack of interest and not because he had difficulty maintaining relationships. In addition to the objective medical findings of record and the detailed statements from the Veteran and his wife, the Board has also considered the GAF scale scores that the medical professionals have provided the Veteran over the years. Throughout the appeal process, the Veteran has predominantly received GAF scale scores ranging between 47 to 55. Such scores are indicative of no more than moderate or serious symptoms. These scores do not indicate severe symptoms, which must be shown to warrant the higher, 70 percent disability rating. The objective medical findings recorded and tracked throughout the appeal period most closely approximate the symptoms listed under the criteria for the 50 percent disability rating. The GAF scores assigned are consistent with such a conclusion. Accordingly, an increased disability rating of 50 percent, and no higher, is warranted from the beginning of the appeal period. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Extra-schedular Consideration The Board has also considered whether an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. This means that initially there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. However, in this case, the medical evidence fails to show anything unique or unusual about the disabilities at issue that would render the schedular criteria inadequate. The Veteran's main symptoms are contemplated in the ratings that are assigned. A rating in excess of that assigned is provided for certain manifestations of each service-connected disorder but the probative evidence reflects that those manifestations are not present in this case. The rating criteria adequately describe the severity and symptomatology of the Veteran's service-connected mental health disability. Notably, higher evaluations are available for more severe mental health symptomatology. Therefore, the Veteran's disability is contemplated by the rating schedule and no extraschedular referral is required. Additionally, there is no showing that the disability causes any significant functional impairment. As such, it would not be found that they meet the "governing norms" of an extraschedular rating. Accordingly, an extraschedular rating is not warranted. ORDER Entitlement to an initial evaluation of 50 percent, and not higher, for PTSD is granted. REMAND At a VA examination in March 1997, the Veteran essentially asserted that he was unable to work, in part, because of his service-connected PTSD. A claim for TDIU has been raised by the record. See Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). TDIU may be a part of a claim for increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). On remand, the RO should provide the Veteran with notice concerning how to substantiate TDIU and request that he complete a TDIU claim form. In this regard, TDIU may be assigned 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. 38 C.F.R. § 4.16(a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. When a veteran does not meet the scheduler rating criteria, then 38 C.F.R. § 4.16(b) provides that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Such cases should be submitted to the VA Director of the Compensation and Pension Service for extra-schedular consideration when a veteran is unemployable by reason of service-connected disabilities, but fails to meet the percentage standards of 38 C.F.R. § 4.16(a). In such a submission, there should be a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. Pertinently, the Board notes that while the above decision awards the Veteran an initial rating of 50 precent, it does not appear that he meets the scheduler rating criteria under 38 C.F.R. § 4.16(a) for the entire period under appeal. As of August 17, 2007, the assigned rating for the Veteran's service-connected coronary artery disease was decreased from 60 percent to 10 percent disabling, and his combined total rating drops below 70 percent. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran notice pursuant to 38 U.S.C.A. §§ 5103, 5103A and 38 C.F.R. § 3.159 concerning how to substantiate a TDIU claim and request that he submit a completed TDIU claim form, so that he can provide information pertaining to his earnings, education, work experience, and training. 2. Then adjudicate the Veteran's TDIU claim after ensuring that any other development deemed warranted is complete. If the benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and afforded the opportunity to respond. The case should then be returned to the Board for appellate review, if indicated. 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). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs