Citation Nr: 1338710 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 13-19 201 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an evaluation higher than 30 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Lisa A. Lee, Esq. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from January 1969 to January 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. A hearing was held at the RO before a Decision Review Officer (DRO) in May 2011. In August 2013, the Veteran's attorney provided additional evidence consisting of a psychological evaluation accompanied by a waiver of RO initial jurisdiction, which is hereby accepted into the record. See 38 C.F.R. §§ 20.800, 20.1304 (2013). FINDINGS OF FACT 1. From June 3, 2007 to July 21, 2013, the Veteran had occupational and social impairment with deficiencies in most areas due to PTSD. 2. Since July 22, 2013, there was total occupational and social impairment. 3. From June 3, 2007 to July 21, 2013, the Veteran was deemed incapable of securing and maintaining gainful employment by reason of service-connected PTSD. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria are met for a 70 percent evaluation for PTSD from June 3, 2007 through July 21, 2013. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2013). 2. The criteria are also met for a 100 percent evaluation for PTSD from July 22, 2013 onwards. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2013). 3. The criteria are met to establish a TDIU from June 3, 2007 through July 21, 2013. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.19 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist the Claimant The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2013), prescribes several requirements as to VA's duties to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. See also, 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2013). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must, upon receipt of a complete or substantially complete application for benefits, inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will obtain on his behalf. As indicated below, the Board is granting more than the full benefit expressly sought by the Veteran's attorney -- a 70 percent evaluation for PTSD, and TDIU both retroactive to 2008 -- and further awarding beyond that, in view of the 100 percent schedular evaluation assigned for PTSD from July 22, 2013 onwards. Hence, even assuming, without deciding, that any error was committed as to implementation of the VCAA's duty to notify and assist provisions, such error was harmless in its application to adjudication of this matter. See Bernard v. Brown, 4 Vet. App. 384 (1993). See also Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), affirmed, 499 F.3d 1317 (Fed. Cir. 2007). The Board still observes in this regard, all measures have been undertaken to notify the Veteran of the evidentiary requirements to substantiate his claims, as well as to assist him with development of these matters through affording VA examinations and obtaining VA treatment records. The Board concurs with the Veteran's attorney's assessment that no further VA examination is required, even though one was last conducted in December 2009, given that there is sufficient private medical evidence dispositive of the Veteran's claims and substantiating a generally favorable determination. In sum, the record reflects that the facts pertinent to the claims have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. Governing Law and Regulations, Factual Background and Analysis A. Increased Rating for PTSD Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2013); 38 C.F.R. § 4.1 (2013). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the Veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The VA rating schedule provides that psychiatric disorders other than eating disorders, including PTSD, are to be evaluated according to a General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Under that rating formula, a 50 percent rating is warranted 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-term 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 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. 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. 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). The Veteran filed the instant claim for increased rating through correspondence received in June 3, 2008. The relevant temporal focus for adjudicating the level of disability of an increased rating claim is from the time period one year before the claim was filed; in this case, June 3, 2007, one year prior to the Veteran's June 3, 2008, claim, until VA makes a final decision on the claim. 38 U.S.C.A. § 5110(b)(2) ; 38 C.F.R. § 3.400(o)(2) The Board on comprehensive review of the evidence sees fit to adjust upward the disability compensation scheme for the Veteran's service-connected PTSD, to that of a 70 percent evaluation from June 3, 2007 to July 21, 2013, and 100 percent evaluation thereafter. Whereas the assessments of service-connected psychiatric disability on January and December 2009 VA Compensation and Pension examinations initially suggested a more moderate degree of occupational and social impairment, the Board considers the more recently received clinical evidence to outweigh these earlier pronouncements, and moreover, to be essentially retroactive in scope. At the very least, when resolving reasonable doubt in the Veteran's favor, as VA is required to do under the benefit-of-the-doubt doctrine, the criteria for the increased disability ratings set forth above are met. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. As to the more recent clinical findings supporting increase, there is the January 2013 report from a private vocational rehabilitation specialist indicating as follows, after a consult with the Veteran and review of the claims file: Throughout most of his youth and adult life, [the Veteran] has been able to be consistently and enduringly employed in labor positions and equipment (forklift operation) this in spite of the fact that he suffers from PTSD with its accompanying symptoms. In order to help him better cope with his PTSD, he was prescribed a number of medications. He finally reached a point with his medications where he could no longer concentrate on his work activities as this became a potential danger to himself or others in the workplace... Because he cannot safely operate equipment in the workplace such as a forklift, he would not be employable in an occupation he has customarily been employed in for at least the last ten years, and more likely up to the last 31 years. Because of his inability to concentrate and focus secondary to his increasingly intrusive thoughts of his combat experiences and the effects of his medications, I do not realistically expect him to function vocationally in any other occupation. This is because he has no transfer skills which will allow him to safely work in another occupation due to the concentration/focus issues secondary to the PTSD medication. Based on my experience as a vocational counselor for 45 years, my understanding of his medical condition and after interviewing him and reviewing the VA file, it is my opinion that this gentleman is unemployable.... as of December 2006. It is this report which substantiates a 70 percent evaluation, which as indicated under Diagnostic Code 9411 directly contemplates assignment of 70 percent for difficulty in adapting to stressful circumstances (including work or a work-like setting), and given that the Veteran clearly does have lack of ability to retain employment, in his existing and prospective fields, due to specific noted symptoms of PTSD along with the effect of psychotropic medication. As by the estimation of the VA examiner the work-related limitation had its onset in 2006, the 70 percent level impairment can reasonably be ascertained as of one year before the June 3, 2008 date of claim. A total schedular rating is not warranted as of June 3, 2007, as there is an absence of evidence establishing 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. Subsequently, moreover, a July 22, 2013 private psychological evaluation report substantiates the award of 100 percent schedular rating for PTSD as of the time that evaluation was completed. This evaluation denoted several characteristic symptoms of PTSD, including difficulty maintaining interpersonal relationships, chronic irritability, and avoidance of crowds, amongst other manifestations. Some particularly severe findings were further indicated, including "marked deficiencies in most areas," and "cognitive deficits caused by depression and PTSD [that] are severe enough as to cause him to function at the same level of an individual with dementia." There were "struggles to complete tasks of daily living," along with "evidence of spatial disorientation based upon his poor geometric reproductions." This evaluator likewise concluded that the Veteran "incapable of gainful employment in any field." In view of the conclusion that the Veteran was unemployable by reason of service-connected PTSD, as well as the definitive grounding of this conclusion in the specific instances of noted psychiatric symptomatology cited above, the Board deems there to have been total occupational and social impairment from the time of this evaluation, consistent with the assignment of a 100 percent evaluation. On this basis, therefore, a 70 percent evaluation is assigned from June 3, 2007 through July 21, 2013, with a 100 percent evaluation to take effect from July 22, 2013. The potential application of the various other provisions of Title 38 of the Code of Federal Regulations have also been considered, including 38 C.F.R. § 3.321(b)(1), which provides procedures for assignment of an extraschedular evaluation. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). In Thun v. Peake, 22 Vet. App. 211 (2008), the U.S. Court of Appeals for Veterans Claims (Court) articulated a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, 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 is found inadequate because it does not contemplate the claimant's level of disability and symptomatology, the Board must determine whether the claimant's disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. In this case, for the time period from June 3, 2007 to July 21, 2103, there initially is no basis to find that the Veteran's PTSD with presents such an exceptional disability picture that the applicable schedular criteria are inadequate, particularly as the rating criteria are comprehensive, and he does not manifest or describe symptomatology outside of these criteria. The rating schedule is premised upon an evaluation based on occupational and/or social impairment, and he does not identify a mental health problem outside of this ambit. Thus, the Board cannot conclude that his condition is consistent with an exceptional disability picture as to render the schedular rating criteria inadequate. The first stage of the standard for determining availability of an extraschedular rating not having been met, the potential application of the next two steps becomes a moot issue. In the absence of the evidence of such factors, the Board is not required to remand this case to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For these reasons, the Board is increasing the evaluation for PTSD to 70 percent from June 3, 2007, and then to 100 percent from July 22, 2013. This determination takes into full account the potential availability of "staged rating" based upon incremental increases in severity of service-connected disability during the pendency of the Veteran's claim. The preponderance of the evidence substantiates this outcome, and to the extent any greater level of compensation is sought for the initial time period under review, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). B. TDIU Total disability ratings are authorized for any disability or combination of disabilities provided the schedular rating is less than total, when the disabled person is unable to secure and maintain substantially gainful employment because of the severity of his service-connected disabilities. If there is only one such disability, it must be rated as at least 60 percent disabling. Whereas, if there are two or more disabilities, at least one must be rated as at least 40 percent disabling and there must be sufficient additional service-connected disability to bring the combined rating to at least 70 percent. 38 C.F.R. §§ 4.15, 4.16(a). Disabilities resulting from common etiology or single accident or affecting both upper and lower extremities are considered as one collective disability for the purpose of determining whether these threshold minimum rating requirements are met. Provided a claimant does not meet these minimum percentage rating requirements of § 4.16(a) for consideration of a TDIU, he may still be entitled to this benefit on an extra-schedular basis under § 4.16(b) if it is established he is indeed unemployable on account of his service-connected disabilities. In Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the Court, citing its decision in Floyd v. Brown, 9 Vet. App. 88, 94-97 (1995), held that the Board cannot award a TDIU under 38 C.F.R. § 4.16(b) in the first instance because that regulation requires that the RO first submit the claim to the Director of the Compensation and Pension Service for extraschedular consideration. While the procedures for assignment of a total disability rating on an extraschedular basis would require referral to the RO for further disposition, where the record does not contain evidence that would render such claim plausible the Board may deny entitlement to an extraschedular evaluation in the first instance. VAOPGCPREC 6-96 (Aug. 16, 1996); see also Floyd, supra. The degree of impairment in occupational functioning that is generally deemed indicative of unemployability consists of a showing that the Veteran is "[in]capable of performing the physical and mental acts required by employment," and is not based solely on whether he is unemployed or has difficulty obtaining employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Rather, the record must demonstrate some factor that takes his situation outside the norm since the VA Rating Schedule already is designed to take into consideration impairment that renders it difficult to obtain and keep employment. Id. See also 38 C.F.R. §§ 4.1, 4.15. In evaluating a claim for a TDIU, the critical inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to cause unemployability. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Other factors that may receive consideration include his employment history, level of education and vocational attainment. See 38 C.F.R. § 4.16; see also Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). By comparison, the impact of any nonservice-connected disabilities, or his advancing age, are not factors taken into consideration for this purpose. 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. In addition, "marginal employment" shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). See Faust v. West, 13 Vet. App. 342, 355 (2000). Rather, the Court has accepted the definition of substantially gainful employment as that "at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). The Board has remaining before it the Veteran's claim for TDIU insofar as from June 3, 2008 to July 21, 2013, given that the TDIU issue is deemed moot from July 22, 2013 onwards following the assignment of a 100 percent schedular rating for PTSD (and the Veteran's TDIU claim is not premised on any other service-connected disability besides his PTSD). See Bradley v. Peake, 22 Vet. App. 280, 294 (2008). As the Veteran now meets the preliminary schedular criteria for a TDIU under 38 C.F.R. § 4.16(a) by virtue of the 70 percent evaluation for PTSD assigned from June 3, 2007 to July 21, 2013, and moreover, has been deemed unemployable due to service-connected disability from two independent clinical evaluators (reports cited above), a TDIU is deemed warranted for this time period. Accordingly, the criteria for a TDIU are met from June 3, 2007 to July 21, 2013. ORDER A 70 percent evaluation for PTSD is granted, from June 3, 2007 to July 21, 2013, subject to the law and regulations governing the payment of VA compensation benefits. A TDIU is granted, from June 3, 2007 to July 21, 2013, subject to the law and regulations governing the payment of VA compensation benefits. A 100 percent evaluation for PTSD is granted, since July 22, 2013, subject to the law and regulations governing the payment of VA compensation benefits. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs