Citation Nr: 1339657 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 09-47 432 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. From February 27, 1981, to September 3, 2002, entitlement to a disability rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to an award of a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to September 4, 2002. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The Veteran had active service from February 1967 until April 1970. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a November 1982 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. See January 2008 decision in which the Board determined that the Veteran's increased rating claim for psychiatric disability that was filed in February 1981 and denied by a November 1982 rating decision, is still pending. The Veteran is currently in receipt of a 100 percent rating for PTSD since September 4, 2002; therefore the sole issue here is whether a rating higher than 50 percent is warranted from February 27, 1981, through September 3, 2002. In Rice v. Shinseki, the Court held that a TDIU claim cannot be considered separate and apart from an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Instead, the Court held that a TDIU claim is an attempt to obtain an appropriate rating for a service-connected disability. The Court also found in Rice that, when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. The record in this case raises the issue of a TDIU during the applicable time period. The derivative TDIU claim prior to September 4, 2002, 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 From February 27, 1981 to September 3, 2002, severe occupational impairment was objectively shown. Virtual isolation from the community, total incapacitating psychoneurotic symptoms bordering of gross repudiation of reality, the inability to obtain or retain employment, or total occupational and social impairment was not shown. CONCLUSION OF LAW From February 27, 1981, to September 3, 2002, the criteria for a 70 percent, but no higher, rating for PTSD have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 1991); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.129, 4.132, Diagnostic Code 9411 (effective prior to November 7, 1996); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2013). . REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. I. Duties to Notify and Assist As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all elements of a claim, including the disability rating and effective date elements. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). This notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has found that VCAA notice errors are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of establishing there is a VCAA notice error and, moreover, above and beyond this, that the error is unduly prejudicial, meaning outcome determinative of the claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). With regard to the notice requirements pertaining to increased-rating claim, there need only be generic notice advising the Veteran of the evidentiary and legal criteria for establishing his entitlement to a higher rating, not also citation to alternative diagnostic codes or potential "daily life" evidence, etc. See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009), overruling Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). The Veteran's claim was filed prior to the enactment of the VCAA. Additionally, the RO initially adjudicated the claim prior to the enactment of the VCAA. Although pre-adjudicatory VCAA notice was not possible, the Court has held that, in cases such as this one, the Veteran has the right to subsequent content-complying notice. See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008, also during the pendency of the appeal. See 73 Fed. Reg. 23353 -56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the Veteran to provide any evidence in the Veteran's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1). In October 2002, the RO advised the Veteran of VA's duty to notify and duty to assist with respect to his increased rating claim which at that time had not yet been staged. The RO explained VA would notify the Veteran of the information or evidence needed to grant the benefit sought and would inform the Veteran when medical evidence was required. The RO explained VA would also identify the evidence it would try to obtain. The RO requested the names, addresses and dates of treatment of persons, agencies or companies that may have relevant records. Medical authorizations were provided so VA could assist in obtaining private records. The Veteran was advised that records from the VA Medical Center in the Bronx had been requested. The letter informed the Veteran that to establish entitlement to an increased rating, the records must show the disability had increased in severity. An October 2003 letter reminded the Veteran of VA's duty to notify and duty to assist. The RO requested evidence demonstrating the PTSD had increased in severity. Examples were provided and included medical records, laboratory tests or x-rays, and lay statements describing personal observations. The RO requested the dates and places of any recent treatment by a VA facility. The Veteran was informed that he could submit his own statement describing symptoms, frequency, severity and other involvement of his disability. The Veteran was advised of the information associated with the claims file and reminded that VA would obtain relevant Federal records and make reasonable efforts to obtain private records. Thereafter, in an April 2010 SSOC, the RO adjudicated the increased rating claim for PTSD, specifically for the period from February 27, 1981 to September 3, 2002. VA also has a duty to assist him in fulfilling developing the evidence concerning his claim. This duty includes assisting him in the procurement of records and, when necessary, providing an examination. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The claims file contains the Veteran's service treatment records, employment records, as well as his post-service VA and private medical evaluation and treatment records. He also has had VA compensation examinations reassessing the severity of his PTSD during the applicable time period. Neither the Veteran nor his representative has identified, and the record does not otherwise suggest, any additional existing evidence that is necessary for a fair adjudication of the claim being decided herein that has not been obtained. No further notice or assistance to him with his claims is required. 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). II. Claim for Higher Rating The RO granted the Veteran's service connection claim for a nervous condition in November 1970, and assigned a 10 percent disability rating under 38 C.F.R. § 4.132, Diagnostic Code 9400. On February 27, 1981, the Veteran filed a claim received by VA for an increase for his anxiety reaction. By rating decision of November 1982, the Veteran's 10 percent rating for anxiety reaction was confirmed and continued. In November 1982, a notice of disagreement (NOD) was received by VA. A statement of the case (SOC) was issued by VA in January 1983; the same month, the Veteran filed a substantive appeal (VAF 1-9) with VA. By a June 1983 rating decision, a 10 percent rating was increased to 30 percent, effective August 12, 1982. By an April 2010 rating decision, the RO increased the rating for PTSD to 50 percent, effective February 27, 1981, and to 100 percent rating, effective September 4, 2002. Thus, the sole issue here is whether a higher rating is warranted for the Veteran's PTSD from February 27, 1981, to September 3, 2002. During the pendency of this claim, VA amended its regulations for rating mental disorders, such as PTSD, effective November 7, 1996. See 61 Fed. Reg. 52695 - 52702 (1996). Old section § 4.132 was redesignated as § 4.130. Both the former and current versions of the mental disorder regulations are applicable in this case because VA received the Veteran's original claim for service connection for PTSD in February 1981. However, the revised rating criteria may not be applied prior to the effective date of the amended regulation. See 38 U.S.C.A. § 5110(g) (West 2002). See also, 38 C.F.R. § 3.114; VAOPGCPREC 7-2003 (Nov. 19, 2003); VAOPGCPREC 3-2000 (Apr. 10, 2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Under the previously applicable rating criteria, the evaluation for the Veteran's service-connected PTSD was based on the degree of impairment of his social and industrial adaptability. 38 C.F.R. §§ 4.129, 4.132 (1996). Under the former criteria, the relevant ratings are: A 50 percent rating was assigned when there was considerable impairment in the ability to establish or maintain effective or favorable relationships with people, and when, by reason of psychoneurotic symptoms, the reliability, efficiency, and flexibility levels were so reduced as to result in considerable industrial impairment; A 70 percent rating was assigned when the Veteran's ability to establish and maintain effective or favorable relationships with people was severely impaired and the psychoneurotic symptoms were of such severity and persistence that there was severe impairment in the ability to obtain or retain employment; and A 100 percent rating was warranted where the attitudes of all contacts except the most intimate were so adversely affected as to result in virtual isolation in the community; or with totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic, and explosions of aggressive energy resulting in profound retreat from mature behavior; or where the Veteran was demonstrably unable to obtain or retain employment. 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996). The criteria for a 100 percent schedular rating under the regulations in effect prior to November 7, 1996, provided three independent bases for assignment of a 100 percent schedular rating for a psychiatric disorder. See Johnson v. Brown, 7 Vet. App. 95, 97-99 (1994). 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996). On November 7, 1996, the rating criteria for PTSD were revised and renumbered as 38 C.F.R. § 4.130, Diagnostic Code 9411. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (effective November 7, 1996). Under the revised rating criteria, a 50 percent rating is assigned for PTSD manifested by 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. Id. A 70 percent rating is assigned for PTSD manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood due to such symptoms as suicidal ideation, obsessional rituals which interfere with routine activities, speech intermittently illogical, obscure, or irrelevant, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, impaired impulse control (such as unprovoked irritability with periods of violence), spatial disorientation, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances (including work or a work-like setting), or an inability to establish and maintain effective relationships. A maximum 100 percent rating is assigned under the revised Diagnostic Code 9411 for PTSD manifested by total occupational and social impairment due to such symptoms as gross impairment in thought process 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, and memory loss for names of close relatives, own occupation, or own name. Id. The RO considered both the old and the new regulations in an April 2010 SSOC and provided the rating criteria. Therefore, the Veteran and his representative were given notice of the old and new regulations and have had an opportunity to submit evidence and argument related to both regulations. In turn, the Board may consider both criteria without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Global Assessment of Functioning (GAF) is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994). Under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the claimant shall prevail upon the issue. 38 U.S.C.A § 5107(b) (West 2002); Alemany v. Brown, 9 Vet. App. 518 (1996); Brown v. Brown, 5 Vet. App. 413 (1993). Employment records from the U.S Postal Service dated from July 1977 to March 1992 note disciplinary actions for the Veteran's lateness, attendance problems, and disrespect to his supervisor. According to August 1982 VA progress notes, the Veteran had had a disagreement with his supervisor and was worried that he might lose his job. On examination, the physician observed that the Veteran was able to laugh and seemed more relaxed as time passed. The examiner stated that the Veteran was delusional, but in a vague way. He denied suicidal ideations except if he were sent to prison. Assessment was paranoid schizophrenia and sociopathic personality. The physician indicated that he would alert the Veteran's supervisor that the Veteran was a possible danger to him. The physician stated that the Veteran was extremely tense and that he should not return to work until he is no longer under his immediate supervisor. A few days later, the Veteran's physician discussed the Veteran's case with another physician. They reported that an attempt to have the Veteran hospitalized should be made. However, the Veteran indicated that he felt much better with the medication that had been prescribed. The next day, the Veteran met with both physicians who noticed considerable improvement in the Veteran's condition and reported that the Veteran was able to return to work, but under certain conditions. The Veteran then returned the next day to his physician. The Veteran reported that he returned to work and had no problems with his supervisor. Subsequent treatment notes dated in August 1982 showed some improvement. However, the following month (October 1982), the Veteran underwent a VA neuropsychiatric examination. He reported having been employed by the U.S. Postal Service as a letter carrier for five years. The examiner described the Veteran as well-behaved and cooperative. The Veteran was described as quite anxious and tense. The examiner observed that the Veteran made much effort to control his tension during the interview. The Veteran was in full contact with reality with no evidence of any distortion in the form of delusions or hallucinations. Memory, judgment, and insight into his difficulties were present. Diagnosis was generalized anxiety disorder. His incapacity was noted as moderate. In March 1983, the Veteran underwent an additional VA neuropsychiatric examination. He reported that he could not work more than a part-time job (three to four days a week) due to his emotional difficulties. The Veteran felt that he had no control over his overwhelming tension. He reported violent behavior such as acting out against his spouse. He was unable to relate to people. He found it difficult to communicate with people. He stated that he had rather aggressive, hostile speech. On mental status examination, the examiner noted that the Veteran evidently tried to control his underlying emotional difficulties. He appeared at times depressed, anxious, and rather antagonistic. There was no evidence of distortion of reality. Memory, judgment, and insight into his difficulties were minimally impaired. Diagnosis was generalized anxiety disorder. Incapacity was noted as moderate to marked. According to a letter dated in November 1983 from Breakthrough Concepts, Inc. at Grace Square Hospital, the Veteran was admitted to the hospital with a diagnosis of depression. In statement received in February 1984, the Veteran stated he always feels as though he wants to kill someone. He felt alone. He reported constant headaches, flashbacks, nightmares, and violent impulses. In February 1985, the Veteran underwent an additional VA neuropsychiatric examination. He complained of sleep difficulty and anger problems. He felt that people were chasing him. His reported that his family left him. The physician stated that the Veteran was markedly depressed. He more or less nodded his head and supplied short answers which more or less consisted of yes and no answers. He was not spontaneous in any description. The examiner noted that the Veteran pinpointed the fact that he went into states of severe depression that he could not explain. He did not understand these bouts of depression and was unable to cope with them. He denied distortion of reality in the form of delusions or hallucinations. Judgment and insight into his difficulties was impaired. In a March 1986 statement, the Veteran reported having severe emotional problems since service and having problems with readjustment. In an August 2002 letter, the clinical director at North General Hospital wrote about the Veteran's inappropriate behavior. It was noted that he was acting in an abrasive, aggressive and hostile tone. According to a VA statement dated in September 2002, the Veteran was admitted for psychiatric treatment at a VAMC with a diagnosis of PTSD, rule out major depressive disorder and schizoaffective disorder. The Veteran is competent to report observable psychiatric symptoms such as sleep difficulty or feelings of anger or a depressed mood. Layno v. Brown, 6 Vet. App. 465 (1994). In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. The Board finds that from February 27, 1981, to September 2, 2002, the Veteran's PTSD-related symptoms more nearly resemble that of severe and industrial impairment that warrants an initial 70 percent rating under the former psychiatric rating criteria. 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996). The record shows documented disciplinary problems at work during the applicable time period. In 1982, he had an argument at work and was described as being a danger to his supervisor. At that time, his psychiatrist and a consulting psychiatrist recommended that the Veteran be hospitalized, but the Veteran's PTSD appeared to improve somewhat with medication for a short period. From 1983, forward, his incapacity was described as moderate to marked; he was antagonistic, violent, and had suicidal ruminations with no plan in place. In February 1984, the Veteran stated that he wanted to kill someone, and a year later, he reported that he was unable to cope with his psychiatric symptoms. The February 1985 VA examiner described the Veteran's incapacity as marked. A higher rating of 100 percent however is not warranted during the applicable time period. He was not in virtual isolation in the community and he did not exhibit totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality. Although he had a problem controlling his temper and was at times described as violent, there was no evidence of disturbed thought or behavioral processes such as fantasy, confusion, or panic. Additionally, while the Veteran reported taking off a great amount of time from work due to his psychiatric disability, there was no evidence that he was unable to obtain or retain employment during the applicable time period. Rather, the evidence showed that he worked as a letter carrier for the U.S. Postal Service. In sum, the criteria for a higher rating of 70 percent have been approximated for the Veteran's PTSD from February 27, 1981, to September 3, 2002. ORDER A rating of 70 percent, but no higher, is granted for the Veteran's PTSD from February 27, 1981, to September 3, 2002, is granted, subject to the laws and regulations governing VA monetary benefits. REMAND In this decision, the Board granted a higher rating of 70 percent for the Veteran's PTSD from February 27, 1981, to September 3, 2002. The applicable lay and medical evidence record reflects some, but not total, occupational impairment due to his service-connected psychiatric disability. Nevertheless, a retroactive opinion is necessary to determine whether the Veteran was unable to secure or follow a substantially gainful occupation due to all of his service-connected disabilities from February 27, 1981, to September 3, 2002. Accordingly, the case is REMANDED for the following action: 1. The AMC should arrange for an occupational therapist, or specialist qualified in the assessment of occupational capability, to perform a RETROACTIVE REVIEW of the claims folder and provide an opinion as to whether the Veteran was unemployable as a result of his service-connected disorders from February 27, 1981, to September 3, 2002. A complete review of the entire claims file is requested; however attention is called to the following: * Employment records from the U.S. Postal Service. *August 1982 VA progress notes showing that the Veteran was thought to be a danger to his supervisor with whom he had had an argument. *A March 1983 VA examination report noting that the Veteran worked on a part-time basis with the U.S. Postal Service. * A February 1984 statement from the Veteran indicating that he has missed a lot of work due to psychiatric disability. *A February 1985 VA examination report noting the Veteran's complaints of having to take off work at least half of the time in the past three years due to emotional difficulty, and the examiner's notation of the Veteran having marked incapacity due to psychiatric disability. The examiner is asked to provide an opinion as to whether the Veteran's SERVICE-CONNECTED DISABILITIES FROM FEBRUARY 27, 1981, TO SEPTEMBER 3, 2002, (i.e., generalized anxiety disorder recharacterized as PTSD, healed fracture of the right femur with arthralgia of the right knee, and multiple scars on the right hand and forearm, left wrist, right hip, both legs and chin) EITHER ALONE OR IN COMBINATION rendered him UNABLE TO SECURE OR FOLLOW A SUBSTANTIALLY GAINFUL OCCUPATION. THE EXAMINER MUST CONSIDER THE VETERAN'S EDUCATION, TRAINING, AND OCCUPATIONAL EXPERIENCE IN MAKING THIS DETERMINATION WITHOUT CONSIDERATION OF HIS NONSERVICE-CONNECTED DISORDERS OR AGE. A complete rationale should be provided. 2. Following completion of the foregoing, review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. In particular, determine whether the examiner has responded to the question posed. If not, the claims file must be returned for corrective action. 38 C.F.R. § 4.2 (2013). 3. Readjudicate the claim for a TDIU for the period prior to September 4, 2002. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished an SSOC and given the opportunity to respond thereto. An appropriate period of time should be allowed for response. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. 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). ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs