Citation Nr: 1339671 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 11-04 774 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to disability rating in excess of 50 percent for Posttraumatic Stress Disorder (PTSD) with mood disorder and anxiety symptoms. 2. Entitlement to a total disability evaluation based on individual unemployability as due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: B. Glemming, Esq. ATTORNEY FOR THE BOARD J. Nobrega, Associate Counsel INTRODUCTION The Veteran has active service in the United States Army from July 1968 to May 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran's entire claims file, to include the portion contained in the electronic "Virtual VA" system, has been reviewed in this case. The evidence of record raised the issue of the Veteran's entitlement to TDIU. Whether expressly raised by a Veteran or reasonably raised by the record, it is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability as part of the initial adjudication of the claim. Rice v. Shinseki, 22 Vet. App. 447, 453-454 (2009). Thus, the issue of entitlement to TDIU is before the Board. FINDINGS OF FACT 1. The Veteran suffers occupational and social impairment with deficiencies in most areas to include: struggles at work, obsessional rituals, impaired impulse control, and has difficulty adapting to stressful situations, among other manifestations, as a result of his service-connected PTSD with mood disorder and anxiety symptoms. 2. The evidence of record indicates that the Veteran is unable to find substantially gainful employment as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a 70 percent evaluation, but no higher than 70 percent, for PTSD with mood disorder and anxiety symptoms has been met. 38 U.S.C.A. §§ 1155, 5107 (West 2013); 38 C.F.R. §§ 3.102, 3.159, 4.125, 4.126, 4.130, Diagnostic Code 9435-9411 (2013). 2. The criteria for total disability based on individual unemployability (TDIU) have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2013); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16(a), 4.25 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating - PTSD Disability ratings are determined by applying criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In determining the disability evaluation, VA has a duty to consider all possible regulations which may be potentially applicable based upon the assertions and issues raised in the record. After such a consideration, VA must explain to the Veteran the reasons and bases utilized in the government's decision. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). For claims for an increase that do not rise out of an initial grant of service connection, the Board must consider the application of "staged" ratings for different periods from the filing of the claim forward, if the evidence suggests that such a rating would be appropriate. See Hart v. Mansfield, 21 Vet. App 505 (2007). In the instant case, there is no evidence that the disability has significantly changed and a uniform evaluation is warranted. In evaluating psychiatric disorders, VA has adopted and employs the nomenclature in the rating schedule based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). See 38 C.F.R. § 4.130. As such, the diagnosis of a mental disorder should conform to DSM-IV. See 38 C.F.R. § 4.125(a). Diagnoses many times will include an Axis V diagnosis, or a Global Assessment of Functioning (GAF) score. The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). A GAF from 61 to 70 indicates 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, has some meaningful interpersonal relationships. A GAF from 51 to 60 is defined as 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 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). DSM-IV, at 32; Richard v. Brown, 9 Vet. App. 266, 267 (1996). The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Regarding entitlement to a higher rating for PTSD, the Board notes that the Veteran is currently evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9435-9411 (2013) which pertains specifically to PTSD with mood disorder and anxiety symptoms. The existing 50 percent rating is assigned when 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. 38 C.F.R. § 4.130, Diagnostic Code 9435-9411 (2013). A higher 70 percent rating requires 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. Id. A higher 100 percent rating requires 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 In a September 2013 submission by a friend of the Veteran, the Veteran is described as experiencing flashbacks, and does "not have positive or loving feelings toward other people and tends to stay away from relationships." The Veteran is further described as "not being interested in activities he used to enjoy." Additionally, the Veteran was also described as "appear[ing] always to be alert and on the lookout for danger. This increased emotional arousal causes him to suddenly become angry or irritable." The Veteran also has difficulty sleeping and trouble concentrating. A statement by the Veteran's fourth and current wife, submitted in February 2011, describes the Veteran's symptoms as growing progressively worse. She notes that the Veteran has "rituals, starting first thing in the morning . . . stare[s] into space . . . [and] when I get home from work, there he is, sitting in the same stool at the kitchen, sometimes in the dark just waiting for me to come home . . ." She also reported that the Veteran obsessively locks and rechecks the doors to their home. She has feared he will mistakenly attack her during a flashback. Similarly, a February 2011 statement by the Veteran's sister noted that she feared being alone with the Veteran after his return from service. The Veteran is frequently either "distant and withdrawn or overbearing and inappropriate." She notes that the Veteran's "obsessive routine, mood swings, depression, anxiety, inappropriate displays of anger and withdrawal and aggression are difficult for the most caring person to handle. A February 2011 submission by the Veteran's ex-wife noted that during the years of her marriage to the Veteran, the Veteran suffered a "series of issues related to depression and suicidal thoughts." These findings clearly indicate occupational and social impairment in most areas, and as such a 70 percent rating is warranted. The Veteran does not meet the standard for the next highest rating under the schedular criteria. The Veteran does not meet a 100% schedular rating as he does not have total social impairment. Indeed, the Veteran maintains membership in the Vietnam Veterans Motorcycle Club and has other relationships. The Veteran is not unable to perform activities of daily living (including maintenance of minimal personal hygiene). The Veteran is also not disorientated to time or place nor have memory loss for names of close relatives or own name. The Veteran's examiner for his VA examination in August 2012 noted that the Veteran was "generally functioning pretty well [and] has some meaningful personal relationships." The Veteran had a GAF score of 65. This finding does not suggest that a 70% evaluation will always be warranted in this case. In light of the August 2012 VA examination, additional testing may indicate an increase or a reduction of this evaluation may be warranted in the future. However, at this time, based on this evidence, the Board finds that in giving the Veteran the benefit of the doubt a 70 percent evaluation is warranted at this time (but clearly not greater). In this regard, the Board notes that a referral to the Director of VA Compensation Service for consideration of an extraschedular rating is not warranted. Indeed, the 70 percent rating fully contemplates the severity of the disorder, and there is nothing so unique as to take the service connected disability picture outside of the norm. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. 38 U.S.C.A. § 5107(b); See also, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Thus, with respect to the claim for entitlement to a rating in excess of 70 percent for PTSD, the Board notes that the preponderance of the evidence is against that portion of the claim. TDIU As noted above, the claim for TDIU has been raised as part of the Veteran's claim for an increase in rating. In Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), the U.S. Court of Appeals for Veterans Claims (Court) held that a request for a total disability rating based on individual unemployability as due to service-connected disabilities (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. In this regard, the Board notes that the Veteran has, in the context of his claim for a higher rating, alleged that his PTSD is so severe as to make him unemployable. Given the most recent VA examination in August 2012 that the Veteran is not employed, and the indications of record which suggest that the Veteran's PTSD is involved in this lack of employment, the Board notes that entitlement to a TDIU, as part of the claim for a higher rating, is raised by the record. A total rating based on unemployability due to service-connected disabilities may be granted if the service-connected disabilities preclude the Veteran from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). For those Veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), total disability ratings for compensation may nevertheless be assigned when it is found that the service-connected disabilities are sufficient to produce unemployability; such cases should be referred to the Director, Compensation Service, for extra-schedular consideration. 38 C.F.R. § 4.16(b). The Board notes that the Veteran meets the scheduler criteria for TDIU. The Veteran's service-connected PTSD is evaluated at 70 percent surpasses the minimum requirement for TDIU. See 38 C.F.R. § 4.16(a). The Veteran's February 2011 substantive appeal explicitly alleges that the Veteran has work deficiencies due to his PTSD. The Veteran sought assistance from VA Vocational Rehabilitation and Employment Office (VR&E). That office refused to enroll him in an independent living and employment program in October 2009. The Veteran was a "candidate for th[e] program because it was not reasonably feasible for him to achieve a vocational goal." The letter continued, stating that the denial occurred because "it has been determined that he is not able to work and sustain gainful employment in a competitive job market due to his permanent and lifelong disability." The Veteran's most recent VA examination in August 2012 noted that the Veteran had difficulty adapting to stressful situations including work settings. Further, the examiner noted that the Veteran reported that he has "held 10 jobs in the past 10 years, quitting each one 'before I got fired.'" Additionally, the examiner noted that the Veteran reported that he had conflict with bosses and was unable to work in a structured situation. As noted above, statements from the Veteran and the Veteran's family indicate significant manifestations of symptoms of the Veteran's PTSD including obsessional rituals, impaired impulse control, and has difficulty adapting to stressful situations. Accordingly, the Board can concede that the service-connected PTSD, evaluated as 70 percent disabling, prevents the Veteran from engaging in substantially gainful employment. TDIU is granted. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). In this case, the Veteran was provided with notice in September 2009, regarding his claim, and was informed of what evidence VA would provide and what evidence he should supply in support of his claim. He was specifically informed as to how disability ratings are assigned based on the severity of the service-connected disability. See Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). It is pertinent to note that the Veteran is represented by counsel, and that counsel is presumed to have knowledge of what is necessary to substantiate a claim for a higher disability evaluation for PTSD. Neither the Veteran nor his representative has pled prejudicial error with respect to the content or timing of VCAA notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Regarding VA's duty to assist the Veteran in obtaining evidence needed to substantiate his claim, the Board finds that all necessary assistance has been provided in this case. The evidence includes relevant post-service pertinent medical records that address the Veteran's psychiatric condition, Social Security Administration records, VA treatment records, and furthermore, the Veteran has been afforded two comprehensive VA psychiatric examinations which addressed his complaints. There is no indication of any additional relevant evidence that has not been obtained, and they are adequate for rating purposes. There is no duty to provide another examination or a medical opinion. See 38 C.F.R. §§ 3.326, 3.327 (2013). ORDER Entitlement to a disability rating of 70 percent for PTSD is granted subject to the statutes and regulations applicable to the payment of VA monetary benefits. Entitlement to a total disability evaluation based on individual unemployability as due to service-connected disabilities (TDIU) is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs