Citation Nr: 1340105 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 09-48 612 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to a rating in excess of 50 percent from July 21, 2006 to December 4, 2007 for posttraumatic stress disorder (PTSD) for accrued benefits purposes. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1997 to November 2000 and from December 2003 to April 2005. He died in January 2008. The appellant is his widow. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which granted the appellant's claim for a higher initial rating for PTSD for the purpose of accrued benefits and assigned a 50 percent rating from July 21, 2006 and a 100 percent rating from December 4, 2007. As the 100 percent schedular rating assigned is a full grant of benefits, the only issue remaining on appeal is entitlement to a rating in excess of 50 percent prior to December 4, 2007. The appellant testified before a decision review officer in January 2010 and a transcript is associated with the record. A videoconference hearing was scheduled in November 2011, but was later postponed. A travel board hearing was scheduled in October 2013, however, the appellant failed to report. As such, her hearing request is deemed withdrawn. See 38 C.F.R. § 20.702(d). FINDINGS OF FACT 1. A claim for entitlement to an increased rating for PTSD was pending at the time of the Veteran's death in January 2008. 2. The appellant's claim of entitlement to accrued benefits was received within one year of the Veteran's death. 3. The evidence reasonably shows that prior to August 17, 2007, the Veteran's PTSD was manifested by occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood, due to various symptoms; from that date, the evidence reasonably shows that his PTSD was manifested by total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for a 70 percent evaluation for PTSD prior to August 17, 2007, for accrued benefits purposes, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2013). 2. The criteria for a 100 percent evaluation for PTSD from August 17, 2007 to December 4, 2007, for accrued benefits purposes, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). As the rating decision on appeal granted service connection and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). A November 2009 statement of the case (SOC) provided notice on the "downstream" issue of entitlement to an increased rating for accrued benefits purposes; while a January 2010 supplemental SOC (SSOC) readjudicated the matter after the appellant and her representative responded and further development was completed. 38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). Notably, a February 2008 letter also provided the appellant with general disability rating and effective date criteria. The appellant has had ample opportunity to respond/supplement the record. She has not alleged that notice in this case was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) ( "where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (discussing the rule of prejudicial error). The Veteran's pertinent VA treatment records have been secured. No VA examination was provided as the issue at hand is entitlement to accrued benefits and such benefits, as a matter of law, are determined based only on the evidence of record at the time of the Veteran's death. As such, the Board finds that an examination is not warranted in this instant case and the record as it stands includes sufficient competent evidence to decide this claim. See generally 38 C.F.R. § 3.159(c)(4). The appellant has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Entitlement to accrued benefits is determined based on evidence in the file or constructively of record at the time of the Veteran's death. 38 U.S.C.A. § 5121(a); 38 C.F.R. § 3.1000. As the Veteran died in January 2008, evidence which was not of record or constructively of record at that time may not be considered in the adjudication of the appellant's claim for accrued benefits. For instance, the testimony provided by the appellant in January 2010 in which she reported the Veteran's PTSD symptomatology prior to his death; the 8-page detailed timeline she prepared and submitted at the hearing; and the Veteran's employment records from Manpower, Inc. were clearly not in the file or constructively of record at the time of the Veteran's death. Therefore, such evidence may not be considered in the adjudication of the appellant's claim for accrued benefits. Legal Criteria, Factual Background, and Analysis The appellant seeks entitlement to accrued benefits for an increased rating claim for PTSD. She contends that the Veteran was entitled to a schedular rating in excess of 50 percent from July 21, 2006 to December 4, 2007. Accrued benefits are defined as "periodic monetary benefits . . . authorized under law administered by [VA], to which a payee was entitled at his or her death under existing ratings for decisions or those based on evidence in the file at the date of death, and due and unpaid . . . ." 38 U.S.C.A. § 5121(a); 38 C.F.R. § 3.1000(a). Moreover, an "[a]pplication for accrued benefits must be filed within 1 year after the date of death." 38 C.F.R. § 3.1000(c). In Jones v. West, the United States Court of Appeals for the Federal Circuit (Federal Circuit) concluded that, "for a surviving spouse to be entitled to accrued benefits, the veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision." Jones, 136 F.3d 1296, 1299 (Fed. Cir. 1998). The Federal Circuit noted that "a consequence of the derivative nature of the surviving spouse's entitlement to a veteran's accrued benefits claim is that, without the veteran having a claim pending at time of death, the surviving spouse has no claim upon which to derive his or her own application." Id. at 1300. But unlike a claim for service connection for the cause of the Veteran's death, the adjudication of the claim for accrued benefits must be made based upon the evidence on file at the time of his death, including any VA medical records that must be deemed to have been constructively on file at that time. See 38 U.S.C.A. § 5121(a); 38 C.F.R. § 3.1000(a); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA records are deemed to be constructively in the possession of VA adjudicators and must be obtained). Initially, the Board notes that the Veteran had a pending claim for an increased rating for service-connected PTSD at the time of his death. Specifically, an August 2007 rating decision granted service connection for PTSD and assigned a 10 percent rating, effective July 21, 2006. In August 2007, the Veteran filed a notice of disagreement, requesting an increased rating. Unfortunately, he subsequently died in January 2008. The appellant then filed a claim for accrued benefits for the above issue that was received in February 2008. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. 38 U.S.C.A. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. The Board notes that it has reviewed all of the evidence in the Veteran's claims file and in Virtual VA, with an emphasis on the evidence relevant to this appeal: evidence in the file or constructively of record at the time of the Veteran's death. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran's service-connected PTSD is currently rated 50 percent disabling under Code 9411 from July 21, 2006 to December 4, 2007. A 50 percent rating is warranted when the Veteran experiences 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. A 70 percent rating is warranted when the Veteran experiences occupational and social impairment, with deficiencies in most area, 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 work like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted where the disorder is manifested by 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 oneself or others; an intermittent inability to perform the activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, one's own occupation, or one's own name. The Board recognizes that the Court in Mauerhan v. Principi, 16 Vet. App. 436 (2002), stated that the symptoms listed in VA's general rating formula for mental disorders is not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The evaluation must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). The Global Assessment of Functioning (GAF) scale reflects the psychological, social and occupational functioning under a hypothetical continuum of mental illness. See American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). See also Carpenter v. Brown, 8 Vet. App. 240, 243 (1995); 38 C.F.R. § 4.130. According to the DSM-IV, a GAF score of 61-70 denotes 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 score of 51-60 indicates moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). A GAF score of 41-50 indicates 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). A GAF score of 31-40 indicates some impairment in reality testing or communications or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. Looking at the evidence from July 2006 to December 2007, VA treatment records show continued treatment for significant PTSD symptomatology and that the Veteran was working until sometime in August 2007. January 2007 VA records prepared in an attempt to schedule the Veteran for a VA examination noted that the Veteran reported that he was working and could not submit to an examination for the next six months due to the fact that he would have no time off work. A June 2007 VA treatment record noted that the Veteran was seen as a walk-in and had not been seen for a year as he "works at Toyota as a temporary and cannot miss work to keep appointments." The Veteran presented stating that he is "ready to explode" and admitted to an exacerbation of PTSD symptoms. He reported his marital relationship was very stressed. His mood was noted to be depressed, however he was found to be not homicidal or suicidal. The record noted that the Veteran would be on vacation in July and appointments were scheduled for that week. A July 2007 record noted worsening anxiety, difficulty sleeping, and becoming irritable easily. On July 2007 mental status examination, the Veteran was noted to be casually dressed and fairly groomed. His attitude was cooperative and anxious and his behavior restless. His mood was depressed and he was not deemed homicidal/suicidal. It was noted that his insight was limited, but his judgment was intact. A GAF score of 50 was assigned. An additional July 2007 treatment record noted a chief complaint of anger; however, the Veteran also reported feeling paranoid (most evident at night), having nightmares, and that his symptoms were constant and starting to interfere in his day to day functioning. He stated that his symptoms "have wre[a]ked havoc with his marriage." Additionally, it was noted that he "entertain[s] a sense of doom" and "has a sense of foreshortened future." The report indicated that the Veteran is depressed, irritable, "short fused," has problems with impulse/anger control, is easily provoked to anger, experiences anger that is out of proportion to the stimulus, has been in physical fights, has destroyed property, and is verbally assaultive. It was further noted that the Veteran is anhedonic, untrusting, unmotiviated, is hypervigalant, hears people outside of his home, has variable energy, and has poor sleep. An August 1, 2007, record noted that the Veteran's wife called and stated that the Veteran would be unable to report for VA treatment on August 2 and 7 due to work. On August 20, the Veteran contacted VA and indicated that he was no longer working. The appellant has clarified that on August 16, 2007, the Veteran was informed that he would not be retained at his job, so he never went back to work. On August 20, 2007, he reported that he and his wife continue to be angry with each other and that he remains irritable. He stated that he also continues to have difficulty with impulse/anger control, as well as anxiety. A September 2007 record noted that the Veteran has thoughts of suicidal and homicidal ideation, without a specific plan or intent. In November 2007, the Veteran was noted to be very anxious with restricted affect and fair judgment and insight. A November 2007 record notes that the Veteran reported "doing terrible." He stated that he still has difficulty sleeping, his nightmares have increased, and he is anxious, irritable, and angry with a short fuse. He reported that he was planning to enter a PTSD inpatient program in December 2007. VA treatment records show the Veteran entered a PTSD inpatient program in December 2007 and was discharged on January [redacted], 2008. He died later that month. Following a careful review of the evidence, the Board finds that the severity of the Veteran's PTSD warrants a 100 percent schedular evaluation from August 17, 2007, as he was no longer employed as of that date and as treatment records from that date showed PTSD symptomatology reflective of total occupational and social impairment with thoughts of suicidal and homicidal ideation. The Board also finds it significant that the Veteran entered a PTSD rehab facility in December 2007. In this regard, the Board finds it likely that the Veteran's condition just prior to this time was of a severe nature so as to warrant entrance into such inpatient treatment facility. Accordingly, the Board finds that the Veteran's impairment from August 17, 2007, more nearly approximates the criteria for a 100 percent evaluation for his PTSD. The question now turns to whether a rating in excess of 50 percent is warranted prior to August 17, 2007. In this regard, the Board finds that a 70 percent rating, but no higher, is warranted prior to August 17, 2007, as his PTSD symptoms were reflective of occupational and social impairment with deficiencies in most areas. The July 2007 mental status examination record reflects a GAF score of 50. As noted above, such score is indicative of serious impairment in social, occupational, or school functioning. During this time, the Board notes the Veteran's reports of entertaining a sense of doom and of having a foreshortened future. Further, the Board notes the July 2007 treatment record which noted the Veteran experiencing a lack of impulse/anger control, being unmotivated, depressed, and irritable, and being hypervigilant and hearing voices. A higher (100 percent) rating is not warranted prior to August 17, 2007, because the evidence is clear that the Veteran was employed full-time during that period with minimal absences from work. The evidence shows that the Veteran was able to hold down a full-time job and was regularly attending his job (as evidenced by his unwillingness to miss work to attend VA appointments). Such full-time employment indicates that the type and degree of the Veteran's PTSD symptoms, or their effects, did not equate to total social and occupational impairment. Accordingly, the Board is unable to find total social and occupational impairment prior to August 17, 2007. An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is 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 does not contemplate the claimant's level of disability and symptomatology and is, thus, found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating. In this case, comparing the Veteran's disability level prior to August 17, 2007 due to PTSD to the applicable rating criteria, the Board finds that the degree of disability shown is entirely contemplated by the rating schedule. The criteria in the rating schedule, which are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, reasonably describe any unlisted signs and symptoms. His symptoms included a lack of impulse/anger control, being unmotivated, depressed, and irritable, and being hypervigilant. The evidence also does not reflect gross impairment in thought processes or communication or grossly inappropriate behavior. As for the July 2007 record noting that the Veteran was hearing voices, the Board finds that the evidence does not show that this symptomatology was "persistent" or that such symptom, standing alone, justifies a higher rating, particularly in light of the Veteran's full-time employment. Accordingly, for these reasons, the schedular rating assigned is, therefore, adequate; referral of this claim for extraschedular consideration is not required. Finally, in Rice v. Shinseki, 22 Vet. App. 447 (2009) , the Court held that a claim for a total rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Here, the evidence reflects that the Veteran was employed until August 16, 2007. Additionally, the evidence shows that the Veteran reported he was working in early August 2007, when he called to cancel his VA appointments scheduled in that month. He has not reported, and the evidence does not otherwise reflect, that he was not working or was prevented from securing and following gainful employment due to his PTSD prior to August 17, 2007. As there is no evidence of unemployability during this period, the question of entitlement to a TDIU is not raised under Rice in this instance. ORDER Entitlement to a 70 percent schedular rating prior to August 17, 2007 and a 100 percent schedular rating from that date for PTSD are granted for the purpose of accrued benefits, subject to laws and regulations governing the payment of VA monetary benefits. ____________________________________________ M.C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs