Citation Nr: 1340360 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 12-35 703 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to April 1, 2013, and a compensable disability rating since. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran served on active duty from March 1963 to March 1966. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which granted service connection for PTSD and assigned an initial rating of 50 percent, effective from August 22, 2008. The Veteran appealed this initial rating, which was later reduced to a non-compensable level as the record developed. TDIU benefits were also denied as part of the decision. FINDINGS OF FACT 1. Prior to April 1, 2013, the most competent and credible evidence of record shows that the Veteran 's PTSD causes no more than occupational and social impairment with reduced reliability and productivity. 2. Since April 1, 2013, the most competent and credible evidence of record shows that the Veteran does not have PTSD, or any other mental health disorder, that interferes with occupational and social functioning or to require continuous medication. 3. The Veteran only service-connected disability is PTSD, which is rated at 50 percent prior to April 1, 2013, and 0 percent since. 4. The evidence of record does not indicate the PTSD is so severe as to preclude the Veteran from obtaining and maintaining substantially gainful employment either prior to or since April 1, 2013. CONCLUSIONS OF LAW 1. Prior to April 1, 2013, the criteria are not met for an initial disability rating in excess of 50 percent for PTSD. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.130, Diagnostic Code (DC) 9411 (2013). 2. Since April 1, 2013, the criteria are not met for a compensable disability rating for PTSD. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.130, Diagnostic Code (DC) 9411 (2013). 3. The criteria are not met for a TDIU. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.3, 4.7, 4.15, 4.16, 4.18, 4.19 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper VCAA notice 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a September 2008 letter advised the Veteran of the evidence and information necessary to substantiate his claims, as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, the letters advised him of the information and evidence necessary to establish an effective date in accordance with Dingess/Hartman, supra. Relevant to the duty to assist, the Veteran's service treatment records and post-service private treatment records have been obtained and associated with the Veteran's paper and electronic files. The Veteran has not identified any additional outstanding records that have not been requested or obtained. The Veteran was also afforded a VA examination in November 2012 in conjunction with his PTSD claim. The Veteran has not alleged that the examination is inadequate for rating purposes. Moreover, the Board finds that the examination is adequate in order to evaluate the Veteran's service-connected PTSD and entitlement to a TDIU as it included an interview with the Veteran, a review of the record, and address the relevant rating criteria. Additionally, the Veteran has not alleged that his PTSD has worsened in severity since the November 2012 VA examination. Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (the passage of time alone, without an allegation of worsening, does not warrant a new examination). Therefore, the Board finds that the examination of record is adequate to adjudicate the Veteran's increased rating claim and claim of entitlement to a TDIU such that no further examinations are necessary. Thus, the Board finds that VA has fully satisfied the duty to assist. In adjudicating the claims below, the Board has reviewed all of the evidence in the Veteran's record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims files shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). II. PTSD Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. The August 2010 rating decision granted service connection for PTSD and assigned an initial rating of 50 percent. The Veteran filed a notice of disagreement seeking a higher rating. However, his disability rating was subsequently reduced to 0 percent, effective from April 1, 2013. The Veteran's PTSD is currently evaluated under the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130, Diagnostic Code 9411, which pertains to PTSD. Under such regulations, ratings are assigned according to the manifestation of particular symptoms. The use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase 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. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). Under the General Rating Formula, a noncompensable evaluation is warranted when a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 10 percent evaluation is warranted if there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. A 30 percent disability rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). The criteria for a 50 percent disability rating requires occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. The criteria for a 70 percent rating are: 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); inability to establish and maintain effective relationships. The criteria for a 100 percent rating are: 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 evaluating the evidence, the Board also has considered various Global Assessment of Functioning (GAF) scores that clinicians have assigned. A GAF score is a scaled rating reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DSM-IV at 32). An examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. See generally 38 C.F.R. § 4.126; VAOPGCPREC 10-95 (March 31, 1995). A GAF of 31-40 indicates some impairment in reality testing or communication (speech is at times illogical, obscure, or irrelevant), or any major impairment in several areas, such as work or school, family relations, judgment, thinking or mood, (a depressed man that avoids friends, neglects family, and is unable to work; a child that frequently beats up younger children, is defiant at home, and is failing at school). See DSM-IV; see 38 C.F.R. § 4.130. A GAF 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). Id. A GAF score of 51-60 indicates "[m]oderate 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)." Id. A GAF score of 61-70 indicates "[s]ome 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." Id. A GAF score of 71-80 indicates that if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); and no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). Id. In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). As an initial matter, the Board notes there are no VA or private treatment records in the Veteran's physical or virtual claims file for consideration for either period on appeal. Prior to April 1, 2013 In support of his claim of entitlement to service connection for PTSD, the Veteran submitted a September 2008 private psychological evaluation. This showed it was considered the Veteran suffered from chronic and severe PTSD and depressive disorder, not otherwise specified. The evaluation indicted that following the Veteran's military service, the Veteran began suffering from PTSD symptoms, including intrusive thoughts, distress at exposure to triggers, avoidance of conversations about his military experience, estrangement and detachment from others, hypervigilance, hyperirritability, exaggerated startle response, and sleep problems. Following a mental status examination, the Veteran was described as cooperative, with normal dress. His mood was anxious, affect restricted, and judgment and insight were limited. There were no suicidal or homicidal ideations. Ultimately, it was determined the Veteran's PTSD symptoms significantly interfered in his personal, social, and professional life. Specifically, the hypervigilance and hyper arousal interfered with his productivity at work, and he was severely compromised in his ability to initiate or sustain work relationships. Overall, the prognosis for recovery was regarded as very poor. The report also noted the Veteran was permanently and totally disabled and unemployable. In November 2012, the Veteran had a VA compensation examination to determine the current nature and severity of his PTSD. The report noted that the Veteran did not currently meet the criteria for a PTSD diagnosis, or any other diagnosis. Further, the Veteran stated he was not interested in mental health treatment. Concerning mental health symptoms, the Veteran denied any suicidal and homicidal ideations, hallucinations, or delusions. The examiner noted the Veteran denied any feelings of being sad/ depressed/ down over the past two weeks. In fact, the only noted symptom was some avoidance of driving at night due to a motor vehicle accident that occurred in service. A corresponding GAF score of 78 was assigned. The examiner stated the Veteran reported good social functioning and a long-standing marriage with a supportive spouse. He also stated he has a good relationship with his children and grandchildren, has quite a few good friends, and was involved in civic organizations. Concerning employment, the Veteran reported he worked for IBM from 1969 to 1990 and was not currently employed. However, he denied any disciplinary problems or missing work for any mental health reasons. The examiner determined that there were no current mental health limitations regarding physical and sedentary employment. As indicated previously, prior to April 1, 2013, the Veteran was in receipt of a 50 percent disability rating. A 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 work like setting); inability to establish and maintain effective relationships. Based on the evidence of record, the Board finds that the Veteran's PTSD is not productive of impairment contemplated by a 70 percent rating. In this respect, neither the September 2008 private evaluation nor the November 2012 VA examination show the Veteran to suffer from deficiencies in most areas. Further, there is simply no evidence of suicidal ideations, obsessional rituals, speech intermittently illogical, obscure, or irrelevant. Finally, there is no showing of an inability to establish and maintain effective relationships. In fact, the November 2012 VA examiner specifically found the Veteran has a long-standing marriage, good relationships with his children and grandchildren, and has quite a few friends. While the Veteran's hypervigilance and hyper arousal were noted to have interfered with his productivity at work in September 2008, and, consequently, he was regarded as severely compromised in his ability to initiate or sustain work relationships, this is but one symptom in the constellation of symptoms contemplated for a 70 percent evaluation. The remaining evidence of record simply does not show the Veteran's impairment to have more nearly approximated the criteria for a disability rating of 70 percent. The next higher 100 percent schedular rating is likewise not warranted in this case since the symptoms set out for this level of impairment is absent from the record during the appeal period. Since April 1, 2013 As of April 1, 2013, the Veteran is in receipt of a 0 percent disability rating. A 0 percent rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. In this case, there is no evidence the Veteran currently suffers from a diagnosed mental disorder. The evidence of record shows the Veteran was previously diagnosed with PTSD. However, as there is no objective medical evidence of record for this period on appeal, there is simply no basis for which to assign a rating in excess of 0 percent. In reaching the above conclusions for either period on appeal, the Board has not overlooked the Veteran's lay statements found in the record. In this regard, the Veteran is credible to report on what he sees and feels and how he believes his PTSD has affected his life, including describing his symptoms. See Davidson, supra. However, the Board finds more competent and credible the medical opinions as to the severity of his disability provided by the November 2012 VA examiner than these lay assertions. See Black v. Brown, 10 Vet. App. 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data); Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators. . ."). Accordingly, the Board finds that the medical and lay evidence does not support a rating in excess of 50 percent for the Veteran's PTSD prior to April 1, 2013, or a compensable rating since. 38 C.F.R. § 4.130, DC 9411. The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2013); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology and provide for additional or more severe symptoms than currently shown by the evidence. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. In adjudicating the current appeal for an increased rating, the Board has also considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. 38 U.S.C.A. § 5107(b) (West 2002); see also, e.g., Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the claim for an increased rating for PTSD must be denied. III. TDIU A TDIU is governed by 38 C.F.R. § 4.16, providing that such a rating may be assigned where the schedular rating is less than total, and when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16. It is further provided that the existence or degree of nonservice-connected or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency, such service-connected disabilities render the Veteran unemployable. Marginal employment - defined as when a Veteran's earned annual income does not exceed the poverty threshold for one person - shall not be considered substantially gainful employment. 38 C.F.R. § 4.16. In this case, the Veteran contends that he is unemployable as a result of his service-connected PTSD. For the reasons described below, the Board concludes that a TDIU is not warranted. First, the Board notes that the Veteran does not meet the schedular requirement for a TDIU. The Veteran is only in receipt of service-connection for PTSD, which is currently rated at 0 percent. Even prior to April 1, 2013, the Veteran's PTSD was rated at 50 percent disabling. Therefore, he does not satisfy the schedular criteria set forth in 38 C.F.R. § 4.16(a) (2013). Although the percentage requirements are not met, either prior to or since April 1, 2013, entitlement to benefits on an extraschedular basis may also be awarded when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability or disabilities, and consideration is given to the Veteran's background including employment and educational history. 38 C.F.R. §4.16(b). In determining whether unemployability exists, consideration may be given to a veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2013). The Board notes that the Veteran is currently unemployed. The Veteran had previously been employed with IBM until 1990. The September 2008 private psychological evaluation determined the Veteran's PTSD symptoms significantly interfered in his professional life. Specifically, it was noted his hypervigilance and hyper arousal interfered with his productivity at work, and he was severely compromised in his ability to initiate or sustain work relationships. On the other hand, the November 2012 VA examiner specifically found there were no current mental health limitations regarding physical and sedentary employment. The Veteran himself even denied he had any disciplinary problems or missed work for any mental health reasons when he was employed The Veteran reported to the VA examiner that he was informed by the September 2008 evaluator that he was unable to work due to his mental health problems, but the Veteran was unable to provide any mental health symptoms that hindered his occupational functioning. There is no other medical evidence regarding the effect that the Veteran's PTSD has on his employment outlook. The Veteran is competent to state what effects he believes his PTSD has on his employment, which, by all accounts, is none. In this respect, the Board finds his statements to be credible. There is simply no basis for which to grant entitlement to a TDIU on an extra-schedular basis. In summary, the Board finds that the most probative evidence of record demonstrates that the Veteran's service-connected PTSD does not render him unable to secure or follow a substantially gainful occupation. Accordingly, the Board concludes that the criteria for a TDIU have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. ORDER The claim of entitlement to an initial disability rating in excess of 50 percent prior to April 1, 2013, for PTSD, and a compensable rating since, is denied. Entitlement to a TDIU is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs