Citation Nr: 1340679 Decision Date: 12/09/13 Archive Date: 12/20/13 DOCKET NO. 06-25 497 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to a higher initial rating for posttraumatic stress disorder (PTSD), evaluated as 30 percent disabling prior to October 21, 2010, and as 50 percent disabling from that day forward. 2. Entitlement to a total disability rating due to individual unemployability resulting from service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Bordewyk, Alicia R. INTRODUCTION The Veteran served on active duty from May 1968 to May 1970. His decorations include a Purple Heart. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Veteran was afforded a Travel Board hearing in September 2009. A transcript is of record. A November 2010 rating decision granted an increased initial rating of 50 percent for PTSD, effective October 21, 2010. A claimant is presumed to be seeking the maximum benefit allowed by law and regulation, and a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35 (1993). Therefore, the claim for a higher initial rating for PTSD remains before the Board. The claim was remanded in December 2009 and May 2011 for additional development. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's PTSD has manifested by occupational and social impairment that most nearly approximates reduced reliability and productivity due to symptoms such as panic attacks more than once a week, impaired judgment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships without deficiencies in most of the areas of work, school, family, judgment, and thinking. 2. The evidence of record does not support a finding that the Veteran's service-connected disabilities render him unable to obtain and maintain gainful employment, for which he would otherwise be qualified given his education and experience. CONCLUSIONS OF LAW 1. Throughout the period on appeal, the criteria for an initial rating of 50 percent, but no more, for PTSD have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.304(f), 4.125, 4.126, 4.130, Diagnostic Code 9411 (2013). 2. The criteria for entitlement to TDIU have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.25 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013) redefined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). This appeal arises from disagreement with the initial evaluation following the grant of service connection. The courts have held that once service connection is granted the claim is substantiated, additional VCAA notice is not required; and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records and VA treatment records. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The relevant records have been reviewed. During the September 2009 Board hearing and prehearing conference, the undersigned explained the issues on appeal and asked questions designed to elicit evidence that may have been overlooked with regard to the issues on appeal. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) and consistent with the duty to assist. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The Veteran was provided VA examinations in December 2005 and October 2010 to evaluate the severity of PTSD. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As discussed below, the Board finds that the VA medical examinations obtained in this case are adequate, as they predicated on a full examination of the Veteran. The examiner considered all of the pertinent evidence of record, to include the statements of the appellant, and provided all necessary findings as well as a complete rationale for the opinions stated, relying on the evidence reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination regarding the PTSD issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The issue on appeal was previously before the Board in December 2009 and May 2011, when it was remanded for additional development. In accordance with the remand instructions, all outstanding VA treatment records have been associated with the claims file, the October 2010 VA examination was conducted, the Veteran was provided with a December 2012 notice letter regarding the evidence required to demonstrate TDIU, and a supplemental statement of the case was issued in February 2013. Since the record reflects compliance with the prior remand instructions, the Board may proceed with adjudication of the claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that in the December 2012 notice letter, the Veteran was requested to provide all records relating to the time period in 2005 where he reportedly received disability benefits, as well as related employment records, and was asked to submit an application for entitlement to TDIU if he did, in fact, intend to pursue a claim for TDIU benefits. The Veteran did not respond with any information or evidence regarding the reported 2005 disability benefits nor did he submit employment records or a completed TDIU application. Therefore, the Board finds that no further assistance is warranted with regard to this evidence or claim. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Legal Criteria-Initial Rating Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2013). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2013). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2013). Evidence to be considered in the appeal of an initial disability rating is not limited to that reflecting the current severity of the disorder. In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the initial evaluation period. Fenderson v. West, 12 Vet. App. 119 (1999). The schedular criteria, effective as of November 7, 1996, incorporate the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). 38 C.F.R. §§ 4.125, 4.130 (2013). A 50 percent rating is warranted if it is productive of 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 compete 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 9411. A 70 percent rating may be assigned for 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); and inability to establish and maintain effective relationships. Id. The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). A 100 percent schedular evaluation contemplates total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. 4.130, Diagnostic Code 9411. In assessing the evidence of record, it is important to note that the Global Assessment of Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). 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)." Id. 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)." Id. A GAF score of 61-70 indicates "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. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). On the other hand, if the evidence shows that the veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Mauerhan v. Principi, 16 Vet. App. at 443. The Court of Appeals for the Federal Circuit has embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). PTSD For the entire period on appeal, the Veteran endorsed many of the symptoms associated with a 50 percent disability rating for PTSD. Specifically, he reported depressed mood, nightmares, flashbacks, trouble sleeping, irritability, panic attacks, and hypervigilance. Although the evidence demonstrates that some of these symptoms have improved, sometimes significantly, during the appellate period, statements from the Veteran and his family describing his symptoms and changes in behavior support a finding that his overall disability picture more closely approximated a 50 percent disability rating, and no more, throughout the appellate period. In terms of social functioning, the medical and lay evidence demonstrates some, although not complete, social impairment. Throughout the appeal, the Veteran reported that he tended to isolate himself socially. In a December 2005 VA examination, he reported that he was physically abusive to his first wife, was "cut off" from his children and was estranged from a daughter. He noted, however, he had been married to his second wife for 15 years. Although his wife and sister reported in July 2006 statements that he was much less interested in interacting with his family and friends than he had been before service, throughout 2006, the Veteran reported improving PTSD symptoms as well as an increase in his interest in his hobbies, such as being a musician. In a November 2008 VA treatment record he reported looking forward to the holidays with his grandchildren and in February 2010 he stated that he got along well with his wife. During the October 2010 VA examination, the Veteran reported that he had been married for 20 years, although he did not spend much time his wife. He reported that he had a few friends but was not very close with his sister. He played golf and listened to music. VA treatment records in 2011 demonstrate that he was coping with his wife's death. He was successfully focused on losing weight, played drums with a band, continued to play golf, felt he had a supportive family, was going out on dates, and had had a one-year romantic relationship. In terms of occupational functioning, the record demonstrates that the Veteran requested leave from his job around 2005, seemingly due to the high-stress nature of his position with the United States Post Office, residual issues in coping with the death of his mother, and the declining health of his father. A July 2005 letter from a VA psychiatrist indicated that the Veteran requested leave to deal with important and stressful personal, medical, and psychological issues and that those "issues may exacerbate his current conditions and vice versa." The December 2005 VA examiner noted that he was on stress leave from his job. As noted above, pursuant to the Board's May 2011 remand, the Veteran was sent a letter requesting that he provide information regarding his 2005 leave from employment, including disability evaluations or employment records. He did not respond. The Board notes that the evidence of record as it stands does not clearly demonstrate that the Veteran was unemployed or on disability due to his service-connected PTSD. At most, it appears that his symptoms may have been exacerbated by outside factors, such as family issues or the stress of his job, and his PTSD symptoms may have caused some level of occupational impairment. Nevertheless, by 2006, he reported during VA treatment that he was feeling better about his symptoms and planned to return to work. In June 2008, he reported that he was working for a private company and in November of that year he reported some stress from starting a new job. In April 2010 he reported that he was semi-retired as he had retired from the Post Office but worked part-time for his son's company. Based on the forgoing, the Board finds that a 50 percent disability rating, but no more, is warranted for the entire period on appeal. Although the Veteran experienced some difficulty with social and occupational functioning, it appears that this impairment was more consistent with reduced reliability and productivity than complete deficiency. Although his relationships waivered, he maintained relationships with his wife and grandchildren, has been able to participate in hobbies with others and seek/maintain new romantic relationships since his wife's death. Although he had periods of reduced reliability or productivity at work, he was able to retire from the Post Office, continued to work for a private company, and then began to work for his son. The evidence does not demonstrate, nor has the Veteran reported, chronic impairment of judgment, insight, or thinking. Although the October 2010 VA examiner noted the Veteran's difficulty concentrating at work and described his difficulty remembering to pay bills and his argumentative nature to be impairment of judgment, the Board notes that the examiner noted earlier in the report that his thought content and process were unremarkable, and in terms of judgment and insight, he understood the outcome of his behavior and that he had a problem. Moreover, at all other times where his judgment, insight, or thinking have been evaluated, including at the December 2005 VA examination, each was found to be intact or normal. The Veteran himself has not reported such impairment at any other time. Furthermore, the Veteran has consistently been assigned GAF scores ranging from 55 to 67, indicative of mild to moderate symptomatology. Given these symptoms, the lay statements of record, and the medical evidence, the Veteran's disability has most nearly approximated the criteria for a 50 percent rating for the entire period on appeal. Although the Veteran has experienced some impairment in work and family relations, he has not been shown to be completely deficient in either area and some of his more moderate impairments have been acute. Moreover, chronic impairment of judgment and thinking has not been demonstrated. Hence he has not had the deficiencies needed for a 70 percent rating and his disability has more closely approximated a 50 percent disability rating throughout the period on appeal. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2013); Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Initially, there must be a comparison between the symptomatology of the claimant's service-connected disability and the established criteria found in the rating schedule for that disability. If the symptoms experienced by the claimant are those contemplated by the rating criteria, further consideration of whether a referral for extraschedular analysis is not required. The Board finds that the rating criteria specifically contemplate the Veteran's social and occupational impairment due to symptoms such depressed mood, nightmares, flashbacks, trouble sleeping, irritability, panic attacks, and hypervigilance. The rating criteria are specifically based on such impairment. 38 C.F.R. § 4.85. In short, there is nothing exceptional or unusual about the Veteran's PTSD disability because the rating criteria reasonably describe his disability level and symptomatology. Thun, 22 Vet. App. at 115. Referral for consideration of an extraschedular rating is, therefore, not warranted. TDIU TDIU is an element of all appeals of an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is granted where a Veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2013). Where a veteran (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) (2001) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The United States Court of Appeals for the Federal Circuit has held that TDIU is not raised in the appeal of an initial rating or claim for increase unless the Roberson elements are present. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). In this case, the Veteran has not submitted evidence of unemployability. As noted above, while he had one period in 2005 where he was not working, the evidence does not clearly demonstrate that this was due to PTSD or his other service-connected disabilities. For that reason, the Veteran was asked to submit information regarding this period, including disability evaluations or employment records, and asked to submit a formal application for TDIU, and he did not do so. Since 2005, the evidence demonstrates that he retired from the Post Office, worked thereafter for a private company, and then worked part-time for his son. He has not alleged unemployability, and there is no other evidence of unemployability due to service-connected disabilities. Thus, entitlement to TDIU is not warranted. ORDER Throughout the entire period on appeal, a 50 percent disability rating, but no more, is granted for PTSD. Entitlement to TDIU is denied. ______________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs