Citation Nr: 1342255 Decision Date: 12/20/13 Archive Date: 12/31/13 DOCKET NO. 13-06 616 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to an initial rating in excess of 10 percent for posttraumatic stress disorder (PTSD) with obsessive compulsive disorder (OCD). REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran had active military service from August 1943 to February 1946. This appeal comes to the Board of Veterans' Appeals (Board) from a February 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of total disability due to individual unemployability (TDIU) being remanded is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's PTSD with OCD has been manifested by anxiety and compulsions, depression, trouble sleeping, and panic attacks most consistent with occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for an initial rating of 50 percent, but no higher, for PTSD with OCD have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130, Diagnostic Code (DC) 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2013). However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2013). The Veteran's PTSD is currently evaluated as 10 percent disabling, effective August 9, 2010 under the criteria of Diagnostic Code 9411. See 38 C.F.R. § 4.13. A 10 percent rating is to be assigned when 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 rating is assigned where 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). Id. A 50 percent rating contemplates 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; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where there is 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; intermittently illogical obscure, or irrelevant speech; 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); and inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted where there is 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; and memory loss for names of close relatives, own occupation, or own name. Id. Symptoms listed in VA's general rating formula for mental disorders 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). The nomenclature employed in the portion of VA's Rating Schedule that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (also known as "DSM-IV"). 38 C.F.R. § 4.130. DSM-IV contains a Global Assessment of Functioning (GAF) scale, with scores ranging between zero and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health illness. Higher scores correspond to better functioning of the individual. Under DSM-IV, GAF scores ranging between 51 and 60 are assigned when there are moderate symptoms (like flat affect and circumstantial speech, and occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). GAF scores ranging between 41 and 50 are assigned when there are 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). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely the basis of social impairment. 38 C.F.R. § 4.126(b). In December 2010 the Veteran underwent a VA examination. The examiner diagnosed him with PTSD as well as obsessive-compulsive personality disorder. The examiner opined that the Veteran may have exhibited obsessive characteristics prior to service, but "one can definitively state that the obsessive-compulsive problems were more than likely exacerbated by his experience in the field of combat." In fact, the Veteran has credibly stated that his OCD symptoms began in service. The Board finds that the Veteran's OCD is related to his service and the symptoms due to the disorder should be considered in conjunction with the Veteran's PTSD symptoms for purposes of rating his current psychiatric condition. In January 2010 as part of his comprehensive outpatient mental health treatment plan, the Veteran was noted to have a GAF of 41. His symptoms included depression manifested as anxiety, irritability and anger, and an inability to sleep. A treatment note reflects that the Veteran reported he spent Christmas with family at home, although he reported the holidays brought back unpleasant memories from service. At his December 2010 VA examination, the examiner assigned the Veteran a GAF of 56. The Veteran reported he mostly stays at home, reading the newspaper and watching television, although he does serve as an usher at church. He stated that he retired more than 20 years prior after 36 years with one company and 10 years at another. He reported feeling depressed a couple times a week and wanting to isolate himself. He also reported difficulty sleeping and having nightmares about the safety of his wife of more than six decades if he passed away. The Veteran reported that he feels compelled do things such as touch certain objects three times or walk past a certain door three times. He also reported always making sure people on television have both eyes and both ears. He stated that touching certain things relieves his anxiety. The examiner found that the Veteran was alert and oriented with appropriate eye contact. His thought processes and speech were appropriate, reality testing was intact, and his mood was euthymic and affect expansive. The examiner noted the Veteran's memory showed mild impairment, probably consistent with the Veteran's age and level of activity. The Veteran reported such memory difficulties as sometimes forgetting where he put his keys or why he went into a room. The Veteran's intellectual functioning was normal and judgment and impulse control fair. The examiner described the Veteran's insight as nil. The Veteran reported no hallucinations or suicidal or homicidal ideation. The examiner opined that the Veteran "has some signs of PTSD, probably mostly the avoidance of some of the triggering of some of the symptoms, but the major difficulty for him is the obsessive-compulsive personality disorder." In an April 2011 notice of disagreement and February 2013 substantive appeal the Veteran stated that he has panic attacks that interfere with his sleep, depression, and severe memory loss. Considering both the symptoms of the Veteran's OCD and PTSD and giving the Veteran the benefit of the doubt, the Board finds that the Veteran is entitled to a 50 percent disability rating but no higher. The evidence shows the Veteran regularly experiences compulsions and associated anxiety as a result of OCD as well as depression several times per week, trouble sleeping, and panic attacks. However, the evidence also suggests that despite generally isolating himself, he is able to maintain social connections, including with his family and long-time spouse, and as an usher at church. He has not been shown to have (for example only) suicidal ideation; intermittently illogical obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; or inability to establish and maintain effective relationships. Although the evidence shows that the Veteran experiences obsessional rituals, the evidence does not show they interfere with his routine activities to the point where they result in occupational and social impairment with deficiencies in most areas. Rather, the Veteran has stated that he has functioned with the compulsions for approximately 65 years, including through a marriage of the same duration and during more than 45 years of employment. The Board has considered the effect of the Veteran's compulsions and associated anxiety in awarding the 50 percent rating. The GAF score of 56 assigned by the VA examiner in December 2010 represents moderate symptomatology and is in line with a disability evaluation of 50 percent. The Board recognizes the lower score of 41 noted in January 2010 prior to the Veteran's claim to reopen but finds that notwithstanding that earlier, lower rating, the Veteran's current symptoms more closely approximate the criteria for a 50 percent evaluation. The GAF, while important, is not the only evidence the Board looks at in deciding a claim. In this regard, the Board finds that the Veteran's own description of his symptoms provide, overall, highly probative evidence that the Veteran has a level of functioning more closely approximating a 50 percent rating. A staged rating is not appropriated in this case because the Veteran's PTSD with OCD does not warrant more than a 50 percent evaluation based on the evidence of record at any time since August 9, 2010. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). 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. This means that initially there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. However, in this case, the medical evidence fails to show anything unique or unusual about the Veteran's service connected PTSD with OCD that would render the schedular criteria inadequate. The Veteran's symptoms, including compulsions, depression, trouble sleeping, and panic attacks, are contemplated in the rating assigned. As such, it would not be found that his disability met the "governing norms" of an extraschedular rating. Accordingly, referral for consideration of an extraschedular rating is not warranted. Moreover, even if it were argued that the schedular rating criteria were inadequate, the Board finds no reason to refer the case to the Compensation and Pension Service to consider whether an extra-schedular rating is warranted. In this case, there is no evidence of any hospitalization associated with the Veteran's PTSD with OCD. In addition, the Board finds the record does not reflect that the Veteran's PTSD with OCD markedly interferes with his ability to work. See 38 C.F.R. § 4.1 (indicating that generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability). Although the Veteran is currently retired, he reported a more than 45-year work history without noting any time missed from work due to his PTSD with OCD, although he did report difficulty getting along with his last supervisor, which is what prompted his retirement at age 64. The manifestations of the Veteran's disability are considered by the schedular rating. Based on the foregoing, the Board finds the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321; Thun v. Peake, 22 Vet. App. 111 (2008). Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. A notice letter was sent to the Veteran in December 2010, prior to the initial adjudication of the increased rating claim on appeal. The letter informed the Veteran of what information and evidence must be submitted to substantiate the claim, including a description of what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. He was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of the claim to the RO. The content of the letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished. The RO has obtained the Veteran's VA treatment records. The Veteran also submitted lay statements. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. The Veteran was afforded a VA medical examination in December 2010. The examiner, a medical professional, obtained an accurate history and listened to the Veteran's assertions. The examiner provided the Board with sufficient information to rate the Veteran's disability. Therefore, the Board finds that the examination is adequate and contains sufficient information to decide the issues on appeal. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio, 16 Vet. App. 183. ORDER An initial rating of 50 percent, but no higher, for PTSD with OCD is granted, subject to the laws and regulations controlling the disbursement of monetary benefits. REMAND In Rice v. Shinseki, the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. The law provides that TDIU may be granted upon a showing that a Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340 , 3.341, 4.16 (2012). Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). The VA examiner who performed the Veteran's December 2010 PTSD examination opined that the Veteran is unemployable. However, the examiner did not specify as to whether the Veteran is unemployable due solely to his service-connected PTSD with OCD or due to non-service-connected disabilities, or simply to the Veteran's advanced age. The Board finds that the Veteran should be afforded a VA examination as to the nature of his employability. Accordingly, this matter is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Provide appropriate Veterans Claims Assistance Act notice with respect to the claim for a TDIU. Also ask the Veteran to furnish any additional information and/or evidence pertinent to a claim for a TDIU. 2. Once the above development is completed, schedule the Veteran for a VA examination. The examiner should be provided with the Veteran's claim file and asked to fully review it. The examiner should specifically indicate whether the Veteran is precluded from obtaining or maintaining any gainful employment (consistent with his education and occupational experience) solely due to his service-connected disability of PTSD with OCD. Any opinion should be supported by a rationale. 4. When the development requested has been completed, the claim should be adjudicated. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ M. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs