Citation Nr: 1342891 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 13-05 955 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to an initial rating for posttraumatic stress disorder (PTSD) in excess of 50 percent. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: James G. Fausone, Attorney ATTORNEY FOR THE BOARD C. Ozger-Pascu, Associate Counsel INTRODUCTION The Veteran had active service from August 1989 to August 1993, including combat service in Kuwait and Iraq and his decorations include the Combat Medical Badge. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision of the Wichita, Kansas, Department of Veterans' Affairs (VA) Regional Office (RO) which granted service connection for PTSD and assigned an initial 50 percent evaluation, effective April 13, 2010. The record reasonably raises a claim for a total disability rating based on individual unemployability due to service-connected disability (TDIU), which is not a separate claim, but a part of the claim on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. Any future adjudication of this Veteran's file should consider the documents in such file. The issue of TDIU 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 Since April 13, 2010, the Veteran's PTSD has been productive of occupational and social impairment with deficiencies in most areas, due to such symptoms as nightmares, chronic sleep impairment, irritability, difficulty with concentration, intrusive thoughts, avoidance, anxiety and hypervigilance. CONCLUSION OF LAW Effective April 13, 2010, the criteria for an initial rating of 70 percent for PTSD have been met. 38 U.S.C.A. §§ 1154(b), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.7, 4.126(a), 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSIONS Duties to Notify and Assist The Veteran's PTSD claim arises from his disagreement with the initial evaluation following the grant of service connection. Once service connection is granted the claim is substantiated, additional 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). As to VA's duty to assist, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. The Veteran's service and VA treatment records have been obtained. Also, VA afforded the Veteran a psychiatric examination in October 2010. The Board finds that the examination was adequate to evaluate the Veteran's PTSD disability and the severity of his symptoms because the examiner reviewed the Veteran's claims file, performed a psychiatric evaluation of the Veteran, identified his PTSD symptoms and provided an assessment of the nature and severity of his disability. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008) (a medical opinion is not entitled to any weight if it contains only data and conclusions); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis). As the Veteran has not identified any additional evidence pertinent to the claim, and as there are no additional records to obtain, the Board concludes that there is no further action to be undertaken to comply with VA's duties to notify and assist, and the Veteran will not be prejudiced by the Board's adjudication of his claim. Initial Rating The Veteran asserts that his PTSD symptoms warrant a rating higher than his initial rating of 50 percent. He reports that he suffers from recurrent nightmares and sleeplessness and that as a result of his lack of sleep he is unable to work. His representative also contends that the Veteran suffers from suicidal ideation, severe panic attacks, and visual and auditory hallucinations. Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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. 38 C.F.R. § 4.7. To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The Board has also considered assigning separate ratings for distinct periods of time, based on the facts. Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's PTSD is currently rated pursuant to 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. According to 38 C.F.R. § 4.126(a), a mental disorder shall be evaluated "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 examination." Under DC 9411, a 50 percent rating is warranted if the evidence shows 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 evaluation is warranted if the evidence shows 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 an inability to establish and maintain effective relationships. A 100 percent evaluation is warranted if the evidence shows 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. Entitlement to a certain disability rating requires sufficient symptoms of the kind listed in that rating, or others of similar severity, frequency or duration, that cause occupational and social impairment with deficiencies in most areas such as those enumerated in the regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). In determining whether the Veteran meets the criteria for a higher rating, the Board must consider whether the Veteran has deficiencies in most of the following areas: work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11 (2001). Psychiatric health care providers have their own system for rating a psychiatric disability under the criteria listed above. This is the Global Assessment of Functioning (GAF) rating scale, which reflects the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM- IV); Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing DSM-IV. The GAF score assigned does not determine the disability rating VA assigns, but it is one of the findings employed in that determination. As relevant to this case, A GAF score between 31 and 40 indicates some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). GAF scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). A GAF score between 51 and 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 coworkers). At his VA psychiatric examination in October 2010, the Veteran reported nightmares almost every night, intrusive thoughts of his Iraq experiences, hypervigilance and avoidance of people and anything related to war or Iraq. He also an inability to trust others, that he was easily irritable, even regarding trivial issues and had trouble concentrating and suffered from anxiety and depression. The Veteran said that these symptoms occurred every day since his return from Iraq. He also reported multiple suicide attempts, by such means as drug overdose and turning the car on in the garage, hoping to be overwhelmed by the exhaust. On examination, the examiner stated that the Veteran's thinking was easily distracted, that he sees things at the edge of his vision and hears things in the house that the knows are not there. Moreover, the examiner stated that the Veteran had suicidal thoughts, trouble maintaining his activities of daily living, trouble with his memory and that the Veteran gets panic attacks when he is facing the unknown and depression to the point of suicidal behavior. The examiner also reported the Veteran had trouble going to sleep and staying asleep. The examiner diagnosed the Veteran with chronic and severe PTSD, due to combat experiences, assigning a GAF of 40. Moreover, the examiner noted that the Veteran has a severe case of PTSD that affects all aspects of his life and that he had "total impairment in occupational and social functioning due to the severity and frequency of his PTSD." An email exchange between the Veteran and a work supervisor from July to October 2010 similarly shows that the Veteran was experiencing nightmares and panic attacks which would render him unable to work the next day. In the email exchange, the Veteran was in the process of requesting Family Medical Leave Act (FMLA) leave and decreasing his work hours to a part time basis. At an April 2011 VA competency examination, the Veteran reported that he was living with his girlfriend of five years and that the relationship was good. He also indicated he had sole custody of his six-year-old son and felt he is a "good dad." The examiner concluded that the Veteran was competent for VA purposes. VA treatment records dated between October 2010 and April 2012 indicate the Veteran presented for VA psychiatric visits with a slightly disheveled appearance, blunt behavior and minimally cooperative, experiencing frequent nightmares, having actually punched his girlfriend during sleep. He reported anger and animosity towards the VA, stating that he felt he was a possible Timothy McVeigh. Similarly, he was confrontational to a VA clinician, used foul language and argued with the clinician after the clinician asked him if he was having any craving for or recent drug use. The Veteran also presented depressed, paranoid, and anxious with poor/fair judgment and insight. His GAF scores ranged between 40 and 56. In light of the evidence above, the Board finds that the Veteran's PTSD most closely approximates the criteria for a 70 percent rating, but not higher. The competent and credible lay and medical evidence shows that the disability has been productive of recurrent nightmares and intrusive recollections of the traumatic events he experienced in service, avoidance of the stimuli associated with the trauma and chronic sleep impairment, irritability, outbursts of anger and hypervigilance. In addition, the Veteran exhibited symptoms of aggression, depression and anxiety. On at least one occasion, the Veteran presented disheveled and on multiple occasions he argued with or became confrontational with the VA clinicians going as far as to state he felt he was a possible Timothy McVeigh. Moreover, the record is replete with references to the Veteran's reported suicidal ideation and incidents of attempted suicide, and GAF scores of 40 to 56. In sum, resolving all reasonable doubt in his favor, the Board finds that the Veteran's PTSD most closely approximates a 70 percent rating since April 13, 2010. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board further finds that the next higher disability evaluation of 100 percent is not warranted because the preponderance of the evidence shows that the Veteran does not suffer from 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, disorientation to time or place, memory loss for names of close relatives, own occupation, or own name. Here, the Board observes that the Veteran has a good relationship with his live-in girlfriend and considers himself a "good dad" to his son of whom he has sole custody. Moreover, at a VA visit, the Veteran stated he was doing well and that, despite not working, he was not depressed and his mood was more even, with the clinician also observing that the Veteran's attitude and outlook were much better than at a previous visit. As such, although the October 2010 VA examiner opined that the Veteran's PTSD was productive of total impairment in occupational and social functioning, and that the Board recognizes his suicidal ideation, in light of the foregoing the Board finds that the evidence shows that he does not have total and social occupational impairment, e.g., his relationship with his girlfriend. For these reasons the Board concludes that a schedular 100 percent evaluation is not warranted in this case. Further, in exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's PTSD because the 70 percent rating granted by the Board specifically takes into account the Veteran's social and occupational impairment. In reaching this conclusion the Board acknowledges that the Veteran may be unable to work due to this condition but the TDIU aspect of pthis claim is being remanded in light of the Court's decision in Rice. Because the schedular rating criteria are therefore adequate to evaluate the Veteran's PTSD, referral for consideration of extraschedular rating is not warranted. In sum, the Board has considered whether staged ratings under Hart are appropriate for the Veteran's service-connected disability. The Board finds that the Veteran's symptoms associated with his PTSD have been stable throughout the appellate period. Therefore, staged ratings are not warranted for any period of time. ORDER Subject to the law and regulations governing payment of monetary benefits, effective April 13, 2010, a 70 percent rating for PTSD is granted. REMAND The Veteran's PTSD is now rated as 70 percent disabling and his right ankle and headache disabilities are each rated as 10 percent disabling. As such, the Veteran's disabilities satisfy the schedular criteria for a TDIU. 38 C.F.R. § 4.16(a) (2013). At the VA psychiatric examination in October 2010, the examiner stated that the Veteran experiences total impairment in occupational and social functioning due to the severity and frequency of his PTSD symptoms. Moreover, VA clinic notes from April and May 2012 indicate the Veteran was unemployed, having quit his job. The Veteran explained he quit his job because he knew he would be let go due to absenteeism and also because he was getting "pissed" a lot. Therefore, a claim for TDIU has been raised. See Rice v Shinseki, 22 Vet. App. 447, 452 (2009) (holding that a request for TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service-connected, as part of a claim for increased compensation). Thus, the Board finds that a remand is warranted for further development and adjudication of this issue. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran appropriate notice pursuant to the Veterans Claims Administration Act (VCAA) under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that includes the criteria required for TDIU. 2. Obtain VA treatment records, physically or electronically, from the Topeka VA Medical Center since April 2013. 3. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of the nature, extent and severity of his PTSD and associated symptoms and the impact of his service-connected disabilities on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. Schedule the Veteran for an appropriate VA examination, to be conducted, if possible, by a vocational rehabilitation specialist. The claims file should be made available to and reviewed by the examiner. All appropriate tests and studies should be conducted. Thereafter, the examiner should opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that his service-connected disabilities, and in particular his psychiatric disability, either alone or in the aggregate, render him unable to secure or follow a substantially gainful occupation in light of his education, training and work history. All findings, along with a fully articulated medical rationale for all opinions expressed should be set forth in the examination report. 5. Then adjudicate the claim for a TDIU. If the benefit sought is not granted, the Veteran and his representative must be furnished a Supplemental Statement of the Case and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matter 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 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. 2013). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs