Citation Nr: 1342927 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 08-13 470 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial disability rating greater than 50 percent for service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to a total rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION The Veteran had active military service from August 1968 to August 1970. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, that, in pertinent part, granted service connection for PTSD and assigned an initial 50 percent disability rating, effective from July 29, 2005. The Veteran perfected an appeal as to the initially assigned disability rating and the effective date for service connection for PTSD. In June 2008, the Veteran filed a claim for a TDIU that was denied by the RO in an October 2008 rating decision. However, he continues to assert that he is unable to work due to his service-connected PTSD. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (to the effect that a TDIU claim is an element of all initial ratings). The Veteran was in receipt of an initial 100 percent disability rating from October 14, 2008 to September 30, 2012 for prostate cancer. In an April 2012 decision, the Board denied the Veteran's claim for an effective date earlier than July 29, 2005 for the grant of service connection for PTSD. At that time, the Board remanded his remaining claims to the RO via the Appeals Management Center (AMC) in Washington, D.C., for further development. FINDINGS OF FACT 1. Since July 29, 2005, PTSD with alcohol abuse has been manifested by occupational and social impairment essentially commensurate with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; total occupational and social impairment due to PTSD with alcohol abuse is not shown. 2. The Veteran's service-connected PTSD has precluded substantially gainful employment for which his education and occupational experience would otherwise qualify him since July 29, 2005. CONCLUSIONS OF LAW 1. Since July 29, 2005, the criteria for an initial 70 percent rating for PTSD have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2013). 2. Since July 29, 2005, the criteria for a TDIU have been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.3.340, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty 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, 5126 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The claim arises from disagreement with the initial rating 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). VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). His service treatment and personnel records and VA and private records have been associated with the claims file, to the extent available. All reasonably identified and available medical records have been secured. The Veteran's Virtual VA electronic file does not reveal any additional records relevant to the initial rating and TDIU appeals. In October 2007 and September 2008 the Veteran underwent VA examinations and these examination reports are of record. The purpose of the Board's April 2012 remand was to afford the Veteran a VA examination. There has been substantial compliance with this remand, as he underwent VA examination in May 2012. The Board finds the duties to notify and assist have been met. A. Initial Rating Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2013). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2013). In order 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). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). In Fenderson v. West, 12 Vet. App. 119, 126 (1999), the United States Court of Appeals for Veterans Claims (court) noted that where the question for consideration is propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required. Id. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Where there is a question as to which of two evaluations is to 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 (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). The Veteran's statements describing the symptoms of his service-connected PTSD are deemed competent. These statements must be considered with the clinical evidence of record and in conjunction with the pertinent rating criteria. 38 C.F.R. § 3.159(a)(2). The General Rating Formula for Mental Disorders, including Diagnostic Code 9411, that evaluates PTSD, provides the ratings for psychiatric disabilities. A 50 percent rating is warranted if the disability 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 complete 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 contemplates 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. Id. A 100 percent rating 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 ability 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. Id. Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social and occupational functioning on a hypothetical continuum of mental health- illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM IV), page 32). A GAF score of 41 to 50 indicates serious symptoms (e.g. suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF score of 51 to 60 indicates the examiner's assessment of moderate symptoms (e.g., a 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). When it is not possible to separate the effects of a non-service-connected condition from those of a service-connected disorder, reasonable doubt should be resolved in the claimant's favor with regard to the question of whether certain signs and symptoms can be attributed to the service- connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998); see also 38 C.F.R. § 3.102; Mauerhan v. Principi, 16 Vet. App. 436 (2002) (factors listed in the rating formula are examples of conditions that warrant a particular rating and are used to help differentiate between the different evaluation levels.). A veteran may only qualify for a given rating based on mental disorder by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Although a veteran's symptomatology is the primary consideration in assessing a disability rating based on a mental disorder, the regulation also requires an ultimate factual conclusion as to the veteran's level of impairment in "most areas" for the 70 percent rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Facts and Analysis VA examiners have associated much of the Veteran's disability with alcohol dependence. Notably, the October 2007 VA examiner assigned a GAF score of 55 related to PTSD, and stated that "certainly [the Veteran's] alcohol dependence is resulting in much more difficulty." In a January 2009 addendum, the September 2008 VA examiner found that the Veteran's disability from PTSD was mild and that most of his disability arose from alcohol dependence. A GAF score of 45 was assigned, commensurate with serious impairment, including an inability to work. Compensation is potentially payable for alcohol dependence that is due to service-connected PTSD. See Allen v. Principi, 237 F. 3d. 1368 (Fed. Cir. 2001). Most significantly, in May 2012, the VA examiner opined that the Veteran's diagnosis of alcohol abuse "is secondary to the PTSD diagnosis (self-medication)" and assigned a GAF score of 52 for the PTSD and alcohol abuse diagnosis, combined. Thus, the Board will consider the Veteran's impairment from his PTSD and alcohol abuse diagnosis. Clinicians have assigned the Veteran GAF scores that ranged from 45, indicative of serious occupational and social impairment and an inability to work, to 55, commensurate with moderate impairment. The primary consideration is the overall level of impairment, as due to any symptoms. In Vazquez-Claudio, the Federal Circuit held that the deficiencies that would warrant a 70 percent rating must be due to symptoms that are the equivalent in severity to those listed as examples in the 70 percent criteria. Such symptoms or their equivalent have been demonstrated in this case. Indeed, the record shows that, in May 2009, the RO found the Veteran to be incompetent due to PTSD and alcohol dependence diagnosis and associated memory problems. Examiners have made similar findings. The Veteran's sisters described the Veteran's impaired impulse control and he also reported being physically aggressive and told the October 2007 VA examiner that he was last physically aggressive with somebody two weeks earlier. That examiner noted the Veteran's poor insight into his current condition. The Veteran's sisters also stated that he neglected his personal hygiene, although the September 2008 VA examiner reported that the Veteran was able to perform his activities of daily living and did them routinely and independently. The record shows that PTSD with alcohol abuse has caused impairment in the areas of work, family relations and mood. He has not attempted school, but his work impairments indicate that he would also have deficiencies in the area of school. On VA examinations in September 2008 and May 2012 the examiners noted that the Veteran was unemployed. An October 2007 VA examiner stated that the Veteran had not worked since his discharge from active service and the Veteran's sisters have reported that he had not been able to maintain employment at any time since the effective date of service connection for PTSD, because of the effects of PTSD with alcohol abuse. A May 25, 2004 VA outpatient medical record shows that the Veteran was working as a housepainter, although the extent of this employment was not documented. The record does not show; however, that the Veteran has total occupational and social impairment as is contemplated in the criteria for a 100 percent rating. Although the Veteran has reported that he has no close or casual friends, he lives with his sister and his mother with whom he is reported to have a good relationship. Another sister has provided statements on his behalf. Thus, the record does not show total social impairment. Examinations have not shown symptoms listed in the criteria for a 100 percent rating. Indeed, VA examiners in September 2008 and May 2012 reported that the Veteran was oriented. Although the October 2007 VA examiner described the Veteran as alert but disoriented, gross impairment in thought processes or communications, delusion or hallucinations, or grossly inappropriate behavior have not been documented in the clinical record in the statements from the Veteran and his sisters. The examiners found no evidence of auditory or visual hallucinations or delusions or psychotic thought. The October 2007 VA examiner noted that the Veteran denied current auditory or visual hallucinations, but reported such symptoms only in the context of nightmares. The Veteran's speech has been described as fluent and he repeatedly denied having suicidal and homicidal ideations or plans. One sister did report that the Veteran had difficulty with activities of daily living, but this was not found to be a problem on VA examinations and such impairment is contemplated in the 70 percent criteria. Some impairment in memory has been documented, but impaired memory is contemplated by ratings as low as 50 percent. Given the above, the level of impairment shown is not commensurate with total occupational and social impairment due to PTSD. As such, a rating in excess of 70 percent is not warranted at any time since the effective date of service connection in July 2005. Resolving reasonable doubt in the Veteran's favor, an initial 70 percent rating, but no higher, is granted for PTSD, but the preponderance of the objective medical and other credible evidence of record is against a rating in excess of 70 percent. The benefit of the doubt has been resolved in the Veteran's favor to this limited extent. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, supra. Extraschedular The Board has also considered whether the Veteran's PTSD 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 an extra-schedular rating is warranted. See 38 C.F.R. § 3.321(b)(1) (2013); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). Pursuant to § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1) (2013). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). When it is not possible to separate the effects of a non-service-connected condition from those of a service-connected disorder, reasonable doubt should be resolved in the claimant's favor with regard to the question of whether certain signs and symptoms can be attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. at 182. Here the Board has considered Mittleider and attributed all potentially service-connected symtoms to his service-connected PTSD disability before considering if the Veteran is entitled to an extra-schedular rating. If the evidence raises the question of entitlement to an extraschedular rating, 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. Therefore, 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. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, 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, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine 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"). The manifestations of the Veteran's disability include irritability, social isolation, anxiety, memory problems, and depressed mood. The rating schedule contemplates all symptoms resulting in impairment of social and occupational functioning. The record does not show symptoms that are outside of those contemplated in the rating criteria. Referral for extraschedular consideration is not warranted. Thune. B. TDIU The RO received the Veteran's formal claim for a TDIU in September 2008. In his claim, the Veteran reported working during active service and last worked in 1970 while in military service. He had four years of high school education, and had no other special training. The Board is required to consider whether TDIU is warranted at any time since the effective date of service connection for PTSD. Rice. VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from securing or following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of nonservice-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). If a veteran's service-connected disabilities meet the percentage requirements of 38 C.F.R. § 4.16(a), and the evidence of record indicates that he is unable to maintain substantially gainful employment due to his service-connected disabilities, his claim for a total disability rating based on unemployability cannot be denied in the absence of medical evidence showing that he is capable of substantially gainful employment. See Friscia v. Brown, 7 Vet. App. 294, 297 (1994). From October 14, 2008 to September 30, 2012, the Veteran was in receipt of a 100 percent disability rating for prostate cancer. A TDIU rating may proceed where the TDIU rating is potentially available for a disability other than the disability for which a 100 percent rating was in effect. Bradley v. Peake, 22 Vet. App. 280 (2008). By the Board's decision herein, that grants a 70 percent rating for PTSD, the Veteran now meets the minimum percentage requirements for a TDIU under 38 C.F.R. § 4.16(a). The central inquiry is "whether the veteran's service- connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The record reflects that the Veteran has not held full time work at any time since July 29, 2005. The May 25, 2004 VA clinical record indicates that he worked as a housepainter but the subsequent VA examination reports show that he was unemployed. VA clinicians appear to have differing views of the effect of the Veteran's service-connected PTSD and alcohol abuse on his employability. While VA examiners describe the Veteran's PTSD symtoms as mild or moderate, they agree that he is more significantly impaired due to his alcohol dependence. The October 2007 VA examiner assigned a GAF score of 55 for PTSD, commensurate with moderate impairment, and stated that "certainly [the Veteran's] alcohol dependence is resulting in much more difficulty. Further, in January 2009, the September 2008 examiner concluded that the Veteran was not competent to manage his financial affairs due to alcohol dependence and assigned a GAF score of 45, commensurate with serious occupational and social impairment and an inability to work. While, the May 2012 VA examiner noted that the Veteran was rated as incompetent due to memory problems and alcohol abuse, she opined that the diagnosis of PTSD did not render the Veteran unable to obtain and maintain substantially gainful employment, and assigned a GAF score of 52 for the PTSD and alcohol abuse diagnosis combined,. The September 2008 VA examiner evidently considered him unable to work due to his psychiatric disability, but the May 2012 VA examiner did not, although she acknowledged that the Veteran's demonstrated memory problems and alcohol abuse, that were secondary to his PTSD diagnosis, rendered him incompetent to manage his financial affairs. The evidence is at least in equipoise as to whether the service-connected disabilities prevent the Veteran from securing and following substantially gainful employment consistent with his education and occupational experience. The record shows that TDIU would be warranted on the basis of PTSD and alcohol abuse alone. Hence, entitlement to TDIU is warranted for the entire period since July 29, 2005, notwithstanding the 100 percent rating for prostate cancer during part of this appeal. 38 U.S.C.A. §§ 1155, 5107(b); Bradley. ORDER Entitlement to an initial 70 percent rating for PTSD is granted, effective July 29, 2005. Entitlement to a TDIU is granted, effective July 29, 2005. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs