Citation Nr: 1343296 Decision Date: 12/30/13 Archive Date: 01/07/14 DOCKET NO. 10-21 604 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The Veteran served on active duty from September 1961 to October 1969, to include service in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in July 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, granting service connection for PTSD and assigning a 30 percent evaluation therefor, effective from February 2009. It, along with two other issues, that of entitlement to service connection for back and right ankle disorders, were previously before the Board in May 2012 and were remanded to the RO through the VA's Appeals Management Center (AMC) in Washington, DC, so that additional development could be undertaken. This was accomplished and led the AMC to grant service connection for back and right ankle disorders and an initial rating of 50 percent for PTSD from February 2009 by way of its rating determination of February 2013. Thus, the lone remaining issue on appeal is that of entitlement to an initial rating in excess of 50 percent for PTSD. The claim for TDIU is addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. From February 2009 to the present, the Veteran's PTSD was productive of social and industrial impairment in most areas of life, but not complete social and/or industrial impairment. 2. The schedular criteria are adequate for the evaluation of the Veteran's PTSD throughout the period at issue. CONCLUSION OF LAW From February 10, 2009, to the present, the criteria for the assignment of a 70 percent rating, but not greater, for PTSD have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Preliminary Matters As noted above, this matter was previously remanded by the Board in May 2012 so that additional development could be undertaken. All of the actions sought by the Board through its prior remand were accomplished and there is no contrary argument advanced by the Veteran or on his behalf. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). This appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection PTSD. 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). No additional discussion of the duty to notify is therefore required. VA also has a duty to assist the Veteran in the development of the claim, which is not abrogated by the granting of service connection. The record includes service treatment records and reports of treatment compiled by various medical professionals postservice, in addition to lay statements from individuals familiar with the Veteran. The Veteran has not made the RO, AMC, or the Board aware of any additional evidence that needs to be obtained in order to decide fairly the claim herein addressed on its merits, and has not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of his appeal. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). The record indicates that the Veteran has been provided one or more VA psychiatric or psychological examinations in connection with the instant appeal. The findings from those examinations are detailed and comprehensive in scope and are such as to permit the Board to evaluate the disability at issue both fairly and fully. On that basis, further development action relative to the Veteran's PTSD claim is not warranted. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In view of the forgoing, the Board finds that VA has satisfied its duty to assist under the governing law and regulations. Analysis The record reflects that service connection for PTSD was established by the RO through its rating decision of July 2009. At that time, a 30 percent schedular evaluation was assigned under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411, effective from February 10, 2009. Subsequent action led to the assignment of an initial rating of 50 percent for PTSD from the aforementioned date. The initial rating assigned was timely appealed and the question for review on appeal is therefore whether an initial rating in excess of 50 percent is for assignment at any point from February 2009 to the present. See Fenderson v. West, 12 Vet. App. 119, 126 (2001) (where an award of service connection for a disability has been granted and the assignment of an initial evaluation is at issue, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged"). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate DCs identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and there must be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. PTSD is evaluated under 38 C.F.R. § 4.130, DC 9411. Under the general rating formula for mental disorders, a 50 percent rating is warranted for PTSD if one exhibits 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. A 70 percent evaluation is warranted for PTSD if one exhibits 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 actives; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); or an inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned when there is total occupational or 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. Id. When determining the appropriate disability evaluation to assign, the Board's primary consideration is a veteran's symptoms, but it must also make findings as to how those symptoms impact a veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. The Global Assessment of Functioning (GAF) is a scale reflecting psychological, social and occupational functioning on a hypothetical continuum of mental health-illness. Diagnostic and Statistical Manual of Mental Disorders, 32 (4th ed. 1994); see also Carpenter v. Brown, 8 Vet. App. 240, 243 (1995). A GAF 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). A GAF of 41-50 indicates serious symptoms (e.g. suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF of 31-40 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 or school, family relations, judgment, thinking, or mood (e.g. depressed man avoids friends, neglects family, and is unable to work). A GAF scale score of 21 to 30 denotes behavior that is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or inability to function is almost all areas (e.g., stays in bed all day; no job, home or friends). Id. In connection with this appeal, the Veteran alleges that he is entitled to a rating in excess of 50 percent for the period in question, citing the many PTSD symptoms affecting his social and occupational functioning. He argues that the GAF scores assigned most recently on VA examination and throughout the period at issue by his private attending psychologist are commensurate with PTSD that is 70 percent disabling. At the time of the initial VA examination in June 2009, the Veteran was gainfully employed, albeit with certain accommodations involving working alone and with no supervision. A GAF score of 57 was assigned at that time, but the record reflects that the Veteran was unable to continue in his job due to stress and an inability to cope with job demands and quit about three years prior to the most recent VA examination in June 2012, when a GAF score of 41 based solely on PTSD was assigned and the Veteran was noted to experience work and social impairment in most areas. The primary symptoms at that time were of depressed mood, anxiety, sleep impairment, memory loss, flattened affect, mood disturbance, inability to withstand stress, and interpersonal difficulties. In the interim, the Veteran has been evaluated and treated by a private psychologist, whose several reports, including those compiled in 2009, 2011, and 2012, reflect a GAF score of 45. In all, there is evidence presented both for and against entitlement to a higher initial rating for PTSD, to include the written and oral statements of the Veteran and/or his wife as to the impact of his PTSD on his daily life, which are credible and probative. Given the GAF scores primarily approximating the low 40s, the Board determines that the disability picture presented more nearly approximates the criteria for the assignment of a 70 percent schedular evaluation, but not greater than 70 percent, for the period from February 10, 2009, and beyond. A preponderance of the evidence is against assignment of a 100 percent schedular evaluation under DC 9411 in the absence of a showing of total social and/or industrial impairment due to PTSD. Lastly, a determination of whether the claimant is entitled to an extraschedular rating under 38 C.F.R. § 3.321(b) is required, and this is a three-step inquiry. First, the Board must determine if the evidence presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. To do this, the Board or the RO must determine if the criteria found in the rating schedule reasonably describes the claimant's disability level and symptomatology. If this is the case, the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral for extraschedular consideration is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, the Board must determine whether the claimant's exceptional disability picture exhibits other related factors, such as marked interference with employment and frequent periods of hospitalization. If the Board determines that the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, the case must be referred for completion of the third step--to determine whether, to accord justice, an extraschedular rating must be assigned. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this instance, the Veteran's service connected psychiatric disability of PTSD is clearly accounted for under DC 9411, which provides, as here, a 70 percent rating where there is social and industrial impairment in most of his life endeavors, but not complete social or industrial impairment. The Veteran is shown to be negatively affected by various PTSD symptoms, including anger, irritability, social isolation, nightmares, flashbacks, survivor guilt, memory or cognitive impairment, indifference toward authority, and interpersonal difficulties. All of the indicated manifestations are encompassed in the 70 percent schedular evaluation assigned for the period at issue, which reflects the existence of significant difficulties in most areas of life. The Veteran's disability is manifested by impairment in social and occupational functioning. The rating criteria contemplate these impairments; hence, referral for consideration of an extraschedular rating is not warranted. Thun, 22 Vet. App. at 111. In all, the record supports the assignment of an initial rating of 70 percent rating for PTSD throughout the pendency of the claim, i.e., from February 10, 2009, and beyond, but no schedular or extraschedular rating in excess of 70 percent. See 38 U.S.C.A. § 5107; 38 C.F.R. § 4.7; Mauerhan, Fenderson, supra. ORDER An initial rating of 70 percent, but none greater, is assigned for PTSD from February 10, 2009. To that extent, the appeal is granted, subject to those provisions governing the payment of monetary benefits. REMAND Entitlement to a TDIU is an element of all claims for a higher initial rating. Rice v. Shinseki, 22 Vet. App. at 447. Entitlement to a TDIU is raised 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. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F.3d 1106 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met). The June 2012 VA examination includes the Veteran's report that he quit his job three years prior "due to stress." A review of the Virtual VA record includes references to a claim for TDIU filed in May 2013 and that a decision on that issue would be addressed separately; however, the application itself is not of record and there is no indication as to what development has been undertaken. The Board has jurisdiction of the TDIU claim and further development is warranted. Updated records of any treatment the Veteran has received for his service-connected disabilities since September 2012 (the last records addressed in the February 2013 supplemental statement of the case) are pertinent evidence that must be secured. 38 C.F.R. § 3.159(c)(2). Thereafter, an examination as to the effect of the Veteran's service-connected disabilities on his ability to work should be undertaken. Accordingly, the case is REMANDED for the following action: 1. Obtain the names and addresses of all medical care providers who treated the Veteran for his service-connected disabilities since February 2013. After securing the necessary release, obtain these records. 2. After completion of the foregoing, schedule the Veteran for a VA examination to address the effects of his service-connected disabilities on his capacity to obtain and hold employment. The examiner must be provided with the Veteran's claims file and all pertinent records for review. The Veteran's service-connected disabilities are: PTSD, ischemic heart disease; tinnitus; lumbar osteoarthritis; ankle strain; radiculopathy, right leg; and hearing loss. . After examining the Veteran and reviewing the claims file, the examiner should express an opinion as to whether the Veteran's service-connected disabilities, listed above, either singly or jointly, would prevent him from obtaining or retaining employment, consistent with his education and occupational experience, irrespective of age and any non-service-connected disorders. If the examiner finds that the Veteran is capable of sedentary employment, the examiner should discuss that conclusion. A complete rationale must be provided for the opinions expressed. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant 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 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. 2013). ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs