Citation Nr: 1343471 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 08-24 892 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased rating in excess of 70 percent for service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to an effective date earlier than August 13, 2009, for a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from April 1969 to April 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was remanded in December 2011 for further development. FINDINGS OF FACT 1. The Veteran's PTSD is not manifested by 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; and memory loss for names of closest relatives, own occupation, or own name. 2. Prior to August 13, 2009, the record fails to show that the Veteran's service-connected disability precluded him from securing and following substantially gainful employment consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability evaluation in excess of 70 percent for the Veteran's service-connected PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including § 4.7 and Code 9411 (2013). 2. Prior to August 13, 2009, the criteria for a TDIU due to service-connected disabilities had not been met. 38 U.S.C.A. §§ 1155, 5107 (b) (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) In an August 2001 letter, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013) and 38 C.F.R. § 3.159(b) (2013). The RO notified the Veteran of the information and evidence necessary to substantiate the claim, information and evidence that VA would seek to provide, and information and evidence that he was expected to provide. The Board acknowledges that the August 2001 letter did not inform the Veteran of the process by which initial disability ratings and effective dates are assigned as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Complete notice was not issued prior to the adverse determination on appeal; however, fully compliant notice was later issued in an October 2007 communication, and the claims were thereafter readjudicated in November 2009 and September 2012 supplemental statements of the case. Accordingly, any timing deficiency has here been appropriately cured. Mayfield, 444 F.3d 1328 (Fed. Cir. 2006). The "duty to assist" contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination when necessary to make a decision on the claim. 38 C.F.R. § 3.159 (2013). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2013). Relevant service treatment and other medical records have been associated with the claims file. The Veteran was provided VA examinations in December 2007 and August 2009, as well as outpatient examinations in January 2012 and July 2012. The duties to notify and to assist have been met. The Board finds that the RO has substantially complied with the Board's December 2011 remand directives. It obtained the Veteran's Social Security records (located in the Virtual VA) and it attempted to obtain Department of Labor records. In April 2012, however, the District Director of the Department of Labor stated that a search of its manual and computer records have revealed no records. Increased Ratings 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. 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). Where, however, 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). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran's service-connected PTSD has been rated by the RO under the provisions of Diagnostic Code 9411. Under this regulatory provision, a 70 percent rating is warranted when the Veteran experiences occupational and social impairment, with deficiencies in most area, 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 work like setting); inability to establish and maintain effective relationships. 38 U.S.C.A. § 4.130, Diagnostic Code 9411. A 100 percent rating is warranted for 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; and memory loss for names of closest relatives, own occupation, or own name. Id. Considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The evaluation must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Outpatient treatment reports dated January 2006 (Virtual VA, Document 10 pgs. 58-60) reflect that the Veteran was employed in the VA Food Service Department and was committed to his marriage. He was receiving PTSD treatment, and the examiner noted that the Veteran had strong peer support in his PTSD group; that he was motivated for treatment and open to options and recommendations; that he had sufficiently intact cognitive and communication ability; that he was employed or had employable work skills; and that he had had prior response to treatment. An April 2007 private treatment report (Virtual VA, Document 24 pgs. 52-55) from Dr. N.A.P. reflects that in January 2006, the Veteran sustained a back injury at work. The diagnosis was chronic pain syndrome, status-post L5 vertebral fracture anteriorly. An October 2006 outpatient treatment report (Virtual VA, Document 17 pgs. 33-37) reflects that the Veteran's symptomatology was worsening commensurate with his increased physical disability. As a result, the examiner noted that it would be doubtful that the Veteran would able to function adequately within a working environment. He was diagnosed with PTSD (chronic, severe) and a major depressive disorder (recurrent, moderate). He was assigned a GAF score of 40. A GAF of 61-70 indicates some 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 with some meaningful interpersonal relationships. 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 of 21-30 indicates behavior 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 in almost all areas (e.g. stays in bed all day; no job, home, or friends). American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) (Fourth Edition); see 38 C.F.R. § 4.130 (2013). A January 2007 outpatient treatment report (Virtual VA, Document 17 p. 26) reflects that the Veteran was still employed by VA Food Service Department but that he had been on medical leave for several months "due to multiple physical complaints related to compression fracture and osteoporosis." The Veteran underwent a VA examination in December 2007. The VA examiner did not have access to the claims file. The Veteran reported that he was attending a PTSD group on a weekly basis. He complained of nightmares that occurred 3 to 4 times per month. He reported that he became angry very quickly and that he had a difficult time controlling his temper. He stated that he did not own a gun because he is afraid of what he might be able to do. He endorsed intrusive thoughts. He reported that he rarely gets into trouble, because after returning from Vietnam, he does not want to do anything to hurt anybody again. The Veteran stated that he worked at the VA until three years ago; but that he did not lose work due to PTSD symptoms. He described his marriage as "maintainable." He had 10 siblings that were all placed in foster care due to his mother's drinking. He is in touch with three sisters and one brother. He reported that he is estranged from his two children. He stated that he was friends with his co-workers while he was employed; but that he does not have any close relationships with them anymore. He was still in touch with a few of them who call. He denied any history of violence or suicide attempts since his most recent examination. The examiner stated that in summary, the Veteran reported "some impairment in his ability to work, socialize, engage in leisure as well as in his relationships. However, the majority of this impairment seems to be directly related to his back injury and the resulting disability than the PTSD." Upon examination, the Veteran was alert and oriented in all spheres. His affect was slightly dysthymic and his mood slightly depressed. He did not report any problems with communication or thought processes, and there was no evidence of such during the examination. Thought process was logical and goal oriented. There was no evidence of hallucinations or delusions. He endorsed mild feelings of hopelessness; but not suicidal ideation. The Veteran reported that he needed some help with hygiene, but only due to his back disability (not due to PTSD). He reported that he was highly motivated to keep himself clean and well groomed. He reported that his memory was poor. He stated that he forgets appointments and things that his wife asks him to do; but he does not forget himself or his name. He denied any obsessive or ritualistic behavior. His speech was within normal limits. He reported some panic attacks. He denied (and there was no evidence of) problems with impulse control. The examiner noted that the Veteran had symptoms of re-experiencing his in-service stressors, intrusive thoughts, recurring dreams, diminished interest in significant activities, difficulty falling asleep, irritability, hypervigilance, and some exaggerated startle. The examiner diagnosed the Veteran with PTSD, a back injury, and hypertension. He assigned a GAF score of 37. He noted that the Veteran had trouble getting along with supervisors at work because he felt that they were abusing their authority. He also had continued problems developing good social support and with engaging in leisure activities. He stated, however, the majority of this impairment seems directly related to his back injury and the resulting disability, and not the PTSD. The examiner stated that PTSD signs and symptoms resulted in deficiencies in most areas of life. The Veteran underwent a VA examination on August 13, 2009. The examiner reviewed the claims file in conjunction with examination. Following a thorough examination of the Veteran and the claims file, the examiner found that the Veteran's social and occupational functioning appeared to be severely impaired. He noted that there was reduced reliability in social and occupational functioning as indicated by increased irritability, severe depression, growing hopelessness, low motivation and energy, panic attacks, and social isolation. The examiner found him to be unemployable due to the severity of his PTSD; and found that there appeared to be a slight decrease in his overall psychological, social, and occupational functioning since his most recent examination. The examiner found the Veteran competent to manage his funds. The Veteran reported that he had no personal friends, and that his wife left him a month earlier. He reported no other relationships except for a sister that calls his periodically to check on him. He reported an increase in irritability. He admitted to threatening some friends of his ex-wife with unspecified violence. He denied suicide attempts and hallucinatory experiences. There was some circumstantiality of speech; and he expressed considerable suspiciousness of others. He evidenced hostility and suspiciousness initially to the examiner and previous VA examiners. He became considerably calmer as the interview progressed. He reported that he bathed every other day in a sit-down shower and that his level of eating varied greatly (from eating nothing on some days and eating "a lot" on others). He was oriented to person, place, and time. He reported increasing forgetfulness, but he denied deterioration in his ability to concentrate. Overall, the examiner found the Veteran to have mild impairment in his ability to concentrate, and in his short-term memory. There was no obsessive or ritualistic behavior which interfered with routine activities. The Veteran reported panic attacks at unpredictable intervals. He stated that he was unable to function during these attacks. His mood was moderately to severely depressed. Anxiety was reported, but not observed. He also reported crying spells, low motivation and energy, feelings of uselessness and worthlessness, passive suicidal ideation (at times wishing he would die in his sleep), helplessness and hopelessness. The examiner diagnosed PTSD and a depressive disorder (not otherwise specified). He assigned a GAF score of 35. The examiner noted that since his most recent examination, he has been unemployed, become increasingly irritable, anxious and depressed and less social with others. He noted that the Veteran's social and occupational functioning appeared to be severely impaired. There was reduced reliability in his social and occupational functioning as indicated by increased irritability, severe depression, growing hopelessness, low motivation and energy, panic attacks, and social isolation. A January 2012 outpatient treatment report (Virtual VA, Document 2, pgs. 36-38) reflects that the Veteran retired from Food Services largely due to multiple physical complaints related to compression fracture and osteoporosis. He reported that he is committed to his marriage; but it is difficult because she is an alcoholic who also has PTSD. He continued to have strong peer support in his PTSD group. He was still motivated for treatment and open to options and recommendations, and he had sufficiently intact cognitive and communication ability. His mood was 3/10, and he reported experiencing mood irritability. He reported having a difficult time sleeping. He had no psychotic symptoms or thoughts of suicide. Upon examination, the Veteran was well-groomed, cooperative, easy to engage, not tearful, and he exhibited good eye contact. His speech reflected a normal rate, volume, tone, rhythm, and productivity. He was cooperative. His psychomotor activity was normal. His mood was pleasant and well-rested, euthymic. His affect was restricted but appropriate. His thought process was logical, coherent and goal-directed. There was no reported suicidal or homicidal ideation, paranoid delusions, racing thoughts, mania, or looseness of associations. He was alert and oriented to person, place, and time. His memory was intact; concentration was good; intelligence was average; and insight and judgment was good. He was assigned a GAF score of 50. The Veteran was examined again (on an outpatient basis) in July 2012 (Virtual VA, Document 2, pgs. 12-13). The examination report was consistent with the January 2012 findings, and his GAF score remained 50. He stated that he was sleeping 7 to 8 hours per night but that he tossed and turned in his sleep. He stated that his wife was his support system. The Board acknowledges that the Veteran's GAF of 40 (noted in October 2006) 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). Moreover, the Veteran's GAF score of 35 (as noted in his August 2009 VA examination report) indicates behavior 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 in almost all areas (e.g. stays in bed all day; no job, home, or friends). It appears, however, that these low GAF scores were related to the Veteran's back disability. The December 2007 VA examiner explicitly stated as much. The Board notes that the treatment reports (to include the August 2009 VA examination report) fail to reflect many of these symptoms. The evidence of record failed to reflect impairment in reality testing or communication. It failed to reflect that behavior was 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 in almost all areas (e.g. stays in bed all day; no job, home, or friends.) Moreover, the Board notes that in order to warrant a rating in excess of 70 percent, the Veteran's disability must be manifested by 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; and memory loss for names of closest relatives, own occupation, or own name. The Board notes that none of the enumerated symptoms have been reflected by the record. The Veteran has not even alleged any of these symptoms. The Veteran was fully employed until he injured his back in January 2006. Although the August 2009 examiner found that the Veteran's PTSD rendered him unable to work, there has been no finding of total social impairment. To the contrary, the Veteran has reported that he went to weekly PTSD group therapy. At his December 2007 VA examination, he reported that he kept in touch with four of his siblings (three sisters and one brother). The Board recognizes that at the Veteran's August 2009 VA examination, he noted that he separated from his wife the previous month, and that he had no friends; however, it appears that the Veteran has reconciled with his wife inasmuch as treatment reports from 2012 reflect that the Veteran was committed to his marriage and that his wife is his support system. These records also reflect that the Veteran continues to attend PTSD group therapy. Consequently, it does not appear that the Veteran suffers from total social impairment. Though the Board acknowledges that the Veteran's PTSD symptoms are severe, the evidence simply does not reflect 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; and memory loss for names of closest relatives, own occupation, or own name. His symptoms are more consistent with a 70 percent rating. Pursuant to 38 C.F.R. § 3.321(b)(1) (2012), 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." 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, 244 (2008). 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. Initially, there must be a comparison between the level of severity and symptomatology of a 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), aff'd sub nom, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). 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 are marked interference with employment and frequent periods of hospitalization). The rating criteria fully contemplate the Veteran's disability as noted above, his symptomatology has consisted of re-experiencing his in-service stressors, intrusive thoughts, recurring dreams, diminished interest in significant activities, difficulty falling asleep, irritability, hypervigilance, and some exaggerated startle. These symptoms are contemplated in the rating criteria. The rating criteria are therefore adequate to evaluate the Veteran's disability and referral for consideration of extraschedular rating is, therefore, not warranted. 38 C.F.R. § 3.321(b)(1). TDIU VA will grant entitlement to a TDIU when the evidence shows that a Veteran is precluded, by reason of his service-connected disabilities, from securing and 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). 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 regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). The Board must evaluate whether there are circumstances in a Veteran's case, apart from any non service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The Veteran was granted a TDIU effective August 13, 2009. In order to warrant entitlement to a TDIU prior to August 13, 2009, his service-connected disability must have been so severe that it was impossible to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Prior to August 13, 2009, the Veteran had one service-connected disability-PTSD. The Veteran's PTSD has been rated at 70 percent effective August 21, 2002. Consequently, his combined disability rating prior to August 13, 2009, was 70 percent. The central question is whether the Veteran's service-connected PTSD precluded gainful employment for which his education and occupational experience would otherwise qualify him. The Board notes that the evidence reflects that the Veteran was fully employed with VA Food Services and that he sustained an injury to his back in January 2006. Following the back injury, he remained employed, but on medical leave. The records reflect that the Veteran never was able to return to work following his back injury, and that he retired as a result of multiple physical complaints related to compression fracture and osteoporosis. The Veteran himself admitted (at his December 2007 VA examination) that he did not lose work due to PTSD symptoms. The Board notes that the first competent medical evidence that the Veteran's PTSD precluded gainful employment was the VA examination that took place on August 13, 2009. Again, it was not until the worsening of his psychiatric symptoms, as reflected in the August 2009 VA examination, that his PTSD precluded gainful employment. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for entitlement to a TDIU prior to August 13, 2009, must be denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to a rating in excess of 70 percent for PTSD is denied. Entitlement to an effective date prior to August 13, 2009, for a TDIU is denied. ______________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs