Citation Nr: 1404167 Decision Date: 01/30/14 Archive Date: 02/10/14 DOCKET NO. 10-22 973 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial disability rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating due to individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Solomon, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1967 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted the Veteran's claim for entitlement to service connection for PTSD and assigned a disability rating of 50 percent and an effective date of January 23, 2007. The Veteran appealed that decision to the Board, and the case was referred to the Board for appellate review. A hearing was held on June 22, 2012 in St. Petersburg, Florida before a Veterans Law Judge (VLJ) who has since retired. A transcript of the hearing testimony is in the claims file. The appellant was offered, and accepted, the opportunity for a new Board hearing before a different Veterans Law Judge. An additional hearing was held on May 7, 2013, in Washington, D.C., before Kathleen K. Gallagher, a Veterans Law Judge who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c) (West 2002) and who is rendering the determination in this case. A transcript of the testimony is in the claims file. The issue of entitlement to 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. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 2. The Veteran has PTSD which has been manifested by 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 worklike setting); inability to establish and maintain effective relationships. 3. The Veteran has PTSD which has not been manifested by total occupational and social impairment, due to such symptoms as: gross impairment of 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. CONCLUSION OF LAW The criteria for a disability rating of 70 percent, but no more, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant regarding what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must inform the Veteran about (1) the information and evidence not of record that is necessary to substantiate the claim; (2) the information and evidence that VA will seek to provide; and (3) the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a current disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, the Veteran is challenging the initial disability rating assigned following the grant of service connection for PTSD. In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. 473, 490-91 (2006). Thus, because the notice that was provided before service connection for PTSD was granted was legally sufficient, VA's duty to notify has been satisfied. In addition, the duty to assist the Veteran has been satisfied in this case. All available relevant evidence pertinent to the issue on appeal is in the claims file including the Veteran's service treatment records, VA treatment records, and statements in support of the Veteran's claim from the Veteran, his representative, and the Veteran's brother. The Veteran has had the opportunity to present evidence and argument in support of his claim, and nothing reflects that he has indicated the existence of any relevant evidence that has not been obtained or requested. A VA examination with respect to the issue on appeal was obtained in August 2009. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the August 2009 VA medical examination obtained in this case is adequate. The VA examiner reviewed the claims file and personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his service-connected disability under the applicable rating criteria. The available records and medical evidence have been obtained in order to make adequate determinations as to this claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Increased Initial Rating for PTSD Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2013). 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 for that rating. 38 C.F.R. § 4.7. The Veteran is currently assigned a disability rating of 50 percent for PTSD under Diagnostic Code 9411. A 50 percent disability rating is contemplated for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereo-typed 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 disability rating is contemplated for 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent disability rating is contemplated 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 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. The use of the term 'such as' in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase 'such symptoms as,' followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each Veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. Id. The Veteran's PTSD is currently rated as 50 percent disabling, and he contends that his PTSD warrants a higher rating. The Board finds that the severity and effects of the Veteran's PTSD symptoms more closely approximates a 70 percent rating. At the May 2013 Board hearing, the Veteran described experiencing incapacitating panic attacks, which stop his functioning, multiple times per day. He stated that he has to keep to himself because of the frequency of these episodes. The Veteran also described avoiding social relationships because of fear of what other people would see in him. He spoke of engaging in isolating behaviors and stated that he cannot relate to others, even his old friends. The Veteran has two brothers and one sister, with whom he speaks infrequently. He stated that he has not had a permanent job since 2001, has been given a few side jobs from friends, and is unable to work with others. The Veteran described regular intrusive thoughts of his traumatic experiences from service, and said that he avoids talking about his service. He also described being depressed and often having an angry and frustrated mood. The Veteran stated that his depression makes him not want to do anything; resulting in him sleeping as much as possible. He also indicated that he had previously gone through the motions of suicide by drawing a razor blade down his arm. With regard to his thinking, the Veteran stated that he second guesses himself a good amount and finds himself doing irrational or wrong things, then questioning himself as to why. Finally, the Veteran described reacting to his PTSD symptoms previously by self-mediating with alcohol, which he points to as a large contributor to the end of his 20-year marriage. In May 2013, the Veteran's brother, a licensed psychologist, submitted a letter in support of the Veteran's claim. He noted that his brother suffers from PTSD and also panic attacks, which have become more noticeable since the Veteran stopped self-medicating with alcohol. He explained that the Veteran has been unable to form long term relationships due to an inability to open up and be vulnerable, leading to social isolation, and stated that this has also kept the Veteran from keeping jobs. At the previous Board hearing, in June 2012, the Veteran described experiencing daily and constant anxiety, with flashbacks to his experiences in service that lead to a loss of awareness. He reported that he last worked approximately 10 years prior, and stated that he cannot work and that his experiences in the Republic of Vietnam affect him constantly. He stated that he does not socialize and, although he remains friendly with his brothers and sister, does not talk to his family members much other than calls on the holidays. The Veteran also indicated that he has difficulty communicating with others. Finally, he described that he sometimes gets angry and visualizes hurting others. The Veteran and his brother, as lay persons, are competent to comment upon their personal observations regarding the Veteran's PTSD symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994) (lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person). Additionally, the Veteran's brother's medical training and experience lend his statements regarding his observations heightened competency and probative value. The Board also finds both accounts credible with regard to the described symptomatology. The Veteran's claim is also supported by the August 2009 VA examination report. While the VA examiner noted that a review of the records seemed to indicate that the Veteran benefitted from individual PTSD therapy through the VA, he also noted that the Veteran was limited psychosocially; withdrawing from friends and family more in recent years as he became more PTSD-symptomatic. The Veteran reported sleeping three to four hours per night without medication, and experiencing traumatic combat nightmares approximately one or two times per week. He described a regular ritual of checking the security of his apartment several times each night. The Veteran also reported experiencing more flashbacks and generalized anxiety, resulting in greater day-to-day distress and relative loss of functioning. He described being less involved in prior interests because of increasing anxiety levels, and stated that he feels safer in his apartment by himself. The Veteran stated that he maintained somewhat regular contact with his family members, but reported that they were not as close as before because of the Veteran's inclination to be by himself. The VA examiner assigned a GAF score of 57 regarding the Veteran's current functioning (indicating moderate symptoms), and opined that the Veteran has experienced moderate-severe disruptions in psychosocial and occupational functioning since leaving service. He also indicated that the Veteran's PTSD resulted in deficiencies in family relations, work, and mood: the Veteran's significant decrease in tolerance for being around people has resulted in emotional distance from his family members over time; the Veteran quit or had been fired from several jobs due to his anxiety, irritability, and alcohol problems; and the Veteran had noted mood dysphoria due to his alienation from others and inability to be happy. While the record contains treatment records from the Bay Pines VA Health Care System indicating PTSD symptoms less severe than those noted above, the Board finds the report of the VA examiner should be accorded significant probative weight, as it was based on full consideration of the Veteran's documented history and assertions, and is supported by a clearly-stated rationale. See, e.g., Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)) and Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (holding that the credibility and weight to be attached to medical opinions are within the province of the Board). In light of the evidence discussed in the preceding paragraphs, the Board finds that the severity of the Veteran's overall disability more nearly approximates a level of disability contemplated by a 70 percent rating. A preponderance of the evidence demonstrates occupational and social impairment, with deficiencies in most areas, including family relations, mood, and work, due to symptoms including: suicidal ideation; an obsessional ritual of checking the security of his apartment several times each night, which interferes with his routine activities; and an inability to establish and maintain effective relationships due to anxiety and isolating behavior. The preponderance of the evidence of record, however, does not support the assignment of a rating in excess of 70 percent for PTSD. There is no evidence of symptoms of the same severity as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting others, intermittent inability to perform activities of daily living, disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name. The Veteran also does not have total occupational and social impairment, as he maintains a relationship with his siblings and has been able to take on some side jobs with the help of his friends. A 100 percent rating for PTSD under Diagnostic Code 9411 is not warranted. In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). However, in this case, the Board finds that the record does not show that the Veteran's PTSD is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (2013). 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. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Veteran described his symptoms of PTSD, at worst, to include depressed mood, passive suicidal ideation and passively imagining hurting others, anxiety, daily panic attacks, nightmares, impaired thought processes, hypervigilence, an inability to work with others, and a lack of social relationships. A rating of 70 percent for mental disorders contemplates social and occupational impairment with symptoms such as suicidal ideations, difficulty in adapting to stressful circumstances (including work or a worklike setting) and the inability to establish and maintain effective relationships. The Board finds that the rating criteria of Diagnostic Code 9411 adequately contemplate the levels of cognitive, social, and occupational impairment that are demonstrated in the evidence of record. As discussed above, there is a higher rating available under the applicable diagnostic code, but the Veteran's PTSD is not productive of such manifestations. There is no suggestion in the medical evidence that the rating criteria do not reasonably describe the Veteran's disability level and symptomatology. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected PTSD under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). In conclusion, the preponderance of the evidence is in favor of an initial disability rating of 70 percent for PTSD, but no higher, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). ORDER Entitlement to a disability rating of 70 percent, but no more, for service-connected PTSD is granted. REMAND Reason to Remand: To develop and adjudicate the TDIU claim. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part and parcel of an increased-rating claim when raised by the record. The Board has jurisdiction to consider the Veteran's possible entitlement to TDIU in this circumstance when the issue is raised by assertion or reasonably indicated by the evidence and is predicated at least in part on the severity of the service-connected disability in question, regardless of whether the RO has expressly addressed this additional issue. See VAOPGCPREC 6-96 (Aug. 16, 1996). See also Caffrey v. Brown, 6 Vet. App. 377 (1994); Fanning v. Brown, 4 Vet. App. 225, 229 (1993); EF v. Derwinski, 1 Vet. App. 324 (1991). In this case, the Veteran told the August 2009 VA examiner that he had quit or been fired from several jobs over the years due to his anxiety, irritability, and alcohol problem. At the May 2013 Board hearing, the Veteran also indicated that he had not been employed full-time since 2001, and stated that he is not able to work because of his PTSD symptoms, and specifically, did not believe he could work with others. The Board finds that the issue of TDIU has been raised and that it must be remanded for initial development. Accordingly, the claim is REMANDED for the following action: 1. Send the Veteran a letter which provides proper and complete notice regarding the claim remanded herein. This notice must include notice of the criteria necessary to substantiate a claim for TDIU, to include on a schedular basis as per 38 C.F.R. § 4.16(a). 2. Send the Veteran VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, for him to complete, with instructions to return the form to the RO/AMC. 3. Complete any additional evidentiary development necessary to adjudicate a claim for TDIU, to specifically include collecting and verifying information concerning the Veteran's complete educational and occupational history. 4. After completing the above, and awaiting the requisite time for the Veteran to respond, adjudicate whether the Veteran is entitled to TDIU under the provisions of 38 C.F.R. § 4.16, based on impairment attributable to his service-connected PTSD. In so doing, the RO may decide to pursue further development of the Veteran's employment history, or obtain additional medical evidence or medical opinion, as is deemed necessary. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate Supplemental Statement Of the Case and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs