Citation Nr: 1414108 Decision Date: 04/01/14 Archive Date: 04/11/14 DOCKET NO. 08-05 489 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to an initial staged disability evaluation (rating) in excess of 70 percent for posttraumatic stress disorder (PTSD), for the rating period prior to June 9, 2010. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to June 9, 2010. REPRESENTATION Appellant represented by: Robert V. Chisholm, attorney ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from November 1969 to November 1971. He is the recipient of the Combat Action Ribbon. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Providence, Rhode Island, Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for posttraumatic stress disorder (PTSD) and assigned a 30 percent evaluation, effective February 2007. By rating action in May 2012, a 100 percent evaluation was assigned, effective from June 9, 2010. This case was initially before the Board in July 2011, wherein it was remanded for additional due process considerations and development. The case was returned to the Board in December 2012 for appellate consideration, at which time an initial rating of 70 percent, effective prior to June 9, 2010, was awarded. This action is reflected in the recharacterization of the issue on appeal. The Veteran subsequently filed an appeal with the U.S. Court of Appeals for Veterans Claims (Court) an appeal of the Board's denial of a higher initial rating prior to that date. In July 2013, the Court issued an Order granting a Joint Motion for Vacatur and Remand (Joint Motion). This Order had the effect of vacating that portion of the December 2012 Board decision which denied an initial rating in excess of 70 percent prior to June 9, 2010, and returned that issue to the Board for further consideration. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. For the period prior to February 23, 2009, the service-connected PTSD was characterized by occupational and social impairment with reduced reliability and productivity due to such symptoms as social isolation, a depressed mood, and decreased focus and concentration. 2. For the period commencing February 23, 2009, the service-connected PTSD is characterized by near total occupational and social impairment, with deficiencies in most areas, due to such symptoms as social isolation, heightened anger and irritability, and unemployability. CONCLUSIONS OF LAW 1. The criteria for a schedular evaluation in excess of 70 percent for PTSD prior to February 23, 2009 have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.157, 3.159, 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2013). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for a schedular evaluation of 100 percent for PTSD for the period commencing February 23, 2009, have been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.157, 3.159, 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes 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 United States Court of Appeals for Veterans Claims (CAVC) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that 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, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this case, the agency of original jurisdiction (AOJ) issued a notice letter to the Veteran in February 2007. The February 2007 letter explained the evidence necessary to substantiate the claim for service connection, as well as the legal criteria for entitlement to such benefits. The letter also informed him of his and VA's respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Concerning the appeal for a higher initial rating for PTSD, this is a "downstream" element of the RO's grant of service connection for this disability in the currently appealed rating decision, and no additional notice is required. Nevertheless, a May 2008 letter from VA to the Veteran explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the Court have held that, once service connection is granted the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date). Any defect as to the timing of the issuance of notice was cured by readjudication in an April 2012 supplemental statement of the case. See Prickett v. Nicholson, 20 Vet. App. (2006). VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). In this case, the claims file contains the Veteran's service treatment records and reports of VA post-service treatment, as well as the Veteran's own statements in support of his claims. In 2007, 2010, and 2012, the Veteran was afforded VA medical examinations in connection with the claim. As noted above, the Veteran has been assigned a 100 percent rating effective from June 9, 2010. He has asserted that he is entitled to a higher initial rating. The record includes VA outpatient treatment records and adequate VA examinations conducted during the period prior to June 9, 2010 and a more recent VA examination in 2010. The Board finds that the record is adequate to address the claim on appeal. The Board has reviewed the examination reports, and finds that they are adequate for the purpose of deciding the issue on appeal. The examination reports contain all the findings needed to evaluate the Veteran's initial rating appeal, including his history and evaluations. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the claim. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Increased Initial Rating for PTSD The Veteran contends that an initial disability rating for PTSD in excess of 70 percent is warranted for the rating period prior to June 9, 2010. He contends his symptomatology supports a higher evaluation due to impairment in social and occupational functioning. PTSD is rated under Diagnostic Code 9411 and utilizes the General Rating Formula for Mental Disorders. A 70 percent rating is warranted where there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. A 100 percent evaluation for a psychiatric disability 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 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. 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. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of the 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 his/her social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that VA "intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms." The Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." VA examinations and clinical evaluations reflect assignment of various Global Assessment of Functioning (GAF) scores. The Global Assessment of Functioning is a scale reflecting the subject's psychological, social, and occupational functioning. Carpenter v. Brown, 8 Vet. App. 240 (1995). A GAF score of 40-31 is indicative of 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; child frequently beats up younger children, is defiant at home, and is failing at school.). A GAF score of 41-50 is indicative of serious symptoms (e.g., suicidal ideation, severe obsessive rituals, frequent shoplifting), or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). See American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM- IV) p. 46-47 (4th Ed.). After a review of all the evidence, lay and medical, the Board finds that the Veteran's service-connected PTSD more nearly approximates the criteria for an initial 100 percent disability evaluation for the period commencing February 23, 2009. On February 23, 2009, the Veteran was admitted to a VA medical center for treatment of his PTSD. On initial intake, he reported daily isolation from friends and family, a depressed mood, and difficulty managing his anger. He reported that in the previous week, he got out of his car at a traffic light and began pounding on the car next to him. A GAF score of 38 was assigned. The examiner also noted the Veteran was not currently employed and was unable to work, presumably due to his symptomatology. Moreover, the Veteran was hospitalized nearly two months during this hospitalization, and again required hospitalization in September 2009 for treatment of PTSD symptomatology. Finally, the Veteran was hospitalized again from April 2010 to May 2010, during which the Veteran endorsed feelings of anger, explosive behavior, anxiety in social situations, and depression. These hospitalization reports confirm the Veteran was experiencing symptoms that more nearly approximate total impairment in his social and occupational functioning due to a sustained increase in PTSD symptomatology, and that such an increase was not merely temporary in nature. In light of 38 C.F.R. §§ 4.3 and 4.7, a 100 percent schedular rating is warranted for the period commencing February 23, 2009. The criteria for a disability rating of 100 percent, however, have not been met or more nearly approximated for any part of the rating period prior to February 23, 2009. Considering first the Veteran's employability, he was noted to be working prior to that date. According to January and February 2007 clinical notations, the Veteran was currently employed as a construction worker, and owned his own construction company. In March 2008, he was also noted to be employed managing several properties he owned. Later treatment notes reflect his desire to turn over management of the family business to his children, but he also indicated at least some involvement in the management of his business. As such, total impairment in occupational functioning is not established prior to February 23, 2009. Additionally, the evidence does not show that the Veteran experienced total social impairment prior to February 23, 2009. He remained married to his wife of many years, and reported at least some contact with his children. He also did not display grossly impaired thought processes, persistent delusions or hallucinations, or intermittent inability to perform activities of daily living, as contemplated by a 100 percent disability rating under Diagnostic Code 9411. At all times of record, the Veteran was alert and fully-oriented, and able to communicate in a coherent fashion with VA examiners and medical care providers. As noted in the March 2007 VA examination report, the Veteran's functional impairment was not so severe as to impair his thought processes; there was no evidence of delusions or hallucinations, the Veteran's suicidal ideation was without plan or intent, and the Veteran was able to maintain hygiene and activities of daily living. Further, VA treatment records are also negative for evidence of psychosis, hallucinations, delusions, or other sustained thought disorders. Additionally, the VA examination report in March 2007 shows that the Veteran did not have cognitive impairment, his speech was normal, and the examiner noted that the Veteran was able to function effectively within certain parameters. At that time, the Veteran was able to maintain a construction business related to his rental properties and to help his family run a party goods store located in a building he owned. He was able to socialize with family and one other couple. Finally, although the Veteran has reported heightened anger and impaired impulse control, he had not demonstrated himself to be a threat toward himself or others. He reported no legal difficulties related to his anger outbursts and has denied any homicidal or suicidal plans. For these reasons, the Board finds that a preponderance of the evidence is against an initial disability evaluation in excess of 70 percent for PTSD for the period prior to February 23, 2009. With respect to the Veteran's claim, the Board has also considered his lay assertions, and those of his spouse, that a higher initial rating is warranted. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran and his spouse are competent to report symptoms because such symptoms are subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). He and his wife are not, however, competent to identify a specific level of disability of these disorders according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's PTSD has been provided by the medical personnel who have objectively examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. As such, the Board finds the weight of the competent and probative evidence supports the assignment of a 100 percent rating for the service-connected PTSD effective February 23, 2009, and is against the assignment of an initial rating in excess of 70 percent prior to that date. Consideration has also been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the Veteran. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (claim for an increased rating includes consideration of whether a total disability rating by reason of individual unemployability is warranted under the provisions of 38 C.F.R. § 4.16). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2012). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, the symptoms described by the Veteran fit appropriately with the criteria found in the relevant Diagnostic Codes for the disabilities at issue. Specifically, the symptomatology and impairment caused by the Veteran's PTSD are specifically contemplated by the pertinent schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria specifically provide for disability ratings based on a combination of the symptoms claimed by the Veteran and clinical findings and other objective evidence of record. In this case, the Veteran has reported heightened anger and irritability, a depressed mood, social isolation, and impaired impulse control. These symptoms are part of or similar to symptoms listed under the pertinent schedular rating criteria. For these reasons, the Board finds that the schedular rating criteria are adequate to rate the disability on appeal, and referral for consideration of an extraschedular evaluation is not warranted. ORDER A schedular rating in excess of 70 percent for PTSD prior to February 23, 2009 is denied. A 100 percent schedular rating for PTSD is assigned effective February 23, 2009. REMAND During the pendency of this appeal, the Veteran and his representative have asserted that his service-connected disabilities render the Veteran unemployable. A claim for TDIU may be considered implicitly within a current increased rating claim. See Comers v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009) (a TDIU claim is "implicitly raised whenever a . . . veteran, who presents cogent evidence of unemployability, seeks to obtain a higher disability rating"); Rice v. Shinseki, 22 Vet. App. 447 (2009) (suggesting, in an effective date appeal, that an appeal for higher rating somehow includes TDIU, or that a TDIU must arise from an increased rating claim, unless it is the veteran who raises the TDIU claim). 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, 1109-10 (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). In an April 2012 rating decision, the RO considered the issue of entitlement to a TDIU. The RO found, however, that this issue was moot, as the Veteran had been granted a schedular 100 (total) rating effective June 9, 2010. The record does not reflect that the RO has considered entitlement to a total disability rating based on individual unemployability due to service-connected disabilities for the period prior to February 23, 2009, the effective date of the total schedular rating granted by the Board herein. Therefore, remand is required to afford the Veteran initial consideration of TDIU by the AOJ. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Accordingly, the issue of TDIU is REMANDED for the following action: 1. Contact the Veteran and request he file a completed VA Form 21-8940. He should be asked to provide a complete work history, whether he filed any workmen's compensation claims, and any other information regarding his employment or attempts to obtain employment. 2. After undertaking any additional development deemed appropriate, adjudicate the claim for a TDIU prior to February 23, 2009 in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case, and should be afforded the applicable opportunity to respond before the record is returned to the Board for further review. 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). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs