Citation Nr: 1449335 Decision Date: 11/06/14 Archive Date: 11/12/14 DOCKET NO. 12-11 584 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to an initial disability rating greater than 30 percent for service-connected posttraumatic stress disorder (PTSD) for the period prior to March 20, 2011. 2. Entitlement to a disability rating greater than 50 percent for service-connected PTSD for the period from October 1, 2011 to March 5, 2013, and for the period beginning on September 1, 2013. 3. Entitlement to a total disability rating due to individual unemployability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Kate Churchwell, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1965 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In his November 2013 VA Form 9 substantive appeal, the Veteran requested a hearing before a member of the Board. In August 2014 he withdrew his request for a hearing and VA therefore has no duty to provide an opportunity for a hearing in this case. See 38 C.F.R. § 20.704(e) (2014). FINDINGS OF FACT 1. For the period prior to March 20, 2011, the Veteran's PTSD did not resulted in occupational and social impairment with reduced reliability and productivity due to such symptoms as impaired judgment, difficulty in establishing and maintaining effective work and social relationships, and bland mood or symptoms of such frequency, duration and severity as to equate to this level of disability. 2. For the period from October 1, 2011 to March 5, 2013, and for the period beginning on September 1, 2013, the Veteran's PTSD did not result in more than 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; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships; and did not result in the inability to secure and obtain a substantially gainful occupation or symptoms of such frequency, duration and severity as to equate to this level of disability. 3. The Veteran's service-connected disabilities do not render him unable to obtain and secure substantial gainful employment. CONCLUSION OF LAW 1. The criteria for a disability evaluation in excess of 30 percent disability evaluation for PTSD have not been met for the period prior to October 27, 2007. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.21, 4.126, 4.130, Diagnostic Code 9411 (2014). 2. The criteria for a disability evaluation in excess of 50 percent for PTSD have not been met for any period of October 1, 2011 to March 5, 2013 or the period beginning on September 1, 2013. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.21, 4.126, 4.130, Diagnostic Code 9411 (2014). 3. The criteria for TDIU have not been met. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 4.16 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See eg. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013) and 38 C.F.R. § 3.159 (2014). In Dingess v. Hartman, the Court held that the notice requirements of 38 U.S.C. § 5103(a) apply generally to all five elements of a service-connection claim. 19 Vet .App. 473, 486 (2006). However, the Court in Dingess also held that "[i]n cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated-it has been proven." Id. at 491. When the appellant disagreed with the initial disability rating assigned, VA was obligated under sections 7105(d) and 5103A, to advise the appellant of what was necessary to obtain the maximum benefit allowed by the evidence and the law. Id. In the present case, in November 2009 the RO sent the Veteran notice letters regarding disability ratings and effective dates. Thus, all notice obligations have been met. VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of service and other relevant records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA has obtained service treatment records, assisted the Veteran in obtaining evidence, and afforded the Veteran adequate examinations in November 2009 and September 2013. The VA examinations provided were adequate in that they recorded the reported medical history, reported accurate findings, provided opinions with rationales and provided the effects on social functioning and work. All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. In summary, no further notice or assistance to the Veteran is required for a fair adjudication of his claim. II. Merits of Claim This appeal arises from the October 2013 rating decision in which service connection was established for PTSD and a 30 percent rating was assigned, effective October 27, 2006. A subsequent rating decision in June 2011 assigned a temporary 100 percent rating effective March 21, 2011 to July 1, 2011, due to hospitalization. Thereafter, the rating decision in September 2011 extended the temporary 100 percent rating until September 30, 2011, and then assigned a 30 percent rating onward. In April 2013, following another hospitalization period, a rating decision assigned a temporary 100 percent rating effective March 5, 2013 until May 31, 2013. Thereafter, a 30 percent rating was assigned. The August 2013 rating decision extended the 100 percent rating based on hospitalization until August 31, 2013. A 30 percent rating was assigned following the temporary increase period. Most recently, in the October 2013 rating decision, the Veteran's PTSD rating was increased from 30 percent to 50 percent for the period of October 1, 2011 to March 4, 2013 and the period beginning on September 1, 2013 forward. III. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2014). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10 (2014). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2 (2014); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2014). It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2014). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). The average impairment of earning capacity due to PTSD is determined by the criteria set out in the General Formula for Mental Disorders. See 38 C.F.R. § 4.130 (2014). A 30 percent evaluation is warranted where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent evaluation is warranted where there is 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 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; intermittently illogical obscure, or irrelevant speech; 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 worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted where there is 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. Id. That portion of VA's Schedule for Rating Disabilities that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (also known as "the DSM-IV"). 38 C.F.R. § 4.130 (2014). The DSM-IV contains a Global Assessment of Functioning (GAF) scale, with scores ranging between zero and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health - illness. Higher scores correspond to better functioning of the individual. GAF scores ranging between 51 and 60 are assigned when there are moderate symptoms (like flat affect and circumstantial speech, and occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Id. GAF scores ranging between 41 and 50 are assigned when there are 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). Id. GAF scores ranging between 31 and 40 are assigned when there is 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). Id. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" 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 the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). A veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that rating or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). Other language in Vazquez-Claudio indicates that the phrase "others of similar severity, frequency, and duration," can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. Id. at 116. a. Period Prior to March 20, 2011 The preponderance of evidence applicable to the period prior to March 20, 2011 shows that the disability due to the Veteran's PTSD approximated the criteria for 30 percent disability rating but no higher. In November 2009 VA afforded the Veteran with an examination to evaluate his PTSD. At that time, the Veteran appeared well groomed and generally appropriate, was oriented to person, place and time, and had normal speech. The Veteran indicated regular interactions with his family and minimal social activities and leisure pursuits. He reported a history of passive suicidal thoughts and persistent low mood and anxiety. Moreover, the Veteran reported poor concentration and memory problems. The Veteran also reported emotional numbing and startled response, as ongoing symptoms of his PTSD. The record also includes outpatient treatment records relating to this time period. In an August 2010 treatment note the Veteran described tension in his household and reported "occasional fleeting passive death wishes and suicidal ideation". However, a suicidal history was denied. The Veteran also reported he is able to sleep 4-6 hours a night but suffers from both psychological and financial stressors. A Suicide Safety Plan was discussed and implemented with the Veteran at this time. The Veteran's symptoms during this time do not meet those in the rating criteria nor do they demonstrate such frequency, duration and severity as to equate to occupational and social impairment with reduced reliability and productivity warranting a 50 percent rating or higher. He did not indicate he had difficulty with impaired judgment, difficulty establishing and maintaining effective work and difficulty with social relationships. Some suicidal ideations were noted but there was no suicide attempts made during this period. To the contrary, the examination report indicated the Veteran was still working at the time and maintained regular interactions with his family, albeit tense at times. As a result, the Veteran's symptoms during this time did not approximate the criteria or level of severity warranted to assign a 50 percent rating. Instead, the Veteran's reported functioning at the November 2009 examination and the August 2010 treatment notes more closely approximates the criteria for a 30 percent rating in that the Veteran was generally functioning satisfactorily with his routine behavior, there were no mention of issues performing self-care and his conversation was noted as normal. He exhibited no issues with memory loss but a moderate depressed mood, emotional numbing and startle responses were noted. For these reasons, while a 30 percent rating is warranted for the period prior to March 20, 2011, the preponderance of evidence shows that a rating higher than 30 percent is not warranted for that period. b. Period from October 1, 2011 to March 4, 2013 Turning to the period from October 1, 2011 to March 4, 2013, the preponderance of evidence shows that the disability due to the Veteran's PTSD approximated the criteria for 50 percent disability rating but no higher. In an October 2011 statement, the Veteran indicated that his PTSD had worsened. The medical evidence from this time period indicates treatment for his PTSD symptoms and therapy visits. Specifically, VA treatment notes from October 2011 indicated the Veteran had just completed a PTSD program the month prior and he was feeling better after the program. He reported feeling like his depression was under control, and sleeping was okay. Moreover, his appearance was normal, personal hygiene was fair, mood was neutral, affect was appropriate, no hallucinations were reported, no suicidal or homicidal ideations, memory was intact with fair attention and judgment. A GAF score of 55 was given to the Veteran at this time. Further, VA treatment notes from February 2012 reported similar findings in the Veteran's appearance, attitude, speech, mood with no thoughts of suicide or homicide and having intact memory with fair attention and judgment. The preponderance of the evidence relevant to this time frame shows that the Veteran's PTSD did not approximate the criteria for a rating higher than 50 percent. Importantly, the treatment notes do not show that the Veteran's symptoms resulted in occasional decrease in deficiencies in most areas such as work, school, family relations, judgment, thinking or mood which would be consistent with a rating of 70 percent. Instead, the record indicates the Veteran's depression was under control, his hygiene was normal, he had no hallucinations or delusions, no suicidal or homicidal ideations, intact memory, neutral mood, appropriate affect, and fair judgment. Notably, the GAF score of 55 is consistent with moderate symptoms. Overall the severity, frequency, and duration of his symptoms more nearly approximates the criteria for a 50 percent rating, i.e., occupational and social impairment with reduced reliability and productivity. As such, the rating of 50 percent is the proper rating for the Veteran's PTSD during this time. c. Period Beginning on September 1, 2013 A more recent VA examination performed in September 2013 indicated the Veteran is married but separated but he still communicates with his wife regularly. He indicated he has recently moved to West Virginia and liked the area. He planned to get a car and do some traveling around the countryside. He stated he hopes to get an increase in his rating for a more stable and secure life. Moreover, he indicated he enjoys working at the hobby shop making canes, painting, and doing other crafts and just recently won 2nd place at an art show. He also regularly attends church. Relating to the PTSD criteria, the examiner indicated the Veteran satisfies each of the elements with the following symptoms: depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss and difficulty in establishing and maintaining effective work and social relationships. The examiner also listed isolation as one of the symptoms attributed to his PTSD. He assigned a GAF score of 51. Lastly, the examiner indicated the Veteran's level of occupational and social impairment was best described as reduced reliability and productivity. The GAF score of 51 indicates moderate to severe symptoms but the treatment notes indicate the Veteran is hopeful he will do some future traveling as well as being active working in a hobby shop. There is no discussion of impaired impulse control or a neglect of personal appearance or hygiene. The Veteran maintains a relationship with his wife, despite their separation and has a desire for a more financially stable lifestyle. The Veteran's discussion of his desire to travel as well as his enjoyment making arts and crafts and his ability to participate in Arts and Crafts shows competitively does not approximate the deficiencies considered in the 70 percent rating criteria, which include occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking or mood. Instead, the symptoms more closely approximate the criteria of a 50 percent rating which contemplates reduced reliability in areas such as social relationships and work difficulty. As noted by the September 2013 examiner, the Veteran reported difficulty maintaining work and social relationships and reduced reliability and productivity. These reported symptoms are consistent with the criteria of a 50 percent rating. Because the Veteran's PTSD symptoms during this time period more closely approximate the criteria of a 50 percent rating, the Board finds that a rating higher than 50 percent for this time period is not warranted. IV. TDIU The Board now turns to the discussion of whether TDIU is warranted. Total ratings, referred to as TDIU, may be assigned in the first instance by the Board or the RO when the disabled person is determined to be unable to secure or follow a substantially gainful occupation as a result of service-connected disability or disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a) (2014). In cases where these percentages are not met, but the disabled person is unable to secure and follow a substantially gainful occupation by reason of service-connected disability or disabilities, the case should be submitted to the Director, Compensation and Pension Service, for consideration of extra-schedular TDIU. See 38 C.F.R. § 4.16(b) (2014). In the present case, the Veteran is service-connected for PTSD, evaluated as 50 percent disabling, and coronary artery disease, evaluated as 10 percent disabling, for a combined rating of 60 percent. Accordingly, he does not meet the scheduler criteria for an award of TDIU under section 4.16(a). Thus, the Board must consider whether or not referral to the Director, Compensation and Pension Service is warranted pursuant to section 4.16(b), for extraschedular TDIU consideration. When determining if a Veteran is unemployable for TDIU purposes, neither the effect of nonservice-connected disabilities nor of the Veteran's age may be considered in determining whether TDIU is warranted. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran contends he is presently unemployed and remains unable to work as a result of his service-connected PTSD. Specifically, in the January 2011 Notice of Disagreement, the Veteran indicates he had been able to do odd jobs from time to time but cannot maintain a full-time gainful employment since April 2010. Moreover, the Veteran states that his PTSD program does not allow him time to work since some of the classes are held daily. The sole fact that the Veteran is unemployed or has difficulty obtaining employment is not enough to warrant TDIU. A high rating is in itself recognition that the disability makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 4.16, 4.19 (2013); Van Hoose v. Brown, 4 Vet. App. 361 (1993). On the VA form 21-8940, the Veteran reported he worked as a stage hand until 2010 when he became too disabled to work. The Veteran also reported he did not leave his last job because of his disability and further indicated he has not tried to obtain employment since he came too disabled to work. Further, the Veteran has been provided multiple VA examinations which have addressed the effects of his service-connected disabilities on employability. Not all of them address the combined impact of the Veteran's service connected disabilities, however, the November 2009 examiner noted the Veteran has a fair ability to be employed, and specifically noting he is "not unemployable". Moreover, it was noted that the Veteran has been able to function at work but has limited activities. In addition, the 2009 examination indicated the Veteran was working at the time of the examination and no significant time was missed over the last year due to his PTSD symptoms. In the VA examination in September 2013, the Veteran indicated he enjoyed working at the hobby shop making canes, painting, doing other crafts and just recently won 2nd place at an art show. Additionally, the Veteran indicated he looked forward to traveling the countryside in West Virginia and the rest of the country. As previously mentioned, the examiner indicated that the Veteran's level of occupational and social impairment was best described as reduced reliability and productivity. There is no additional evidence included in the record to indicate difficulty obtaining or maintaining employment. After weighing all evidence of record, the Board concludes that the preponderance of the evidence of record is against a finding that the Veteran's service-connected disabilities render him unable to secure and follow a substantially gainful occupation. Thus, referral to the Director of Compensation Service is not warranted. For the reasons stated above, the Board finds that the preponderance of the evidence is against entitlement to TDIU. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. 49 (1990). ORDER Entitlement to an evaluation in excess of 30 percent disabling for PTSD prior to March 20, 2011 is denied. Entitlement to an evaluation in excess of 50 percent disabling for PTSD from October 1, 2011 to March 5, 2013 and for the period beginning on September 1, 2013 is denied. Entitlement to a total disability rating due to individual unemployability is denied. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs