Citation Nr: 1529381	
Decision Date: 07/09/15    Archive Date: 07/16/15

DOCKET NO.  13-31 186	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina



THE ISSUES

1.  Entitlement to a higher rating for service-connected posttraumatic stress disorder (PTSD) and depressive disorder, evaluated as 30 percent disabling prior to February 10, 2014 and 50 percent disabling thereafter.

2.  Entitlement to a total disability rating based upon individual unemployability (TDIU).



ATTORNEY FOR THE BOARD

C.S. De Leo, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1973 to July 1975.

This matter comes before the Board of Veterans' Appeals (Board) following a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina (hereinafter Agency of Original Jurisdiction (AOJ)).  In that decision, the AOJ denied a rating in excess of 30 percent for service-connected PTSD.

In a March 2014 Decision Review Officer (DRO) decision, the AOJ increased the Veteran's PTSD evaluation to 50 percent from February 10, 2014.  

As addressed below, the Board finds that the Veteran has reasonably raised the issue of entitlement to TDIU.  This issue, which is part and parcel of the increased rating claim on appeal, has been listed as a separate issue on the title page for procedural purposes only.  See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that the issue of TDIU is part and parcel to a higher evaluation claim when the Veteran or the record reasonably raises the question of unemployability due to the disability for which the higher evaluation is sought).

The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.


FINDING OF FACT

The credible evidence establishes that the Veteran's PTSD more closely approximates occupational and social impairment with deficiencies in most areas such as work, family relations and mood; total occupational and social impairment has not been demonstrated.





CONCLUSION OF LAW

The criteria for an evaluation of 70 percent for PTSD, but no higher, have been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411 (2014).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014) includes enhanced duties to notify and assist claimants for VA benefits.  VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2014).

For increased rating claims, the VCAA requires only generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned.  See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009); Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010).

The Veteran filed the increased rating claim on appeal in May 2010.  A pre-adjudicatory AOJ letter dated July 2010 fully complied with the timing and content requirements of the VCAA.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).

VA must also make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  Here, service treatment records (STRs), post-service treatment records, and the Veteran's statements have been obtained and associated with the claims file.  The Veteran has not identified any additional records that should be obtained prior to a Board decision.  The Board is unaware of the existence of any relevant records in the possession of the Social Security Administration.

The Veteran was afforded VA examinations in March 2011 (with a May 2012 addendum) and February 2014 in connection with the claim on appeal.  See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159.  The Board finds these examinations are adequate for the purpose of evaluating the current status of the Veteran's disability as they involved a review of the Veteran's pertinent medical history, consideration of his reported history, and described the relevant symptomatology related to the disability on appeal.  See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  The VA examination reports are supplemented by treatment records of the Veteran covering the time period in question.

Analysis

The Veteran seeks higher disability ratings for his service-connected PTSD with depressive disorder.  The Board initially notes that a May 2012 VA examiner opined that the Veteran's diagnosed depressive disorder was a progression of his PTSD diagnosis.  A February 2014 VA examiner found that the Veteran's diagnosed depressive disorder had progressed to persistent depressive disorder (dysthymia).  For purposes of this decision, the Board attributes all psychiatric impairment as being of service-connected origin.  See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (the Board is precluded from differentiating between symptomatology attributed to a service-connected disability and that attributed to a non-service-connected disability in the absence of medical evidence which does so).

Disability evaluations are determined by comparing a veteran's present symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran.  38 C.F.R. § 4.3.

A veteran's entire history is reviewed when making disability evaluations.  See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Where entitlement to compensation has already been established, the United States Court of Appeals for Veterans Claims has held that consideration of the appropriateness of a staged rating is required.  See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).

The Veteran's service-connected PTSD has been rated under DC 9411, which is part of the General Rating Formula for Mental Disorders (General Rating Formula).  Under the General Rating Formula, 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).  

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, 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.  38 C.F.R. § 4.130, DC 9411.

A 70 percent evaluation is warranted where the disorder is 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 that is 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 an inability to establish and maintain effective relationships.  Id.

Finally, a 100 percent evaluation is assigned 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.  Id. 

The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating.  But use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation.  See Mauerhan v. Principi, 16 Vet. App. 436 (2002); see also 38 C.F.R. § 4.130.

The Veteran's global assessment of functioning (GAF) scores have ranged from 35 to 55.  The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness.  Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994).  (The Board recognizes that the Veterans Benefits Administration is now required to apply concepts and principles set forth in DSM-5; however, the Secretary of VA has specifically indicated that DSM-IV is still to be applied by the Board for claims pending before it.  79 Fed. Reg. 45094 (Aug. 4, 2014)).  

A GAF score of 61 to 70 indicates some mild symptoms or some difficulty in social, occupational, or school functioning, but generally, functions pretty well with some meaningful interpersonal relationships.  

A GAF score of 51-60 involves moderate symptoms, such as flat affect and circumstantial speech, occasional panic attacks, or moderate difficulty in social or occupational functioning (e.g., few friends or conflicts with peers or co-workers).  

A GAF score from 41 to 50 is defined as serious symptoms or any serious impairment in social, occupational, or school functioning.  Included in this definition is that a person is unable to keep a job.  

A GAF score of 31-40 is defined as exhibiting some impairment in reality testing or communication (speech is at times illogical, obscure, or irrelevant), or any major impairment in several areas, such as work or school, family relations, judgment, thinking or mood (a depressed man that avoids friends, neglects family, and is unable to work; a child that frequently beats up younger children, is defiant at home, and is failing at school).  The Board is cognizant that a GAF score is not determinative by itself.

The claimant bears the burden of presenting and supporting his/her claim for benefits.  38 U.S.C.A. § 5107(a).  See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009).  In its evaluation, the Board shall consider all information and lay and medical evidence of record.  38 U.S.C.A. § 5107(b).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant.  Id.  Another way stated, VA has an equipoise standard akin to the rule in baseball that "the tie goes to the runner."  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The benefit of the doubt doctrine is not applicable based on pure speculation or remote possibility.  38 C.F.R. § 3.102.

Historically, a September 1999 AOJ rating decision awarded service connection for PTSD and assigned an initial 30 percent rating.  In pertinent part, a February 1999 VA examination report reflected the Veteran's report of symptoms such as depression, anxiety, irritability, short-temper, history of alcohol abuse, difficulty getting along with people, strong startle response and hypervigilance.  He had spent two years in prison for assaulting his spouse.  He described constantly confronting people and getting into fights.  The examiner diagnosed mild PTSD and assigned a GAF score of 55.  Notably, the examiner commented that the Veteran did not exaggerate his symptoms and, if anything, appeared to minimize his symptoms.

The Veteran filed his claim for an increased rating in May 2010.  After a review of the evidentiary record, which includes the Veteran's statements, VA clinic records and VA examinations in March 2011 and February 2014, the Board finds that the evidence of record is at least in equipoise as to whether the Veteran's PTSD causes deficiencies in most areas.

VA mental health treatment records dated from January 2010 to July 2013 show that the Veteran participated in group therapy, anger management, and medication management to treat his PTSD symptoms.  During this period, VA treatment records also showed that the Veteran presented with nightmares, chronic sleep disturbance, panic attacks, anxiety, anger, and problems with concentration and memory loss.  See Durham VA Medical Center Treatment Records located in Virtual VA.

Significantly, in July 2013, the Veteran's treating psychologist in the VA clinical setting opined that "[the Veteran's] PTSD symptoms are chronic and disabling [and that] he has severe impairment in maintaining effective work and social relationships."  Additionally, it was opined that the Veteran's disturbance of mood was also chronic and severe, finding that the Veteran had "a combination of PTSD[,] chronic depression, [and] severe memory complaints" and assigned a GAF score of 35.  The psychologist also noted a mild increase of passive suicidal thoughts.  The Veteran had been shown to live a highly reclusive lifestyle and had minimal, if any, contact with family, to include his own adult child, stepchildren, and two siblings.  He reported having been married four times, and that he and his current wife separated due to his PTSD symptoms.  Id.; see also February 2014 VA Examination.  In fact, the July 2013 treatment record noted that the Veteran reported that he separated from his wife again due to conflict with his stepchildren.  Id.  He also reported having no friends, but on the whole, his lifestyle was highly avoidant of social contact.  He endorsed anxiety, depression, panic attacks, sleep impairment, avoidance, memory loss, unprovoked irritability, and the inability to cope with stressful circumstances.  The Veteran also had anger issues, to include a criminal conviction for attempted murder of his second wife.  See March 2011 and February 2014 VA Examinations.  

On the other hand, a March 2011 VA examiner provided diagnoses of PTSD and depression not otherwise specified, and assigned a GAF score of 52 which is reflective of moderate psychological, social and occupational functioning.  The extent of occupational functioning was described as mild as the Veteran had not been working.  Additionally, a February 2014 VA examiner described the Veteran's occupational and social impairment as reflecting occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care and conversation.

The Board observes that the Veteran's description of PTSD symptomatology and functional impairment is credible and consistent with the evidentiary record.  The record appears to reflect a difference of opinion from the Veteran's treating VA clinician and the VA Compensation and Pension examiners as to the extent of social and industrial impairment caused by these symptoms.  Based on the foregoing, the Board will resolve reasonable doubt in the Veteran's favor and find that a 70 percent evaluation has been more nearly approximated throughout the rating period on appeal.

While assigning a 70 percent rating, the Board finds that a higher evaluation of 100 percent is not warranted in this case.  The Veteran reported visual hallucinations during a therapy session in July 2013, which is an example supportive of a 100 percent rating.  However, there is no lay or medical evidence showing that this symptom has occurred more than once.  Otherwise, the Veteran has not been shown to be incapable of self-care.  Moreover, the VA examination reports and clinic records reflect no significant impairment of cognition, speech, thought process or disorientation.  He has been described as having severe memory loss, but there is no lay or medical evidence of memory loss to the extent of being unable to recall the names of close relatives, his occupation or his own name.  The Veteran has a history of grossly inappropriate behavior many decades ago when assaulting his spouse, but there is no report of grossly inappropriate behavior during the appeal period.  Additionally, the Veteran's social impairment is not total as he maintains communication with his spouse.

In sum, the disability picture shown by the evidence of record supports an award of a 70 percent evaluation throughout the rating period on appeal; at no point has the evidence demonstrated symptomatology which more closely approximates the criteria for the next-higher 100 percent evaluation.  In so concluding, the Board has considered the Veteran's description of PTSD symptoms and functional impairment as credible evidence used to support the evaluation of a 70 percent rating.  To the extent he argues his entitlement to a 100 percent schedular evaluation, the Board places greater probative weight on the mental status examinations performed by VA examiners and clinicians which are derived from medical professionals with greater training and expertise than the Veteran in speaking to the nature and severity of his PTSD.  In reaching these conclusions, there is no further doubt of material fact to be resolved in the Veteran's favor.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).

Extraschedular Consideration

Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration.  In this regard, to accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station 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).

The provisions of 38 C.F.R. § 3.321(b) state as follows: 

Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience.  To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service- connected disability or disabilities.  The governing norm in these exceptional cases is: A finding that 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. 

In Thun v. Peake, 22 Vet. App. 111 (2008), the Court specified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted.  The Court stated that the AOJ 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.  Id. 

If the AOJ or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the AOJ 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 AOJ 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. 

VA's General Counsel has stated that consideration of an extra-schedular rating under 3.321(b)(1) is only warranted where there is evidence that the disability picture presented by the Veteran would, in that average case, produce impairment of earning capacity beyond that reflected in the rating schedule or where evidence shows that the Veteran's service-connected disability affects employability in ways not contemplated by the rating schedule.  See VAOPGCPREC 6-96 (Aug. 16, 1996). 

In Thun, the Court further explained that the actual wages earned by a particular Veteran are not considered relevant in the calculation of the average impairment of earning capacity for a disability, and contemplate that Veterans receiving benefits may experience a greater or lesser impairment of earning capacity than average for their disability.  The Thun Court indicated that extraschedular consideration cannot be used to undo the approximate nature of the rating system created by Congress. 

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, see Floyd v. Brown, 9 Vet. App. 88 (1996), and addressing referral 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).

The Board is aware of the Veteran's complaints as to the effects of his service-connected PTSD has had on his activities of work and daily living.  In the Board's opinion, all aspects of this disability are adequately encompassed in the assigned schedular rating.  The rating criteria for evaluating a psychiatric disability provides samples which support a particular rating but allows for consideration of all aspects of disability which affect social and occupational impairment.  As instructed in Mauerhan, the Board has considered all of the Veteran's reported psychiatric symptomatology in the assigned 70 percent rating.  The Board has also considered whether a higher rating still is warranted based upon the frequency, duration and severity of symptoms, but the criteria for a 100 percent rating are not met.  In short, the Board finds that the assigned schedular evaluation is adequate.  

The Board notes that, under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced.  However, in this case, after applying the benefit of the doubt under of Mittleider, there are no additional service-connected symptoms that have not been attributed to a specific service-connected condition.  Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions.  


ORDER

Entitlement to a 70 percent rating for PTSD is granted.


REMAND

The Veteran's assigned 70 percent rating renders him eligible for schedular consideration of a TDIU rating.  38 C.F.R. § 4.16(a).  He reports last working full-time in "2010" due, in part, to depressive symptoms including decreased motivation and interest.  He has reported working part-time in the interim, but the record does not reflect whether he has earned substantially gainful employment.  

On this record, the Board finds that the issue of TDIU has been reasonably raised as part of the increased rating claim on appeal.  See Roberson v. Principi, 251 F.3d 1378, 1384 (2001) (holding that VA must consider TDIU rating "once a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability"); see also Norris (Robert) v. West, 12 Vet.App. 413, 419-21 (1999) (concluding that appellant had presented informal claim for TDIU rating when he had been assigned service-connected rating of at least 60% and record on appeal contained evidence of unemployability due to that disability).  This issue is remanded for further development.


Accordingly, the case is REMANDED for the following action:

1.  Send to the Veteran a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) and request that he provide a complete description of his earned income since January 2010 to the present, which includes all remuneration from his services as a truck driver regardless of hours worked.

2.  Associate with the claims folder records of the Veteran's treatment at the Durham VAMC since January 2014.

3.  If and only if the Veteran has not earned substantially gainful employment for any time during the appeal period, arrange for the Veteran to undergo VA examination, by an appropriate physician, to assist in determining whether the Veteran's PTSD has rendered him unable to obtain and maintain substantially gainful employment. 

The contents of the entire claims file (paperless and electronic), to include a complete copy of this REMAND, must be made available to the designated physician, and the examination report should include discussion of the Veteran's documented medical history and assertions (to include as reflected in the electronic record). 

Based on examination of Veteran, and review of the record, the examiner should describe the functional effects that the Veteran's PTSD has on his ability to perform the activities of daily living, to include the mental acts required for substantially gainful employment. 

In responding to the above, the examiner must consider all pertinent evidence and assertions, to particularly include the Veteran's employment history, his educational history, and the mental ability required to earn substantially gainful employment as a truck driver.

All examination findings, along with complete, clearly stated rationale for the conclusions reached must be provided.

4.  Thereafter, adjudicate the issue of entitlement to TDIU.  If any benefit sought on appeal remains denied, the Veteran (and his representative if any) should be furnished a supplemental statement of the case and allowed an appropriate period of time to respond.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



____________________________________________
T. MAINELLI
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs