Citation Nr: 1600989 Decision Date: 01/11/16 Archive Date: 01/21/16 DOCKET NO. 15-12 059 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to an increased rating for a disability characterized as "other specified trauma and stressor related disorder," (trauma disorder) currently evaluated as 70 percent disabling, to include the issue of a rating in excess of 30 percent prior to May 2015. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Moshiashwili, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1942 to December 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT For the entire appeal period, the Veteran's trauma disorder has been characterized by occupational and social impairment with 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. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for trauma disorder prior to May 2015 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.125, 4.130, Diagnostic Code 9411 (2015). 2. The criteria for a rating in excess of 70 percent for trauma disorder have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.125, 4.130, Diagnostic Code 9411 (2015). REASONS AND BASES FOR FINDING AND CONCLUSIONS Duties to Notify and Assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The claim for increased rating for the Veteran's trauma disorder arises from a disagreement with the initial disability rating that were assigned following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All relevant facts have been properly developed, and all available evidence necessary for equitable resolution of the issue has been obtained. The Veteran's available service treatment records, VA and private treatment records, and lay statements have been obtained. Additionally, the Veteran was provided VA examinations for his trauma disorder in August 2014 and May 2015. The August 2014 and May 2015 VA medical examinations are adequate. The VA examiners used their expertise to draw conclusions from the totality of the evidence. Their reports discussed the medical and lay evidence of record sufficiently to render complete opinions and rationales. Additionally, the VA examinations of record fully describe the functional effects caused by the Veteran's disabilities. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). The Veteran has not indicated there are any additional records that VA should obtain on his behalf. The Board finds that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim, and no further assistance to develop evidence is required. Analysis Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C.A. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's trauma disorder has been evaluated under the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130, diagnostic code (DC) 9411. Under this code, a 30 percent evaluation is assigned for 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 (weakly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted when 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; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability rating is warranted when 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 worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent disability rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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 symptoms listed in DC 9411 are not intended to constitute an exhaustive list, but rather 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). In addition, in Mittleider v. West, 11 Vet. App. 181 (1998), the U.S. Court of Appeals for Veterans Claims (Court) held that VA regulations require that when the symptoms and/or degree of impairment due to a veteran's service-connected psychiatric disability cannot be distinguished from any other diagnosed psychiatric disorders, VA must consider all psychiatric symptoms in the adjudication of the claim. In evaluating psychiatric disorders, the VA has adopted and employs the nomenclature in the rating schedule based upon the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association (DSM-V). See 38 C.F.R. § 4.130. As such, the diagnosis of a mental disorder should conform to DSM-V. See 38 C.F.R. § 4.125(a). Following a review of the evidence of record, the Board finds that rating in excess of 30 percent prior to May 2015 is not warranted. In reaching this decision, the Board has reviewed the evidence of record, including VA examination reports and the Veteran's statements. The Veteran had a VA examination in August 2014. The examiner noted symptoms of hypervigilance, anxiety, and chronic sleep impairment, and endorsed the following as most descriptive of the Veteran's diagnosis: Occupational and social impairment with 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 That description matches the 30 percent rating under DC 9411. In a July 2014 statement in support of claim, the Veteran describes similar symptoms, including nightmares and emotional irritability. In the Veteran's November 2014 Notice of Disagreement, the Veteran adds that he has a long term inability to maintain relationships with family. However, the Veteran does not elaborate, and it is unclear what he means by this. The record shows that the Veteran previously worked with his sons, that he lives in a house owned by one of them, and his son and his daughter actively participate in supporting his medical treatment. Neither of the VA examinations suggest any problem connecting with his family. A March 2015 treatment record states, for instance, "Mr. Beaulieu has great support from multiple family members." The Board finds that a rating in excess of 30 percent for a trauma disorder prior to May 2015 is not warranted. Additionally, a rating in excess of 70 percent after May 2015 is not warranted. In May 2015, the Veteran underwent another VA examination. Although the examiner reported additional symptoms which had not been identified previously, he endorsed the same overall level of functioning as the previous examiner. Nothing in either examination suggests the profound disability picture described by a 100 percent rating. There is no evidence that the Veteran's thought processes or communication is grossly impaired, no evidence of persistent hallucinations or delusions, and no evidence that the Veteran's behavior is grossly inappropriate or that he is a danger to himself or others. While the Veteran requires aid and assistance for activities of daily living, that is a result of his physical ailments, not his trauma disorder. His examiners reported him to be oriented as to time, place, and person, with no evidence of the kind of memory loss contemplated by a 100 percent rating. The Board finds that a rating in excess of 70 percent from May 2015, is not warranted. Extraschedular Rating In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the applicable rating criteria adequately contemplate the severity and symptoms of the Veteran's trauma disorder, as it provides broad criteria with non-exhaustive examples. As the schedular rating criteria are more than adequate to evaluate the symptoms and manifestations of the Veteran's psychiatric disorder, referral for consideration of an extraschedular rating for this disability is not warranted. Individual Unemployability The Court of Appeals for Veterans Claims has held that a total disability rating based on individual unemployability (TDIU) is a part of a claim for increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). 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, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a total rating for compensation purposes based on individual unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In the Veteran's representative's December 2015 informal hearing presentation, the representative explicitly invoked Rice and requested entitlement to a TDIU, although apart from asserting the claim, he did not elaborate on the basis for it. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected 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 such 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. 38 C.F.R. § 4.16. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A TDIU is not warranted in this case. In a September 2000 VA medical note pertaining to the Veteran's award of aid and attendance and housebound benefits, the author of the note indicated that the Veteran had been unable to work since 1986 because of cerebral ataxia, for which the Veteran is not service connected. In an October 1996 rating decision granting a non-service-connected pension, the RO noted that the Veteran was unable to work because of disability, and that he had last worked in 1994. The Veteran is service connected for a trauma disorder at 70 percent, for hearing loss at 10 percent, and for scars at 0 percent. The Veteran has been examined twice in the last several years for his trauma disorder, and in both cases the examiners indicated only minor occupational impairment as a result of his service-connected disorder. The Board finds that the Veteran's unemployability is a result of his non-service connected disabilities, and a TDIU is not warranted. ORDER Entitlement to an evaluation in excess of 70 percent for other specified trauma and stressor related disorder, to include entitlement to an evaluation in excess of 30 percent prior to May 2015, is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs