Citation Nr: 1612467 Decision Date: 03/28/16 Archive Date: 04/07/16 DOCKET NO. 11-21 621 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service connected PTSD. REPRESENTATION Appellant represented by: Christopher Loiacono, Agent WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Kate Sosna, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1967 to September 1970. This appeal comes before the Board of Veterans' Appeals (Board) from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office. In April 2015, the Veteran and his wife testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. In June 2015 the Board remanded the issue of entitlement to an initial compensable rating for bilateral hearing loss for issuance of a statement of the case. An August 2015 letter indicates that the Agency of Original Jurisdiction (AOJ) notified the Veteran that his hearing loss claim is being developed and has been assigned to a Decision Review Officer. Accordingly, that claim is not currently before the Board. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. The Board finds that the evidence reasonably raises a claim for TDIU pursuant to the holding in Rice and added that issue to the cover page. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDING OF FACT For the entire period on appeal, the Veteran's PTSD was manifested by symptoms productive of occupational and social impairment with, at worst, reduced reliability and productivity; occupational and social impairment with deficiencies in most areas has not been shown. CONCLUSION OF LAW The criteria for an evaluation in excess of 50 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veteran's Claims Assistance Act Under the Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist a claimant in the development of a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2015). The record indicates that VCAA notice was sent to the Veteran in September 2009 and April 2014. The case was last readjudicated in October 2015. In addition, the Board finds that the duty to assist a claimant has been satisfied. The Veteran's service treatment records are on file, as are various post-service medical records, and VA examination reports. The Veteran was also afforded a hearing before the Board. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, the VLJ identified the issue to the Veteran, and the Veteran testified as to his treatment history, symptomatology and functional impairment. Neither the Veteran nor his representative have asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claim, and the Veteran provided testimony relevant to those elements. As such, the Board finds that no further action pursuant to Bryant is necessary, and the Veteran is not prejudiced by a decision at this time. The Board notes that the actions requested in the June 2015 remand have been undertaken. A VA examination was conducted in October 2015 and updated VA treatment records were obtained. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and that no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Analysis The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). When there is an approximate balance of evidence for and against the issue, all reasonable doubt will be resolved in the Veteran's favor. 38 U.S.C.A. § 5107; 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history; reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran filed his instant claim for an increased rating for PTSD on August 31, 2009. During the period on appeal the Veteran's PTSD has been rated as 50 percent disabling under the criteria of 38 C.F.R. § 4.130, Diagnostic Code 9411. The relevant criteria are as follows. A 50 percent rating is assigned for 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 rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 100 percent rating 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. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on social and occupational impairment rather than solely on the examiner's assessment of the level of disability at the moment of examination. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder the rating agency will consider the level of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Court has held that 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. In particular, 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. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Another factor for consideration is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, Fourth Edition (DSM-IV)); see also Richard v. Brown, 9 Vet. App. 266 (1996). A GAF score of 21 to 30 indicates that behavior is considerably influenced by delusions or hallucinations, or serious impairment in communication or judgment (e.g., sometimes incoherent, acting grossly inappropriately, suicidal preoccupation), or an inability to function in almost all areas (e.g., stays in bed all day; no job, home, or friends). A GAF score of 31 to 40 indicates some impairment in reality testing or communication (e.g., speech at times illogical, obscure, or irrelevant), or where there is 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). A GAF score of 41 to 50 indicates 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). A GAF score of 51 to 60 indicates moderate symptoms (e.g., flattened affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers). A GAF score of 61 to 70 indicates some mild symptomatology (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or social functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, with some meaningful interpersonal relationships. After review of the evidence of record, the Board finds that a higher evaluation for PTSD is not warranted. During the period on appeal, the medical evidence of record reflects that the Veteran's PTSD was manifested by symptoms that included nightmares, flashbacks, sleep impairment, anger, irritability, frustration, depression, and anxiety with, at worst, dysthymic mood with appropriate affect, and good insight and judgment. On examination, VA clinicians noted that the Veteran had good personal hygiene and grooming, good eye contact, and there was no evidence of delusions or hallucinations. The Veteran denied suicidal and homicidal intent or plan. The Veteran was assigned a GAF score of 58 one time during his 2009 VA examination but was otherwise assigned GAF scores of 60. A November 2009 examiner found that the Veteran's symptoms were productive of occupational and social impairment with reduced reliability and productivity and, as noted, assigned a GAF score of 58. At that time, the Veteran reported symptoms commensurate with those noted above in addition to poor concentration, low energy levels, and low self-esteem. Regarding his social relationships, the Veteran noted that he had a good marriage, had a close relationship with his children and grandchildren, and that he had two close friends. Regarding his leisure activities, the Veteran noted having dogs, traveling, and attending church. The Veteran was noted to be retired since approximately 1995 due to knee and back problems. On examination, the Veteran was noted to be neatly groomed and appropriately dressed with normal speech and affect. The Veteran was noted to be nervous, but did not display any inappropriate behavior. He denied a history of obsessive behavior or panic attacks and indicated that he did not have problems with activities of normal living. The record also contains lay statements from members of the Veteran's family who indicated that he often had to be isolated from the family during events so that he did not become angry or stressed by the activity. His stepdaughter and wife specifically noted that his frustration and response level was similar to that of a toddler. At the April 2015 Board hearing, the Veteran and his wife discussed the Veteran's symptoms including intense nightmares that caused the Veteran to thrash and knock teeth out of his wife's mouth, anger, irritability, and isolative behaviors. Thereafter, pursuant to the Board's June 2015 remand, an examination was performed in October 2015. After examining the Veteran and reviewing the record, the 2015 examiner found that the Veteran's PTSD symptoms were productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily. While the Veteran was also diagnosed with an adjustment disorder with mixed anxiety and depression, the examiner reported that it was possible to differentiate the symptoms between the two diagnoses and that his depression and anxiety symptoms were situational. Specifically, the symptoms of re-experiencing, irritability, and hypervigilance were attributed to the Veteran's PTSD. Regarding his personal relationships, the Veteran was still married and noted having a relationship with his children and grandchildren in addition to a close friend and his pet dogs. He indicated that while he walked his dogs daily, he disliked people trying to speak with him along the way and had an outburst at one neighbor about his dogs relieving themselves on certain property. He also noted that he and his wife snap at each other due to his decreased hearing acuity. Since the previous examination, the Veteran had experienced legal trouble that was not noted to be attributable to his PTSD symptoms. The Veteran did report that his new sex offender status did lead him to avoid others more. Regarding the Veteran's occupational impairment, the examiner found that it was difficult to determine what level of occupational impairment was caused by his different disabilities given that the Veteran had been unemployed due to physical and medical problems, not psychological problems. Ultimately, the examiner stated that the Veteran's PTSD symptoms may cause mild functional impairment in employment settings requiring interaction with others, but that the Veteran could work in environments that did not require interpersonal relatedness with others. The Board finds that during the entire period on appeal the Veteran's PTSD, at worst, most closely approximates the currently assigned 50 percent rating. In that regard, the 2015 examiner found that the Veteran's PTSD symptoms were commensurate with the lesser 30 percent rating. Moreover, while he reported being unemployed, he attributed this to his physical disabilities, not to his PTSD symptoms. Furthermore, the symptoms the Veteran described to the VA examiners including sleep impairment, anxiety, and mild memory loss, are contemplated by the 50 percent rating criteria. While irritability and anger were reported by the Veteran, unprovoked violence was not, and the VA examiner noted the Veteran's legal troubles were not due to PTSD symptomatology. Although some of the Veteran's symptoms are not specifically enumerated in the rating criteria, the Board finds that the Veteran's overall mental health picture as evidence during the VA examinations and during VA mental health treatment is in keeping with a 50 percent rating. The Board has considered the Veteran's and his family's reports regarding his symptomatology and the severity of his condition, but, to the extent they believe he is entitled to a higher rating, concludes that the findings during medical evaluation are more probative than the lay assertions to that effect. The Board notes that the Veteran seemed to assert at the Board hearing that the findings on examination would not represent a complete picture as to his level of disability because he would not be able to "open up" during an examination with an unfamiliar clinician. However, the Board has reviewed the Veteran's VA treatment records since 2008 and note that the Veteran has been seen by three different clinicians, all of whom note symptoms commensurate with those found on VA examination, which show limitation of function that more nearly approximates the criteria for the currently assigned 50 percent evaluation. The Board also notes that the Veteran's wife spoke at length at the Veteran's hearing regarding the couple's financial need for increased benefits. While the Board is sympathetic to the couple's financial difficulties, VA benefits are assigned based on a veteran's level of impairment from a disability, not financial need. Accordingly, the preponderance of the evidence is against the Veteran's claim, and an evaluation in excess of 50 percent for PTSD is denied. The Board has also considered whether the Veteran's PTSD presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards, such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2015); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the applicable rating criteria reasonably describe the Veteran's disability level and symptomatology and provide for additional or more severe symptoms than currently shown by the evidence. The Board also notes that it has considered all psychiatric symptomology in determining his functional impairment, not just the symptoms listed in the rating criteria. See Mauerhan, 16 Vet. App. 436. In short, the Veteran's disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral of his increased rating claim for extraschedular consideration is not warranted. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the competent, probative evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. ORDER A rating in excess of 50 percent for PTSD is denied. REMAND The Board notes that at the April 2015 hearing, the Veteran's representative arguably raised a claim for TDIU based on the Veteran's PTSD by discussing his employment history and his education level. In light of the Court's holding in Rice, the Board finds that the issue of unemployability has at least been raised such that appropriate VCAA notice and an application form should be provided. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran appropriate notice that advises him about the information and evidence needed to substantiate a claim for a TDIU. In addition, ask him to fully complete an Application for Increased Compensation based on Unemployability (VA Form 21-8940). 2. After the development requested above has been completed to the extent possible, the AOJ should review the record and adjudicate the issue of entitlement to a TDIU due to his service-connected disabilities, to include consideration of whether referral on an extraschedular basis is warranted. If the claim is denied, furnish a supplemental statement of the case and give an appropriate opportunity to respond before the issue is returned to the Board. 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). ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs