Citation Nr: 1614427 Decision Date: 04/08/16 Archive Date: 04/25/16 DOCKET NO. 06-37 326A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD) with depressive disorder, prior to December 8, 2005. 2. Entitlement to an evaluation in excess of 50 percent for PTSD with depressive disorder, from December 8, 2005 to February 24, 2014. 3. Entitlement to a total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU), prior to February 24, 2014. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Bonnie Yoon, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from April 1969 to March 1971. These matters come before the Board of Veterans' Appeals (Board) from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which granted service connection for PTSD and assigned an initial disability rating of 30 percent effective April 29, 2005. The Veteran appealed for a higher initial disability rating, and in a November 2006 Decision Review Officer (DRO) decision, the RO granted an increased evaluation of 50 percent for PTSD with depressive disorder, effective December 8, 2005. The matter was previously remanded by the Board in November 2009 and July 2011. The matter was most recently remanded in December 2012 for additional development. During pendency of the remand, the RO, in a September 2014 rating decision, granted an increased evaluation for PTSD with depressive disorder and alcohol use disorder to 100 percent effective February 24, 2014. However, as the Veteran has not been granted the maximum benefit allowed for PTSD for the entire appeal period, the claims remain on appeal, as characterized on the title page. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Regarding the Veteran's TDIU claim, the Board notes that the assignment of a total schedular rating does not categorically render a TDIU claim moot. See Bradley v. Peake, 22 Vet. App. 280 (2008). (VA must consider a TDIU claim despite the existence of a schedular total rating and award special monthly compensation (SMC) under 38 U.S.C.A. § 1114(s) if VA finds a separate disability supports a TDIU independent of the disability with a 100 percent rating). However, while the Veteran is in receipt of a 100 percent schedular rating for PTSD from February 24, 2014, there is no indication from the record that the TDIU claim is predicated on any single disability other than his service-connected PTSD with depressive disorder. In fact, the Veteran has consistently asserted that he is unemployable solely due to his PTSD and depressive disorder symptoms. Therefore, the grant of 100 percent for PTSD effective February 24, 2014 renders a claim for TDIU from February 24, 2014 moot. The Board has reviewed the Veteran's electronic claims file maintained in the Veterans Benefits Management System (VBMS) as well the records in the Virtual VA system to ensure consideration of the totality of the evidence. The issues of an evaluation in excess of 50 percent for PTSD with depressive disorder, from December 8, 2005 to February 24, 2014 and entitlement to TDIU prior to February 24, 2014 are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Prior to December 8, 2005, the Veteran's PTSD with depressive disorder has been manifested by occupational and social impairment with reduced reliability and productivity due to symptoms such as isolative behavior, depression, intrusive thoughts, memory problems, sleep disturbances, and fatigue. CONCLUSION OF LAW Prior to December 8, 2005, the criteria for an evaluation of 50 percent, but no higher, for PTSD with depressive disorder have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The claim for an increased rating arises from the Veteran's disagreement with the initial evaluation following the grant of service connection. 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). As such, no additional discussion of the duty to notify is therefore required. 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. VA has fulfilled its duty to assist the Veteran. The Veteran's service treatment records, Social Security Administration records and VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran has not identified any private treatment records. A VA examination was conducted in July 2005. The examiner made all required clinical findings and discussed the functional impact of PTSD on the Veteran's daily life. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Therefore, the VA examination is adequate for adjudication purposes. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Increased Rating In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. The Veteran is rated under Diagnostic Code 9411, for PTSD, which applies a set of criteria applicable to all acquired psychiatric disorders. The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides for a 30 percent rating is warranted where there is an 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, or mild memory loss (such as forgetting names, directions, recent events). A 50 percent evaluation contemplates 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 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 contemplates occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activity; speech intermittently illogical, obscure or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances and inability to establish and maintain effective relationships. A 100 percent evaluation is warranted when there is evidence of 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 and place; memory loss for names of close relatives, own occupation or name. The rating formula is not intended to constitute an exhaustive list, but rather is intended to provide 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). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. Instead, VA must consider all symptoms of the Veteran's condition that affect the level of occupational and social impairment, and assign an evaluation based on the overall disability picture presented. A GAF score 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 DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). A score of 31-40 indicates "[s]ome impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) OR major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school)." A score of 41-50 illustrates "[s]erious 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 score of 51-60 represents "[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning, (e.g., few friends, conflicts with peers or co-workers)." Prior to December 8, 2005 The Veteran seeks an increased rating in excess of 30 percent prior to December 8, 2005. In May 2005, the Veteran submitted a statement in which he stated he kept thinking about "all the people who got killed around me." He would dream about going on night patrol and getting in fire fights and would wake up in cold sweats "hearing gun shots and seeing Vietnamese coming through the line." He stated he could not keep still and did not like to watch war movies, and would start drinking. The Veteran's wife, in a May 2005 statement, indicated that when he came home from Vietnam he suffered from flashbacks and became unable to stay in one place for a long period of time. At night he would talk in his sleep and jump up "fussing and fighting." She also indicated that the Veteran drank a lot and would get impatient, and that it was not an everyday thing, but happened frequently. A May 2005 VA mental health record notes that the Veteran was seen for an initial mental health evaluation. He complained of feeling depressed and having frequent thoughts about his time in service. The psychologist noted that the Veteran's mood appeared depressed, he reported symptoms of depression such as feeling sad and guilty. The Veteran denied suicidal ideation and homicidal ideation, as well as periods of mania. The Veteran also reported symptoms of PTSD including loss of memories, intrusive memories of stressful events, nightmare, avoidance, some isolation, hyperactive startle response, history of anger problems, and feeling on guard. He avoided crowds, and was described by his wife as impatient. He also denied problems with panic attacks. The diagnostic impression was PTSD. Treatment reports from July, August, November, and December 2005 indicate that the Veteran actively and regularly participated in a PTSD support group. The Veteran underwent a VA examination in July 2005. The Veteran indicated that he continued to have thoughts of his experiences in Vietnam, and stated that he began drinking in order to calm himself. His relationship with his wife was good, but she stated that the Veteran was the most impatient and irritable person she knew. He also indicated that he had a close relationship with his three children. Regarding friends, the Veteran stated that he had some friends which he would go see and go fishing with, but he lived in a small community and did not have much contact with military people. The examiner indicated that the Veteran was able to work and function within a team, functions in the "breadwinner" role for his family, and tended to isolate moderately, but had some friends he interacted with. The Veteran stated that he left some previous jobs because sudden loud noises would bother him. He indicated that he currently worked mostly night shifts and it helped him because there were less people and distractions. He also indicated that currently his biggest problems were guilt about taking someone's life, restlessness, and increased memories about Vietnam every day with bad feelings. The examiner noted that the Veteran's behavior was appropriate, and was alert and oriented to time, place, person, and situation. The Veteran reported specific memory problems related to some significant events in Vietnam. Appearance and speech were normal, and his affect was mildly blunted at first but became more animated. He appeared to be mildly tearful upon discussing loss of comrades in Vietnam. The Veteran also indicated that he had really vivid memories, and described intermittent thoughts of suicide but without intent. The examiner noted that the Veteran had significant depressive symptoms including guilt as well as anhedonia, low energy, fatigue, and diminished concentration. The Veteran was diagnosed with PTSD and assigned a GAF score of 51. After consideration of the evidence of record, the Board concludes that, prior to December 8, 2005, the Veteran's PTSD manifestations most closely approximate symptoms productive of functional impairment comparable to occupational and social impairment with reduced reliability and productivity, therefore warranting a higher 50 percent evaluation. For example, the record shows that at times the Veteran has exhibited anhedonic, depressed, sad, and fatigued mood and affect. The Veteran reported frequently experiencing flashbacks and intrusive thoughts, as well as guilt and restlessness. In addition, the Veteran consistently reported that he experienced sleep disturbances, had a tendency to isolate himself, and avoided crowds. The Veteran also endorsed mild memory problems. Furthermore, he indicated that he used alcohol to cope with PTSD symptoms. His assigned GAF score of 51 at the July 2005 VA examination is reflective of moderate symptoms. The Board further finds that the Veteran is not entitled to a rating higher than 50 percent prior to December 8, 2005 as the evidence does not support a finding that the Veteran's symptoms were productive of functional impairment comparable to occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, or total occupational and social impairment. The Veteran maintained good relationships with his wife and children, and with some friends during this time period. He also engaged in leisure activities, such as fishing. The Veteran was independent in self-care, and presented as fully alert and oriented at all times. In addition, while the Veteran reported some memory problems and problems with concentration, he was not observed as having altered mental status, illogical or incoherent speech or thought processes, or as exhibiting signs of hallucination, delusion, or mania, and was appropriate in his appearance. He did not have memory loss for his name or the names of his close relatives. The Veteran also maintained full-time employment during this time period. While he reported that he preferred night shifts because there were less people and distractions, the evidence does not demonstrate that the Veteran had an inability to establish and maintain effective relationships, as contemplated under the 70 percent rating criteria. As such, a rating higher than 50 percent is not warranted. The Board also acknowledges that the Veteran reported intermittent suicidal thoughts at his July 2005 VA examination. However, the record indicates that such thoughts were transient, and were not accompanied by actual intent or plan; and the Veteran indicated in May 2005, two months earlier during VA treatment, that he did not have any suicidal ideation. The Board does not minimize the gravity of any suicidal ideations. Indeed, suicidal ideation is explicitly listed as an example under the 70 percent rating criteria. However, suicidal ideation is only one symptom making up the Veteran's overall disability picture for this time period. The Board finds that the Veteran's psychiatric symptomatology considered as a whole, as described above, most closely and consistently corresponds to the 50 percent rating criteria in terms of severity, frequency and duration. See Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). Therefore, prior to December 8, 2005, a rating 50 percent for PTSD, but no higher, is warranted. 38 C.F.R. § 4.7. Extraschedular Consideration Consideration has been given to the possibility of assignment of an extraschedular evaluation under 38 C.F.R. § 3.321. Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, a determination must be made as to whether the schedular criteria reasonably describe a veteran's disability level and symptomatology. If the schedular rating criteria do reasonably describe a veteran's disability level and symptomatology, referral for extraschedular consideration is not required and the analysis stops. If the schedular rating criteria do not reasonably describe a veteran's level of disability and symptomatology, a determination must be made as to whether an exceptional disability picture includes other related factors, such as marked interference with employment and frequent periods of hospitalization. If an exceptional disability picture including such factors as marked interference with employment and frequent periods of hospitalization exists, the matter must be referred 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. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the Veteran's service-connected PTSD with depressive disorder are inadequate. The criteria here amply account for the Veteran's complaints of depression, irritability, sleep impairment with nightmares, memory problems, isolative behavior, and intrusive thoughts. Further, the rating criteria are not a laundry list, and any complaints related by the Veteran may be considered accounted for by analogy to the listed exemplar criteria. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The occupational and social impairment resulting from such a disability and the functional effects of such impairment are also contemplated by the rating criteria. The criteria allows a wide variety of signs to be considered when they are similar to those listed, particularly with respect to severity. Thus, the Veteran's current schedular rating under the general rating criteria are adequate to fully compensate him, including for his occupational and social impairment resulting from his disability. In short, the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. Finally, the Board notes that 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. Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). In this case, the Veteran or his representative have not alleged that his currently service-connected disabilities combine to result in additional disability or symptomatology that is not already contemplated by the rating criteria for each individual disability. Accordingly, this is not an exceptional circumstance in which extraschedular consideration is warranted under Johnson. ORDER Entitlement to an initial rating of 50 percent, but no higher, for PTSD with depressive disorder prior to December 8, 2005, is granted. REMAND Regarding the claim for an evaluation in excess of 50 percent for PTSD with depressive disorder, from December 8, 2005 to February 24, 2014, the record reflects that the Veteran had been undergoing continuing individual and group therapy for his psychiatric disorder through the New Orleans Vet Center. The last record associated with the claims file is from August 2013, where it was indicated that the Veteran was to return for his next scheduled group session. The records reflect that the Veteran was attending individual and group sessions 3-4 times a month. As there is an indication that there are outstanding records covering the appeal period, remand is necessary to obtain all Vet Center records prior to February 24, 2014. See 38 C.F.R. § 3.159(c)(3); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). With regard to the issue of TDIU prior to February 24, 2014, the Board finds that this claim is inextricably intertwined with the issue of an evaluation in excess of 50 percent for PTSD with depressive disorder, from December 8, 2005 to February 24, 2014, as the resolution of this issue might have bearing upon the Veteran's claim for TDIU. Harris v. Derwinski, 1 Vet. App. 180 (1991). Additionally, a total disability rating may be assigned where the disabled person is unable to secure and follow a substantially gainful occupation as the result of service-connected disabilities. 38 C.F.R. § 4.16. For cases where this is true and certain percentages have been met as to the service-connected disabilities, a TDIU can be assigned on a schedular basis. 38 C.F.R. § 4.16(a). Where those percentages are not met, and the person is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, the rating board should submit the case to the Director, Compensation and Pension Service, for extraschedular consideration. 38 C.F.R. § 4.16(b). In this case, the Veteran has contended that he retired from his job as an equipment operator in August 2010 due to his PTSD with depressive disorder. He indicated that his problems with concentration and memory caused him to make mistakes at work. The February 2014 VA examiner found that the Veteran's level of concentration would cause serious impairment in his line of work. The examiner also indicated that the Veteran's poor sleep and PTSD/hypertension medication, along with intrusive images likely contributed to this. Thus, there is some evidence that the Veteran is unemployable due to his service-connected psychiatric condition. Therefore, after adjudication of the claim for an evaluation in excess of 50 percent for PTSD with depressive disorder, from December 8, 2005 to February 24, 2014, and if Veteran does not meet the schedular criteria set forth in 38 C.F.R. § 4.16(a) at any time during the appeal period, the rating board should submit the case to the Director, Compensation and Pension Service, for extraschedular consideration, pursuant to 38 C.F.R. § 4.16(b). Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's complete treatment records from the New Orleans Vet Center from August 2013 through February 2014. If the records are not able to be obtained following reasonable efforts, the Veteran should be notified that such records are not available, informed of the efforts made to obtain the records and any further action VA will take regarding the claim, and informed that it is ultimately his responsibility for providing the evidence. 2. Thereafter, if the percentage requirements of 38 C.F.R. § 4.16(a) are not met at any time from December 8, 2005 to February 24, 2014, then the RO must refer the matter to the Director, Compensation and Pension Service, for consideration of entitlement to a TDIU prior to February 24, 2014 on an extraschedular basis. If this is the case, the RO must include with that referral, a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on this issue. 3. After all the foregoing development is completed, readjudicate the Veteran's claims. If any benefit sought on appeal is not granted, issue the Veteran and his representative a supplemental statement of the case and provide an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs