Citation Nr: 1616512 Decision Date: 04/26/16 Archive Date: 05/04/16 DOCKET NO. 10-01 849 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an initial increased disability rating in excess of 50 percent prior to March 15, 2011, and from May 1, 2011, for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran served on active duty from June 1970 to December 1971. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Board notes that a temporary total (100 percent) rating is in effect for PTSD (for hospitalization, under 38 C.F.R. § 4.29) for the period from March 15, 2011 to April 30, 2011. As the maximum rating has already been awarded for this period, the matter of an increased rating for this period is moot and will not be addressed herein. This matter was previously remanded by the Board for further development in September 2014. Such has been completed and this matter is returned to the Board for further consideration. See Stegall v. West, 11 Vet. App. 268 (1998). As a result of the evidence regarding the effect the Veteran's service-connected disability has had on his ability to engage in substantially gainful employment, the Board finds that his increased rating claim include a claim for TDIU, and that this claim has therefore been added as an additional claim entitled to current appellate review. Rice v. Shinseki, 22 Vet. App. 447 (2009). This appeal was processed using the Virtual VA and Veterans Benefits Management System paperless claims processing systems. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of these electronic records. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if additional action is required on his part. FINDINGS OF FACT 1. Prior to March 15, 2011, and from May 1, 2011, the Veteran's PTSD with secondary depression and history of anxiety reaction most nearly approximated occupational and social impairment with deficiencies in most areas. 2. The Veteran's PTSD has at no point during the appeal period been manifested by total occupational and social impairment. CONCLUSION OF LAW Prior to March 15, 2011, and from May 1, 2011, the criteria for an initial evaluation of 70 percent, but no higher, for PTSD have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b) (1). The Veteran's claim arises from his disagreement with the initial evaluations 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), Goodwin v. Peake, 22 Vet. App. 128, 134 (2008), Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is required for this claim. 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. This duty includes assisting with the procurement of relevant records, including pertinent treatment records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA has also done everything reasonably possible to assist the Veteran with respect to his claim for benefits, such as obtaining VA medical records and providing the Veteran with a VA examination. As such, the Board finds there has been substantial compliance with its September 2014 remand directives, namely to schedule the Veteran for a new VA examination. The Board notes that the United States Court of Appeals for Veterans Claims (Court) has noted that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) Based on the foregoing, the Board finds that the AOJ substantially complied with the mandates of its remand. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). Therefore, in light of the foregoing, the Board will proceed to review and decide the claim based on the evidence that is of record consistent with 38 C.F.R. § 3.655 (2015). Finally, the Board notes that neither the Veteran nor his representative has identified any additional existing evidence that is necessary for a fair adjudication of the claim that has not yet been obtained. The Board thus concludes that there are no additional records outstanding with respect to that claim. Consequently, the duty to notify and assist has been satisfied as to the claim now being finally decided on appeal. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). Importantly, the Board notes that the Veteran is represented in this appeal. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006). The Veteran has submitted argument and evidence in support of the appeal. Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claim decided herein such that the essential fairness of the adjudication is not affected. II. The Merits of the Claim The Veteran and his representative have contended that an increased disability rating is warranted for the Veteran's PTSD prior to March 15, 2011, and from May 1, 2011. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Schedule). 38 C.F.R. Part 4 (2015). The percentage ratings contained in the 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 civil occupations. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321(a), 4.1 (2015). Separate diagnostic codes identify the various disabilities. The 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). In an initial increased rating claim, where entitlement to compensation has already been established, VA must address the evidence concerning the state of the disability from the effective date of the grant of service connection until VA makes a final decision on the claim. The Court has held that consideration of the appropriateness of a staged rating is required. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2015). 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 occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411, a 50 percent rating will be assigned 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; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood, due to such symptoms as: suicidal ideations; 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 work-like setting); and the inability to establish and maintain effective relationships. Id. A 100 percent 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; 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. When determining the appropriate disability evaluation to assign, the Board's primary consideration is the veteran's symptoms, but it must also make findings as to how those symptoms impact the veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442. Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. The Veteran has been assigned Global Assessment of Functioning (GAF) scores for his PTSD during the applicable timeframes. GAF scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (4th ed.), p. 32). GAF scores ranging between 81 and 90 reflect absent or minimal symptoms (e.g., mild anxiety before an exam), good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns (e.g., an occasional argument with family members). GAF scores ranging between 71 and 80 reflect that if symptoms are present they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument; no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). GAF scores ranging between 61 and 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect more moderate 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). Scores ranging from 41 to 50 reflect 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). See 38 C.F.R. § 4.130 (incorporating by reference the VA's adoption of the DSM-IV, for rating purposes). Throughout the periods prior to March 15, 2011, and from May 1, 2011, the Veteran's PTSD was shown to have caused occupational and social impairment with deficiencies in most areas (including work ability, family relations, judgment, thinking, and mood). The evidence of record reflects that this impairment was evidenced by symptoms such as frequent suicidal ideation, panic attacks, impaired impulse control (such as unprovoked irritability), and difficulty in adapting to stressful circumstances (including a worklike setting as he stated he was unable to maintain any employment during these periods). In addition, the evidence of record documents that he was hospitalized for psychiatric symptomology surrounding the aforementioned periods [and has been awarded a temporary total (100 percent) rating under 38 C.F.R. § 4.29 for the qualifying period that is not the subject of the current appeal, as was noted in the Introduction section above]. While the Veteran's PTSD was shown to have caused social impairment during the aforementioned periods, the Board finds that his disability was not shown to have caused total impairment during any of the aforementioned periods, as evidenced by his ongoing relationship with his wife, as well as his own statements noting that he had attempted to seek work at times. He also did not display any gross impairment of thought processes or behavior, disorientation to time or place, or memory loss for names at any time. GAF scores of 46 to 70 have been assigned during the aforementioned periods, reflecting mild to severe (but not totally disabling) symptomatology and functional impairment. Accordingly, the Board finds that a 70 percent initial rating (but no higher) for PTSD is warranted for the periods prior to March 15, 2011, and from May 1, 2011. See Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). Extraschedular Consideration As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation Service to determine whether an extraschedular rating is warranted. The discussion above reflects that the symptoms of the Veteran's PTSD are fully contemplated by the applicable rating criteria. As shown above, the criteria include symptoms, each of which were addressed in the VA examination reports, the private evaluation reports, and the VA treatment records, which provided the basis for the disability rating that was assigned. The Veteran primarily complained of depression, irritability, panic attacks, and sleep impairment, which are clearly contemplated in the currently assigned disability evaluation. In any event, the evidence does not reflect that there has been frequent hospitalization or that the Veteran's symptoms have otherwise rendered impractical the application of the regular schedular standards. Therefore, referral for consideration of an extraschedular rating for the Veteran's PTSD is not warranted. 38 C.F.R. § 3.321(b)(1). Finally, the Board notes that under Johnson v. McDonald, 2013-7104, 2014 WL 3562218 (Fed. Cir. Aug. 6, 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, service connection is in effect only for PTSD. 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. In the absence of exceptional factors associated with PTSD, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER An increased 70 percent initial rating, but no higher, for PTSD is granted for the periods prior to March 15, 2011, and from May 1, 2011, and is subject to the regulations governing payment of monetary awards. REMAND The Veteran is seeking a total disability rating for compensation based on individual unemployability. Entitlement requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2015). In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2015). Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned 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, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). As directed above, the Veteran is service-connected for PTSD at a 70 percent disability rating prior to March 15, 2011, and from May 1, 2011. This is his only service-connected disability. Here, the Veteran has met the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a). However, it appears that the Veteran was employed or attempted to become employed during these periods despite his contention that he is unable to work due to his PTSD symptomatology. Specifically, according to the September 2009 VA examination, the Veteran was self-employed as a contractor but was only working approximately five hours a week on average and in October 2014, his private licensed clinical social worker, R.K.F., stated that in the past, the Veteran has attempted to work but has been unsuccessful, "even when trying to work for only two or three hours." Therefore, a remand is required to obtain a VA addendum opinion. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 30 (2008). The Board observes that the Veteran was most recently afforded a VA PTSD examination in September 2014. However, the VA examiner did not provide a clear opinion as to the Veteran's ability to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Because neither VA nor the Court can exercise independent medical judgment in deciding an appeal, an addendum medical opinion must be obtained. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Accordingly, the case is REMANDED for the following action: 1. Copies of updated treatment records should be obtained and added to the record. 2. Once all outstanding records, if any, have been obtained and associated with the record, the claims folder should be returned to the VA examiner who provided the September 2014 VA PTSD examination, in order to provide an addendum opinion as to the Veteran's ability to secure or follow a substantially gainful occupation solely as a result of his service-connected disability. Nonservice-connected disabilities and age should not be considered or discussed. If this VA examiner is no longer available, another qualified VA clinician should provide the addendum opinion. The Veteran may be called in for an examination, if deemed warranted. The VA examiner is asked to discuss the Veteran's lay contentions that he is unable to work due to his PTSD symptomatology. 3. Upon completion of the above, review the examination report to ensure substantial compliance with the Board's directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Take any necessary corrective action. 38 C.F.R. § 4.2. 4. After completion of the foregoing and undertaking any further development deemed warranted by the record, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. 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). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs