Citation Nr: 1617078 Decision Date: 04/28/16 Archive Date: 05/04/16 DOCKET NO. 08-35 884 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for posttraumatic stress disorder (PTSD) prior to January 6, 2009. 2. Entitlement to an initial disability rating in excess of 30 percent for PTSD as of January 6, 2009. 3. Entitlement to a total rating based on individual employability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran served on active duty from January 1964 to January 1968. This matter arises from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which granted service connection for PTSD and assigned a disability rating of 10 percent, effective August 18, 2003, the date of an inferred PTSD claim. During the pendency of the appeal, in a July 2009 rating decision, the RO granted an increased evaluation from 10 percent to 30 percent for the Veteran's PTSD effective January 6, 2009. Separate initial ratings can be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Consequently, the Board has characterized the issues as noted on the cover page of this decision. With regard to an appeal of an initial rating or a claim for an increased rating, the appellant will generally be presumed to be seeking the maximum benefit allowed by law or regulations, and it follows that such a claim remains in controversy where less than the maximum benefit is allowed. AB v. Brown, 6 Vet. App. 35, 38 (1993). Where a claimant has filed a notice of disagreement as to a RO decision assigning a particular rating, a subsequent RO decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the appeal. Id. The Veteran has not received the maximum benefit allowed and the Board must proceed. In February 2012, the Board remanded the claims for additional development. FINDINGS OF FACT 1. For the entire appeal period, the Veteran's service-connected PTSD has been characterized by occupational and social impairment with deficiencies in most areas; total occupational and social impairment has not been shown. 2. The Veteran meets the schedular requirements for assignment of a TDIU and has been reasonably shown not to be able to engage in substantial gainful employment due to his service-connected PTSD. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in favor of the Veteran, the criteria for an initial evaluation of 70 percent, but no greater, for PTSD have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411 (2015). 2. Resolving all reasonable doubt in favor of the Veteran, the criteria for entitlement to a TDIU have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Analysis A. Claim for increase for posttraumatic stress disorder (PTSD) Disability ratings are based on average impairment in earning capacity resulting from a particular disability, and are determined by comparing symptoms shown with criteria in VA's Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations, which are potentially applicable, based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board finds, however, that staged ratings are not warranted here. Where there is a question as to which of two evaluations apply, 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. Pursuant to the rating criteria for mental disorders, the Veteran's service-connected PTSD is rated at 10 percent disabling prior to January 6, 2009 and at 30 percent disabling from January 6, 2009. A 10 percent disability evaluation is assigned under the general rating formula for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. 38 C.F.R. § 4.130. A 30 percent disability evaluation is assigned for occupational and social impairment with evidence of 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, and mild memory loss (such as forgetting names, directions, or recent events). A 50 percent disability evaluation 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 in short-term and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability evaluation is warranted 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 work like setting); inability to establish and maintain effective relationships. A 100 percent disability evaluation is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to 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). The evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (DSM). The Global Assessment of Functioning (GAF) Scale reflects the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing the DSM-IV; see also Carpenter v. Brown, 8 Vet. App. 240, 242-44 (1995). Higher scores correspond to better functioning of the individual. Id. A score of 41 to 50 is defined as 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 score of 51 to 60 is defined as indicating 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). The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). At a July 2006 VA psychological evaluation, the evaluating psychologist diagnosed the Veteran with schizophrenia. The psychologist also commented that the Veteran had experienced considerable distress following the death of a close friend due to an accident during Vietnam but that he did not meet the full criteria for PTSD. However, it was certainly possible that his experience of psychosis (which occurred at least as early as 1974), may have been linked to this trauma. The examiner assigned a GAF score of 45. In a September 2006 letter, a former VA psychologist who had evaluated the Veteran in December 2004 opined that while the Veteran might suffer from schizophrenia, he also suffered from PTSD. In support of this opinion, the psychologist cited to a journal article indicating that African American combat Veteran's with PTSD endorsed more items suggesting positive symptoms of psychosis without higher rates of primary psychosis, depression or anxiety than Caucasians. At a July 2007 private psychological evaluation, the evaluating psychologist diagnosed the Veteran with PTSD and schizophrenia by history and commented that his severe emotional distress was at least as likely as not caused by his PTSD. This psychologist also assigned a GAF score of 45. At a January 2009 VA psychological evaluation, the evaluating psychologist diagnosed the Veteran with PTSD and chronic paranoid schizophrenia. The psychologist found that the Veteran exhibited deficiencies in multiple areas. The psychologist also assigned a GAF score of 45 and concluded that separate GAF scores for PTSD and schizophrenia respectively could not be assigned without resort to speculation. At a July 2012 VA psychological evaluation, the evaluating psychologist diagnosed the Veteran with chronic paranoid schizophrenia. The psychologist opined that separate GAF scores could be assigned for the schizophrenia and the PTSD. A score of 50 was assigned for schizophrenia and a score of 61 was assigned for PTSD. VA treatment records from 2003 to the present show predominant diagnoses of schizophrenia and PTSD, with GAF scores (attributable to the Veteran's psychiatric functioning as a whole) predominantly below 50. Given that the above summarized opinions concerning whether it is possible to separate the effects of the Veteran's service-connected PTSD from his non-service-connected schizophrenia are in conflict, and resolving any reasonable doubt in the Veteran's favor, the Board must consider the combination of psychiatric impairment from these disorders in determining the appropriate rating to assign for the service-connected PTSD. See Mittleider v. West, 11 Vet. App. 181, 182 (1998): (When it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition [as clearly indicated in this case], such signs and symptoms must be attributed to the service-connected disability. Consequently, given that the Veteran has predominantly been assigned GAF scores of 50 and below and given that the January 2009 VA examiner specifically found that his psychiatric disability resulted in deficiencies in most areas; assignment of a higher 70 percent rating is warranted for the Veteran's PTSD. A higher 100 percent rating is not warranted as the Veteran has still been able to maintain some social connections, including with family. Thus, both total occupational and social impairment has not been shown. The Board also considered whether referral for an extraschedular rating is warranted. 38 C.F.R. § 3.321(b)(1). 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. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. 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. Thun v. Shinseki, 573 F.3d 1366 (Fed. Cir. 2009). In this case, the applicable criteria reasonably describe the Veteran's disability level and symptomatology, a constellation of symptoms leading to deficiencies in most areas but not resulting in both total occupational and social impairment. Thus, the claimant's disability picture is contemplated by the rating schedule and the newly assigned schedular evaluation is adequate. Accordingly, extraschedular referral is not required. Thun, 573 F.3d 1366 (Fed. Cir. 2009). The Board also notes that the Veteran has other service-connected disabilities in addition to PTSD. However, there is no indication or allegation tending to indicate that the collective impact of his service-connected disabilities is greater than the sum of their individual impacts. Accordingly, there is no basis for assigning a higher rating based on any such collective impact. Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. 2014). In sum, considering both schedular and extraschedular provisions a 70 percent but no higher rating is warranted for the Veteran's PTSD. B. TDIU The Veteran asserts that he is unemployable as a result of his PTSD, which is now assigned a 70 percent rating. Thus, this disability meets the general schedular percentage requirement for assignment of a TDIU. 38 C.F.R. § 4.16(b). Also, the evidence reasonably indicates that the Veteran's psychiatric disability renders him unable to secure of follow a substantially gainful occupation. In this regard, as mentioned above, the assigned GAF scores have predominantly been below 50, indicating a level of occupational impairment compatible with the inability to keep a job. Additionally, the evidence appears to indicate that the Veteran has not worked to a substantial gainful level since 1995, at which time he was dismissed from his job at the Post Office for difficulties resulting from his psychiatric disability. Notably, just as with the claim for increase for PTSD, the Board must consider the Veteran's combination of impairment from his PTSD and schizophrenia when determining whether a TDIU is warranted, as the evidence reasonably indicates that it is not possible to separate the effects of these respective psychiatric disorders. Mittleider, 11 Vet. App. 181, 182 (1998). Accordingly, resolving any reasonable doubt in his favor, the Veteran is shown to be unable to secure or follow a substantially gainful occupation as a result of his service-connected PTSD. Consequently, the criteria for assignment of a TDIU have been met. 38 C.F.R. §§ 3.102, 4.16. II. Due Process VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; Dingess v. Nicholson, 19 Vet. App. 473 (2006). Given the favorable disposition of the claim for a TDIU, the Board finds that all notification and development action needed to fairly adjudicate this claim has been accomplished. In regard to the claim for increase for PTSD, this claim stems from an initial grant of service connection by the RO. In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Thus, as the Veteran has already received appropriate notice pertaining to the earlier claim for service connection, no further notice is required. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Regarding the duty to assist, the Veteran's service treatment records and pertinent post-service medical records have been associated with the claims file. Additionally, the Veteran has Benn afforded with a number of VA examinations to assess the current severity of his PTSD, most recently in July 2012. Moreover, he has not alleged worsening of these disabilities since that examination and the more recent VA treatment records have also provided the Board with adequate, more recent assessments of the Veteran's psychiatric functioning. There is no indication of additional existing evidence that is necessary for a fair adjudication of the claim. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist and the Board will proceed to issue a decision. ORDER A 70 percent but no higher evaluation for PTSD is granted subject to the regulations governing the payment of monetary awards. A total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted. ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs