Citation Nr: 1627367 Decision Date: 07/11/16 Archive Date: 07/22/16 DOCKET NO. 10-20 523 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an initial rating in excess of 50 percent for post-traumatic stress disorder (PTSD) prior to January 5, 2008. ATTORNEY FOR THE BOARD Suzie Gaston, Counsel INTRODUCTION The Veteran served on active duty from April 1969 to November 1970. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a December 2008 rating decision, by the Cleveland, Ohio, Regional Office (RO). FINDING OF FACT Prior to January 5, 2008, the Veteran's PTSD was manifested by ongoing depression, difficulty sleeping due to persistent nightmares, intrusive thoughts, flashbacks, difficulty concentrating, increased irritability, outbursts of anger, and avoidance, and Global Assessment of Functioning (GAF) scores ranging from 45-55, resulting in occupational and social impairment with deficiencies in most areas, but without total occupational and social impairment. CONCLUSION OF LAW The criteria for an initial rating of 70 percent, but not higher, for PTSD are met for the period prior to January 5, 2008. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist. The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2014) and 38 C.F.R. §§ 3.159, 3.326(a) (2015). In this case, VA satisfied its duties to the Veteran in a VCAA letter issued in May 2008 with regard to the underlying increased rating claim. As detailed, the Veteran perfected an appeal as to the effective date assigned. Entitlement to an earlier effective date is a downstream issue from that of service connection, thus another VCAA notice is not required. See VAOPGCPREC 8-2003 (Dec. 22, 2003); 38 C.F.R. § 3.159(b) (3) (i). Consequently, the Board finds that the VCAA notice requirements have been met. The Board finds that the duty to assist has been also been fulfilled. The Veteran was provided with several VA examinations during the course of the appeal to assess the severity of his PTSD, and post-service VA treatment records have been obtained. There is no suggestion that additional evidence, relevant to this matter, exists and can be procured. No further development action is required. II. Factual background. The record indicates that the Veteran's application for service connection for a psychiatric disorder (VA Form 21-526) was received at the RO on November 29, 2006. The Veteran was afforded a VA examination in June 2007. The pertinent diagnosis was PTSD, moderate to severe in range; he was assigned a GAF score of 55. The Veteran continued to describe his symptoms as persistent nightmares and also sense of reliving experience even though he was out from the Vietnam War. The Veteran also continued to have the persistent avoidance behavior with difficulty concentrating, difficulty falling asleep, increased irritability, and increased outbursts of anger, which seemed to be worsening over the past several years. The examiner stated that the Veteran's symptoms were most likely caused by his work as a morgue man at the war zone in the Vietnam War other than depression itself. The examiner stated that, although the Veteran denied any suicidal or homicidal idea, and he denied any intent or plan, he seemed to be in the best shape with moderate to severe stress with some moderate difficulty in social and occupational functioning. November 2007 VA treatment records show the Veteran was assigned a GAF of 45. A VA hospital summary, dated January 11, 2008, indicated that the Veteran was admitted on January 7, 2008 with increased stressors and exacerbation of his post-traumatic stress syndrome symptoms after attending group therapy at Middletown Community Based Outpatient Clinic. The Veteran claimed to have had a breakdown prior to coming to the hospital. He indicated that he had been under a lot of stress at work; in fact, he reported that his coworker had died recently. He also noted that he had a violent episode recently. The Veteran indicated that he was not able to sleep well due to nightmares, which occurred almost 3 times a week. He also admitted to mood swings, anger, and irritability. He denied any suicidal ideation, plans or attempts. He also denied any auditory or visual hallucinations, or any paranoia. The Veteran was admitted to acute high intensity psychiatric unit. Upon admission, his medication was started and Included aspirin 325 milligrams, Omeprazole 20 milligrams, and Verapamil 120 milligrams every morning. The discharge diagnoses admission was 35, and 45 at the time of discharge. The RO requested information from Worthington Steel Company relating to the Veteran's employment. Employment information (VA Form 21-4192) report from Worthington, dated in August 2008, indicates that the Veteran was employed from January 19, 1988 to January 5, 2008 in shipping and receiving. It was reported that he worked 8 hours per day and 40 hours per week. It was noted that the Veteran last worked on January 5, 2008, and he was long-term disability. III. Legal Analysis. By a rating action in June 2007, the RO granted service connection for PTSD and assigned a 50 percent disability rating, effective November 29, 2006. In a statement in support of claim (VA Form 21-4138), received in January 2008, the Veteran claimed an increased rating for his service-connected PTSD. Because this was submitted within a year of the June 2007 rating decision, the Board construes this statement as a Notice of Disagreement with the June 2007 rating decision. The Veteran essentially contends that he is entitled to an effective date earlier than January 5, 2008 for the assignment of a 100 percent disability rating for his service-connected PTSD. Stated differently, the question is whether the Veteran is entitled to a rating in excess of 50 percent prior to January 5, 2008. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2015). If two evaluations are potentially applicable, the higher evaluation 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 (2015). A disability may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. However, where an award of service connection for a disability has been granted and the assignment of an initial evaluation is at issue, separate evaluations can be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 126 (2001). The Veteran's PTSD has been assigned a 50 percent rating under Diagnostic Code 9411, 38 C.F.R. § 4.130 (2015). Under that code, a 50 percent evaluation is warranted when there is occupational and social impairment, with reduced reliability and productivity, due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more frequently than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 evaluation is warranted when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and an inability to establish and maintain effective relationships. A 100 percent evaluation is warranted 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; and memory loss for names of close relatives, own occupation, or own name. The Secretary, acting within his authority to "adopt and apply a schedule of ratings," chose to create one general rating formula for mental disorders. 38 U.S.C.A. §§ 510, 1155 (West 2014); 38 C.F.R. § 4.130 (2015). By establishing one general formula to be used in rating more than 30 mental disorders, there can be no doubt that the Secretary anticipated that any list of symptoms justifying a particular rating would in many situations be either under- or over-inclusive. The Secretary's use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. This construction is not inconsistent with Cohen v. Brown, 10 Vet. App. 128 (1997). The evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, the rating specialist is to consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV. See38 C.F.R. § 4.126 (2015). If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned. Mauerhan v. Principi, 16 Vet. App. 436 (1992). A GAF score is a scale reflecting 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 Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994). This is more commonly referred to as DSM-IV. A GAF of 21 to 30 is defined as behavior considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriate, 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 of 31 to 40 is indicative of some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or any 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 GAF of 41 to 50 is indicative of serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF of 51 to 60 is defined as 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). A GAF of 61 to 70 is indicative of 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, has some meaningful interpersonal relationships. After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2014). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2015). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert at 54. By comparing the pertinent medical evidence in the instant case to VA's criteria for rating mental disorders, the Board finds that, prior to January 5, 2008, the Veteran's PTSD more closely approximates the criteria for a 70 percent rating. In this regard, it must be kept in mind that it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21. See also 38 C.F.R. § 4.7. In this regard, the Board finds that the evidence is at least in equipoise as to whether the Veteran's PTSD more nearly approximated occupational and social impairment with deficiencies in most areas such as school, family relations, judgment, thinking, and mood. The Board observes that the Veteran's reported symptoms during the period in question included ongoing depression, difficulty sleeping due to recurring nightmares involving the incidents in service, a sense of reliving his experience in service, increased irritability, outbursts of anger, difficulty concentrating, and avoidance behavior. Specifically, following a VA examination in June 2007, the Veteran reported that he continued to have persistent avoidance behavior with difficulty concentrating, difficulty falling asleep, increased irritability, and increased outbursts of anger, which seemed to be worsening over the past several years. The VA examiner reported a diagnosis of PTSD, which he described as being moderate to severe in range; he assigned a GAF score of 55. The examiner stated that, although the Veteran denied any suicidal or homicidal idea, and he denied any intent or plan, he seemed to be in the best shape with moderate to severe stress with some moderate difficulty in social and occupational functioning. During a VA clinical visit in November 2007, the Veteran was also diagnosed with PTSD, and assigned a GAF score of 45. Ultimately, the Veteran demonstrated occupational and social impairment with deficiencies in most areas. Thus, the schedular criteria for a 70 percent evaluation have been approximated. It is noteworthy that several lay statements from family and co-workers/friends, received in February 2007, attesting to the fact that they had witnessed or had knowledge that the Veteran had experienced symptoms of PTSD, which included persistent nightmares, persistent avoidance behavior with difficulty concentrating, difficulty falling asleep difficulty concentrating, increased irritability, and increased outbursts of anger. In light of these findings, the Board finds that the evidence reflects symptoms, during the period prior to January 5, 2008, that are best contemplated by the criteria for a 70 percent evaluation in that the Veteran experienced occupational and social impairment with deficiencies in most areas, including work, family relations, thinking and mood, due to his PTSD symptoms. Also, with respect to the Veteran's GAF scores, the evidence of record, prior to January 5, 2008, reflects scores of 45 and 55, which contemplate moderate to severe PTSD symptoms or moderate difficulty in social, occupational, or school functioning. See DSM-IV. The GAF scores assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the percentage rating issue; rather, they must be considered in light of the actual symptoms of a psychiatric disorder, which provide the primary basis for the rating assigned. 38 C.F.R. § 4.126(a) (2015). Consequently, with resolution of reasonable doubt in the Veteran's favor, the Board finds that the Veteran demonstrated occupational and social impairment with deficiencies in most areas; thus, the schedular criteria for a 70 percent evaluation have been approximated prior to January 5, 2008. The Board finds that the evidence does not, however, show that the Veteran had symptoms severe enough to warrant a 100 percent disability rating prior to January 5, 2008. Although the Veteran reported persistent intrusive recollections, the mental status reports on psychological evaluation and examination did not find hallucinations or delusions, or give the impression that the intrusive recollections were as disabling as persistent delusions or hallucinations. There were no documented instances of grossly inappropriate behavior. Moreover, during the June 2007 VA examination, the examiner specifically denied any suicidal or homicidal ideation. There was no report of any episodes of inability to perform activities of daily living. There was no clinical evidence of actual disorientation to time and place. There was no documentation of loss of memory of the names of close relatives, his occupation, or of his own name. Importantly, the Veteran was employed full-time during this period, and when the Veteran presented for medical treatment for his PTSD in January of 2008, he was described as experiencing a recent exacerbation of his symptoms, indicating that prior to January 5, 2008, his symptoms were not as severe. For these reasons, the Board finds that prior to January 5, 2008, total occupational and social impairment was not shown. Taking the evidence all together, the preponderance of it is against a disability rating higher than 70 percent for the period prior to January 5, 2008. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2015). See Mauerhan v. Principi, 16 Vet. App. 436 (2002). In summary, the Board finds that the Veteran's PTSD met the criteria for a 70 percent disability rating during the period prior to January 5, 2008, but did not more closely approximate the criteria for a 100 percent disability rating. 38 C.F.R. § 4.130, DC 9411 (2015). In so finding, the Board considered the lay statements of record but ultimately gave more probative weight to the findings of the VA examiners due to their expertise in evaluating mental health disorders. Accordingly, the Board grants entitlement to an initial disability rating of 70 percent, but no higher, for service-connected PTSD prior to January 5, 2008. Extraschedular Consideration. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board acknowledges that not all of the Veteran's PTSD symptoms are specifically enumerated in the schedular criteria. However, pursuant to the holdings of Mauerhan, supra, and Vazquez-Claudio, supra, the Board is required to determine the Veteran's overall level of occupational and social impairment due to any PTSD symptomatology, regardless of whether it is specifically listed in the schedular rating criteria. Consequently, the Board finds that the rating criteria are therefore adequate to evaluate the Veteran's service-connected PTSD as they expressly contemplate all of the Veteran's PTSD symptoms, and referral for consideration of extraschedular rating is not warranted. In Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. 2014), the Federal Circuit held that "[t]he plain language of § 3.321(b) (1) provides for referral for extra-schedular consideration based on the collective impact of multiple disabilities." Here, however, the issue has not been argued by the Veteran or reasonably raised by the evidence of record. The Veteran has not asserted, and the evidence of record does not suggest, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. Yancy v. McDonald, 27 Vet. App. 484, 495 (Fed. Cir. 2016) ("the Board is required to address whether referral for extraschedular consideration is warranted for a veteran's disabilities on a collective basis only when that issue is argued by the claimant or reasonably raised by the record through evidence of the collective impact of the claimant's service-connected disabilities"). The Board will therefore not address the issue further. Lastly, the Board notes that, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim of entitlement to a total rating based upon individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, the Board notes that the RO assigned a 100 percent rating for PTSD effective January 5, 2008. The award of a 100 percent rating does not necessarily render moot a claim of entitlement to a TDIU. Bradley v. Peake, 22 Vet. App. 280 (2008). A separate TDIU predicated on one disability (although perhaps not ratable at the schedular 100-percent level) when considered together with another disability separately rated at 60 percent or more could warrant special monthly compensation (SMC ) under 38 U.S.C.A. § 1114(s). Bradley, at 293-94. In this case, however, the Veteran is rated at 100 percent on a schedular basis for his PTSD, which is the same disability that has been determined to render him unemployable. There is no evidence that his remaining service-connected disabilities of ischemic heart diease and diabetes mellitus render him unable to obtain and maintain substantially gainful employment. Thus, for this time period, a TDIU based on PTSD cannot be granted on top of the 100 percent schedular rating for PTSD in effect, and there is no evidence suggesting the remaining two service-connected disabilities render the Veteran unable to obtain and maintain substantially gainful employment. With respect to the issue of TDIU prior to January 5, 2008, the record reflects that the Veteran was employed full-time during this period. Accordingly, the record does not suggest the Veteran was unable to obtain and maintain substantially gainful employment for this period and the issue of entitlement to a TDIU is not raised under the holding in Rice. Consequently, the Board finds no further discussion of entitlement to a TDIU is warranted based on the facts of this case. ORDER An initial evaluation of 70 percent, but no higher, for PTSD is granted for the period prior to January 5, 2008, subject to the regulations governing the payment of VA monetary benefits. ____________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs