Citation Nr: 1640020 Decision Date: 10/04/16 Archive Date: 10/19/16 DOCKET NO. 09-20 493 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD) prior to March 19, 2013. 2. Entitlement to total disability due to individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from February 1965 to January 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in May 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Board denied the Veteran's claim of entitlement to an initial disability rating in excess of 30 percent prior to March 19, 2013 and in excess of 70 percent as of March 19, 2013 for service-connected PTSD in a September 2013 rating decision. The Veteran appealed only that portion of the September 2013 Board decision that denied entitlement to an initial disability rating in excess of 30 percent for PTSD, prior to March 19, 2013, to the United States Court of Appeals for Veterans Claims (Court). In July 2014, the Court granted a Joint Motion for Partial Remand (Joint Motion) filed by representatives for both parties, vacating the decision as to the claim appealed, and remanding this matter to the Board for further proceedings consistent with the Joint Motion. The Board notified the Veteran of this action by the Court, and of his right to submit additional evidence and/or argument in support of his appeal, in an August 2014 letter. The Veteran's representative presented argument that included reference to this action by the Court in September 2014. Thereafter, the Board denied entitlement to an initial rating in excess of 30 percent for PTSD, prior to March 19, 2013, in a November 2014 decision. In a May 2016 Memorandum Decision, the Court vacated the decision of the Board and remanded the issue to the Board for further proceedings consistent with the decision. The Board notified the Veteran of this action by the Court, and of his right to submit additional evidence and/or argument in support of his appeal, in an August 2016 letter. The Veteran's representative presented argument that included reference to this action by the Court in September 2016. 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). FINDINGS OF FACT The evidence of record shows that prior to March 19, 2013 the Veteran's service-connected PTSD is manifested by deficiencies in most areas of social functioning and occupational functioning including sleep impairment, hypervigilance, exaggerated startle response, feelings of detachment from others, isolation, avoidance, moderate to major effect on his ability to function appropriately and effectively, difficulty adapting to stressful circumstances and depressed mood; the Veteran was assigned a GAF score of 62. CONCLUSION OF LAW The criteria for a disability rating of 70 percent for service-connected PTSD prior to March 19, 2013 have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.126, 4.130, Diagnostic Code 9411 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance 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 medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a)(West 2014); 38 C.F.R. § 3.159(b) (2015). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice 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. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). In this case, the Veteran is appealing the initial disability rating assignment. The May 2010 rating decision granted the Veteran's service connection claim for PTSD and therefore, such claim is now substantiated. His filing of a notice of disagreement as to the initial rating assigned in the May 2010 decision does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). See 38 C.F.R. § 3.159(b)(3). Rather, the Veteran's appeal as to the initial rating assignment triggers VA's statutory duties under 38 U.S.C.A. §§ 5104 and 7105, as well as regulatory duties under 38 C.F.R. § 3.103. Under 38 U.S.C.A. § 7105(d), upon receipt of a notice of disagreement in response to a decision on a claim, the agency of original jurisdiction must take development or review action it deems proper under applicable regulations and issue a statement of the case if the action does not resolve the disagreement either by grant of the benefits sought or withdrawal of the notice of disagreement. If VA receives a notice of disagreement in response to notice of its decision on a claim that raises a new issue, section 7105(d) requires VA to take proper action and issue a statement of the case if the disagreement is not resolved; however, section 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate the newly raised issue. See VAOPGCPREC 8-03 (December 22, 2003); 69 Fed. Reg. 25180 (2004); 38 C.F.R. § 3.159(b)(3) (2015). As a consequence, VA is only required to advise the Veteran of what is necessary to obtain the maximum benefit allowed by the evidence and the law. This has been accomplished here. The July 2012 statement of the case, under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," set forth the relevant diagnostic codes for rating mental disorders, and included a description of the rating formulas for all possible schedular ratings under this diagnostic code. Therefore, the Veteran was informed of what was needed not only to achieve the next-higher schedular rating, but also to obtain all schedular ratings above the initial evaluation that the RO assigned. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA has fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's increased rating claim for PTSD. The claims file contains the Veteran's service treatment records, VA treatment records, a VA examination reported dated in March 2010, and lay statements from the Veteran, his family, and friends. The VA examination report reflects that the examiner reviewed the claims file, obtained an oral history from the Veteran of his mental health, and evaluated the Veteran. The examiner documented in detail the claimed and observed symptoms and the effect those symptoms have on his daily life and employment. Accordingly, the VA examination is adequate for rating purposes. The Veteran has not identified, and the record does not otherwise indicate, any other existing, pertinent evidence that has not been obtained. The record also presents no basis for further development to create any additional evidence to be considered in connection with the matter currently under consideration. Under these circumstances, the Board finds that the Veteran is not prejudiced by appellate consideration of the claim on appeal at this juncture, without directing or accomplishing any additional notification and/or development action. II. Criteria and Analysis The Veteran filed a service connection claim for PTSD in November 2009. A rating decision in March 2010 granted the Veteran's service connection claim for PTSD and assigned a 30 percent disability rating, effective November 6, 2009. The Veteran filed a notice of disagreement in May 2011 indicating that his PTSD symptoms warrant a higher disability rating. As discussed in the Introduction, the Board is only considering the issue of entitlement to initial disability rating in excess of 30 percent for service-connected PTSD prior to March 19, 2013. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2015). 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 for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2015). Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3 (2015). When the evidence is in relative equipoise, the Veteran is accorded the benefit of the doubt. See 38 U.S.C.A. § 5107(b). In general, when 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). However, when the current appeal arose from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating a mental disorder, VA 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 (2015). The Veteran's service-connected PTSD is presently assigned a 30 percent disability rating prior to March 19, 2013 under 38 C.F.R. § 4.130, Diagnostic Code 9411 (2015). PTSD is rated pursuant to the General Rating Formula for Mental Disorders. Id. Under the General Rating Formula for Mental Disorders, a 50 percent rating is prescribed for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating is prescribed 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. Id. A 100 percent rating is prescribed for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. The use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the Veteran's social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). In determining whether the Veteran meets the criteria for a 70 percent rating, the Board must consider whether the Veteran has deficiencies in most of the following areas: work, school, family relations, judgment, thinking, or mood. Bowling v. Principi, 15 Vet. App. 1, 11 (2001). The Global Assessment of Functioning (GAF) Scale is used to report the clinician's judgment of the individual's overall level of functioning. The GAF Scale is to be rated with respect only to psychological, social, and occupational functioning. Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, 1994 (DSM-IV), at 44. GAF scores range from 1-100 with the higher numbers representing higher levels of functioning. A GAF score between 61 and 70 indicates 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. The medical evidence of record consists of VA treatment records and VA examination report dated in March 2010. Furthermore, the Veteran provided additional information about his PTSD in written lay statements from himself, as well as, his family, friends, and neighbors. This evidence, the most pertinent of which is summarized below, shows that the Veteran's condition as a whole more closely approximates the criteria for a 70 percent disability rating prior to March 19, 2013. In this regard, the evidence of record shows that the Veteran's PTSD more closely approximates occupational and social impairment with deficiencies in most areas to include work, family relations, judgment, and mood. The VA examiner in March 2010 documented that the Veteran had experienced a lot of disturbing thoughts and feelings related to his experiences in Vietnam. He had difficulty every night falling and staying asleep. He experienced recurrent distressing dreams of the events in Vietnam on average two to three times per week. The Veteran would get daily recurrent, intrusive, distressing recollections about the events of war. He also experienced flashbacks of the events approximately once or twice a month. The examiner reported that the Veteran had difficulty concentrating. He was hypervigilant and would get easily startled with gunfire, people coming up behind him, and any kind of surprise. The Veteran reported that he felt tearful and sad most of the time. A January 2010 VA treatment record shows that the Veteran had a prior medical history that was significant for depression and anxiety. The March 2013 VA examiner documented that the Veteran had a long history of severe depression. In addition, the Veteran's neighbor reported in an August 2010 letter that about six months ago the Veteran had repeatedly expressed suicidal ideation after talking about his experiences at the VA and he continued to be concerned about the Veteran's suicidal ideation. The neighbor also observed that the Veteran was hyper-responsive and hyper-sensitive to what others say. He would become upset or angry over insignificant or well-meaning statements. The March 2010 VA examination reveals that the Veteran experienced irritability and outbursts of anger. The examiner described that the Veteran would get frequent panic-like symptoms where he had heart palpitations, dizziness, and sweating. He would try to avoid thoughts, feelings, and conversations associated with the traumatic events. He avoided activities, places, and people that arouse recollections of the traumatic events. The Veteran reported that he did not watch news or television. He also had markedly diminished interest and participation in significant activities. The evidence indicates that the Veteran's PTSD symptoms affect his ability to work in that he preferred to work on his own and he had a difficult time interacting with people. In addition, the Veteran's symptoms of PTSD prior to March 19, 2013 show that the Veteran had significant difficulty in establishing and maintaining effective relationships. Specifically, he felt detached and estranged from other people. The Veteran could not function in crowds and was very isolated. A lay statement dated in July 2012 from a friend revealed that the Veteran would disconnect his phone in order to not speak to others. She noted that the Veteran had problems with close, intimate relationships. He would often yell and become irritable. The March 2010 examiner revealed that the Veteran was divorced and at that time he had not been in a serious romantic relationship for over seven years. The examiner noted that the Veteran was unable to participate in any family or community functions. His neighbor in a letter dated in August 2010 revealed that the Veteran had trouble trusting others. He rarely left home, except to buy food, go to the doctor, and go to church. The Board finds that the Veteran does not meet the requirements for a 100 percent disability rating for his service-connected PTSD prior to March 19, 2013. Specifically, the evidence of record is negative for characteristics such as gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. See VA examination dated in March 2010. The Veteran was assigned a GAF score of 62 prior to March 19, 2013. This GAF score reveals mild symptoms with some difficulty in social and occupational activities. The Board recognizes that while a GAF score may be indicative of a certain level of occupational impairment, it is only one factor in determining the Veteran's degree of disability. See Bowling, 15 Vet. App. at 14. In this case, his overall disability picture including symptoms reported in the VA treatments records and VA examinations and discussed in the lay evidence more closely approximates a 70 percent rating. Thus, the evidence shows that the Veteran's symptoms do not result in total occupational and social impairment prior to March 19, 2013. In this regard, the VA examination dated in March 2010 reveals that the Veteran had a few friends and he would go out to drink coffee with them from time to time. He denied any particular hobbies or interests. Accordingly, the evidence prior to March 19, 2013 does not reflect that the Veteran's PTSD results in total social impairment. Furthermore, the Veteran has not stated and the evidence does not show that he stopped working due to his PTSD alone. Rather, he has attributed it to a non-service-connected spinal injury. See March 2013 VA PTSD examination. The Veteran's symptoms of PTSD would negatively impact his ability to interact with people at work, as reflected in the now 70 percent rating, but it did not singly result in total occupational impairment. In light of the evidence of record, the most pertinent of which was discussed above, the Board finds that the Veteran's symptoms do not more closely approximate total occupational and social impairment due to PTSD. Thus, the criteria for a 100 percent rating have not been met. According to VA regulation, in exceptional cases where schedular ratings are found to be inadequate, the RO may refer a claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of "an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2015). An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) ; Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and it is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating. In this case, the evidence does not show such an exceptional disability picture that the available schedular evaluation for service-connected PTSD is inadequate. A comparison between the level of severity and symptomatology of the Veteran's PTSD with the established criteria found in the rating schedule for a mental disorder shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology. The record indicates the Veteran's symptoms of PTSD impact his ability to be employed; however, this is explicitly contemplated in the assignment of the 70 percent disability rating under the diagnostic code. Furthermore, the application of the rating schedule is not otherwise rendered impracticable for rating such disability, as it contemplates numerous symptoms possibly resulting in social and occupational impairment. Under these circumstances, and in the absence of factors suggestive of an unusual disability picture, further development in keeping with the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) is not warranted. The Board has considered the Court's decision in Brambley v. Principi, 17 Vet. App. 20 (2003). In Brambley, the Board found that that a claimant's service-connected back disabilities did not result in marked interference with employment but also remanded the issue of entitlement to TDIU for additional development. The Court in that case found that the Board's remand of the TDIU issue for further record development was inconsistent with its finding that the record was sufficient to conclude that appellant's service-connected disabilities do not show a marked interference with employment. In this case, however, the Board has found that the schedular criteria adequately contemplate the level and severity of the Veteran's PTSD and it need not address whether this disability results in marked interference with employment. Accordingly, unlike the decision at issue in Brambley, the Board is not maintaining "divergent positions concerning the completeness of the record." See Brambley at 24. Moreover, the question of whether the Veteran is entitled to a TDIU due to his combined disabilities is being remanded to address additional service-connected disabilities and for development of vocational evidence. Additional medical evidence regarding the Veteran's PTSD is not being developed. ORDER Entitlement to an initial disability rating of 70 percent for service-connected PTSD prior to March 19, 2013 is granted. REMAND The Veteran has applied for a TDIU rating that potentially encompasses multiple service-connected disabilities, including PTSD. See August 2014 VA Form 21-8940. Although adjudicated via a rating decision, as it involves a disability that has been on appeal for a number of years, the Board is taking jurisdiction of the issue. For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). 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 non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Here, the record is not clear that the Veteran is unable to secure and follow a substantially gainful occupation due to the combination of his multiple service-connected disabilities, including his PTSD. In this matter, the Board finds that completion of a vocational opinion would be helpful in resolution of the request for a TDIU. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran a vocational opinion, to determine the Veteran's functional limitations from all his service-connected disabilities (there appear to be 9 ratings) and their impact on his ability to obtain and maintain substantially gainful employment. The examiner should be provided a complete copy of the Veteran's claims file (to include any relevant records in Virtual VA and VBMS) and must review the file in connection with the examination. In making the requested determination, the Veteran's current age and nonservice-connected disabilities are not factors to be considered, but consideration may be given to the Veteran's education, special training, and previous work experience. 2. Readjudicate. 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). ______________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs