Citation Nr: 1715316	
Decision Date: 05/08/17    Archive Date: 05/22/17

DOCKET NO.  09-39 581	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1. Entitlement to disability ratings for posttraumatic stress disorder (PTSD) higher than 50 percent from April 27, 2007, and 70 percent from January 4, 2016.

2. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to January 4, 2016. 


REPRESENTATION

Appellant represented by:	Christopher Loiacano, Agent


WITNESSES AT HEARING ON APPEAL

The Veteran and R. K.



ATTORNEY FOR THE BOARD

K. J. Kunz, Counsel


INTRODUCTION

The Veteran served on active duty from February 1969 to February 1971.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from ratings decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In a December 2007 rating decision the RO granted service connection, effective April 27, 2007, for PTSD, and assigned a disability rating of 30 percent. In an August 2009 rating decision the RO increased the rating for PTSD to 50 percent effective April 27, 2007. In a May 2016 rating decision the RO increased the rating for PTSD to 70 percent effective January 4, 2016. The Veteran continued his appeal, and is seeking ratings higher than 50 percent from April 27, 2007, and 70 percent from January 4, 2016.

In April 2010 the Veteran had a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is in the claims file.

In February 2011 and January 2013 the Board remanded the case to the RO for the development of additional evidence.

In January 2013 the Board recharacterized the claim to include the Veteran's claim for a TDIU, raised by his assertion, in an April 2012 statement, that he has been unable to work because of his service-connected disabilities since July 2006. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).

In an October 2016 rating decision the RO granted a TDIU as of January 4, 2016. This is not a full grant of benefits on appeal. The issue of entitlement to a TDIU prior to January 4, 2016, remains on appeal.


FINDINGS OF FACT

1. From April 27, 2007, the Veteran's PTSD has produced occupational and social impairment with deficiencies in work, family relations, and mood, due to symptoms including suicidal ideation, near-continuous depression, frequent anxiety, difficulty tolerating public settings, and difficulty maintaining effective relationships.

2. The Veteran's PTSD has produced less than total occupational and social impairment.

3. From April 27, 2007, the Veteran's PTSD and other service-connected disabilities have made him unable to secure or follow a substantially gainful occupation.


CONCLUSIONS OF LAW

1. From April 27, 2007, the Veteran's PTSD has met or more nearly approximated no more than the criteria for a 70 percent disability rating. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2016).

2. From April 27, 2007, the ratings and effects of the Veteran's service-connected disabilities have met the criteria for the assignment of a TDIU. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.16 (2016).



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REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2016). Under the notice requirements, VA is to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2016). 

In Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who conducts a Board hearing fulfill duties to (1) fully explain the issues and (2) suggest the submission of evidence that may have been overlooked.

The RO provided the Veteran notice in letters issued in 2007 through 2015. In those letters, the RO notified him what information was needed to substantiate claims for service connection and for a TDIU. The letters also addressed how VA assigns disability ratings and effective dates.

In the April 2010 Board hearing, the undersigned VLJ fully explained the issues and suggested the submission of evidence that may have been overlooked. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), and has not identified any prejudice in the conduct of the hearing. The Board therefore finds that the VLJ who conducted the hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in providing further notice during the hearing constitutes harmless error.

The claims file contains service medical records, post-service medical records, and reports of VA medical examinations. The examination reports and other assembled records are adequate and sufficient to reach decisions on the issue on appeal. The RO substantially fulfilled the instructions in the 2011 and 2013 Board remands.

The Board finds that the appellant was notified and aware of the evidence needed to substantiate the claim, and the avenues through which he might obtain such evidence, and the allocation of responsibilities between the appellant and VA in obtaining evidence. The appellant actively participated in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process, and he has done so.

PTSD Ratings

The Veteran contends that his PTSD produces impairment that warrants ratings higher than 50 percent from April 27, 2007, and 70 percent from January 4, 2016. VA assigns disability ratings 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 VA Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10. If two ratings are potentially applicable, the higher rating 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. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2.

The Court has held that, at the time of the assignment of an initial rating for a disability following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In addition, the Court has indicated that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating was filed until a final decision is made. See Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

The rating schedule provides for rating mental disorders, including PTSD, under a General Rating Formula for Mental Disorders. Under that formula, the criteria for ratings of 50 percent or higher are as follows:

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  .......................... 100 percent



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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 worklike setting); inability to establish and maintain effective relationships  ............................................. 70 percent

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  ........................... 50 percent

38 C.F.R. § 4.130.

In May 2011 the United States Social Security Administration found that the Veteran had been disabled since August 2006 due to a primary diagnosis of osteoarthrosis and allied disorders and a secondary diagnosis of anxiety disorders.

The Veteran had a VA psychiatric consultation in February 2007. A treating physician referred the Veteran for the consultation due to the Veteran's depressed mood and alcohol abuse. In the consultation the Veteran related a history of inpatient treatment for suicidal ideas for one week in the early 1980s. He stated that he went to a Vet Center for mental health treatment two times in the 1990s. He reported that he was in his last job for fifteen years, until his recent retirement. He indicated that he retired early because of difficulty with his supervisor. He stated that since retirement he had relocated to help his parents. He reported that recently a physician prescribed an antidepressant medication. He related having been married and divorced three times, and having grown children. He indicated that he lived alone.

The Veteran reported that he did not like being around people, and that he isolated himself. He related sleep impairment, with four to five hours of interrupted sleep most nights. He stated that he had nightmares about Vietnam about twice a week. He reported a depressed mood, poor concentration, impaired motivation, low energy, persistent guardedness, and intrusive thoughts of Vietnam. He indicated that on four to five occasions in 2006 he had put to his head a gun that he knew was empty. He related regular heavy alcohol use. He denied current suicidal or homicidal ideation or plan. The examiner observed a depressed mood and sad affect, with fair insight and no psychotic indicators or gross cognitive impairment. The clinician's impressions included PTSD.

Since 2007 the Veteran has continued in VA outpatient mental health treatment, including counseling and medications. In treatment later in 2007 he reported ongoing symptoms similar to those reported in February 2007. On April 27, 2007, the RO received his claim for service connection for PTSD.

On VA examination in September 2007 the Veteran reported that the effects of his PTSD has worsened in recent years. He related having intrusive thoughts, trouble sleeping, difficulty communicating, depressed mood, and anxiety attacks. He reported having nightmares two to three times a week and flashbacks one to two times a month. He stated that he was uncomfortable being around people and that he avoided people and conversation. He related that when he was employed he had problems with authority. The examining psychologist found that the Veteran was coherent and anxious, with fair insight and intact judgment. The Veteran denied suicidal or homicidal ideation or auditory or visual hallucinations. The results of psychological testing were consistent with PTSD.

In ongoing VA mental health treatment in February 2008 the Veteran reported feeling hopeless and having difficulty being around people. He stated that he did not like to drive anymore. He denied present suicidal or homicidal thoughts. In August 2008 he reported chronic suicidal thoughts without intent or plan. Similar symptoms were reflected in notes from treatment in 2009 and 2010.

In the April 2010 Board hearing the Veteran reported that the effects of his PTSD included difficulty being around and interacting with people, limitations on driving, memory problems, difficulty completing tasks, and inability to work. R. K., who indicated that he and the Veteran had been best friends since early adolescence, reported that before service the Veteran was gregarious and popular. Mr. K. stated that after service the Veteran was withdrawn and introverted. The Veteran indicated that he had been married and divorced three times. He stated that he saw his two grown children only once or twice a year. He reported that he continued in VA outpatient mental health treatment, with talk therapy and medications. He stated that he had impaired memory. He reported that his sleep was impaired by anxiety and nightmares, and that most nights he got only about four hours of sleep. He indicated that he checked his doors and windows at night. He related that he did not like being around people, and that, except for going out to buy groceries, he very seldom went out in public. He indicated that before he retired he did maintenance work, Since then, he stated, any odd jobs he sought were those that he could do alone, without being around people. He stated that he saw his friend Mr. K. once or twice a month but did not have other social activities, as he did not like being around people.

On VA examination in March 2011 the Veteran reported persistent PTSD symptoms. He stated that he continued in VA psychotherapy and medication management. He related having nightmares three to four times a week. He stated that he had disturbed, limited sleep, exaggerated startle response, and hypervigilance. He indicated that he had panic attacks two to three times a week. He reported choosing social isolation, and having significant anxiety when he had to leave the house and interact with others. He related having some difficulties with memory. He related that friendships had petered out due to his anxiety and withdrawal, and that he had only infrequent contact with family members who lived in his area. He stated that he did odd jobs but had not held any regular full-time employment since his retirement in 2006. He denied current suicidal ideation or intent. The examiner observed that the Veteran had a constricted range of affect and a moderately anxious mood, with generally understandable speech and generally logical thoughts. The examiner expressed the opinion that it was more likely than not that the Veteran's PTSD would markedly interfere with his ability to secure and maintain substantially gainful employment.

Notes of VA treatment of the Veteran in 2011 through 2016 reflect ongoing PTSD effects. In May 2011 he reported having racing thoughts at night. In August 2011 he reported depression, isolation, and difficulty interacting with others. Clinicians periodically adjusted his medications. In April 2012 he reported suicidal thoughts. In May 2012 a clinician noted that he was more anxious and fidgety. In January 2013 the Veteran reported ongoing difficulty sleeping. In February 2013 he reported being more reclusive. In April 2014 he related increased memory problems and ongoing sleep problems. In July 2014 he reported continued difficulty being in crowded places. In November 2015 he noted ongoing sleep impairment. In February 2016 he reported ongoing self-isolation.

On VA examination on January 4, 2016, the Veteran reported ongoing PTSD, with continued VA treatment including medications. He stated that he continued to live alone and had not held employment since the 2007 VA examination. He reported difficulty sleeping, particularly at night. He related concentration problems, such as forgetting to pay bills and misplacing bills. He stated that he was irritable around people. He reported that when he was employed he lost jobs because of difficulties with his temper. He indicated that he had no desire to see family, and he preferred to isolate himself. The examiner reported having reviewed the Veteran's electronic claims file. The examiner endorsed that the Veteran's PTSD produced occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The examiner expressed the opinion that it was at least as likely as not that the Veteran's PTSD made him unable to secure a sustainable occupation.

Records of treatment and examinations of the Veteran from 2007 forward provide a disability picture that includes ongoing sleep impairment, depression, impairment in social interaction, and self-isolation. He also has problems with memory and concentration. The evidence reflects that from 2007 his PTSD has produced occupational and social impairment with deficiencies in work, family relations, and mood, due to symptoms including suicidal ideation, near-continuous depression, frequent anxiety, difficulty tolerating public settings, and difficulty maintaining effective relationships. Overall, the disability picture from 2007 forward has more nearly approximated the criteria for a 70 percent rating than those for a 50 percent rating. The Board therefore grants a 70 percent rating from April 27, 2007, the effective date of service connection.

From 2007 forward the Veteran's PTSD disability picture has not risen to or closely approached the level of the criteria for a 100 percent rating. He manages some contacts with a small number of family members and friends, such that his social impairment is not total. He performs tasks for himself and sometimes for others, sometimes for pay, such that his impairment for occupational activities is less than total. Despite his suicidal ideation, clinicians have not found that he is in persistent danger of hurting himself. His behavior, speech, and thought are not noted to be grossly inappropriate. The Board therefore denies a rating higher than 70 percent for any period.

When there is an exceptional disability picture, such that the rating schedule criteria do not reasonably describe a claimant's disability level and symptomatology, an RO may refer a case to the VA Under Secretary for Benefits or to the Director of the VA Compensation and Pension Service for consideration of an extraschedular rating. See 38 C.F.R. § 3.321(b)(1) (2013); see also Thun v. Peake, 22 Vet. App. 111, 115 (2008). Extraschedular ratings are limited to cases in which it is impractical to apply the regular standards of the rating schedule because there is an exceptional or unusual disability picture, with such related factors as frequent hospitalizations or marked interference with employment. 38 C.F.R. § 3.321(b)(1).

It is not necessary to refer the issue of ratings for the Veteran's PTSD for consideration of extraschedular ratings. The rating schedule criteria adequately and largely account for his PTSD disability picture. His PTSD has not required frequent hospitalizations. His PTSD does markedly interfere with his capacity for employment, but that incapacity is addressed appropriately by a 70 percent rating under the rating schedule criteria and by the TDIU that has been granted. The Veteran does not have an outstanding indirect claim for a TDIU, because his case previously was found to indirectly raise a TDIU issue, he subsequently directly submitted a claim for a TDIU, the RO has granted a TDIU, and the Board herein is granting a TDIU effective from an earlier date.

Moreover, the issue of whether an extraschedular rating is warranted due to the collective impact of multiple disabilities pursuant to Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. 2014), this issue has not been reasonably raised by the evidence of record. Yancy v. McDonald, 27 Vet. App. 484 (2016). In this case, entitlement to a TDIU has been granted. The Federal Circuit in Johnson indicated that the TDIU provision only accounts for instances in which a veteran's combined disabilities establish total unemployability, i.e., a disability rating of 100 percent. Id. at 1366. On the other hand, 38 C.F.R. § 3.321(b)(1) performs a "gap-filling" function. Id. It accounts for situations in which a veteran's overall disability picture establishes something less than total unemployability, but where the collective impact of a veteran's disabilities are nonetheless inadequately represented. Id. As the Veteran has been granted TDIU, he is deemed to have total unemployability and there is no "gap" to fill by § 3.321(b). Accordingly, the Board will not remand this case for referral for extraschedular consideration. See 38 C.F.R. § 3.321(b); Thun, 22 Vet. App. at 114.

TDIU

In an April 2012 statement the Veteran asserted that he has been unable to work because of his service-connected disabilities since July 2006, and thus raised a claim for a TDIU. In an October 2016 rating decision the RO granted a TDIU as of January 4, 2016. This is not a full grant of benefits on appeal. The issue of entitlement to a TDIU prior to January 4, 2016, remains on appeal.

VA regulations allow for the assignment of TDIU when a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the Veteran has certain combinations of disability ratings for service-connected disabilities. 38 C.F.R. § 4.16(a). A finding of entitlement to TDIU is dependent upon consideration of the impact of a veteran's service-connected disabilities on his ability to secure and follow substantially gainful employment, in light of factors such as his work history, education, and vocational training. 38 C.F.R. § 4.16. Age is not a factor. 38 C.F.R. § 4.19 (2016). If there is only one disability, it must be ratable at 60 percent or more. If there are two or more disabilities, they must merit a combined rating of at least 70 percent, with one condition rated at least 40 percent disabling. 38 C.F.R. § 4.16(a). If a veteran's individual and combined ratings do not meet the percentage standards set forth in 38 C.F.R. § 4.16(a), but the veteran's service-connected disabilities nonetheless make him unable to secure or follow a substantially gainful occupation, rating boards are to submit the case to the Director of the VA Compensation Service for consideration of a TDIU on an extraschedular basis. 38 C.F.R. § 4.16(b).

In July 2006, the point from which the Veteran states that his service-connected disabilities made him unable to work, his service-connected disabilities were tinnitus, rated at 10 percent, bilateral hearing loss, rated at 0 percent, and otitis media, rated at 0 percent; with a combined rating of 10 percent. From April 27, 2007, his service-connected disabilities have been PTSD, rated at 70 percent, tinnitus, rated at 10 percent, bilateral hearing loss, rated at 0 percent, and otitis media, rated at 0 percent; with a combined rating of 70 percent. 

Prior to April 27, 2007, service connection was not in effect for the Veteran's PTSD. The ratings for his service-connected tinnitus, hearing loss, and otitis media did not meet the criteria under 38 C.F.R. § 4.16(a) for a TDIU. He has not contended, and the record does not suggest, that the combined effects of his tinnitus, hearing loss, and otitis media have ever made him unable to secure or follow a substantially gainful occupation. There is no basis, then, to submit the case to the Director of the VA Compensation Service for consideration of a TDIU on an extraschedular basis prior to April 27, 2007.

From April 27, 2007, the ratings for the Veteran's service-connected disabilities have met the criteria for a TDIU. A TDIU is warranted if his service-connected disabilities made him unable to secure or follow a substantially gainful occupation.

In a February 2007 VA psychiatric consultation the Veteran reported that he retired early because of difficulty with his supervisor. He indicated that he had impaired sleep, concentration and motivation, depressed mood, guardedness, and aversion to being around people. Subsequent mental health treatment and examination records and statements reflect ongoing avoidance of interaction with people. The evidence presents a disability picture such that, from April 27, 2007, the Veteran's PTSD made him unable to secure or follow a substantially gainful occupation. The Board therefore grants a TDIU from April 27, 2007.


ORDER

From April 27, 2007, no more than a 70 percent disability rating for PTSD is granted, subject to the law and regulations controlling the disbursement of monetary benefits.

From April 27, 2007, a total disability rating based on individual unemployability is granted, subject to the law and regulations controlling the disbursement of monetary benefits.



______________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs