Citation Nr: 1751444	
Decision Date: 11/09/17    Archive Date: 11/17/17

DOCKET NO.  08-39 358	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Entitlement to an initial rating higher than 50 percent for posttraumatic stress disorder (PTSD).

2.  Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Veteran represented by:	Michael E. Wildhaber, Attorney


WITNESS AT HEARING ON APPEAL

Veteran



ATTORNEY FOR THE BOARD

L. Edwards Andersen, Counsel


INTRODUCTION

The Veteran had active service from October 1967 to May 1969.  

This matter comes before the Board of Veterans' Appeals (BVA or Board) from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.

In an April 2011 rating decision, the RO granted an increased initial evaluation of 50 percent for PTSD, effective September 2006.  

The Veteran requested a hearing before the Board.  The requested hearing was conducted in April 2011 by the undersigned Veterans Law Judge.  A transcript is associated with the claims file.

In September 2011, this appeal was remanded by the Board for additional development and a claim for entitlement to a TDIU was referred to the RO for appropriate action.  In September 2013, the claims were again remanded for development.

In a June 2014 decision, the Board denied the Veteran's claims for an initial rating higher than 50 percent for PTSD and a TDIU.

The Veteran appealed the June 2014 Board decision to the United States Court of Appeals for Veterans Claims (Court).  In May 2015, the parties filed a Joint Motion for Remand (JMR) asking the Court to vacate the Board's June 2014 decision, and to remand the claim back to the Board for further development and readjudication in compliance with the directives specified. The Court granted the JMR and issued an Order in May 2015. 

In August 2015, the Board remanded these claims for additional development.  That development having been completed, the claims are now ready for appellate review.


FINDINGS OF FACT

1.  The Veteran's PTSD is manifested by symptoms that more nearly approximate occupational and social impairment with deficiencies in most areas.

2.  The Veteran is currently service connected for PTSD, rated 70 percent disabling, and residuals of a gunshot wound to the left hand, rated noncompensable; the Veteran's combined rating is 70 percent.

3.  Resolving all reasonable doubt in his favor, the Veteran's service-connected disabilities, when evaluated in association with his education and occupational experience, have rendered him unable to obtain and maintain substantially gainful employment.


CONCLUSIONS OF LAW

1.  The criteria for an initial rating of 70 percent, but no higher, for PTSD, are met. 38 U.S.C.A. §§1110, 1155, 5107 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017).

2.  The criteria for a TDIU are met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.3, 4.16 (2017).



	
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

As set forth in the Veterans Claims Assistance Act of 2000 (VCAA), the Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2014). 

The Board notes that where the underlying claim for service connection has been granted and there is disagreement regarding a downstream issue, such as entitlement to a higher initial rating, the claim as it arose in its initial context has been substantiated and there is no need to provide additional VCAA notice concerning the downstream issue. Goodwin v. Peake, 22 Vet. App. 128, 134 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Rather, the provisions of 38 U.S.C.A. § 7105 (d) require VA to issue a statement of the case (SOC) concerning the downstream issue if the disagreement is not resolved. 

For the Veteran's increased rating claim, he received a statement of the case in October 2008. 

For the Veteran's claim for a TDIU, the Board is granting in full the benefit sought on appeal. Consequently, the Board finds that any lack of notice and/or development, which may have existed under the VCAA for this issue, cannot be considered prejudicial to the Veteran, and remand for such notice and/or development would be an unnecessary use of VA time and resources.

The VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records, pertinent medical records and providing an examination when necessary. Bernard v. Brown, 4 Vet. App. 384 (1993).

Service treatment records are associated with the claims file, as are post-service treatment records and VA examinations. There is no indication that there are any outstanding pertinent documents or records that have not been obtained, or that are not adequately addressed in documents or records contained within the claims folder. 

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103 (c)(2) requires that a "hearing officer" who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the Veteran has not raised any deficiency with the April 2011 hearing. See Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016).

Recently, in August 2015, the Board remanded these claims to obtain additional treatment records identified by the Veteran, as noted in the JMR.  These records were obtained and associated with the claims file in June 2016 and September 2016. The claims were then readjudicated in a November 2016 Supplemental Statement of the Case. As such, the evidence indicates that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).

The VA's duty to assist in the development of the claims is complete, and no further notice or assistance to the Veteran is required to fulfill the duty. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).

In light of the foregoing, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103 (a), § 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced by the Board's adjudication of the claims.


II.  Entitlement to an Initial Rating Higher than 50 Percent for PTSD

The Veteran seeks entitlement to an initial rating higher than 50 percent for PTSD.

Applicable Laws

Disability evaluations are determined by application of criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. 

The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found), is required. See Fenderson, 12 Vet. App. at 126.

The Board has considered the entire record, including the Veteran's VA clinical records and private treatment records. These show complaints and treatment, but will not be referenced in detail. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Therefore, the Board will discuss the evidence pertinent to the rating criteria and the current disability.

The current regulations establish a general rating formula for mental disorders. 38 C.F.R. § 4.130. Ratings are assigned according to the manifestation of particular symptoms. However, 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). Accordingly, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130, Diagnostic Code 9411, is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a Veteran's condition that affect the level of the Veteran's occupational and social impairment. 

Service connection for PTSD was established by a February 2008 rating decision, at which time the Veteran was assigned a 30 percent rating, effective September 26, 2006.  In an April 2011 rating decision, the RO granted an increased initial evaluation of 50 percent for PTSD, effective September 26, 2006.  The Veteran is rated as 50 percent disabled under 38 C.F.R. § 4.130, Diagnostic Code 9411. See 38 C.F.R. § 4.130, Diagnostic Code 9411.

A rating of 50 percent 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 than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (retention of only highly learned material, forgetting to complete tasks); impaired judgment, impaired abstract thinking; disturbances of motivation and mood; and difficulty establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411.

A 70 percent evaluation is warranted where there is objective evidence demonstrating that the Veteran has occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to suicidal ideation; obsessional rituals which interfere with his routine activities, speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, or effectively; impaired impulse control, such as unprovoked irritability with periods of violence; spatial disorientation, neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances, including work or a work-like setting; and the inability to establish and maintain effective relationships. Id.

A 100 percent 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; memory loss for names of close relatives, own occupation, or own name. Id.

A global assessment of functioning (GAF) rating is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996).

Analysis

After analysis of the evidence of record, the Board finds that the Veteran's PTSD more nearly approximates a 70 percent rating, for the entire appeal period.

With respect to the Veteran's mood, the Board notes that the Veteran reported irritability, anxiety, decreased motivation, depressed mood, and flattened affect throughout the entire period under consideration.  See, e.g., September 2006, January 2008, November 2009, August 2011, and December 2015 treatment records; October 2013 VA examination. Thus, with regard to the frequency and severity of the Veteran's symptoms, the Veteran has shown disturbances of mood and motivation that have spanned a long duration, and have affected his daily functioning. However, the severities of these feelings have not resulted in total impairment of functioning. 

Regarding the Veteran's judgment and thinking, the Veteran has consistently been found to be oriented in all spheres. See, e.g., October 2013 VA examination; February 2016, March 2016 treatment notes. However, the Veteran has a history of impaired impulse control and unprovoked/provoked irritability, as demonstrated by his altercations with his coworkers, family members, and strangers. See May 2010 and October 2013 VA examinations. Of note, while the Veteran has had suicidal thoughts, he is not in persistent danger of hurting himself or others.  The Veteran also experiences mild memory loss, hypervigilance, and difficulty concentrating. See, e.g., February 2008 letter from Dr. G.

With respect to the Veteran's social functioning, the Veteran consistently reported that he has difficulty being around other people and tends to avoid others. Of note, however, the Veteran has maintained a long-term relationship with his girlfriend. The evidence also indicates that he reported a good relationship with his biological son, and he has a few friends with whom he is in contact. Though he endorsed some emotional detachment and mild numbing, he has been able to form relationships and maintain them. See October 2013 VA examination. Therefore, the Board finds that the Veteran experiences impairment in social relationships, but does not experience total social impairment.

In regards to the Veteran's occupational functioning, as noted in the multiple treatment records, the Veteran's PTSD has resulted in poor interpersonal functioning in past work settings and he is at significant risk for frequent altercations and general poor interpersonal functioning in all occupational settings at the present time. See, e.g., September 2006 Vet Center note, February 2008 letter from Dr. G.; April 2009 letter from Dr. A.; October 2017 vocational consultant statement.

For all the reasons discussed above, the overall evidence shows that the Veteran is entitled to a rating of 70 percent, but no higher, for the entire period on appeal.

While the Veteran experiences total occupational impairment, a rating higher than 70 percent is not warranted as the evidence does not indicate that the Veteran experiences total social impairment. Although the Veteran continues to have interpersonal difficulties due to his PTSD, he has maintained a relationship with his girlfriend, his child, and several friends. See October 2013 VA examination. Thus, it cannot be said that the Veteran experiences total social impairment.

The Board realizes that the symptoms noted in the rating criteria are not intended to be an exhaustive list, but are examples of the type and severity of symptoms that indicate a certain level of disability. Examining the Veteran's PTSD symptoms as a whole, however, the Board concludes that the Veteran's symptomatology more nearly approximate the criteria for a rating of 70 percent.

Thus, the Board finds that based on the overall record evidence, including the Veteran's lay statements, the effects of the Veteran's PTSD symptoms are of a type, frequency, and severity that are in accord with the level of impairment contemplated by the criteria for a 70 percent schedular rating for the entire appeal period.

III.  Entitlement to a TDIU

The Veteran seeks entitlement to a TDIU. He asserts his service-connected disabilities render him unemployable.

Total disability ratings for compensation purposes may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there are sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16. 

Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age. 38 C.F.R. § 3.341 (a); see 38 C.F.R. § 4.19 (stating that age may not be a factor in evaluating service-connected disability or unemployability). 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102.

The Veteran is service connected for PTSD, rated as 70 percent disabling as a result of this decision, and residuals of a gunshot wound to the left hand, rated noncompensable. The Veteran's combined rating is 70 percent. 

As such, the Veteran meets the percentage threshold requirements provided in 38 C.F.R. § 4.16 (a) for consideration of entitlement to a total rating based on individual unemployability. Therefore, the Veteran is eligible for an individual unemployability rating if he is unable to secure or follow a substantially gainful occupation as a result of his disabilities.

In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the United States Court of Appeals of Veterans Claims (Court) held that the central inquiry in determining whether a Veteran is entitled to a total rating based on individual unemployability is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. In Hodges v. Brown, 5 Vet. App. 375 (1993), the Court found that although a Veteran could undertake employment despite his service-connected disabilities, he was unemployable because he was unable to secure employment due to his disabilities.

Medical evidence indicates that the Veteran had to stop working due to stress/anxiety associated with his job.  See September 2006 Vet Center record.

The Veteran submitted a formal claim for a TDIU in June 2016, at which time he indicated that he had been unemployed since 2005 due to his service-connected PTSD. The Veteran's application indicates he has a high school degree and his occupational history indicates that the Veteran worked primarily as a patient transporter at a hospital before leaving due to his disability.  See June 2016 VA Form 21-8940.

In October 2017, a certified vocational evaluator submitted a statement. The Veteran's service-connected disabilities were noted and the vocational consultant indicated that the Veteran's claims file was reviewed and the Veteran was interviewed. The consultant stated that the Veteran did not complete the 8th grade, but did complete a General Equivalency Diploma (GED). It was noted that the Veteran worked as an attendant in the hospital his entire career, until 2006, when he stopped working due to PTSD symptoms, such as frequently fighting with coworkers and supervisors and causing altercations with patients. The vocational evaluator noted that the Veteran returned to marginal work part-time at the hospital from 2006-2008 as a hospital cleaner, for 4 hours a day, employed by one of his friends.  He continued to have altercations with coworkers and supervisors, and his absences increased significantly during this time.  The vocational evaluator stated that this work was marginal and not considered substantially gainful employment.  The vocational evaluator opined that due to the Veteran's PTSD, he is unable to secure and follow substantially gainful employment.  Explaining, the evaluator stated that the Veteran is severely limited in his ability to interact appropriately with others, sustain focus and attention in 2-hour increments to complete an 8-hour day, and maintain a work schedule that is free from absences or tardiness.  It was noted that the Veteran's PTSD symptoms significantly limit his ability to function around others and he would be a risk to coworkers and supervisors.  The evaluator stated that isolated work does not exist in significant numbers and is not consistent with competitive work.  The evaluator then opined that it is more likely than not that the Veteran has been unable to secure or follow substantially gainful employment, even at the sedentary level, because of his service-connected disabilities, since he last worked in 2006.

The Board acknowledges the October 2013 VA examiner that opined it is less likely than not that the Veteran's PTSD rendered him unable to secure or follow a substantially gainful occupation. However, the Board finds the comprehensive October 2017 vocational assessment equally as persuasive. Accordingly, resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment. Thus, entitlement to a TDIU is warranted.


ORDER

Entitlement to an initial rating of 70 percent, but no higher, for PTSD is granted effective September 26, 2006, subject to the law and regulations governing the award of monetary benefits.

Entitlement to a TDIU is granted effective September 26, 2006, subject to the law and regulations governing the award of monetary benefits.



____________________________________________
TANYA SMITH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs