Citation Nr: 1751709 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 15-38 404 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to an increased rating for service-connected post-traumatic stress disorder (PTSD), currently rated as 50 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability by reason of a service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Boal, Associate Counsel INTRODUCTION The Veteran had active duty service from February 1952 to November 1953. The Veteran served honorably in combat and earned a purple heart, combat infantry badge, and a silver star. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. This matter has been transferred to the RO in Phoenix, Arizona. According to the Veteran's medical records, he has not worked since 1994. Additionally, in an August 2016 VA examination, the examiner reported that the Veteran's service-connected PTSD causes him difficulty in adapting to stressful circumstances, including work or a worklike setting. The Board interprets this information as raising a claim for entitlement to TDIU. The issue of entitlement to TDIU has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b) (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). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran's PTSD more nearly approximates that of occupational and social impairment with deficiencies in most areas. 2. The Veteran's PTSD does not more nearly approximate that of total occupational and social impairment. CONCLUSION OF LAW The criteria for an evaluation of 70 percent, but no higher, for PTSD have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.125-4.130, Diagnostic Code 9411 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has reviewed all of the evidence in the Veteran's claims file with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Consequently, the following discussion will be limited to the evidence the Board finds to be relevant. Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his 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). In accordance with 38 C.F.R. § 3.159 (b)(1), proper notice must inform the Veteran 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 Veteran 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). This notice was provided to the Veteran in letters sent January 2014 and January 2015. Accordingly, the duty to notify has been fulfilled. Regarding the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the issue being decided on appeal, the evidence of record includes the Veteran's VA treatment records, statements from the Veteran, and multiple VA examination reports. These examinations were adequate as the findings reported were detailed, and the opinions offered were responsive to the questions posed. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claims on appeal. The evidence of record provides sufficient information to adequately evaluate the claims, all obtainable evidence identified by the Veteran relative to the claims has been obtained and associated with the claims file, and the Board is not aware of the existence of any additional relevant evidence which was not obtained. Therefore, no further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A (a)(2); 38 C.F.R. § 3.159 (d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Law and Regulations Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already 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). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Fenderson v. West, 12 Vet. App. 119 (1999), Hart v. Mansfield, 21 Vet. App. 505 (2007). The criteria for rating mental disorders reads as follows: a 100 percent rating requires 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. 38 C.F.R. § 4.130. A 70 percent rating requires 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 50 percent rating requires 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 effective work and social relationships. Id. The United States Court of Appeals for Veterans Claims (Court) has held that Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); Richard v. Brown, 9 Vet. App. 266 (1996) (citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (4th ed.) (DSM-IV), p. 32). GAF scores ranging from 61 to 70 reflect 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. Id. Scores ranging from 51 to 60 reflect more 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). Id. Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). Id. Scores ranging from 31 to 40 reflect some impairment in reality testing or communications (e.g. speech is at times illogical, obscure, or irrelevant) or 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). Id. The Secretary of VA recently amended the portion of the Schedule for Rating Disabilities dealing with psychiatric disorders and the associated adjudication regulations to remove outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), and replace them with references to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). However, the amended provisions do not to apply to claims that were pending before the Board (i.e., certified for appeal to the Board) on or before August 4, 2014, even if such claims are subsequently remanded to the AOJ. The instant appeal was initially certified to the Board in September 2016 Therefore, the current version of the Schedule for Rating Disabilities applies in the instant appeal. Evaluation under § 4.130 is symptom-driven, meaning that symptomatology should be the fact finder's primary focus when deciding entitlement to a given disability rating under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The Federal Circuit explained that the frequency, severity, and duration of the symptoms also played an important role in determining the rating. Id. at 117. Significantly, however, the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Id. at 443; see also Vazquez-Claudio, 713 F.3d at 117. Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C.A. § 7104 (a). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. The Board must analyze the credibility and probative value of the evidence, account for the persuasiveness of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996). The Board assesses both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 54 (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 evidence must preponderate against the claim. See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996). For the appeal period, the Veteran's PTSD more closely approximates the schedular criteria for the assignment of disability rating of 70 percent under Diagnostic Code 9411. In June 2014, the Veteran underwent a VA PTSD examination. During the examination he reported that his marriage was "rocky" but that his relationship with his adult children and their families was "really good" and that he visits them a few times a month. He also reported that he socializes with a group of 10 or 12 other retirees once or twice a month, that he belongs to the American Legion and attends meetings once or twice a month, and that he attends mass every Sunday. The Veteran reported symptoms indicating that he had persistent and exaggerated negative beliefs was in a depressed mood, persistent, distorted cognitions about the cause or consequences of the traumatic event(s) that lead the Veteran to blame himself or others and a persistent inability to experience positive emotions. The examiner also indicated that the Veteran displayed symptoms of irritable behavior and angry outbursts (with little or no provocation), hypervigilance, exaggerated startle response, anxiety, suspiciousness, and chronic sleep impairment, and he had mild memory loss, such as forgetting names, directions or recent events. The examiner opined that the Veteran suffered from occupational and social impairment with reduced reliability and productivity as a result of his PTSD but that the Veteran had no suicidal or homicidal intentions and that his insight and judgment was intact. In August 2016, the Veteran underwent another VA PTSD examination. During this examination he again reported his marriage was "rocky." The Veteran reported symptoms of a depressed mood, anxiety, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, and difficulty in adapting to stressful circumstances, including work or a worklike setting. He was alert and fully oriented but showed some spotty cognitive memory impairment. There was no evidence of formal thought disorder, delusions, hallucinations, overdetermined content, pressure of speech, or suicidal or homicidal ideation or dementia. The Veteran attended individual therapy sessions at the Modesto Vet Center periodically. The treatment records indicate that he suffers from more anxiety than he presents and that he has had an increase in his PTSD symptoms. His treating therapist also supplied a written statement in January 2015 detailing the Veteran's symptoms and treatment. The Veteran's therapist reported that the Veteran's PTSD has "severely impacted" him and that as a result he is "physically, psychologically, and morally wounded." He further stated that as a result of the service-connected PTSD, the Veteran experiences nightmares, flashbacks, intrusive thoughts, disrupted sleep disturbance patterns, rumination, anger, has a low tolerance to stress, isolation, major control issues, irritability, exaggerated startle response, hyper-alertness, anhedonia and trust issues. Treatment records also indicate that at times the Veteran displayed "limited insight" and "rage." Additionally, the Veteran's GAF score has been measured at 55 on multiple occasions during the appeal period. Evaluating the evidence in light of the above rating criteria, the Board finds the evidence more nearly approximates a 70 percent rating. The Board found the treating physician's statements as to the severity of the condition to be highly probative. As noted above, the physician felt he had much more anxiety and distress than he presented with during visits, had limited insight, rage, and trust issues. Resolving all doubt in the Veteran's favor, a 70 percent evaluation is warranted. The Veteran was not found to have total occupational and social impairment, with symptoms such as gross impairment in thought processes, persistent delusions or hallucinations, persistent danger of hurting self or others, or memory loss of names of close relatives. Although the physicians described rage, the Veteran was never described as being a danger to himself or others. While he had some memory loss, it was always characterized as mild and he was never noted to have memory loss so severe he forgot the names of close relatives. Furthermore, the symptoms the Veteran does have (depression, anxiety, sleep disturbance, irritability/anger, hypervigilance, memory loss, trust issues etc.) have not been demonstrated to be so frequent and disabling as to result in total occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002) (finding that symptoms contained in rating schedule criteria 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."). Rather, as described above, the Veteran still retains some occupational and social functioning. In spite of the Veteran's symptoms, he remained married, had a good relationship with children, had a relationship with some fellow retirees, and attended church. VA examiners found he had no difficulty managing his own money or activities of daily living and when asked if he could work, the Veteran indicated that maybe he could but the stamina was gone and he got upset when things did not go right. The 2016 VA examiner indicated that some of the cognitive and memory impairment was consistent with normal age-related memory impairment. Accordingly, the Board does not find that the Veteran's symptoms result in total occupational and social impairment. Thus, for the appeal period, the evidence preponderates in favor of the assignment of a 70 percent rating for the Veteran's PTSD. The evidence establishes that the PTSD more nearly approximates occupational and social impairment with deficiencies in most areas, which warrants a 70 percent rating under Diagnostic Code 9411. See 38 C.F.R. § 4.130. Accordingly, the Board finds that the Veteran's symptoms were of such frequency, severity, and duration that they resulted in occupational and social impairment with deficiencies in most areas to warrant a higher 70 percent evaluation during the period of appeal. The Board has considered the Veteran's claim and assigned the appropriate rating for his PTSD based on the evidence. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim for an increased rating. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). ORDER For the period of appeal a rating of 70 percent for PTSD is granted. REMAND As noted in the introduction, a claim of entitlement to TDIU has been raised by the record. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). While a claim for TDIU has been raised by the record, the Board notes that entitlement to TDIU has not been developed or adjudicated by the RO. In this regard, the RO should send the Veteran a VCAA notice letter for the TDIU claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran with appropriate notice and assistance regarding the issue of entitlement to TDIU. 2. Associate any records submitted by the Veteran with the claims file. 3. After undertaking any additional development deemed appropriate, including obtaining any VA examinations if needed, and giving the appellant full opportunity to supplement the record, adjudicate the Veteran's claim to entitlement to TDIU in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. 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). ____________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs