Citation Nr: 1801783	
Decision Date: 01/10/18    Archive Date: 01/23/18

DOCKET NO.  13-15 940	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUES

1.  Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD).

2.  Entitlement to a total disability rating based upon individual unempolyability (TDIU) due to service-connected disability.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant and his spouse



ATTORNEY FOR THE BOARD

E. Redman, Counsel


INTRODUCTION

The Veteran served on active duty from August 1967 to May 1969. 

This matter comes before the Board of Veterans' Appeals (Board) from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, which granted service connection and assigned an initial 50 percent evaluation for PTSD.  In his February 2013 notice of disagreement, the Veteran raised the issue of entitlement to a TDIU as a result of his service-connected PTSD.  Rice v. Shinseki, 22 Vet. App. 447 (2009).

In November 2014 the Veteran testified at a videoconference hearing held before a Veterans Law Judge.  A transcript of that hearing is associated with the claims file.  In January 2017, the Board sent a letter to the Veteran's address of record which explained that the Veterans Law Judge who presided over his hearing was no longer available to participate in the appeal, and offered the Veteran a hearing before a different Veterans Law Judge; otherwise, the case would be reassigned.  To date, the Veteran has not responded to the letter.  Thus, the Board will proceed with the matter on appeal. 

When the case was previously before the Board in April 2015 it was remanded for additional development.


FINDINGS OF FACT

1.  Throughout the initial evaluation period the Veteran's PTSD has been manifested by occupational and social impairment with reduced reliability and productivity; there is no evidence of deficiencies in most areas.

2.  The Veteran's service-connected PTSD does not preclude him from securing or following a substantially gainful occupation.


CONCLUSIONS OF LAW

1.  The criteria for an initial rating in excess of 50 percent for PTSD have not been met.  38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2017).

2.  The criteria for TDIU have not been met.  38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  In this regard, the Board is satisfied as to compliance with the instructions from its April 2015 remand.  Specifically, the April 2015 Board remand instructed the AOJ to provide the Veteran with proper notice regarding the evidence and information necessary to establish a claim for TDIU, provide the Veteran with a VA Form 21-8940 and request that he complete and submit it, obtain any outstanding pertinent records and schedule the Veteran for a VA psychiatric examination to determine the current severity of his service-connected PTSD.  The Board finds that the AOJ has complied with the Board's instructions.  The requested notice was sent via letter dated in April 2015, along with a VA Form 21-8940 and instruction to complete and return it.  Up to date VA treatment records were also obtained.  Finally, the June 2015 examination report substantially complies with the Board's April 2015 remand directives.  Stegall v. West, 11 Vet. App. 268 (1998).

Legal Analysis

Increased Rating

The Veteran's PTSD is rated at 50 percent under 38 C.F.R. § 4.130, Diagnostic Code 9411 throughout the initial evaluation period on appeal.  He claims an increased rating is warranted.

Pursuant to Diagnostic Code 9411, a 50 percent evaluation is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 

A 70 percent evaluation is warranted where there is objective evidence demonstrating 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 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. 

A 100 percent disability evaluation is warranted when there is total occupational and social impairment, due to such symptoms as: 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 and place; memory loss for names of close relatives, own occupation, or own name.  

In evaluating the evidence, the Board has considered the various Global Assessment of Functioning (GAF) scores that clinicians have assigned.  The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness.  See Diagnostic and Statistical Manual of Mental Disorders (5th ed.) (DSM-V); Carpenter v. Brown, 8 Vet. App. 240 (1995).  A GAF score of 61-70 reflects some mild symptoms, such as depressed mood and mild insomnia, or some difficulty in social, occupational, or school functioning, but generally functioning pretty well, and has some meaningful interpersonal relationships.  A GAF score of 51-60 indicates moderate symptoms or moderate difficulty in social, occupational or school functioning.  A GAF score of 41-50 is assigned where there are, " 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)."  

Based on review of the evidence, the Board finds that the Veteran's PTSD symptoms are appropriately rated at 50 percent throughout the initial evaluation period on appeal.  A higher 70 percent rating is not warranted; the Veteran's symptoms do not more nearly approximate the criteria for a rating of 70 percent or higher.  For example, the medical evidence of record reflects that the Veteran has two friends, gets along well with his family, including two grown sons, a grandchild, and his wife of 45 years, and he enjoys hunting and fishing.  He denied panic attacks, and suicidal or homicidal ideations.  Further, the VA examiners noted that the Veteran had normal thought process and judgment, good personal hygiene, was oriented to time and place, and had normal speech.  There was no evidence or endorsement of impaired impulse control, violence or continuous or near-continuous depression affecting his functioning.  In addition, the April 2014 VA examiner found that the Veteran's PTSD was stable.  Finally, the April 2014 and June 2015 VA examination reports specifically reflect that the Veteran's PTSD is manifested by occupational and social impairment with reduced reliability and productivity; there is no evidence of more severe impairment.  (The January 2013 VA examination report reflects occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation.)

The above evidence reflects that while the symptoms and overall impairment approximated the criteria for a 50 percent rating throughout the appeal period, the Veteran did not have the required "sufficient symptoms of the kind listed in the 70 percent requirements, or others of similar severity, frequency or duration, that cause occupational and social impairment with deficiencies in most areas such as those enumerated in the regulation."  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013).  In sum, the evidence does not support a finding of deficiencies in most areas.  There was no deficiency in terms of family relations; the Veteran reported good family relationships.  There was also no deficiency in terms of judgment or thinking.  While there is evidence of depressed mood, flat affect, impairment in sleeping, some problems concentrating and with memory, anxiety, and difficulty in establishing and maintaining effective work and social relationships, the level of impairment of/symptoms related to his mood and social/occupational interaction is commensurate with the 50 percent rating.  Finally, the assigned GAF scores of 58 (January 2013 VA examination report), 65 (February 2012 VA treatment record) are consistent with a 50 percent rating.  

Therefore, the Board finds that an initial disability rating in excess of 50 percent for the service-connected PTSD is not warranted.  38 C.F.R. § 4.130, Diagnostic Code 9411.

In light of Hart v. Mansfield, the Board has considered whether a staged rating is appropriate; however, the evidence does not show that the criteria for a rating in excess of the currently assigned 50 percent rating is warranted at any time during the initial evaluation period.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

Extraschedular Consideration

The Board has also considered whether referral for an extraschedular rating is warranted.  Extraschedular consideration requires a three-step inquiry.  See 38 C.F.R. § 3.321 (b)(1); see also Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  The first question is whether the schedular rating adequately contemplates the claimant's disability picture.  Thun, 22 Vet. App. at 115.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms.  If the claimant's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of Compensation Service to determine whether an extraschedular rating is warranted. 

In this case, the Veteran's disability picture is not so unusual or exceptional in nature as to render the schedular evaluation inadequate.  The Veteran's service-connected PTSD is evaluated as a psychiatric disability using the General Rating Formula for Mental Disorders.  See 38 C.F.R. § 4.130.  Notably, the symptoms listed in 38 C.F.R. § 4.130 are not intended to constitute an exhaustive list, but rather 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).  Essentially, the General Rating Formula contemplates all symptoms causing social or occupational impairment.  The Board finds that all of the Veteran's symptoms are contemplated by the Rating Schedule and as a result referral for extraschedular consideration is not warranted.  See 38 C.F.R. § 3.321 (b)(1); Thun, 22 Vet. App. 111.

TDIU

VA will grant a TDIU when the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with her education and occupational experience.  38 C.F.R. §§ 3.340, 3.341, 4.16.  If there is only one such disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16 (a).

In determining whether a veteran is entitled to a TDIU, neither the veteran's non-service-connected disabilities nor age may be considered.  38 C.F.R. §§ 3.341(a), 4.19 (2017).  Factors to be considered are the Veteran's education, employment history, and vocational attainment.  See Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991).

The Board has reviewed all the evidence in the record.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).  When there is an approximate balance of evidence for and against the issue, all reasonable doubt will be resolved in the Veteran's favor.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

At the outset, the Board notes that the Veteran does not meet the schedular requirements set forth in 38 C.F.R. §4.16 (a), for consideration of TDIU.  However, consideration of TDIU pursuant to 38 C.F.R. §4.16 (b) must be considered.  

The question then becomes whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment, work which is more than marginal, which permits the individual to earn a living wage consistent with education and occupational experience.  Moore v. Derwinski, 1 Vet. App. 356 (1991).  For an appellant to prevail on a claim for a total compensation rating based on individual unemployability, the record must show some factor which takes the case outside the norm.  The sole fact that a claimant is unemployed, is employed only part-time, or has difficulty obtaining employment, is not enough.  A rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the appellant is capable of performing the physical and mental acts required by employment, not whether he can find employment.  Van Hoose v. Brown, 4 Vet. App. 361 (1993).

The Veteran did not complete and return the VA Form 21-8940 which was provided to him, but the VA examination reports reflect that he completed the 9th grade and has additional trade school education in HVAC and auto body work.  The April 2014 VA examination report reflects that he has not worked since 2013, when he retired after 30 years working as a furnace repairman.  The June 2015 VA examination report reflects that the Veteran was self-employed 25 years as a heating contractor when he retired in 2013.  He reportedly began having more irritability with customers and he feels that he cannot work with anyone, as he does not like to be around people.

Overall, the evidence is against a finding that the Veteran is precluded, by reason of service-connected disability, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience.  As noted above, both VA examiners found that his mental health disorder was not productive of total occupational impairment.  While the Veteran is no longer employed, as noted above, a lack of employment is not enough to satisfy the requirements for a TDIU.  Here, the Veteran has claimed irritability and dislike of people (due to his PTSD) as reasons for his unemployment.  In contrast, the Veteran has described successful interactions with friends and family, and he has hobbies he enjoys (at least one of which he likes to participate in with his wife).  The evidence of record does not suggest that the Veteran could not work with others.  Even if such were the case, the Veteran is not service-connected for any physical disabilities that would prevent employment in a position where there was minimal customer and personal contact in general.  Of note, his thought content and processes were described as logical and there is no indication he would not be able to work in an environment where he had to complete routine tasks.  Finally, the April 2014 VA examiner indicated that the Veteran's PTSD only moderately affects employability and the June 2015 VA examiner opined that although the Veteran feels increased irritability when dealing with people, no mental health symptoms would preclude physical or sedentary employment.  

Given the above, the Board finds that entitlement to a TDIU is not warranted as the Veteran is not precluded from obtaining and maintaining gainful employment as a result of his service-connected PTSD.  As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied.  See 38 C.F.R. § 5107 (b) (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to an initial rating in excess of 50 percent for PTSD is denied.

Entitlement to a TDIU is denied.



____________________________________________
Kristin Haddock
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs