Citation Nr: 1808142	
Decision Date: 02/08/18    Archive Date: 02/20/18

DOCKET NO.  15-31 697	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUES

1.  Entitlement to an increased evaluation for posttraumatic stress disorder (PTSD) with depressive symptoms, currently rated as 50 percent disabling.

2.  Entitlement to an increased evaluation for irritable bowel syndrome (IBS), associated with PTSD, currently rated as 10 percent disabling.

3.  Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities.


REPRESENTATION

Appellant represented by:	Wisconsin Department of Veterans Affairs


ATTORNEY FOR THE BOARD

Jonathan Z. Morris, Associate Counsel


INTRODUCTION

The Veteran had active military service from February 1976 to February 1979.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, which, in pertinent part, assigned an increased evaluation of 10 percent for IBS, effective April 14, 2014, in addition to continuing his assigned disability rating of 30 percent for PTSD.

The issue of entitlement to a TDIU was raised by the record as a component of the claims for increase on appeal.  See May 2015 VA Form 21-8940.  While the AOJ denied this claim in an August 2015 rating decision, the Board observes that a request for a TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather part of the adjudication of a claim for increased compensation.  See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009).  Also, in the August 2015 rating decision, the Veteran's service-connected PTSD was assigned a higher 50 percent evaluation as of April 14, 2014.  As the increased disability rating awarded by the Agency of Original Jurisdiction (AOJ) did not represent a total grant of the benefits sought on appeal, the claim for increase remains before the Board.  AB v. Brown, 6 Vet. App. 35, 38-39 (1993). 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1.  For the entire appeal period, the Veteran's service-connected IBS has been primarily manifested by severe symptoms of diarrhea, or alternative diarrhea and constipation, with more or less constant abdominal distress.

2.  For the entire period on appeal, the Veteran's service-connected PTSD with depressive symptoms has been primarily manifested by symptoms such as: depressed mood; anxiety; chronic sleep impairment; mild memory loss; flattened affect; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances; and some suicidal thoughts.

3.  The evidence is at least in equipoise regarding whether the Veteran's service-connected IBS and PTSD with depressive symptoms have precluded him from securing or maintaining substantially gainful employment since April 14, 2014.


CONCLUSIONS OF LAW

1.  Since April 14, 2014, the criteria for an increased evaluation of 30 percent, but no higher, for IBS have been met.  38 U.S.C. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.114, DC 7319 (2017).

2.  Since April 14, 2014, the criteria for an increased evaluation of 70 percent, but no higher, for PTSD with depressive symptoms have been met.  38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.130, DC 9411 (2017).

3.  Since April 14, 2014, the criteria for a TDIU have been met.  38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

VA has duties to notify and assist a claimant in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).

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 any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

For increased rating claims, 38 U.S.C. § 5103(a) requires, at a minimum, the Secretary to: (1) inform the claimant that in order to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; and, (3) further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic Codes," and that the range of disability applied may be between 0 and 100 percent "based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment."  Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (holding that VCAA notice need not be veteran specific, or refer to the effect of the disability on "daily life").

Once service connection is granted, Courts have held that the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial.  See 38 U.S.C. § 5103(a); see also Goodwin v. Peake, 22 Vet. App. 128, 137 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  In this case, the Veteran was afforded ample notice of the applicable law and requirements for substantiating his claims in the August 2015 Statement of the Case (SOC).  He has had ample opportunity to respond or supplement the record, and has not alleged that any notice was less than adequate.  Thus, the Board finds that VA's duty to notify is satisfied.

Regarding the duty to assist, the Board notes that the claims file contains relevant post-service medical records, buddy statements, and his own written contentions.  Neither the Veteran nor his representative has identified, nor does the record otherwise indicate, any other evidence relevant to his claim that is obtainable and has not been obtained.  Furthermore, the Veteran was afforded VA compensation examinations and opinions were provided in support of his claim.  Upon review of the medical evidence, the Board concludes that these examination reports, collectively, are adequate for the purpose of rendering a decision in this case.  38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303 (2007).

Accordingly, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim.  Therefore, no further assistance to the Veteran with the development of evidence is required.

II.  Legal Criteria for Increased Rating Claims

When evaluating the severity of a particular disability, it is essential that the disability is considered in the context of the entire recorded history.  38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary importance.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  But if the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings, then separate ratings may be assigned for separate periods of time based on the facts found.  This practice is known as "staged" ratings and is employed for initial or established ratings.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

All reasonable doubt material to the determination is resolved in the Veteran's favor.  38 C.F.R. § 4.3.  If the evidence for versus against a claim is in equipoise, then the claim will be granted.  A claim will be denied only if the preponderance of the evidence is against the claim.  See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990).  When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities at 38 C.F.R. Part 4.  These percentage ratings 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 civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show.  The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000).  The law requires only that the Board provide reasons for rejecting evidence favorable to the Veteran.

III.  Increased Rating for IBS

The Veteran's service-connected IBS, associated with his PTSD, is currently rated as 10 percent disabling since April 14, 2014 under 38 C.F.R. § 4.114, Diagnostic Code (DC) 7319 (irritable colon syndrome-spastic colitis, mucous colitis, etc).

Under DC 7319, a noncompensable evaluation is warranted for mild irritable colon syndrome manifested by disturbances of bowel function with occasional episodes of abdominal distress.  A 10 percent evaluation is warranted for moderate irritable colon syndrome manifested by frequent episodes of bowel disturbance with abdominal distress.  A maximum 30 percent evaluation requires severe irritable colon syndrome manifested by diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress.  38 C.F.R. § 4.114, DC 7319.

With regard to coexisting abdominal conditions, VA regulation recognizes that there are diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia and disturbances in nutrition.  38 C.F.R. § 4.113.  Consequently, certain coexisting diseases in this area do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in § 4.14.  Id.  Rather, a single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation.  38 C.F.R. § 4.114.  The Board notes that, with regard to the schedule of ratings for the digestive system, section 4.114 expressly prohibits, in pertinent part, the combination of ratings under Diagnostic Codes 7301 to 7329, inclusive, which include the schedular criteria for irritable colon syndrome (Diagnostic Code 7319).

Based upon a review of the Veteran's medical history, reported symptoms, and the symptoms outlined under the rating criteria for Diagnostic Code 7319, the Board finds that the Veteran is entitled to a 30 percent evaluation, but no higher, for his service connected IBS under DC 7319 for the entire period on appeal.

The Veteran was afforded a VA compensation examination in June 2014, where he reported that his intestinal condition was manifested by symptoms of diarrhea, as well as alternating diarrhea and constipation, which were not fully relived with his prescribed medication.  The examination report reflects indicates that the Veteran did not report having any episodes of bowel disturbance with abdominal distress, or exacerbations or attacks of the intestinal condition.

In his October 2014 Notice of Disagreement (NOD), the Veteran stated that "even with the daily medication, I have alternating symptoms of severe diarrhea and constipation with basically constant abdominal distress."

The Veteran was afforded another VA compensation examination in June 2015, where he reported symptoms of diarrhea (up to 5 stools each morning), as well as alternating diarrhea and constipation throughout the day.  He further indicated that he has intermittent cramps, on average, of two times a week, which usually resolve with bowel movement.  The examination report reflects indicates that the Veteran has occasional episodes of bowel disturbance with abdominal distress.

In his August 2015 substantive appeal (VA Form 9), the Veteran contended that his intestinal condition warrants a higher, 30 percent evaluation, because, despite being on daily medication, he continues to have symptoms of diarrhea and alternating diarrhea and constipation with mostly continuous abdominal distress.  He stated that while he does have "some good days," "a LOT of days are bad."  He also noted his belief that when he has reported "sometimes" having good days, it leads examiners to believe that his problem has resolved; which, it has not.  The Veteran further described his IBS symptoms by noting that ". . . in the same bowel movement, it goes from diarrhea to hard chunks and back."

In a September 2016 statement, the Veteran's wife described how the Veteran used to weigh around 150 to 160 pounds, but now he weighs only 125 pounds due to his intestinal condition.  She described him being in the bathroom five or six times a day, with anything he eats going right through him.

Additionally, the Veteran's private physician, Dr. J.H., submitted a completed Disability Benefits Questionnaire (DBQ) indicating that the Veteran has a "many year history of alternating constipation/diarrhea with pain."  See September 2016 Intestinal Conditions DBQ.  The DBQ indicates that the Veteran's episodes of bowel disturbance varies between occasional and frequent episodes; the DBQ also notes that he has had more than seven excacerbations and/or attacks in the past 12 months.  Additionally, Dr. J.H. indicated that the Veteran's psychiatric condition (specifically his PTSD and stress) exacerbates his IBS symptoms.

At the outset, the Board finds that the VA compensation examinations described above, collectively, were thorough and adequate and provide a sound basis upon which to base a decision with regard to the Veteran's claim for increase.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).  These examiners considered the relevant history of the Veteran's intestinal condition (IBS), including the lay evidence of record, performed a physical examination, and provided a rationale to support the opinions reached.  See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007).

Again, the Board notes that to receive an evaluation higher than 10 percent under Diagnostic Code 7319, the evidence of record must show severe irritable colon syndrome with diarrhea or alternating diarrhea and constipation, with "more or less" constant abdominal distress.

After a review of all the evidence, lay and medical, and resolving reasonable doubt in favor of the Veteran, the Board finds that, for the entire period of appeal, the Veteran's IBS has more nearly approximated the rating criteria for a 30 percent evaluation under DC 7319.  It is clear from the medical evidence of record that he experienced frequent episodes of diarrhea, as well as alternating diarrhea and constipation.  With regard to whether the Veteran had "more or less" constant abdominal distress, the competent medical evidence documents the Veteran's complaints of abdominal distress.  Moreover, the Veteran has also consistently and credibly reported near constant abdominal distress consisting of pain.  The Board notes that the Veteran is competent to give evidence about what he experiences, such as his symptoms.  See Layno v. Brown, 6 Vet. App. 465 (1994).  Furthermore, the Board finds his assertions to be credible.  See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005).

In summary, the Board finds that, based upon all the evidence, lay and medical, and resolving all reasonable doubt in favor of the Veteran, the service-connected IBS has been productive of "severe" symptoms for the entire period on appeal; thus, a 30 percent evaluation is warranted under DC 7319.  38 C.F.R. § 4.3, 4.7, 4.114.  

As this is the maximum schedular rating available for IBS, the Board concludes that the Veteran is not entitled to any higher schedular rating for the service-connected IBS disability under DC 7319 at any relevant time during the appeal period.

Further, the Board has considered rating the service-connected disability under other possibly applicable diagnostic codes found at 38 C.F.R. § 4.114 (containing the schedule for rating disorders of the digestive system), but finds none applicable that would grant the Veteran a higher disability rating.  See Butts v. Brown, 5 Vet. App. 532, 538 (1993); see also Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).

Lastly, the Board has also considered whether an extraschedular evaluation is warranted in this case, however, here, the schedular evaluation is adequate.  The symptoms of the Veteran's IBS disability have been accurately reflected by the schedular criteria.  Without sufficient evidence reflecting that his disability picture is not contemplated by the rating schedule, referral for a determination of whether the Veteran's disability picture requires the assignment of an extraschedular rating is not warranted.  See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008).

The Board reiterates that an increased evaluation of 30 percent, but no higher, for IBS under DC 7319 is warranted.  As the preponderance of the evidence is against assignment of any higher rating, the benefit-of-the doubt doctrine is not applicable.  See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

III.  Increased Rating for PTSD

The Veteran's service-connected PTSD with depressive symptoms, is currently rated as 50 percent disabling since April 14, 2014 under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411.

Under the General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130, a 10 percent evaluation is warranted when there is an occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication.

A 30 percent evaluation is warranted when there is an occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily with routine behavior, self-care, and conversational normal) due to symptoms such as: depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; and mild memory loss (such as forgetting names, directions, recent events).

A 50 percent evaluation is warranted where there is an 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 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.

A 70 percent evaluation is warranted where there is an occupational and social impairment, with deficiencies in most areas such as work, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activity; speech intermittently illogical, obscure or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances and inability to establish and maintain effective relationships.

A 100 percent evaluation is warranted when there is evidence of 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 and place; memory loss for names of close relatives, own occupation or name.  38 C.F.R. § 4.130, Diagnostic Code 9411.

The Court has held that Global Assessment of Functioning (GAF) scores are a scaled rating reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness."  Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing Diagnostic and Statistical Manual of Mental Disorders, 4th ed. (DSM-IV) at 32).  See also Carpenter v. Brown, 8 Vet. App. 240, 242 (1995).

VA now uses the DSM-5.  As such, the diagnosis of a mental disorder should now conform to this newer version.  See 38 C.F.R. § 4.125(a).  VA adopted a rule regarding the use of the DSM-5 with regard to all applications for benefits relating to mental disorders.  80 Fed. Reg. 14, 308 (March 19, 2015).  The rule applies to all applications for benefits that are received by VA or that are pending before the AOJ on or after August 4, 2014.  The rule does not apply to claims that were pending before the Board (i.e., certified for appeal to the Board on or before August 4, 2014), the United States Court of Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit on August 4, 2014, even if such claims are subsequently remanded to the AOJ.  Id.

This rule updates 38 C.F.R. Parts 3 and 4, including Section 4.125, to reflect that the DSM-IV was rendered obsolete by the publication of the DSM-5 in May 2013.  GAF scores were removed from DSM-5.  Veterans Health Administration (VHA) clinicians were instructed to use DSM-5 criteria beginning November 1, 2013.  Id.  Therefore, VA adjudicators must be cautious in adjudicating a psychiatric claim that was pending before the AOJ on or after August 4, 2014 and does not yet include a VA examination that conforms to the DSM-5.  See Molitor v. Shulkin, No. 15-2585, 2017 U.S. App. Vet. Claims LEXIS 834 (Vet. App. June 1, 2017).  However, DSM-IV diagnoses and GAF scores are still evidence that should be considered in assessing claims.  The regulation change does not remove the previous diagnoses and GAF scores from the record; they are still evidence that has to be considered and weighed.  See M21-1, Part III.iv.3.A.6.e (DSM-5 and Mental Disorders Specialty Examinations); Part III.iv.4.H.1.k. (Removal of the GAF Score From the DSM and Assigning Evaluations Based on Prior GAF Score).

GAF scores ranging from 51 to 60 reflect 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).

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.

Evaluation under § 4.130 is symptom-driven, which means 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 Court 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 mere 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 the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, which 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.

Turning now to the relevant facts of this particular case, the Veteran was afforded a VA compensation examination in June 2014.  The examiner indicated that symptoms of depressed mood and anxiety actively applied to the current diagnosis of PTSD.  The examiner further indicated that the Veteran's PTSD was best summarized as an 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 examiner noted that the Veteran's symptoms appeared to have worsened, but only slightly, and stated that the Veteran appears to be relatively active in his retirement, including camping, etc.

An August 2014 VA mental health progress note documents the Veteran's current mood level as uptight and his stress level as high.  Medical personnel indicated that while the Veteran "remains treatment compliant with his medical and psychiatric care plans, his PTSD symptoms are significantly exacerbated" and that "while he denies any suicidal or homicidal ideation or intent, he is very uptight and anxious and coping at a marginal level."

In his October 2014 NOD, the Veteran reiterated his contention that his PTSD symptoms have "gotten A LOT worse than they had been."  He described having "nearly continuous depression with panic attacks," despite taking Xanax.  He also reported frequently getting angry without any reason and described an incident "just this last weekend [where] I became angry without any reason and started to beat on myself."  The Veteran further indicated that while he has "thought about suicide," he has been "able to control those thoughts so far."

A February 2015 VA mental health progress note documents the Veteran's current mood level as "more depressed" and noted that his "everyday level of functioning is going downhill.  Medical personnel indicated that while the Veteran denies any suicidal or homicidal ideation, he "does admit to such thoughts in the past."

A March 2015 VA mental health progress note reflects that the Veteran is "struggling to keep a lid on his PTSD symptoms" and, while denying any suicidal or homicidal ideation, he does "battle depression and frustration."

The Veteran was afforded another VA examination in May 2015.  The examiner indicated that the Veteran's PTSD was primarily manifested by symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, flattened affect, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, as well as a difficulty in adapting to stressful circumstances (including work or a work like setting).  The examiner indicated that the Veteran's PTSD was best summarized as an 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 examiner noted that the Veteran appeared "approximately 10 years older when compared to his chronological age," showed good grooming and hygiene, and noted that the Veteran's psychomotor was slowed and his speech demonstrated a slower rate and rhythm.

In his August 2015 substantive appeal (VA Form 9), the Veteran provided ample description of his current PTSD symptoms.  In pertinent part, he indicated that while he "thinks about [suicide] a lot" he does not speak about it to "VA counselors and doctors as [he is] afraid that they will lock him up and then try to medicate [him]."  As a result, he is "very careful not to mention suicide."  He also described "a need to check everything over in the house every time before [he] leave[s] to make sure all is secure[.]"  He reported a difficulty in keeping up with the pace of conversations-often dwelling on certain aspects too long, which makes it difficult to carry on a coherent discussion.  Lastly, the Veteran also reported that he has periods of unprovoked irritability and violence, noting that "[a]ll of the holes in [his] walls at home are proof of this."

In a September 2016 Statement, the Veteran's wife, Ms. M.P., addressed his service-connected disabilities and her perceived impact on their lives.  In pertinent part, Ms. M.P. stated that the Veteran's "mood swings are not good, one minute he can be smiling and laughing and the next he is pissed at the world."  She indicated that she feels as if she is "walking on egg shells all the time, not sure what to say and scared [she] may say the wrong thing."  She reported that they used to do a lot of things together, but now they mostly just sit at home.  Lastly, Ms. M.P. indicated that she has a hard time living with the Veteran due to his mental state and noted that "[s]o far, I have stuck with him not sure of what he would do to himself if I left, it scared me to death."

An October 2016 emergency department medical record reflects the Veteran sought emergency treatment for a gastrointestinal impairment.  However, the reported medical history notes that the Veteran has depression, anxiety, and PTSD, but indicates he stopped taking his medication 3 months ago due to suicidal ideation.

Since April 14, 2014, in order to warrant an evaluation higher than 50 percent under Diagnostic Code 9411, the evidence would need to show that the Veteran's PTSD symptoms most closely approximated an occupational and social impairment, with deficiencies in most areas such as work, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activity; speech intermittently illogical, obscure or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances and inability to establish and maintain effective relationships.

At the outset, the Board notes that the June 2014 and May 2015 VA examination reports are highly probative evidence in support of the claim for a higher evaluation, at least to an extent, as they represent the conclusions of a medical professional and are supported by fully-articulated opinions with sound reasoning for the conclusions contributing to the weight of the opinion in relation to other evidence in the file.  Further, the opinions are based on reliable principles and supported by other evidence.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008).  Moreover, those VA compensation examinations were thorough and adequate and provide a sound basis upon which to base a decision with regard to the Veteran's claim.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).  The examiners considered the relevant medical history of the Veteran's mental health condition, including the lay evidence of record, performed examinations, and provided a rationale to support the conclusions reached.  See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007).

In light of the foregoing, the Board concludes that the evidence of records supports assigning a higher 70 percent evaluation for the entire period on appeal, that is, since April 14, 2014.  While medical professionals examining the Veteran for compensation purposes have indicated his consistent denial of certain symptoms, specifically, suicidal ideation, the remaining evidence-including treatment records, lay statements, and the Veteran's own contentions-show that he has had suicidal thoughts and "nearly continuous depression with panic attacks," which more closely approximates the 70 percent rating.  Moreover, both the Veteran and his wife have endorsed an impaired impulse control, such as unprovoked irritability with periods of violence against himself and objects around the home.  Therefore, the Board finds that a 70 percent rating, though no higher, is warranted since April 14, 2014.

However, despite this symptomatology, there is no indication that the Veteran's PTSD symptoms resulted in a total occupational and social impairment.  Further, aside from the single, self-reported incident of "unprovoked anger" where he "became angry without any reason and started to beat on [himself]," none of the Veteran's other documented symptoms would support a 100 percent evaluation under the General Rating Formula for Mental Disorders.  For these reasons, an evaluation higher than 70 percent is not warranted since April 14, 2014.

In reaching this determination, the Board acknowledges a rather recent decision of the U.S. Court of Appeals for Veterans Claims (Court), which discussed the "ameliorative effects" of medication and how this impacts disability evaluations.  See Jones v. Shinseki, 26 Vet. App. 56 (2012).  In Jones, the Court noted that, in assigning a disability rating, the Board may not consider the ameliorative effects of medication where such effects are not explicitly contemplated by the rating criteria.  Id., at 63.  But, here, these ameliorative effects are indeed explicitly contemplated by the rating criteria; in fact, there is specific mention of this.

Accordingly, the Board finds that the Veteran's psychiatric symptomatology, considered as a whole, most closely and consistently approximated the 70 percent rating criteria under Diagnostic Code 9411, since April 14, 2014, in terms of severity, frequency and duration and consequent effects.  See Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013).

IV. Extraschedular Consideration for PTSD

While the Board is precluded by regulation from assigning an extraschedular rating in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of the Compensation and Pension Service for this special consideration.  38 C.F.R. §§ 3.321(b)(1); 4.16(a) and (b).  The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional or unusual disability picture that the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization.  Id., at 115-16.  When these two elements are met, the appeal must be referred to the Director for consideration of the assignment of an extraschedular rating.

On the other hand, if the rating criteria reasonably describe the Veteran's level of disability and symptomatology, then the disability picture is contemplated by the Rating Schedule.  In such instances, the assigned schedular evaluation is adequate and referral is not required.  Thun v. Peake, 22 Vet. App. 111, 116 (2008).

As already explained, the rating formula for mental disorders allows for them to be rated based on the level of consequent occupational and social impairment.  In this case, after reviewing the relevant evidence of record, the Board finds that the symptoms described by the Veteran, including depressed mood, anxiety, chronic sleep impairment, mild memory loss, flattened affect, impaired abstract thinking, and some suicidal thoughts, fit squarely within the criteria found in Diagnostic Code 9411.  In short, the rating criteria contemplate not only his symptoms but the severity of his disability.  Accordingly, referral for extra-schedular consideration is not warranted.  Thun v. Peake, 22 Vet. App. 111 (2008).

The Veteran has not alleged, and the evidence does not otherwise show, any symptoms indicative of an unusual or unique disability picture not contemplated by the rating criteria; thus, the schedular criteria are wholly adequate.  As a result, extraschedular referral is not required.  38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995).

V.  TDIU

In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.  In making this determination, the central inquiry is whether the Veteran's service-connected disabilities, alone, are of sufficient severity to cause unemployability.  Hatlestad v. Brown, 5 Vet. App. 524 (1993).  Consideration may be given to his level of education, special training and previous work experience, but not to his age or any impairment caused by nonservice-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993).

If the schedular rating is less than total, meaning less than 100 percent, a TDIU may be assigned if the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one rated at 40 percent or higher and the combined rating is 70 percent or higher.  38 C.F.R. § 4.16(a).  Disabilities resulting from common etiology and those affecting a single body system or both upper or lower extremities are considered one disability for purposes of determining whether these threshold minimum percentage requirements are met.  Id.  But even if the Veteran does not meet these threshold minimum percentage rating requirements, he can still receive a TDIU, albeit instead on a special extra-schedular basis under the alternative provisions of 38 C.F.R. § 4.16(b), if it is shown he is indeed unemployable owing to his service-connected disabilities.  In that circumstance, however, the Board is precluded from granting the TDIU in the first instance, having instead to refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension (C&P) Service for this initial consideration.  See Barringer v. Peake, 22 Vet. App. 242 (2008).  This does not, however, preclude the Board from determining whether this special consideration is warranted.  See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996).

Pursuant to the increased disability ratings assigned herein, the Veteran is currently in receipt of a combined 80 percent evaluation for his service-connected disabilities since April 14, 2014 and, consequently, meets the schedular criteria for an award of a TDIU for the entire period on appeal.  38 C.F.R. § 4.16(a).

Turning to review of the medical evidence, an August 2014 VA mental health record contains the opinion of Mr. T.M., MSW-MHC.  Mr. T.M. indicated that the Veteran is "unable to work, is not a good candidate for voc[ational] reh[abilitation] and also has increased problems with his irritable bowel condition."  As an example of the severity of the Veteran's IBS, Mr. T.M. documented the Veteran's report of having to stop three times on his way to the appointment to use toilet facilities, including "a near disaster...just making it to the commode before dumping."

Additionally, the VA psychologist conducting his May 2015 VA examination addressed the Veteran's capacity for work with respect to his PTSD.  Initially, the examiner noted the Veteran's reported employment history characterized by sporadically sustained periods of employment in his earlier years, but indicated that he reported 15 years of truck driving.  Next, the examiner noted the Veteran's highest educational achievement as ninth grade with a history of learning problems with math, which the examiner indicated that this "suggests minimal educational preparation for vocational pursuits and implies that [the Veteran] will have very limited employment opportunities.  While the examiner clearly did not find that the Veteran's PTSD, alone, did not rise to the level of a total occupational and social impairment, the examiner did find that his service-connected IBS would similarly create challenges to employment.  Ultimately, the examiner indicated that the veteran's capacity for work, without regard to his age or his nonservice-connected disabilities is limited.  The examiner stated that the symptoms seen as most interfering with his capacity to work relate to mood, weaker abstract thinking, memory and ability to follow detailed instructions, and limited social interactions.

In light of the foregoing reasons, the evidence supporting the claim is, at the very least, as probative (meaning as competent and credible) as the evidence against the claim.  Thus, the Board is of the opinion that the point of equipoise has been reached in this appeal.  Resolving all reasonable doubt in favor of the Veteran, the most probative evidence establishes that the Veteran's service-connected disabilities, including his IBS and PTSD with depressive symptoms, preclude him from securing or maintaining substantially gainful employment for which his education and occupational experience would otherwise qualify him since April 14, 2014.  Undoubtedly, further medical inquiry can be undertaken with a view towards further developing this claim.  However, in this regard, the Court has cautioned VA against seeking an additional medical opinion where favorable evidence in the record is unrefuted (or, at worst, evenly balanced for and against the claim) and indicated that it would not be permissible to undertake further development in this circumstance if the sole purpose was to obtain evidence against an appellant's claim.  See Mariano v. Principi, 17 Vet. App. 305, 312 (2003).  But see also Douglas v. Shinseki, 23 Vet. App. 19 (2009) (distinguishing Mariano and contrarily holding that VA may undertake the development of additional evidence if it is necessary to render an informed decision on the claim).  

Therefore, as the Veteran has credibly reported, and the medical evidence has duly noted, the occupational impairment resulting from the Veteran's service-connected disabilities, including his IBS and PTSD with depressive symptoms, the Board finds that the award of a TDIU, effective April 14, 2014, is warranted.  See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

1.  Since April 14, 2014, entitlement to an increased evaluation of 30 percent, but no higher, for IBS is granted.

2.  Since April 14, 2014, entitlement to an increased evaluation of 70 percent, but no higher, for PTSD with depressive symptoms is granted.

3.  Entitlement to a TDIU is granted, effective April 14, 2014.



______________________________________________
M. H. Hawley
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs