Citation Nr: 1808559 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 12-24 303A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUES 1. Entitlement to an initial disability rating for posttraumatic stress disorder (PTSD), rated as 50 percent disabling prior to June 5, 2012, and as 70 percent disabling thereafter. 2. Entitlement to a total disability rating due to individual unemployability resulting from service-connected disability (TDIU) prior to June 5, 2012. REPRESENTATION Appellant represented by: James G. Fausone, Esquire ATTORNEY FOR THE BOARD A. B., Counsel INTRODUCTION The Veteran served on active duty from July 1968 to February 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii, which granted service connection for PTSD, with an initial 50 percent disability rating assigned. The Veteran disagreed with the initial rating assigned, and during the course of the appeal, the RO issued a second rating decision in June 2012 in which it granted an increased rating of 70 percent for PTSD, effective from June 5, 2012. In addition, in an August 2014 rating decision, the RO awarded entitlement to a TDIU from June 5, 2012. The claim was remanded by the Board in a November 2015 decision and has been returned now for further appellate action. FINDINGS OF FACT 1. Throughout the entire period on appeal, the Veteran's PTSD is manifested by occupational and social impairment with deficiencies in most areas, such as social relations, occupational functioning, and mood without total social impairment. 2. Throughout the entire period on appeal, the Veteran's PTSD precludes him from securing or following substantially gainful employment consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. Throughout the entire period on appeal, the criteria for an increased disability rating of 70 percent, but no higher, for PTSD are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.21, 4.130, Diagnostic Code 9411 (2017). 2. Throughout the entire period on appeal, the criteria for entitlement to TDIU based on PTSD are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Here, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required, and none is found by the Board. Indeed, the Veteran received VCAA notice in October 2008, January and April 2010, and July 2011, prior to the initial adjudication of the issues on appeal. Therefore, additional notice is not required, and any defect in notice is not prejudicial. See Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The RO has obtained the Veteran's service treatment records and all identified VA and private treatment records. The Veteran has not identified any outstanding and available medical treatment records. The Board notes that a July 2011 response from the Social Security Administration (SSA) stated that records associated with the Veteran's claim for SSA disability benefits have been destroyed and, thus, are unavailable. In addition, the Board finds that the VA medical opinion evidence is adequate as it is predicated on an accurate reading of the medical records as well as a complete examination of the Veteran. The examiner considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale for the opinions stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The issue on appeal was previously before the Board in November 2015, when it was remanded for additional development. In accordance with the remand instructions, the Veteran's claims file was provided in response to a Freedom of Information Act (FOIA) request and a supplemental statement of the case was issued. Since the record reflects substantial compliance with the prior remand instructions, the Board may proceed with adjudication of the claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Therefore, VA has also fulfilled its duty to assist a veteran in the development of the claim. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Rating: PTSD Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes (DCs). 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10 (2017). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2 (2017); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2017). It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2017). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). In this case, the Veteran contends that his current service-connected PTSD is worse than rated. As noted above, his disability is rated as 50 percent disabling prior to June 5, 2012, and as 70 percent disabling from that day forward. Acquired psychiatric disorders such as PTSD are evaluated under (Diagnostic Code) DC 9411 by applying the criteria found under the General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130. Under 38 C.F.R. § 4.130, DC 9411, a 70 percent rating is warranted where there is 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 ideations; obsessional rituals that 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. The symptoms listed at 38 C.F.R. § 4.130 are not an exclusive or exhaustive list of symptomatology which may be considered for a higher rating claim. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has emphasized that the list of symptoms under a given rating is a nonexhaustive list, as indicated by the words "such as" that precede each list of symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). In Vazquez-Claudio, the Federal Circuit held that a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage or others of similar severity, frequency, and duration. Id. at 118. Other language in the decision indicates that the phrase "others of similar severity, frequency, and duration," can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. Id. at 116. Based on the evidence of record, the Board concludes that a 70 percent disability for PTSD, but no higher, is warranted throughout the entire appellate period. The medical and lay evidence of record indicate that symptoms of PTSD included chronic sleep impairment, nightmares, anxiety, depressed mood, decreased motivation, diminished interest in activities, difficulty concentrating, intrusive thoughts, hypervigilance, difficulty obtaining and maintaining effective relationships, detachment from others, and decreased socialization throughout the entire appellate period. These symptoms more approximate those listed in the criteria for a 70 percent rating. In considering the period prior to June 5, 2012, the Board finds that the evidence demonstrates social and occupational impairment that more nearly approximates a 70 percent disability rating. In making this determination, the Board finds significant VA treatment records where the Veteran consistently was found with depressed and/or anxious mood throughout this period. While there was a slight improvement in the Veteran's symptoms, particularly with his mood, beginning around 2008 to 2009, this was attributed solely to medication use. Regarding social impairment, the Veteran consistently endorsed feelings of isolation and detachment from others, diminished interest in activities, and impaired concentration most days. The Veteran consistently described how he preferred to be alone and sought out activities where he did not have to interact with others. During the 2010 VA examination, the Veteran reported how he avoided leisure and social activities due to a diminished interest and preference for isolation. He also reported that his relationship with his wife, to whom he has remained married throughout the appellate period, was difficult at times due to his PTSD symptoms. Regarding occupational impairment, the Veteran was unemployed throughout the claim and consistently stated that he was unable to work due to his significant irritability, frequent conflicts whenever he was around people, and difficulty concentrating. During the April 2010 VA examination, he reported that he had a long history of sporadic employment due to difficulties interacting with coworkers and supervisors, significant irritability, and anger issues that led to multiple verbal and physical altercations. The Board further notes that an August 2013 statement from his treating physician stated that the Veteran was last employed 14 years prior and that he had had significant difficulties while employed with engaging in multiple arguments and physical fights on the job. Based on this history and the Veteran's difficulty focusing and concentrating, the physician stated that it was unlikely that the Veteran could succeed at competitive employment. The Board acknowledges the 2010 VA examiner concluded that the Veteran's PTSD symptoms were moderate and resulted in reduced reliability and productivity; however, considering the complete record, including the Veteran's symptoms prior to his medication changes, and given the level of social and occupational impairment reported during the VA examination, the Board finds that the Veteran's level of impairment due to PTSD symptoms is more severe than summarized by the VA examiner. The Board also notes that the portion of VA's Schedule for Rating Disabilities ("the Schedule") that addresses service-connected psychiatric disabilities was based on the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM) IV prior to a change effective August 4, 2014. 38 C.F.R. § 4.130 (2017). The regulation has been changed to reflect the current DSM, the DSM V. The DSM-IV contained a Global Assessment of Functioning (GAF) scale, with scores ranging between zero and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health illness. GAF 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). GAF 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). A GAF score of 61-70 indicates "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, has some meaningful interpersonal relationships." See Quick Reference to the Diagnostic Criteria from DSM-IV at 47 (American Psychiatric Association 1994) ("QRDC DSM-IV"). Here, the Board notes that the GAF scores assigned to the Veteran prior to June 5, 2012, have ranged from 48 to 65, although the scores were predominately 50 before the Veteran's medication began to improve some symptoms. A GAF score of 50 is indicative of serious symptoms and impairment in social and occupational functioning. The Board concludes that this is consistent with the medical and lay evidence of record and consistent with the assignment of a 70 percent disability rating, but no higher, throughout this appellate period. Based on the foregoing, the Board concludes that a 70 percent disability rating is warranted for the appellate period prior to June 5, 2012. The Board notes that in the Veteran's and his representative statements throughout the claim, the contentions have hinged on whether a 70 percent disability rating is warranted back to the date of the claim, which is the benefit granted in this decision. Nevertheless, the Board has considered whether a disability rating in excess of 70 percent is warranted and has found that such a disability rating in excess of 70 percent is not warranted at any time during the appellate period. There have been few reports of the symptoms listed in the criteria for a 100 percent rating. The evidence, including 2010 and 2012 VA examinations and VA treatment records, indicates that his speech tone and rate have consistently been clear or within normal limits, his thought process and content logical and goal-oriented, and his judgment, insight, and impulse control unimpaired. Despite one instance in March 2010 where he was noted with slowed processing due to difficulty with short term memory, the Veteran's memory before and after this treatment note has consistently been described as good. Additionally, the Board finds that there is insufficient evidence to show that a 100 percent rating is warranted as total overall social impairment has not been demonstrated. Mauerhan, 16 Vet. App. at 436. The Veteran has maintained his relationship with his wife throughout the appeal despite various challenges, including his PTSD symptoms. He has frequently described this relationship as good. A March 2010 VA treatment record indicated that the Veteran and his wife hosted friends and family at least periodically and that he would drink socially with them. Moreover, the Veteran reported in the 2012 VA examination that he has a good relationship with his two children and one grandchild. VA treatment records demonstrate a positive continuation of these relationships and that he reported spending time with his family and visiting his grandchild. In addition, there's evidence that despite the Veteran's diminished interest in activities, he has pursued leisure activities such as fishing and house/yard work. Throughout the appeal, the Veteran has been found to be able to perform all activities of daily living, maintain minimum personal hygiene, and handle his financial affairs. He has consistently denied hallucinations or delusions throughout the appellate period. While he reported suicidal ideation once during the 2012 VA examination, he has consistently denied homicidal or suicidal ideation before and after this examination during VA treatment. Moreover, the Veteran specifically denied panic attacks in the 2010 and 2012 VA examinations and throughout VA treatment. Moreover, at no time has the Veteran reported or the medical evidence demonstrated the other severe symptoms listed in the rating criteria, such as obsessional rituals which interfere with routine activities, impaired impulse control, spatial disorientation, or speech that is intermittently illogical, obscure, or irrelevant. Given the evidence above, the Board concludes that the Veteran's symptoms do not more nearly approximate a 100 percent schedular disability rating and have not at any time during the appellate period. 38 C.F.R. §§ 4.7, 4.21, 4.73, DC 9411. In considering the appropriate disability ratings, the Board has also considered the Veteran's statements that his psychiatric disability is worse than the rating he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his disabilities according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). On the other hand, such competent evidence concerning the nature and extent of the Veteran's disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which this disability is evaluated. The Board also finds that consideration for an extraschedular evaluation, a component of a claim for an increased rating, is not warranted. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). In considering whether an extraschedular rating may be warranted, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. See Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the evidence does not indicate that Veteran's disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, the Board has reviewed all of his relevant symptoms related to the issue on appeal, and concludes that there are no symptoms that were not able to be addressed by the applicable diagnostic codes. See Mittleider v. West, 11 Vet. App. 181 (1998). Notably, as was established in Mauerhan, 16 Vet. App. at 444, a schedular rating for psychiatric disorders is not necessarily limited to the enumerated symptoms in the general rating formula, and no relevant symptoms have been excluded in the Board's analysis. As such, the Veteran's symptoms are not which are so unusual that they are outside the schedular criteria. Moreover, the Board has explained why the Veteran's relevant symptoms do not merit ratings greater than the ones assigned. As such, the Veteran's symptoms are not which are so unusual that they are outside the schedular criteria. Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran's disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). TDIU TDIU was granted, effective June 5, 2012, and the Veteran appealed the effective date of that grant. TDIU may be granted where the schedular rating is less than total and the service-connected disability precludes the Veteran from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). By this decision, the Veteran's service-connected PTSD is found to be 70 percent disabling. Thus, the Veteran meets the percentage requirements for consideration of TDIU under 38 C.F.R. § 4.16(a) (2017). The remaining question is whether his service-connected PTSD precludes gainful employment for which his education and occupational experience would otherwise qualify him prior to June 5, 2012. As explained above, the medical evidence demonstrates the Veteran was unemployed throughout the claim and consistently stated that he was unable to work due to his significant irritability, frequent conflicts whenever he was around people, and difficulty concentrating. During the VA examinations, he reported that he had a long history of sporadic employment due to difficulties interacting with coworkers and supervisors, significant irritability, and anger issues that led to multiple verbal and physical altercations. In addition, an August 2013 statement from his treating physician stated that the Veteran was last employed 14 years prior and that he had had significant difficulties while employed with engaging in multiple arguments and physical fights on the job. Based on this history and the Veteran's difficulty focusing and concentrating, the physician stated that it was unlikely that the Veteran could succeed at competitive employment. Based on the forgoing, the Board finds that TDIU is warranted throughout the appellate period prior to June 5, 2012. ORDER Throughout the period on appeal, a 70 percent disability rating, but no higher, is granted. Prior to June 5, 2012, TDIU is granted. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs