Citation Nr: 1808753 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 12-33 616 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C.S. De Leo, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1966 to February 1973. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which granted service connection for PTSD and assigned a 30 percent disability evaluation from August 12, 2009. The Veteran was scheduled for a Board videoconference hearing in May 2016. In an April 2016 statement the Veteran requested to withdraw his hearing request. Accordingly, the Veteran's request for hearing is deemed withdrawn. The Veteran's December 2010 notice of disagreement (NOD) indicated that he disagreed with the determination. In October 2012, the RO issued a Statement of the Case (SOC) and continued and confirmed the determination and in November 2012, the Veteran submitted a VA Form 9 with the determination. A subsequent August 2015 rating decision and supplemental SOC (SSOC) increased the disability rating for PTSD to 70 percent from August 12, 2009. Despite the grant of this increased evaluation, the Veteran has not been awarded the highest possible evaluation. As a result, he is presumed to be seeking the maximum possible evaluation. The issue remains on appeal, as the Veteran has not indicated satisfaction with the 70 percent rating. A.B. v. Brown, 6 Vet. App. 35 (1993). The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action, on his part, is required. FINDING OF FACT Symptoms of PTSD have more nearly approximated occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. CONCLUSION OF LAW The criteria for a rating in excess of 70 percent for PTSD have not all been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Due Process VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See eg. 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). In the instant case, VA provided adequate notice letter sent to the Veteran in September 2009. VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service, VA, and private treatment records are associated with the claims file. There is no indication of additional existing evidence that is necessary for a fair adjudication of the claim that is the subject of this appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. II. Increased Rating Claim Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. 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; 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. 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. 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); Hart v. Mansfield, 21 Vet. App. 505 (2008). The Veteran's PTSD is rated under 38 C.F.R. § 4.130, DC 9411. All psychiatric disabilities are evaluated under a general rating formula for mental disorders. The Board notes that, effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders, including 38 C.F.R. § 4.130, to remove outdated references to the 4th edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) and replace them with references to the recently updated Fifth Edition (DSM-5). See Final Rule, Schedule for Rating Disabilities - Mental Disorders and Definition of Psychosis for Certain VA Purposes, 80 Fed. Reg. 14308 (Mar. 19, 2015). A 30 percent rating is warranted for: 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 conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted for: 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. A 70 percent rating is warranted for: 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); and inability to establish and maintain effective relationships. The maximum schedular 100 percent rating is warranted for: Total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. When rating the level of disability from a mental disorder, the rating agency must consider the extent of social impairment, but cannot assign a rating solely on the basis of social impairment 38 C F R § 4.126 (2017). However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). 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. Analysis The Veteran seeks an increased rating for service-connected PTSD disability in excess of the 70 percent evaluation assigned since August 12, 2009. The effective date is the award of service connection. For the following reasons, the Board finds the Veteran's PTSD symptoms most closely approximate the criteria for a 70 percent evaluation, but no higher, since August 12, 2009. Post-service medical evidence concerning this issue consists of VA examinations and treatment records, which document during the pendency of the claim, the Veteran has had symptoms such as those listed in the criteria for a 30, 50, and 70 percent rating. Specifically, on the December 2009 VA examination, the resulting examination report indicates the examiner, a medical doctor, did not review the Veteran's claims file. The examiner noted the Veteran's in-service stressor and the Veteran's reported history related to PTSD symptomology. The examination report notes the Veteran reported treatment at the Joliet CBOC. He complained of hypervigilance, irritability, depression, poor concentration, poor sleep, nightmares, and difficulty with social and occupational relationships. He reported anhedonia with loss of interests and also avoiding former friends. He explained isolating himself in the basement and irritability, which caused him to be argumentative with others. He denied suicidal ideation. On examination, the practitioner noted that the Veteran's recent and remote memory were good and he was oriented with person, place, time and situation. His concentration and judgment were poor and he was observed as distant with a vacant stare. His affect was sad and anxious. The practitioner noted his speech was coherent and relevant but showed some psychomotor slowing. There were no signs of delusions or hallucinations. The practitioner diagnosed PTSD related to the Veteran's in-service combat experience manifested by symptomatology, to include poor concentration and social functioning. The practitioner concluded these symptoms impact his ability to establish and maintain effective relationships with others. With respect to employment, the Veteran reported that his symptoms are poorly controlled by the structure of his work environment and he is at risk of termination. He reported working as a computer programmer, five years as a truck driver, and currently part time as a van driver stating that he worked alone. He reported that he misses nine to ten days a month from work and is having difficulty maintaining employment due to increasing PTSD symptoms described as isolating himself, irritability, depression, anxiety, and difficulty working with others. During the appellate term, treatment records from the Joliet VA Community Based Outpatient Clinic (CBOC) document the Veteran sought treatment for PTSD. During this time, it is noted that he endorsed symptoms of irritability, hypervigilance, nightmares, depression, anxiety, and avoidance of certain reminders of war to include the news and movies. A September 2009 VA treatment record indicates a depression screening was negative. A November 2009 VA mental health assessment, conducted by a physician, diagnosed Axis I anxiety, NOS (PTSD symptoms, however subsyndromal at this time), noting the Veteran's symptoms of avoidance, intrusive memories, and nightmares. The practitioner opined that these symptoms caused significant impairment in social, occupational, or interpersonal function, finding that the Veteran did not meet the full criteria for PTSD but would benefit from psychotherapy to treat anxiety symptoms. The resulting assessment notes the Veteran reported his first marriage ended in divorce after six years. He also reported having four sons and having been married to his second and current wife for 28 years describing good relationships with everyone. He resided with his wife and one son. He also reported having distant but good relationships with his two sisters and one brother and participating in leisure or recreational activities reporting that such activities enhances his well-being. On examination his attitude was observed as pleasant and cooperative. His attention and concentration were intact and he was oriented to person, place, time and situation. His mood and affect were observed as normal and affect congruent with his mood. His insight and judgment were adequate and speech was noted as normal. Thought process was normal, logical, sequential and relevant. His thought content and perception were described as agoraphobic. The practitioner found that his short-term memory was impaired. The Veteran denied suicidal and homicidal ideations as well as visual hallucinations. With respect to employment, the Veteran reported he was currently employed part time driving a courtesy van four days a week. Prior to this he was a full time truck driver until he retired that past summer. He reported having one year of college. A January 2010 VA social work note documents the Veteran participated in individual therapy and was prescribed medication to include Zoloft. He reported feeling depressed weekly for a duration of a few minutes to one hour. VA treatment records also note the Veteran appeared to have unresolved grief from the death of his son and is emotionally withdrawn, at times isolating himself. He reported that he has a good relationship with his spouse and his son who was currently residing with him. He also reported starting a new job in August. He worked part time and stated that he enjoyed his new job. The above evidence reflects that the Veteran had symptoms of anxiety, suspiciousness, chronic sleep impairment (30 percent criteria), impaired short- term memory (50 percent criteria), difficulty establishing effective work and social relationships (50 percent and 70 percent criteria), and difficulty in adapting to stressful circumstances (including work or a work-like setting) (70 percent criteria). This evidence also reflects that the Veteran had deficiencies in areas such as work, family, judgment, thinking, and mood. The evidence is thus at least evenly balanced as to whether the Veteran's symptoms and overall level of impairment more nearly approximated the criteria for a 70 percent rating throughout the pendency of the claim. A higher schedular rating of 100 percent is not, however, warranted because the Veteran's symptoms and overall level of impairment did not more nearly approximate the criteria for such a rating and the evidence was not approximately evenly balanced on this question. The Veteran did not have symptoms that approximated those listed in the criteria for a 100 percent rating. Specifically, the medical and lay evidence of record does not establish the Veteran had symptoms of delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting himself 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 his own name as listed in the criteria for a 100 percent rating. The Veteran has always been oriented to time, place, and person on examination, and there was no indication of gross impairment of thought processes or communications, suicidal ideation, delusions or hallucination, or that he was intermittently unable to perform the activities of daily living. The evidence does not show that the Veteran has had problems with activities of daily living, and grooming, and insight and judgment were normal. Moreover, the December 2009 VA examination report specifically noted that the Veteran's concentration and judgment were poor and his speech was coherent and relevant but showed some psychomotor slowing but the evidence did not reflect that symptoms caused total social and occupational impairment. In addition, although the Board finds below that the issue of entitlement to a TDIU based on PTSD was raised by the evidence of record, the total occupational impairment listed in the criteria for a 100 percent rating and inability to obtain or maintain substantially gainful employment required for a TDIU are different standards. On VA mental health assessment in November 2009, the Veteran reported he was currently employed part time driving a courtesy van four days a week. Prior to this he was a full time truck driver until he retired that past summer. Further, the December 2009 VA examination report notes the Veteran reported working as a computer program, five years as a truck driver, and currently part time as a van driver stating that he worked alone. He reported that he misses nine to ten days a month from work and is having difficulty maintaining employment due to increasing PTSD symptoms described as isolating himself, irritability, depression, anxiety, and difficulty working with others. The December 2009 VA examination report indicates that the Veteran's mental health symptoms would affect but not preclude gainful employment. On VA mental health assessment in November 2009, he also indicated that he retired as full time truck driver in the summer of 2009. A subsequent January 2010 VA social worker note indicates the practitioner noted the Veteran reported that he started a new job in August working part time; also noting that he enjoyed his job. Given that the Veteran has had some social relationships to include a marriage of 28 years of whom he described provided good support and has indicated that he has had positive employment experiences as well as difficulties in employment due to his psychiatric disorder, the Board finds that the preponderance of the evidence reflects that his symptoms and overall impairment more nearly approximate the deficiencies in most areas and inability to establish and maintain effective relationships in the criteria for a 70 percent rating rather than the total occupational and social impairment in the criteria for a 100 percent rating. In reaching the above conclusions the Board acknowledges the statements of the Veteran during the appeal. In this regard, the Veteran's reported symptoms are consistent with those of the VA examination report and treatment records. Specifically, in his September 2009 PTSD stressor statement the Veteran described his in-service experiences related to PTSD diagnosis. Additionally, in his December 2010 NOD and November 2012 VA Form 9, Appeal to Board of Veterans' Appeals, the Veteran described symptoms of his service-connected PTSD are more severely disabling than are reflected by the rating currently assigned. The December 2010 NOD describes the Veteran's inability to socialize with others, which he explained impacted his employment as a driver in that he can only transport two patients at a time. He explained that he preferred to spend time alone because he was always on edge and uncomfortable socializing with strangers. He explained that as a result of these symptoms he would not be able to work effectively if had to transport more than two patients. Additionally, he avoids crowds and attempts to stay to himself during family functions. In his November 2012 appeal to the Board, the Veteran reported continued symptomology of flashbacks, nightmares, difficulty concentrating, and lack of motivation; and he is no longer employed as a result of these symptoms. The Board has also considered the Veteran's reported symptoms as documented on VA examinations and during treatment. The Veteran is competent to so state his symptoms, but his opinions must be weighed against the other evidence of record. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). With respect to the Veteran's reported history, under certain circumstances, lay statements may be sufficient for disability claims by establishing the occurrence of lay-observable events, the presence of disability, or symptoms of disability that are susceptible to lay observation. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran is competent to testify to factually observable injuries and treatment, the timing of the observable symptoms of his disabilities, and receipt of medical treatment because these are observable by an individual's own senses and within the realm of knowledge of a lay person. Id. These reports must be considered with the entire record evidence. However, the Board finds the specific, reasoned opinions of the VA examiners, and the objective evidence of the trained medical professionals, who reviewed the Veteran's claims file and examined him, to be of greater probative weight than the more general lay assertions. Based on the weight of the lay and medical evidence of record, the Board finds that PTSD symptoms demonstrated throughout the appeal process more nearly approximate occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Thus, an increased rating in excess of 70 percent is not warranted. For all the foregoing reasons, the Board finds that, the preponderance of the evidence is against entitlement to higher disability rating at any time during the appellate term and there is no basis for further staged rating for the Veteran's PTSD disability, pursuant to Hart, and that the claim for higher rating is not warranted, and must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against assignment of any higher rating for PTSD disability, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). III. Extraschedular Consideration The Board has considered whether referral for an extraschedular rating under 38 C.F.R. § 3.321(b)(1) is warranted in this case. As discussed below, and in accord with the Secretary's concession at oral argument, the Board holds that the availability of higher schedular ratings plays no role in an extraschedular analysis and that it is inappropriate for the Board to deny extraschedular referral on this basis. In this case, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017). Neither the facts of the case nor the Veteran's allegations raise the issue of extraschedular consideration. Thus, no analysis is required. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016) (holding that an extraschedular analysis is not warranted where it is not "specifically sought by the claimant nor reasonably raised by the facts found by the Board") (citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007). See also Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (explaining that the Board had no obligation to analyze whether referral is warranted for extraschedular consideration if an extraschedular rating is not specifically sought by the claimant or reasonably raised by the facts found by the Board). ORDER An initial rating in excess of 70 percent for PTSD, is denied. (CONTINUED ON NEXT PAGE) REMAND In his VA Form 9, received in November 2012, the Veteran stated that he no longer works because of his PTSD symptoms. This raises the issue of entitlement to TDIU. This has not been addressed by the AOJ. Nor is there a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployabilty of record. Such form provides information relevant to entitlement to TDIU. On remand, the AOJ must request that the Veteran complete this form and then adjudicate the issue of entitlement to TDIU. As the question of TDIU is part and parcel to his claim for a higher rating, the claim is already perfected to the Board via the November VA Form 9. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran complete a formal TDIU application form (VA Form 21-8940). 2. After the above development has been completed, and any additional development deemed necessary is completed, adjudicate the issue of entitlement to a TDIU to determine whether TDIU is warranted for any period on appeal. If the benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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 or by the United States Court of Appeals for (CONTINUED ON NEXT PAGE) Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs