Citation Nr: 1817552	
Decision Date: 03/22/18    Archive Date: 04/03/18

DOCKET NO.  14-38 684A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUE

1. Entitlement to an initial rating in excess of 30 percent prior to November 13, 2014 for service-connected posttraumatic stress disorder (PTSD).

2. Entitlement to a total disability rating based on unemployability due to service-connected disability (TDIU) prior to November 13, 2014. 


REPRESENTATION

Appellant represented by:	Jacques P. DePlois


ATTORNEY FOR THE BOARD

P. Noh, Associate Counsel



INTRODUCTION

The Veteran had active military service from March 1969 to December 1970.

This matter came before the Board of Veterans' Appeals (Board) on appeal from July 2011 and February 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon.  

By way of background, the RO granted service connection for PTSD at 30 percent effective May 6, 2011 and 100 percent effective November 13, 2014.  The Veteran contends that he is entitled to a rating in excess of 30 percent prior to November 13, 2014.  Further, the Veteran claims that he is entitled to a total disability rating based on individual unemployability (TDIU) due to service-connected disability prior to November 13, 2014.  

In October 2017, the Veteran testified at a Travel Board hearing. The transcript of the hearing is of record.  


FINDINGS OF FACT

1. Prior to November 13, 2014, the Veteran's PTSD approximated occupational and social impairment with reduced reliability and productivity due to such symptoms as depressed mood, anxiety, impaired short-term memory, poor concentration, and somewhat poor hygiene; the psychiatric disability is not manifested by occupational and social impairment with deficiencies in most areas, or by total occupational and social impairment.

2. Prior to November 13, 2014, the Veteran did not meet the schedular criteria for a TDIU; the preponderance of the competent and credible evidence establishes that the Veteran's service-connected PTSD did not present such an exceptional disability picture that the available schedular evaluations were inadequate..


CONCLUSIONS OF LAW

1. The criteria for a rating of 50 percent for PTSD have been met prior to November 13, 2014. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, §§ 4.1, 4.2, 4.3, 4.7, 4.15, 4.130, Diagnostic Code 9400 (2017).

2. Prior to November 13, 2014, the criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.16 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and to Assist

Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, and 5107; see also 38 C.F.R. §§ 3.102 and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant.  38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  The United States Court of Appeals for Veteran Claims' (Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on a claim for VA benefits.  This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on a claim for VA benefits. 

In this case, VA satisfied its duty to notify the Veteran by way of July 2011 and January 2012 letters.  The VCAA letters notified the Veteran of what information and evidence is needed to substantiate his claim, what information and evidence must be submitted by the Veteran, what information and evidence will be obtained by VA, and the types of evidence necessary to establish a disability rating and effective date.  The Veteran received all essential notice, had a meaningful opportunity to participate in the development of his claim, and was not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Further, neither the Veteran, nor his representative, alleged prejudice with regard to notice.  Accordingly, VA satisfied its duty to notify. 

In regard to the duty to assist, the Board finds that VA adhered to its duty to assist by procuring all relevant records. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c).  The evidence of record contains in-service treatment records, outpatient treatment records, military personnel records, and records from Social Security Administration.  No other relevant records have been identified and are outstanding.  For the foregoing reasons, the Board concludes that VA's duty to assist in procuring all relevant records have been fulfilled with respect to the issues on appeal. 

The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. 38 C.F.R. § 3.159(c)(4). In this case, the Veteran was afforded VA medical examinations in July 2011 and November 2014.  Based on the examinations and the records, VA medical examiners were able to provide adequate opinions.  Accordingly, the Board determines that the VA's duty to provide a medical examination and to obtain a medical opinion has been satisfied. 

In conclusion, the Board finds that the duty to assist in this case is satisfied since VA has obtained all relevant identified records and provided the Veteran with VA medical examinations. 38 C.F.R. § 3.159(c)(4).  Further, the Board finds the available medical evidence is sufficient for adequate determinations; and there has been substantial compliance with all pertinent VA law and regulations, as to not cause any prejudice to the Veteran.

II. Increased Ratings

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1.

In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already 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). That being said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007). See also Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. 

If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3 (2017). A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126. The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner's assessment of the level of disability at the moment of the examination. Id. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. Id.

The Veteran's PTSD is using the General Rating Formula for Mental Disorders (General Formula). 38 C.F.R. § 4.130, Diagnostic Code 9400. Under the General Formula, a 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occasional tasks, due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss. Id.

A 50 percent rating is assigned 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, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Id. 

A 70 percent rating is assigned 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. Id.

A 100 percent rating is assigned 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 or minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives and own occupation or name. Id.

The "such symptoms as" language means "for example," and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The list of examples provides guidance as to the severity of symptoms contemplated for each rating. Id. However, this fact does not make the provided list of symptoms irrelevant. See Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The Veteran must still demonstrate either the particular symptoms associated with the rating sought, or other symptoms of similar severity, frequency, and duration. Id. at 117. 

Global Assessment of Functioning (GAF) scores are a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing American Psychiatric Association, Diagnostic and Statistical Manual for Mental Disorders 32 (4th Ed. 1994) [hereinafter DSM-IV]).

A review of the medical evidence of record shows that prior to November 13, 2014, the Veteran exhibited depressed mood, anxiety, impaired memory, and poor hygiene, consistent with a finding of a disability rating of 50 percent. A review of the records show that the Veteran's PTSD gradually worsened prior to November 13, 2014. For instance, the records show that in 2010, the Veteran had normal speech, linear thought process, fair concentration, intact memory, fair insight, but "somewhat" poor hygiene.  In 2011, the Veteran was noted to be cooperative and alert, but showed signs of worsening as his anxiety and nervousness resulted in poor concentration, poor hygiene, and impaired memory. Although the Veteran's condition slightly worsened, his social skills were not significantly impaired as the records noted that he was "highly personable" and has the ability to have close intimate relationships, as well as possessing the ability to help others.  In fact, the Veteran even reported that he looked forward to social events such as his daughter's 40th birthday.  In 2014, however, the Veteran reported increased episodes of agitation, frustration, anxiety, and depression.  He also appeared to have difficulties handling stress as he was frustrated and upset with his landlord and was not coping well.  The Veteran also reported that although his medications were helpful, he would sometimes get stressed over not being able to order his medication.  

In the July 2011 VA examination, the Veteran reported that he has close relationships to his four children. The Veteran stated that he enjoyed fishing and camping. At the examination, he was casually dressed and exhibited normal speech, cooperative attitude, and normal affect.  The Veteran affirmed that he is able to maintain minimum personal hygiene.  On the mental status examination, the Veteran's thought process and thought content were unremarkable, and he had average intelligence and unimpaired judgement and insight.  The Veteran was unable to perform serial 7's but was able to spell a word forward and backwards.  The Veteran also reported that he had morning fatigue as he has trouble sleeping. Further, the examiner noted that the Veteran had a "history of being very irritable and having difficulty maintaining employment."

The Board acknowledges the October 2017 medical opinion from an independent registered nurse that opined that the Veteran's PTSD should be rated at 50 percent as of May 6, 2011.  The Board affords this medical opinion some probative value, but not high probative value, as the registered nurse is not a licensed psychologist or psychiatrist.  The nurse examined a portion of the Veteran's file and considered his statements and determined that the Veteran has sleep disturbances, hypervigilance, irritability, fatigue, suicidal ideation, trouble dealing with the public, memory loss, impaired concentration, poor hygiene, and impaired ability to handle stress. A review of the records supports most of these findings, but the Board finds that although the Veteran reported that he had some suicidal ideation there was no intent or plan, and thus the medical reports noted that he was negative for suicidal ideation. As for impaired social skills, as stated above, the records show that in 2011, the Veteran had close relationship with his children and friends. The Veteran was noted to be "highly personable" and even went to social events such as birthday parties. That being said, the Board finds that the level of severity of the Veteran's symptomatology is still more consistent with a 50 percent rating prior to November 13, 2014, as he had somewhat poor hygiene, impaired memory, and lack of motivation.

Based on the evidence of record, the Board finds that prior to November 13, 2014, the Veteran's PTSD, at most, exhibited occupational and social impairment consistent with a 50 percent disability rating.  Specifically, the records predominantly note of normal speech, linear thought process, mildly impaired memory, and somewhat poor hygiene.  The Veteran's PTSD does not qualify for a higher rating in excess of 50 percent as there is no evidence of ongoing suicidal ideation, obsessional rituals, impaired speech, near-continuous panic or depression that affects the ability to function independently, spatial disorientation, or any other gross impairment in thought process or memory. 

The Board acknowledges the GAF scores throughout the record. The GAF scores in the record indicate moderate impairment in social, occupational or school functioning. The Board affords little weight to these GAF scores, as GAF scores are just a snapshot of the Veteran's condition and have little probative value to show the longitudinal condition of the Veteran's PTSD especially when the GAF scores are sparse, such as here. 

III. TDIU

It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." See 38 C.F.R. §§ 3.340 (a)(1), 4.15.

TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). 

If a sufficient rating is present, then it must be at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation as a result of that disease. See 38 C.F.R. § 4.16 (a). The central inquiry is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The issue is not whether the Veteran can find employment generally, but whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment cause by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose, 4 Vet. App. at 363.

Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his or her employment and educational history. 38 C.F.R. §4.16(b). The Board does not have the authority to assign an extraschedular total disability rating based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19.

In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2016); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

The Board itself cannot assign an extraschedular rating in the first instance. Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). However, the Board can adjudicate whether to refer a case to the Director for an extraschedular evaluation when the issue is either raised by the claimant or is reasonably raised by the evidence of record. Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). If, and only if, the Director determines that an extraschedular evaluation is not warranted, does the Board then have jurisdiction to decide the extraschedular claim on the merits. Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009); see also Floyd, 9 Vet. App. at 96-97 (stating that once the Board properly refers an extraschedular rating issue to the Director for review, an appellant may "continue [] to appeal the extraschedular rating aspect of this claim"); see also 38 U.S.C. §§ 511(a), 7104(a) (2012) ("All questions in a matter ... subject to decision by the Secretary shall be subject to one review on appeal to the ... Board").

At the October 2017 hearing, the Veteran attested that he stopped working as he was having difficulties dealing with people and remembering instructions and tasks. The Veteran alleged that his PTSD symptoms remained essentially the same from 2011 to 2014. 

Upon review of the record, the Board finds that the preponderance of the competent and credible evidence establishes that the Veteran's service-connected PTSD did not present such an exceptional disability picture that the available schedular evaluations are inadequate prior to November 13, 2014. As noted above, in 2010, the Veteran had normal speech, linear thought process, fair concentration, intact memory, fair insight, but "somewhat" poor hygiene.  In 2011, he was noted to have poor concentration, impaired memory, and poor hygiene. Despite these deficiencies, his social skills were not significantly impaired, as the records noted that he was "highly personable." In the July 2011 VA examination, the Veteran's thought process and thought content were unremarkable, and he had average intelligence and unimpaired judgement and insight. The examiner opined that the Veteran did not have total occupational and social impairment due to PTSD.  As such, the records show that the Veteran would not be precluded from all jobs. When considered in association with his educational and occupational background, the Board finds that Veteran's service-connected PTSD did not render him unable to secure or follow a substantially gainful occupation prior to November 13, 2014. 

The record reflects that the Veteran's service-connected PTSD is significant and precludes continued employment in his area of expertise as a logger. The statements of the Veteran at his hearing reflect that he would have difficulty working in the same industry. However, such findings do not preclude the Veteran from obtaining and maintaining substantially gainful employment in all lines of work. Importantly, the Board notes that the July 2011 VA examiner found that the Veteran had no more than "periods of lower functioning related to his PTSD," which caused an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Veteran himself reported at that time that he had "difficulty" maintaining employment due to PTSD; he did not state that his PTSD rendered him unemployable. The Board does not find that the evidence of record supports a finding that the Veteran was unable to obtain and maintain employment due to his PTSD prior to November 13, 2014.

In addition, the Board acknowledges the Veteran's statements regarding the functional impact of his service-connected PTSD. The Board empathizes with the Veteran and the difficult situation in which his service-connected PTSD has placed him. The Board has carefully considered the evidence of record, including the Veteran's statements and testimony. However, as discussed above, the Board does not find that his service-connected PTSD warrants referral for consideration of entitlement to TDIU on an extraschedular basis prior to November 13, 2014.

The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

As a final matter, the Board notes that as of November 13, 2014, the Veteran's service connected PTSD was rated as 100 percent disabling. The Veteran is not service connected for any other disability. The Board thus finds that the Veteran's claim for entitlement to a TDIU for the period on and after November 13, 2014 is now moot, as a separate TDIU predicated on PTSD which is schedularly rated at 100 percent would be impermissible pyramiding, and thus is not applicable. 38 U.S.C.A. §1114 (s), Bradley v. Peake, 22 Vet. App. 280 (2008).
ORDER

Entitlement to an initial rating of 50 percent prior to November 13, 2014 for service-connected posttraumatic stress disorder (PTSD) is granted.

Entitlement to a total disability rating based on unemployability due to service-connected disability (TDIU) prior to November 13, 2014 is denied. 




____________________________________________
CAROLINE B. FLEMING
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs