Citation Nr: 1826698 Decision Date: 05/01/18 Archive Date: 05/14/18 DOCKET NO. 14-40 464 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). ATTORNEY FOR THE BOARD P. Daugherty, Associate Counsel INTRODUCTION The Veteran served in the United States Army with active duty from February 1965 to January 1967, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2013 and September 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The February 2013 rating decision granted the Veteran's claim for service connection for PTSD and assigned an initial rating of 50 percent with an effective date of January 2010, and the September 2014 rating decision denied the Veteran's claim for entitlement to a TDIU. The issue of entitlement to a TDIU was certified to the Board in December 2015, and therefore, the Board finds that it also has current jurisdiction over this issue. FINDINGS OF FACT 1. The Veteran's PTSD is manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as anxiety, chronic sleep impairment, mild memory loss, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. 2. While the Veteran does meet the schedular requirements for a TDIU with a combined disability rating of 90 percent, the preponderance of the evidence is against a finding that the Veteran's service-connected disabilities render him unable to obtain or maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 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). Under 38 U.S.C. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits. The appellant must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain. Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations. 38 U.S.C.A. § 5103A. In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. 38 U.S.C. § 5103(a). Here, letters sent to the Veteran in January 2010, February 2012, and May 2014, along with additional developmental letters, satisfied the VCAA notice requirement for his increased rating claim because they provided the Veteran with notice that fulfills the provisions of 38 U.S.C. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess. The Board also notes that the Veteran is challenging the initial evaluation assigned following the grant of service connection for his PTSD. In Dingess, the Court also held that in cases where service connection has been granted and an initial disability evaluation has been assigned, the service connection claim has been more than substantiated, it has been proven, thereby rendering § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 490-91; see also Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, regardless of whether the notice that the Veteran was provided before service connection was granted was legally sufficient, VA's duty to notify as to this issue has been satisfied. Furthermore, the Veteran has had the opportunity to allege that notice in this case was less than adequate and he has not done so. See Goodwin v. Peake, 22 Vet. App. 128 (2008). VA also has a duty to assist the Veteran in the development of his claims. This duty includes assisting the Veteran in the procurement of pertinent treatment records, and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board finds that all relevant facts have been properly developed and that all evidence necessary for equitable resolution of the claims has been obtained. The Veteran's service treatment records, and post-service treatment records have been obtained. He has not indicated that there are any additional records that VA should seek to obtain on his behalf. The Veteran was most recently provided an examination in these matters in January 2013. A review of the examination reports shows that they contain sufficient clinical findings and discussion of the history and features of the disabilities to constitute an adequate medical examination. Barr v. Nicholson, 21 Vet. App. 303 (2007). As the Veteran has not identified any additional evidence pertinent to his claims, and as there are no additional records to obtain, the Board concludes that there is no further action to be undertaken to comply with the provisions of 38 U.S.C. § 5103 (a), or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced by the Board's adjudication of his claims. II. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. See 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "staged" ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board observes that the words "slight," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2017). It should also be noted that use of descriptive terminology such as "mild" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in the process of arriving at a decision regarding an increased rating. 38 U.S.C. § 7104 (a) (2012); 38 C.F.R. §§ 4.2, 4.6. Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C. § 7104 (a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran and his representative have asserted that his PTSD warrants an increased rating, which is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under 38 C.F.R. § 4.130, Diagnostic Code 9411, a 30 percent rating is warranted for when there is occupational and social impairment with an 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, mild memory loss (such as forgetting names, directions, recent events). A 50 percent evaluation is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; the Veteran's difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability evaluation is warranted when 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 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 work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent disability evaluation is warranted when there is 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 of the Veteran to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; memory loss for names of close relatives, own occupation, or own name. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. The use of such terminology permits consideration of items listed and other symptoms and contemplates the effect of those symptoms on the Veteran's social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board acknowledges that symptoms recited in the criteria in the rating schedule for evaluating mental disorders 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." Id, at 442. In adjudicating a claim for a higher rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id, at 443. In this regard, the Board acknowledges that effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM-IV, AMERICAN PSYCHIATRIC ASSOCIATION: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th Edition (1994). The amendments replace those references with references to the recently updated DSM-5, and examinations conducted pursuant to the DSM-5 do not include GAF scores. As the Veteran's increased rating claim was certified to the Board before August 4, 2014, the DSM-IV and DSM-V criteria will be utilized in the analysis set forth below. With the above criteria in mind, the Board notes that the Veteran was first afforded a VA examination in connection with his PTSD claim in February 2010, which confirmed his diagnosis. During this examination, the Veteran stated that some days he was either angry or sad, but that most of the time, he was in a good mood. The Veteran also noted that he had a good relationship with his family and had four or five close friends. The symptoms endorsed by the Veteran included trouble sleeping, nightmares, and some irritability and hypervigilance. However, the examination report indicates that the Veteran did not reportedly suffer from panic attacks, homicidal or suicidal ideations, or obsessive/ritualistic behaviors, and the Veteran's memory, insight, and judgment were all deemed to be normal. See, February 2010 VA examination. The Veteran's next VA examination took place in January 2013. At this examination, the Veteran's PTSD was summarized as resulting in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of the inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. It was again noted that the Veteran maintained a good relationship with his family and had two to three close friends. Overall, the Veteran reported that he was irritable and uncomfortable going out in public. The Veteran endorsed additional symptoms such as chronic sleep impairment, anxiety, mild memory loss, difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances. Symptoms such as panic attacks, delusions, suicidal or homicidal ideations, impaired impulse control, neglect of personal appearance and hygiene, and obsessional rituals which interfere with routine activities were not reported. See, January 2013 VA examination. The Board also notes that the Veteran received consistent private treatment for his PTSD beginning in July 2009. A review of those records indicate that the Veteran endorsed similar symptoms as noted on his VA examinations, with the main symptoms being chronic sleep impairment and irritability. During the Veteran's treatment, spanning over several years, symptoms such as suicidal and homicidal ideation, delusional thinking, hallucinations and panic attacks were never endorsed. See, private treatment records from Dr. H.J. The Board notes that the Veteran's VA examinations and private treatment records are consistent with each other and do not contain conflicting medical opinions. Accordingly, the Board has assigned the medical records with respect to the Veteran's PTSD significant probative value. As stated previously, in order to be granted a higher disability evaluation of 70 percent, occupational and social impairment with deficiencies in most areas must be shown. A 100 percent rating is warranted when there is total occupational and social impairment. The Board finds that the Veteran is not entitled to a rating in excess of 50 percent because he does not endorse the symptoms that are required for a 70 or 100 percent rating. The symptoms that the Veteran exhibited, such as chronic sleep impairment, mild memory loss, irritability, and difficulty in establishing and maintaining effective work and social relationships are symptoms contemplated by the Veteran's current 50 percent rating. More specifically, the Veteran was consistently noted during his VA examinations and private treatment sessions to be well-groomed, his speech was found to be coherent, logical, and clear, and his thought process, attention, concentration and memory were all found to be grossly intact. The Veteran also denied any suicidal or homicidal ideations during this time and his judgment was consistently noted to be fair. There was also no indication that the Veteran displayed any symptoms associated with a 100 percent rating, such as gross impairment in thought processes or communication, persistent delusions or hallucinations, or grossly inappropriate behavior. Overall, the Board finds that the Veteran's PTSD symptoms are manifested by occupational and social impairment with symptoms such as: chronic sleep impairment, irritability, hypervigilance, and difficulty maintaining effective work and social relationship. Accordingly, the Board finds that the preponderance of the evidence of record indicates that the Veteran's overall disability more closely approximates the criteria for his current rating and is therefore against a rating in excess of 50 percent. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.130, Diagnostic Code 9411. III. TDIU Total disability ratings for compensation may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). However, if the percentage ratings of 38 C.F.R. § 4.16(a) are not met but the Veteran is unable to secure and follow a substantially gainful occupation by reason of service connected disability or disabilities, an "extraschedular TDIU" may be assigned and the case shall be submitted for extraschedular consideration in accordance with 38 C.F.R. § 3.321 (2016). 38 C.F.R. § 4.16(b). In determining entitlement to a TDIU, 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 (1993). The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by his employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In making its determination, VA considers such factors as the extent of the service-connected disability, and employment and educational background, but not age. See 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. The Veteran asserts that he is entitled to a TDIU because he is unable to secure or follow substantially gainful employment as a result of his service-connected disabilities, and more specifically, his PTSD. See, March 2013 and June 2014 VA Form 21-8940 Application for Increased Compensation Based on Unemployability. The Veteran is service connected for the following disabilities: PTSD at 50 percent, Diabetes Mellitus at 20 percent, right upper extremity neuropathy at 20 percent, left upper extremity neuropathy at 20 percent, left lower extremity neuropathy at 10 percent, right lower extremity neuropathy at 10 percent, degenerative joint disease of the left knee at 10 percent, and degenerative joint disease of the right knee at 10 percent. The Veteran has at least one disability rated at 40 percent and overall, the Veteran's combined rating is 90 percent. Thus, he meets the schedular threshold requirements for TDIU. However, with respect to whether the Veteran is entitled to a TDIU pursuant to 38 C.F.R. § 4.16(a), the Board notes that the on VA Form 21-4192, it was noted that the Veteran's reason for leaving his part-time work as a substitute teacher was due to his retirement. See, May 2014 VA Form 21-4192. Additionally, during the Veteran's February 2010 VA examination, he stated that he retired after thirty years from his position as an equipment operator because he was eligible for retirement. In addition, the available medical evidence does not reflect that the Veteran's service-connected disabilities, to include his PTSD, seriously impact his ability to obtain or maintain a gainful occupation. Accordingly, the Board finds that the Veteran is not working at the present time due to the fact that he retired, and not due to the functional impact of his service-connected disabilities. While the Board does acknowledge that the Veteran does suffer from some functional loss, the Board finds that the overall impairment does not preclude the Veteran from securing and following substantially gainful employment as a result of his service-connected disabilities. Therefore, the Board finds that the preponderance of the evidence demonstrates that the Veteran is not entitled to a TDIU under 38 C.F.R. § 4.16(a). ORDER Entitlement to an initial rating in excess of 50 percent for PTSD is denied. Entitlement to a TDIU is denied. ____________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs