Citation Nr: 1827397 Decision Date: 05/04/18 Archive Date: 05/14/18 DOCKET NO. 14-29 197A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE 1. Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to January 4, 2012, and in excess of 70 percent thereafter, for the purpose of accrued benefits. 2. Entitlement to a total disability rating due to individual unemployability based on service-connected disabilities prior to May 17, 2012, for the purpose of accrued benefits. REPRESENTATION Appellant represented by: Christopher Loiacano, Agent ATTORNEY FOR THE BOARD M. M. Lunger, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1968 to August 1969. The Veteran died in January 2015. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2012 and June 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In August 2014, the Veteran filed a timely appeal to a June 2014 rating decision which denied entitlement to TDIU prior to May 17, 2012. To date, the RO has not acknowledged the Veteran's August 2014 notice of disagreement. The failure to issue a statement of the case in such a circumstance renders this claim procedurally defective and necessitates a remand. See 38 C.F.R. §§ 19.9, 20.200, 20.201 (2017); Manlincon v. West, 12 Vet. App. 238 (1999). Therefore, the issue has been added to the appeal pursuant to Manlincon and is remanded for the issuance of a statement of the case. The issue of an earlier effective date for the award of TDIU, for accrued benefits purposes, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). The appellant and her representative will be notified if further action is required on her part. FINDINGS OF FACT 1. Prior to January 4, 2012, the Veteran's PTSD was manifested by symptoms which most closely approximate occupational and social impairment with reduced reliability and productivity. 2. From January 4, 2012, the Veteran's PTSD was manifested by symptoms which most closely approximate occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for an initial rating in excess of 50 percent for PTSD prior to January 4, 2012, and to an evaluation in excess of 70 percent thereafter, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.3, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The duty to notify has been met. Neither the Veteran, nor her representative, has alleged prejudice with regard to notice. The Federal Court of Appeals has held that "absent extraordinary circumstances... it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In light of the foregoing, nothing more is required. The duty to assist has been met. All identified VA and private medical evidence has been associated with the claims file. The Veteran has been afforded appropriate VA examinations. The examiner who conducted the most recent examination had access to and reviewed the claims file. II. Increased Evaluations for PTSD Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are interpreting reports of examination in light of the whole recorded history; reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where an increase in the level of a service connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1999). The Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). That is to say, the Board must consider whether there have been times when her service-connected disability has been more severe than at others, and rate it accordingly. 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. The Veteran's service-connected PTSD was assigned a 50 percent disability evaluation prior to January 4, 2012, and a 70 percent disability evaluation thereafter under 38 C.F.R. § 4.130, Diagnostic Code 9411. The appellant contends that a higher disability evaluation is warranted for the Veteran's service-connected PTSD. When evaluating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant's capacity for adjustment during periods of remission. VA shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Pursuant to 38 C.F.R. § 4.130, psychiatric impairment is rated under the General Rating Formula for Mental Disorders ("General Rating Formula"). A 50 percent evaluation is warranted where 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation 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 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent rating 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 to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; memory loss for names of close relatives, own occupation or name. When determining the appropriate disability evaluation to assign, the Board's primary consideration is the Veteran's symptoms, but it must also make findings as to how those symptoms impact the Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 426, 442 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, all ratings in the General Rating Formula are also associated with objectively observable symptomatology, and the plain language of the regulation makes it clear that a Veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency and duration. Vazquez-Claudio, 713 F.3d at 118. Service connection for PTSD was established effective May 22, 2009 and assigned a 50 percent evaluation pursuant to the rating criteria for Diagnostic Code 9411. A 70 percent disability evaluation was assigned effective January 4, 2012. Having carefully considered all the evidence of record, the Board finds that based on the overall disability, an initial rating in excess of 50 percent prior to January 4, 2012, and a rating in excess of 70 percent thereafter, for accrued benefits purposes, are not warranted. A VA psychiatric outpatient treatment record dated December 2009 indicates the Veteran was diagnosed with PTSD. The Veteran reported having intrusive thoughts and isolating himself. He denied suicidal and/or homicidal ideations. The clinician noted that the Veteran exhibited hypervigilance, intrusive thoughts and interrupted sleep. The Veteran denied cognitive or memory impairments. The clinician noted that the Veteran's judgment and insight were adequate; his mood was pleasant, and his speech was productive, coherent and relevant. The Veteran submitted private medical records from Southwest Alabama Behavioral Health Care Systems reflecting treatment for PTSD for the period from October 2011 through June 2013. A treatment record dated October 2011 indicates the Veteran reported "hearing voices" for approximately twenty years. The Veteran stated that the voices were those of his friends from Vietnam. He also reported experiencing hallucinations, which were mostly unintelligible. The Veteran stated that he had nightmares and experienced temper outbursts approximately 4 to 5 times per week. The clinician noted that the Veteran was adequately groomed, coherent and was not currently experiencing hallucinations nor was he suicidal. The Veteran submitted a psychiatric/psychological impairment questionnaire completed by Dr. W., a physician at Southwest Alabama Behavioral Health Care Systems, in June 2012, in support of his claim for PTSD. Dr. W. noted that the Veteran had a diagnosis of PTSD. He characterized the Veteran's prognosis as guarded, stating that the Veteran continued to have significant psychotic episodes despite vigorous psychiatric treatment. Dr. W. reported that the Veteran experienced deficiencies in family relations, persistent irrational fears, persistent delusions or hallucinations, deficiencies in work or school, depression affecting the ability to function independently, appropriately, and effectively, deficiencies in mood, intrusive recollections of a traumatic experience, unprovoked hostility and irritability, inability to establish and maintain effective relationships and suicidal ideation with one previous suicide attempt. VA outpatient treatment records from January 2012 to April 2012 include a VA initial PTSD examination. The examination was conducted in January 2012. The VA examiner summarized the level of occupational and social impairment the Veteran experienced due to his mental diagnoses as occupational and social impairment with deficiencies in most areas. The examiner noted that although the Veteran was also dependent on alcohol, the severity of his symptoms was attributable to PTSD. The examiner noted that the Veteran experienced persistent symptoms of increased arousal including difficulty falling or staying asleep, irritability or outbursts of anger, difficulty concentrating, hypervigilance and exaggerated startle response. The examiner also noted additional symptoms of anxiety, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining social relationships, and difficulty in adapting to stressful circumstances. The Veteran retired from his job as a lineman in 2001 due to an injury. The examiner determined that the Veteran's symptoms caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. A VA treatment note dated February 2012 indicates the Veteran was alert and oriented, exhibited clear and coherent speech and maintained fair eye contact. He denied suicidal and homicidal thoughts. The examiner noted the Veteran to be calm and cooperative and that he interacted and participated in his treatment appropriately. The Veteran reported he had experienced side effects with Abilify, so his private physician had changed his medication to one which relieved his restlessness. The Veteran reported that he was still hearing voices talking to him, but that he did not hear the voices as much when he was taking Abilify. Based on the evidence outlined above, the Board finds that the Veteran's symptomatology prior to January 4, 2012, more closely approximate the criteria for the currently assigned 50 percent disability rating under Diagnostic Code 9411. 38 C.F.R. § 4.130. In accordance with Mauerhan and Vazquez-Claudio, the Board recognizes that the Veteran's PTSD produced a range of symptoms, to include intrusive thoughts, hypervigilance, interrupted sleep and self-isolation. However, prior to January 4, 2012, there was no evidence of occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment thinking or mood due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine 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 worklike setting); inability to establish and maintain effective relationships to warrant a 70 percent rating. 38 C.F.R. § 4.119; Fenderson, supra; Vazquez-Claudio, 713 F.3d at 117. The RO granted an increased 70 percent rating effective from January 4, 2012, the date of the VA examination, finding that the Veteran's PTSD was now productive of 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, and self-care and conversation due to such symptoms as: intrusive thoughts; distressing dreams; avoidance of stimuli associated with traumatic events; marked diminished interest or participation in significant activities; feelings of detachment or estrangement from others; irritable behavior and anger outbursts; hypervigilance; sleep disturbance; anxiety; disturbance of motivation and mood; difficulty establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances; and suicidal ideation. While the Veteran has endorsed problems with hallucinations, there is no indication in the medical records that this symptom was severe enough to cause total occupational or social impairment at any time during the appeal period. These symptoms have not been present throughout the appeal period, i.e. prior to January 4, 2012. As discussed in detail above, the Veteran repeatedly denied being a danger to self or others, and thoughts of violence and/or suicide. His memory was intact; he consistently denied cognitive or memory impairments; and his judgment and insight were consistently been reported as adequate. The Veteran did not endorse symptoms of panic attacks; and consistently exhibited good hygiene, as well as productive, coherent and relevant speech. At the time of the January 2012 examination he had been married once and divorced. He had worked as a lineman until 2001 when he was forced to retire due to an injury. Though it appears there was a decline as of the examination on January 4, 2012, the evidence does not suggest that the Veteran suffered 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; and memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130. Based on the evidence outlined above, the Board finds that the totality of this evidence shows that the Veteran's symptomatology since January 4, 2012, more nearly approximated the criteria for the currently assigned 70 percent disability rating under Diagnostic Code 9411. 38 C.F.R. § 4.119; Fenderson, supra; Vazquez-Claudio, 713 F.3d at 117. ORDER Entitlement to an initial rating in excess of 50 percent, for service-connected PTSD, prior to January 4, 2012, and in excess of 70 percent thereafter, for accrued benefits purposes, is denied. REMAND In June 2014, the RO issued a rating decision which awarded the Veteran TDIU effective May 17, 2012. In August 2014, the Veteran submitted a notice of disagreement regarding the "denial of evaluation greater than 50% for PTSD prior to January 2, 2012; and denial of entitlement to Individual Unemployability prior to May 17, 2012." The RO has not issued a statement of the case with respect to the TDIU claim. Therefore, the Board must remand the issue of an earlier effective date for TDIU, for accrued benefits purposes, to the RO for the issuance of a statement of the case. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Accordingly, the case is REMANDED for the following action: Furnish the appellant and her representative with a statement of the case on the issue of entitlement to an effective date prior to May 17, 2012, for the award of TDIU. Notify the appellant and her representative that this claim will not be returned to the Board unless the appellant perfects an appeal by filing a timely substantive appeal. The appellant and her representative have the right to submit additional evidence and argument on the matter or matters 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ G. A. WASIK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs