Citation Nr: 1337208 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 10-47 760 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to an increased disability evaluation for the Veteran's posttraumatic stress disorder (PTSD) with obsessive compulsive disorder (OCD), panic disorder without agoraphobia, and cognitive disorder, currently evaluated as 50 percent disabling. 2. Entitlement to a total rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Veteran is the appellant in the instant appeal. He had active service from October 1999 to October 2003. This matter came before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Portland, Oregon, Regional Office (RO) which denied an increased disability evaluation for the Veteran's PTSD with sleep impairment. In October 2010, the RO recharacterized the Veteran's service-connected psychiatric disability as PTSD with OCD, panic disorder without agoraphobia, and cognitive disorder; assigned a 50 percent evaluation for that disability; and effectuated the award as of February 20, 2009. In March 2013, the Veteran was afforded a hearing before the undersigned Veterans Law Judge sitting at the RO. A hearing transcript was prepared and incorporated into the record. The Board has reviewed the physical claims and vocational rehabilitation files and both the Veterans Benefits Management System (VBMS) and the "Virtual VA" files so as to insure a total review of the evidence. The issue of the Veteran's entitlement to a TDIU is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. FINDING OF FACT The Veteran's service-connected psychiatric disability has been shown to be productive of no more than occupational and social impairment with deficiencies in most areas including work, school, his relationship with his wife, and mood due to symptoms including Iraq-related recurrent nightmares and intrusive thoughts; anxiety; hypervigilance with paranoia; obsessive compulsive behavior including obsessions surrounding order and symmetry and counting rituals involving multiples of three which interfere with routine activities; panic attacks; difficulty in adapting to stressful circumstances associated with work and school; and Global Assessment of Functioning (GAF) scores of 50 to 60. CONCLUSION OF LAW The criteria for a 70 percent schedular evaluation, but no more, for PTSD with OCD, panic disorder without agoraphobia, and cognitive disorder have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.130, Diagnostic Codes 9404, 9411, 9412 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that a VCAA notice 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. The notice must be provided to a claimant before the initial unfavorable RO decision on a claim for VA benefits. VA issued a March 2009 VCAA notice to the Veteran which informed him of the evidence generally needed to support a claim for an increased evaluation for his psychiatric disabilities and the assignment of an effective date for such an award; what actions he needed to undertake; and how VA would assist him in developing his claim. The March 2009 VCAA notice was issued to the Veteran prior to the June 2009 rating decision from which the instant appeal arises. The issue was readjudicated in the October 2010 statement of the case (SOC) and the January 2013 supplemental statement of the case (SSOC). Therefore, there was no defect with respect to timing of the VCAA notice. Regarding the duty to assist in this case, VA has secured or attempted to secure all relevant documentation required by the VCAA. The Veteran's VA vocational rehabilitation files were associated with the record. He was afforded multiple VA psychiatric examinations. The adequate examination reports are of record. He was afforded a hearing before the undersigned Veterans Law Judge sitting at the RO. The hearing transcript is of record. All identified and available relevant documentation has been secured and all relevant facts have been developed. There remains no question as to the substantial completeness of the Veteran's claim. 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.159, 3.326(a). For these reasons, the Board finds that the VCAA duties to notify and to assist have been met. II. Increased Evaluation The Veteran asserts that the record supports assignment of a 70 percent evaluation for his service-connected psychiatric disability as his OCD symptomatology "dominates everything that he does at work and at school." The report of a May 2004 VA psychiatric examination states that the Veteran was diagnosed with PTSD. A GAF score of 61 was advanced. In May 2004, the RO established service connection for PTSD; assigned a 30 percent evaluation for that disability; and effectuated the award as of October 19, 2003. In October 2010, the RO recharacterized the Veteran's service-connected psychiatric disorder as PTSD with OCD, panic disorder without agoraphobia, and cognitive disorder; assigned a 50 percent evaluation for that disability; and effectuated the award as of February 20, 2009. Disability evaluations are determined by comparing the current service-connected symptomatology with the criteria set forth in the Schedule For Rating Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. A 50 percent evaluation is warranted for OCD, PTSD, and/or a panic disorder which is productive of occupational and social impairment occupational and social impairment with reduced reliability and productivity due to symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks occurring 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 or forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation requires occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 an inability to establish and maintain effective relationships. A 100 percent evaluation requires total occupational and social impairment due to symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, a persistent danger of hurting herself or others, an 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, Diagnostic Codes 9404, 9411, 9412. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Evaluations shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). An April 2008 VA neuropsychological evaluation conveys that the Veteran complained of anxiety; irritability; social isolation; poor sleep; and worsening short term memory with the need for instructions to be repeated to him. He was concerned that his memory impairment might be affecting his work. The Veteran was observed to be well-groomed. On mental status examination, the Veteran exhibited a "restricted range of affect" and linear and relevant thought content. Contemporaneous testing revealed findings of moderate depression and below average to average cognitive functioning. The Veteran was diagnosed with not otherwise specified cognitive disorder. A GAF score of 50 was advanced. In his February 2009 claim for an increased evaluation, the Veteran advanced that the record supported assignment of a 70 percent evaluation for his PTSD as the disability was manifested by obsessive rituals which affected "all aspects of his life including slowing him down at work." At a May 2009 VA psychological examination, the Veteran complained of intrusive thoughts and nightmares; irritability; being easily startled by a barking dog; having to frequently "check things and to touch things at work related to OCD which closes his work down;" episodic depression; twice a week panic attack-like symptoms; hypervigilance; and impaired sleep. He clarified that he had "to check things in threes, such as the door and touching things. The Veteran reported that he worked as a field turf installer and lived with his girlfriend. He was observed to be neatly dressed and oriented to person, place, time, and purpose. On mental status examination, the Veteran exhibited a "somewhat agitated" affect; an anxious mood; preoccupation with "his checking behavior and OCD symptoms;" logical and goal-directed speech; mildly disrupted attention and concentration; intact memory; and no signs of hallucinations, delusions, or suicidal or homicidal ideation. The Veteran was diagnosed with moderate chronic PTSD, OCD, panic disorder without agoraphobia, and a not otherwise specified cognitive disorder. A GAF score of 60 was advanced. In the Veteran's July 2009 notice of disagreement, the accredited representative advanced the Veteran "clearly exhibits symptoms consistent with a rating of 70%." In the Veteran's October 2010 Appeal to the Board (VA Form 9), the accredited representative reiterated that a 70 percent evaluation for the Veteran's psychiatric disability was warranted. He asserted that: the Veteran's OCD "is so severe that he feels that it dominates his life;" the Veteran believes that he "must complete rituals that include tapping or touching things in multiples of three or he feels that he will 'freak out;'" and he "develops significant anxiety if he can't complete these rituals." At a May 2011 VA psychological examination, the Veteran complained of anxiety and hypervigilance when outside of his home; a "high degree" of irritability; and a need for everything "to be clean and in order." He reported that he was a full-time student at an art school and lived with his fiancée. The Veteran was observed to be anxious; to tap his hands and feet; and to speak rapidly throughout the examination. The Veteran was diagnosed with chronic PTSD, OCD, panic disorder without agoraphobia, and not otherwise specified cognitive disorder. The examiner determined that the Veteran's PTSD symptoms included Iraq-related intrusive thoughts and memories with associated emotional distress; irritability; "middle insomnia;" difficulties with memory and concentration; hypervigilance; and an exaggerated startle response. His OCD symptoms included compulsive behaviors such as tapping and touching things in multiples of three including checking doors and locks; brushing his teeth and cleaning his toothbrush; and tapping his leg. The Veteran was also found experience panic attacks. A GAF score of 55 was advanced. The examiner clarified that the Veteran's "working is significantly impacted by his psychological distress." A March 2012 VA Counseling Record (Supplemental Sheet) (VA Form 28-01902a) states that: the Veteran's "PTSD symptoms are severe" and " not currently being treated;" he has severe anxiety and impaired concentration which impaired his ability to plan and remember daily activities; and his psychiatric and other service-connected disorders result in "a severe employment handicap. A May 2012 VA psychiatric evaluation notes that the Veteran complained of occasional nightmares; anxiety; irritability; depression; hypervigilance with associated intermittent feelings of paranoia; emotional numbing/avoidance; and worsening obsessive compulsive behavior including obsessions surrounding order and symmetry and counting rituals involving multiples of 3. The Veteran was observed to be well groomed. On mental status examination, the Veteran exhibited an anxious mood; a full affect; intact attention and concentration; linear thought processes; and no evidence of delusions or suicidal or homicidal ideation. A GAF score of 60 was advanced. At the March 2013 hearing before the undersigned Veterans Law Judge sitting at the RO, the Veteran testified that he does all of his daily activities in threes including washing his toothbrush; tapping items; and walking his dogs. He stated that he had significant difficulty with his current art studies and prior employment due to his OCD symptoms. The Veteran clarified that he had been afforded accommodations by his school in light of his psychiatric disabilities. The Board finds that the weight of the lay and medical evidence demonstrates that the Veteran's service-connected psychiatric disabilities have been shown to be productive of no more than occupational and social impairment with deficiencies in most areas including work, school, his relationship with his wife, and mood due to symptoms including Iraq-related recurrent nightmares and intrusive thoughts; anxiety; hypervigilance with paranoia; obsessive compulsive behavior including obsessions surrounding order and symmetry and counting rituals involving multiples of three which interfere with routine activities; panic attacks; difficulty in adapting to stressful circumstances associated with work and school; and GAF scores of 50 to 60. In assessing the evidence of record, it is important to note that the GAF score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." A GAF score of 41 to 50 is defined as "serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." A GAF score of 51 to 60 is defined as "moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers)." DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 32 (4th ed. 1994). Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); Richard v. Brown, 9 Vet. App. 266, 267 (1996). While his service-connected psychiatric disabilities are clearly productive of significant occupational impairment, the Veteran has reported being able to maintain his full time studies at an art school and good relationships with his wife, albeit with significant accommodations by the school's faculty and staff and the patience of his wife during the relevant time period. The Board finds that the Veteran's service-connected psychiatric symptomatology has been shown to be productive of significant occupational and social impairment most closely approximating the criteria for a 70 percent evaluation. The record does not establish and the Veteran has not advanced that his psychiatric disability picture encompasses symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, a persistent danger of hurting herself or others, an 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 resulting in total occupational and social impairment. Given these findings, the Board concludes that the Veteran's service-connected psychiatric disabilities warrant assignment of a 70 percent evaluation and no higher during the relevant period of time. 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Codes 9404, 9411, 9412; Hart v. Mansfield, 21 Vet. App. 505 (2007). III. Extraschedular Consideration The Board has also evaluated whether the Veteran's claim should be referred for consideration of an extra-schedular evaluation under 38 C.F.R. § 3.321(b)(1). The Court has clarified that there is a three-step inquiry for determining whether a veteran is entitled to an extra-schedular rating. Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. Second, if the schedular rating does not contemplate the appellant's level of disability and symptomatology and is found inadequate, the Board must determine whether the appellant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a appellant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the appellant's disability picture requires the assignment of an extraschedular rating. Thun v. Peake, 22 Vet App 111 (2008). With respect to the first prong of Thun, the evidence in this instant appeal does not establish such an exceptional disability picture as to render the schedular rating is inadequate. A comparison between the level of severity and symptomatology of the Veteran's psychiatric disabilities with the established criteria found in 38 C.F.R. § 4.130, Diagnostic Codes 9404, 9411, 9412 reflects that the diagnostic criteria reasonably describes the Veteran's disability level and symptomatology. The diagnostic criteria convey that compensable ratings will be assigned for PTSD, OCD, and panic disorder which are manifested by various levels of occupational and social impairment. The Veteran's disability picture has been shown to encompass significant occupational and social impairment and symptoms which falls squarely within the diagnostic criteria for a 70 percent evaluation. The evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, the rating specialist is to consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). See 38 C.F.R. § 4.126. If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (1992) The Veteran's service-connected psychiatric disability has been shown to be productive of no more than occupational and social impairment with deficiencies in most areas including work, school, his relationship with his wife, and mood due to symptoms including Iraq-related recurrent nightmares and intrusive thoughts; anxiety; hypervigilance with paranoia; obsessive compulsive behavior including obsessions surrounding order and symmetry and counting rituals involving multiples of three which interfere with routine activities; panic attacks; difficulty in adapting to stressful circumstances associated with work and school; and GAF scores of 50 to 60. All the impairment and symptoms are either explicitly part of the schedular rating criteria or like or similar to examples or symptoms in the schedular rating criteria. In addition, the GAF score, which is incorporated into the schedular rating criteria as part of the DSM-IV, assesses the degree of overall occupational and social impairment. For these reasons, the Veteran's psychiatric disabilities have not been shown to be productive of an exceptional disability picture; therefore, the Board determines that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not merited. ORDER A 70 percent evaluation is granted for PTSD with OCD, panic disorder without agoraphobia, and cognitive disorder subject to the law and regulations governing the award of monetary benefits. REMAND VA clinical and vocational rehabilitation records reflect that the Veteran is currently unemployed and in a VA vocational rehabilitation program as the result of his service-connected disabilities. The Court has directed that when entitlement to a TDIU is reasonably raised during the adjudicatory process of evaluating the underlying disability, it is part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). The issue of a TDIU has not been adjudicated. Accordingly, the case is REMANDED for the following action: 1. Review the record and ensure that all notification and development action required by the VCAA as to the issue of the Veteran's entitlement to a TDIU is completed. 2. Adjudicate the issue of the Veteran's entitlement to a TDIU. The Veteran should be informed in writing of the resulting decision and his associated appellate rights. The Veteran has the right to submit additional evidence and argument on the 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs