judge_norm: KATHLEEN K GALLAGHER

benefit: tdiu

text:
Citation Nr: 1014000
Decision Date: 04/13/10    Archive Date: 04/29/10

DOCKET NO.  04-12 245A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma

THE ISSUES

1.  Entitlement to a disability rating in excess of 50
percent for posttraumatic stress disorder (PTSD) prior to May
16, 2006, exclusive of the time period of the temporary total
hospitalization rating.

2.  Entitlement to a total disability evaluation based on
individual unemployability (TDIU).

REPRESENTATION

Appellant represented by:	Robert V. Chisholm, Esq.

WITNESSES AT HEARING ON APPEAL

Appellant and wife.

ATTORNEY FOR THE BOARD

J.M. Seay, Associate Counsel

INTRODUCTION

The Veteran had active service from August 1967 to August
1970.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a January 2003 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Muskogee, Oklahoma, which assigned an increased disability
rating of 50 percent for the service-connected PTSD,
effective November 6, 2002.  In a May 2004 rating decision,
the RO assigned a temporary total rating for the Veteran's
PTSD due to hospitalization, effective February 23, 2004,
with the 50 percent disability rating being resumed effective
May 1, 2004.  Thereafter, a January 2007 rating decision and
concurrent supplemental statement of the case assigned a 100
percent rating for the PTSD, effective May 16, 2006.
Therefore, the issue on appeal is entitlement to a disability
rating in excess of 50 percent for the Veteran's service-
connected PTSD prior to May 16, 2006, exclusive of the time
period of the temporary total hospitalization rating.

The record shows that the Veteran's claim was previously
denied by a September 2007 Board decision.  The Veteran
appealed that decision to the United States Court of Appeals
for Veterans Claims (Court).  By an August 2008 order, the
Court, pursuant to a Joint Motion, vacated the Board's
September 2007 decision and remanded the case for compliance
with the instructions of the Joint Motion.  The Board
remanded the case in September 2009 to afford the Veteran a
video conference hearing.  The Board finds that the remand
directives have been completed, and, thus, a new remand is
not required to comply with the holding of Stegall v. West,
11 Vet. App. 268 (1998).

On Feruary 12, 2010, the Veteran presented testimony at a
personal hearing conducted by the use of video conference
equipment at the Muskogee RO before Kathleen K. Gallagher, a
Veterans Law Judge who was designated by the Chairman to
conduct the hearing pursuant to 38 U.S.C.A. � 7107(c) (West
2002) and who is rendering the determination in this case.  A
transcript of this personal hearing is in the Veteran's
claims file.  During the hearing, the Veteran submitted
additional evidence that had not been reviewed by the RO with
a waiver of the right to have this additional evidence
reviewed by the agency of original jurisdiction in accord
with 38 C.F.R. � 20.1304.

As will be discussed in greater detail below, the evidence of
record shows that the Veteran has claimed unemployability due
to his service-connected PTSD and, therefore, the issue of
entitlement to a TDIU has been reasonably raised by the
record.  This issue is considered part and parcel to the
Veteran's claim for an increased rating for PTSD.  See Rice
v. Shinseki, 22 Vet. App. 447 (2009).

FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable
disposition of the Veteran's appeal has been obtained.

2.  Prior to May 16, 2006, the Veteran's PTSD was manifested
by occupational and social impairment, with deficiencies in
most areas, but was not manifested by total occupational and
social impairment.

3.  The Veteran has been shown to be unable to work due to
his service-connected PTSD.

CONCLUSIONS OF LAW

1.  Prior to May 16, 2006, the criteria for a 70 percent
disability rating for PTSD, but no higher, were met.  38
U.S.C.A. � 1155 (West 2002 & Supp. 2009); 38 C.F.R. �� 3.102,
3.321, 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411
(2009).

2.  The criteria for entitlement to a TDIU have been met.  38
U.S.C.A. � 1110, 1155 (West 2002 & Supp. 2009); 38 C.F.R. ��
3.340, 3.341, 4.16 (2009).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's 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.A. �� 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; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant's possession
that pertains to the claim.  38 U.S.C.A. �� 5103(a); 38
C.F.R. � 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App.
112, 120 (2004).

The Board notes that 38 C.F.R. � 3.159 was revised, effective
May 30, 2008.  See 73 Fed. Reg. 23353-56 (Apr. 30, 2008).
The amendments apply to applications for benefits pending
before VA on, or filed after, May 30, 2008.  The amendments,
among other things, removed the notice provision requiring VA
to request the Veteran to provide any evidence in the
Veteran's possession that pertains to the claim.  38 C.F.R. �
3.159(b)(1).

Initially, with respect to the claim of entitlement to a
TDIU, the claim is granted herein, and therefore there is no
need to review whether VA's statutory duties to notify and
assist are fully satisfied as any error would be non-
prejudicial.  See       38 U.S.C.A. �� 5100, 5102, 5103,
5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009); see also 38
C.F.R. �� 3.102, 3.156(a), 3.159, 3.326 (2009).

With regard to the Veteran's claim for an increased
disability rating, the law requires VA to notify the claimant
that, to substantiate a claim, the claimant must provide, or
ask VA to obtain, medical or lay evidence demonstrating a
worsening or increase in severity of the disability.
38 U.S.C.A. � 5103(a); 38 C.F.R. � 3.159(b); Vazquez-Flores
v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub
nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir.
2009).  The claimant must be notified that, should an
increase in disability be found, a disability rating will be
determined by applying relevant Diagnostic Codes, which
typically provide for a range in severity of a particular
disability from noncompensable to as much as 100 percent
(depending on the disability involved), based on the nature
of the symptoms of the condition for which disability
compensation is being sought, their severity and duration.
Finally, the notice must provide examples of the types of
medical and lay evidence that the Veteran may submit (or ask
the VA to obtain) that are relevant to establishing her or
his entitlement to increased compensation.  However, the
notice required by section 5103(a) need not be specific to
the particular Veteran's circumstances; that is, VA need not
notify a Veteran of alternative diagnostic codes that may be
considered or notify of any need for evidence demonstrating
the effect that the worsening of the disability has on the
particular Veteran's daily life.  Vazquez-Flores v. Shinseki,
580 F.3d 1270 (Fed. Cir. 2009).  The notice must be provided
prior to an initial unfavorable decision by the agency of
original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d
1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App.
112 (2004).

In this case, the Veteran submitted his claim for an
increased rating in November 2002.  He was sent a letter in
November 2002, prior to the initial decision on the claim in
January 2003.  Therefore, the timing requirement of the
notice as set forth in Pelegrini has been met in this case.
The letter notified him that, to substantiate a claim for
increased compensation, the claimant must provide, or ask VA
to obtain, medical or lay evidence demonstrating a worsening
or increase in severity of the disability.  38 U.S.C.A.
� 5103(a); 38 C.F.R. � 3.159(b); Vazquez-Flores v. Peake, 22
Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-
Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  The
Board notes that the Veteran was not provided the specific
examples of the types of medical and lay evidence that the
Veteran may submit (or ask VA to obtain) that are relevant to
establishing his entitlement to increased compensation.
However, he was informed in the letter to provide any
additional evidence that he would like VA to consider
including medical records.  In response, the Veteran actively
participated in his appeal by submitting his statements,
letters from his therapist, Social Security Administration
(SSA) records, and VA treatment records were obtained.  Thus,
the Veteran has demonstrated an understanding of what was
necessary to substantiate his claim and, therefore, any
notice defect has been cured by the Veteran's actual
knowledge.  See Sanders v. Nicholson, 487 F.3d. 881 (Fed.
Cir. 2007; see also Simmons v. Nicholson, 487 F.3d 892 (Fed.
Cir. 2007).  In any event, the Board finds that a reasonable
person could be expected to understand from the notice what
was needed to substantiate his claim and thus the essential
fairness of the adjudication was not frustrated.  Id.  As
such, the Board concludes that, even assuming a notice error,
that error was harmless.  See Medrano v. Nicholson, 21 Vet.
App. 165 (2007); Mayfield v. Nicholson, 20 Vet. App. 537, 543
(2006).

The Board further notes that the Veteran did not receive pre-
adjudicatory notification of the assignment of disability
ratings and effective dates.  However, the Veteran did
receive proper notification in the April 2007 letter.  The
claimant has been provided with every opportunity to submit
evidence and argument in support of his claim and to respond
to VA notices, and he has taken full advantage of these
opportunities, submitting evidence and argument in support of
his claim.  Viewed in such context, the furnishing of notice
after the decision that led to this appeal did not compromise
the essential fairness of the adjudication.  Dingess/Hartman
v. Nicholson, 19 Vet. App. 473 (2006); Conway v. Principi,
353 F.3d 1369, 1373 (Fed. Cir. 2004).  The Veteran has had a
"meaningful opportunity to participate effectively,"
Dingess/Hartman, and the Board finds that the present
adjudication of this issue will not result in any prejudice
to the Veteran.  Therefore, with respect to the timing
requirement for the notice in connection with the claim for
an increased evaluation for PTSD, the Board concludes that to
decide the issue would not be prejudicial to the claimant.

In addition, the duty to assist the Veteran has also been
satisfied in this case with regard to the claim for an
increased disability rating for PTSD.  The Veteran's service
treatment records as well as all available VA treatment
records, SSA records, and relevant private treatment records
are in the claims file and were reviewed by both the RO and
the Board in connection with the Veteran's claim for an
increased rating for PTSD.  The Veteran was also afforded an
examination in March 2006 in connection with his claim.  To
that end, when VA undertakes to provide a VA examination or
obtain a VA opinion, it must ensure that the examination or
opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303,
312 (2007).  The Board finds that the examination obtained in
this case is adequate, as the report was predicated on a
review of the claims file and all pertinent evidence of
record, and fully addresses the rating criteria that are
relevant to rating PTSD in this case.  Thus, there is
adequate medical evidence of record to make a determination
in this case.  Accordingly, the Board finds that VA's duty to
assist with respect to obtaining a VA examination or opinion
with respect to the issue of PTSD has been met.  38 C.F.R. �
3.159(c)(4).

The Board concludes the Veteran was provided the opportunity
to meaningfully participate in the adjudication of his claim
and did in fact participate.  Washington v. Nicolson, 21 Vet.
App. 191 (2007).  Hence, there is no error or issue that
precludes the Board from addressing the merits of this
appeal.

LAW AND ANALYSIS

I.	PTSD

Disability ratings are determined by applying the criteria
set forth in the VA Schedule for Rating Disabilities, found
in 38 C.F.R., Part 4.  The rating schedule is primarily a
guide in the evaluation of disability resulting from all
types of diseases and injuries encountered as a result of or
incident to military service.  The ratings are intended to
compensate, as far as can practicably be determined, the
average impairment of earning capacity resulting from such
diseases and injuries and their residual conditions in
civilian occupations.  38 U.S.C.A. � 1155; 38 C.F.R. � 4.1.
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
for that rating.  38 C.F.R. � 4.7.

In considering the severity of a disability, it is essential
to trace the medical history of the Veteran.  38 C.F.R. ��
4.1, 4.2, 4.41.  Consideration of the whole-recorded history
is necessary so that a rating may accurately reflect the
elements of disability present.  38 C.F.R. � 4.2; Peyton v.
Derwinski, 1 Vet. App. 282 (1991).  While the regulations
require review of the recorded history of a disability by the
adjudicator to ensure a more accurate evaluation, the
regulations do not give past medical reports precedence over
the current medical findings.  Where an increase in the
disability rating is at issue, the "present level" of the
Veteran's disability is the primary concern.  Francisco v.
Brown, 7 Vet. App. 55, 58 (1994).  However, where VA's
adjudication of an increased rating claim is lengthy, a
claimant may experience multiple distinct degrees of
disability that would result in different levels of
compensation from the time the increased rating claim was
filed until a final decision on that claim is made.  Thus,
VA's determination of the "present level" of a disability
may result in a conclusion that the disability has undergone
varying and distinct levels of severity throughout the entire
time period the increased rating claim has been pending.
Hart v. Mansfield, 21 Vet. App. 505 (2007).

In this case, the Veteran's PTSD is rated as 50 percent
disabling pursuant to            38 C.F.R. � 4.130,
Diagnostic Code 9411.  A 50 percent disability rating is
contemplated for occupational and social impairment with
reduced reliability and productivity due to such symptoms as:
flattened affect; circumstantial, circumlocutory, or stereo-
typed 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 disability rating is contemplated 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 worklike setting); inability to establish and
maintain effective relationships.

A 100 percent disability  rating is contemplated for total
occupational and social impairment due to such symptoms as:
gross impairment in thought processes or communication;
persistent delusions or hallucinations; grossly inappropriate
behavior; persistent danger of hurting self or others;
intermittent inability to perform activities of daily living
(including maintenance of minimal personal hygiene);
disorientation to time or place; memory loss for names of
close relatives, own occupation, or own name.

The use of the term "such as" in the general rating formula
for mental disorders in 38 C.F.R. � 4.130 demonstrates that
the symptoms after that phrase are not intended to constitute
an exhaustive list, but rather are to serve as examples of
the type and degree of symptoms, or their effects, that would
justify a particular rating.  See Mauerhan v. Principi, 16
Vet. App. 436, 442 (2002).  It is not required to find the
presence of all, most, or even some, of the enumerated
symptoms recited for particular ratings.  Id.  The use of the
phrase "such symptoms as," followed by a list of examples,
provides guidance as to the severity of symptoms contemplated
for each rating, in addition to permitting consideration of
other symptoms, particular to each Veteran and disorder, and
the effect of those symptoms on the claimant's social and
work situation.  Id.

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 the American
Psychiatric Association's Diagnostic and Statistical Manual
of Mental Disorders, Fourth Edition (DSM-IV), p. 32).

GAF scores ranging between 61 and 70 reflect some mild
symptoms (e.g., depressed mood and mild insomnia) or some
difficulty in social, occupational, or school functioning
(e.g., occasional truancy, or theft within the household),
but generally functioning pretty well, and has some
meaningful interpersonal relationships.  Scores ranging from
51 to 60 reflect more 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).  Scores ranging from 41 to 50 reflect 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).

In considering the evidence of record under the laws and
regulations as set forth above, the Board concludes that the
Veteran is entitled to a disability rating of 70 percent for
his service-connected PTSD prior to May 16, 2006.

Initially, the Board recognizes that the Veteran's service-
connected PTSD has resulted in symptoms of restricted affect,
impaired memory, flashbacks, intrusive thoughts,
hypervigilance, anxiety, complaints of decreased
concentration, depressed mood, disturbances of motivation and
mood, and difficulty in maintaining work and social
relationships.  The foregoing symptoms are contemplated by
the currently assigned 50 percent disability rating.

However, the medical evidence of record also shows that the
Veteran's PTSD symptomatology also matches some of the
criteria for a 70 percent disability rating.  In this
respect, there is evidence of suicidal ideation.  The August
2005 VA treatment record noted that the Veteran had suicidal
thoughts when his wife stated that she wanted a divorce.  The
June 2003 VA treatment record also shows that the Veteran had
fleeting thoughts of self-harm.  In a July 2004 letter from
the Veteran's therapist, D.H., it was noted that the Veteran
denied any serious suicidal intent, but did admit to frequent
ideation.  In addition, there is evidence that the Veteran
has near-continuous depression which affects his ability to
function independently, appropriately, and effectively.
Indeed, the Veteran's wife stated that she comes home for
lunch to check in on the Veteran and that her children stop
by to check in on him.  She said that his condition made it
difficult for them to go anywhere.  See VA treatment records.
Furthermore, the Veteran's therapist has noted several times
that the Veteran's frequent panic and anxiety attacks
interfered with his ability to perform routine tasks.
Furthermore, there is some evidence of impaired thought
processes.  A letter from the Veteran's therapist, D.H.,
explained that the Veteran's intrusive thoughts made it
difficult for him to maintain concentration which in turn
limited his ability to perform abstract reasoning.  The June
2005 psychological evaluation, performed for SSA benefits,
determined that the Veteran had very impaired abstract
reasoning.  Finally, there is also evidence of obsessional
rituals.  In this respect, the March 2006 QTC examination
report noted that obsessional rituals were present which were
severe enough to interfere with routine activities.  The
Board notes that although the Veteran does not meet all the
criteria set forth under Diagnostic Code 9411 for a 70
percent rating, it is not required that all of the enumerated
criteria be met for a particular rating.  See Mauerhan v.
Principi, 16 Vet. App. 436, 442 (2002).  Therefore, in
resolving the benefit of the doubt in favor of the Veteran, a
higher disability rating of 70 percent is granted prior to
May 16, 2006.  38 U.S.C.A. � 5107(b).

On the other hand, the Board finds that the Veteran is not
entitled to a disability rating in excess of 70 percent prior
to May 16, 2006.  In this respect, the Board observes that
the Veteran was unemployed since 2002 and had a long history
of more than 30 jobs.  However, unemployment does not, in and
of itself, warrant a 100 percent disability rating.  The
medical evidence affirmatively shows that the Veteran's PTSD
was not manifested by gross impairment in thought processes
or communication; persistent delusions or hallucinations;
grossly inappropriate behavior; a persistent danger of
hurting self or others; disorientation to time or place; or
memory loss for names of close relatives, own occupation, or
own name.  Although the March 2006 QTC examination report
noted that hallucination history was present intermittently,
there is no evidence that the Veteran experienced persistent
delusions or hallucinations.  Furthermore, although the
Veteran has had several notations of impaired abstract
reasoning, the vast majority of medical evidence shows that
judgment and insight were adequate and there was no evidence
of gross impairment in thought.  Finally, the record shows
that, although the Veteran suffers from severe social and
occupational impairment prior to May 16, 2006, his symptoms
have not caused total social and occupational impairment.  In
this regard, the Board observes that, while the Veteran
essentially stays to himself and avoids most people, he
nevertheless maintained a long-term relationship with his
wife and had some contact with his children and his wife's
children.  See June 2003 private evaluation.  In light of the
foregoing, the preponderance of the evidence is against a
finding that the Veteran's PTSD is productive of total
occupational and social impairment prior to May 16, 2006.

In reaching this conclusion, the Board takes note of the
various GAF scale scores. The GAF is a scale reflecting the
psychological, social, and occupational functioning on a
hypothetical continuum of mental health-illness.  See
Diagnostic and Statistical Manual of Mental Disorders (4th
ed.) (DSM-IV); Carpenter v. Brown, 8 Vet. App. 240 (1995).
For example, GAF scores ranging between 51- 60 reflect
moderate symptoms (e.g., flat affect, circumstantial speech,
occasional panic attacks) or moderate difficulty in social,
occupational, or school functioning (e.g., few friends,
conflicts with peers or co-workers).  Scores ranging from 41
to 50 reflect 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).  An
examiner's classification of the level of psychiatric
impairment at the moment of examination, by words or by a GAF
score, is to be considered, but it is not determinative of
the percentage VA disability rating to be assigned; the
percentage evaluation is to be based on all the evidence that
bears on occupational and social impairment.  The Veteran's
GAF scores have ranged predominantly from 48 to 55,
indicating moderate to serious impairment.  However, the
record shows that the Veteran has also been assigned GAF
scores ranging from 40 to 45.  The Veteran has claimed that
these lower GAF scores warrant a 100 percent disability
rating for his PTSD.  Nonetheless, the Board observes that
the lowest GAF scores appear to be based not only on the
Veteran's PTSD, but also his nonservice-connected
schizophrenia and other nonservice-connected disabilities.
See June 2005 psychological evaluation and May 2004 VA
treatment record.  In any event, GAF scores are just one part
of the medical evidence to be considered and are not
dispositive.  In evaluating all of the evidence of record, as
shown above, the Board finds that the Veteran's symptoms more
nearly approximate the criteria for a 70 percent disability
rating.

In reaching this conclusion, the Board acknowledges the
Veteran's belief that his PTSD symptoms warrant a 100 percent
disability rating.  The Board must consider the entire
evidence of record when analyzing the criteria laid out in
the ratings schedule.  While the Board recognizes that the
Veteran is competent to provide evidence regarding lay-
observable symptomatology, he is not competent to provide an
opinion regarding the severity of the Veteran's
symptomatology.  Such evidence must come from a medical
professional.  See Jandreau v. Nicholson, 492 F. 3d 1372
(Fed. Cir. 2007); Espiritu v. Derwinski, 2 Vet App 492
(1992).

The Board also acknowledges the Veteran's assertions wherein
he maintains that he was awarded Social Security disability
benefits based on his PTSD and cannot understand why VA
cannot grant 100 percent disability rating prior to May 16,
2006.  In this regard, the Board points out that decisions of
the Social Security Administration (SSA), while relevant, are
not controlling with respect to VA determinations.  See
Damrel v. Brown, 6 Vet. App. 242, 246 (1994); Murincsak v.
Derwinski, 2 Vet. App. 363, 370-72 (1992).  Adjudication of
VA and Social Security claims is based on different laws and
regulations.  Additionally, the SSA decision clearly shows
that the examiner considered other nonservice-connected
disabilities, such as a back disorder and anxiety disorder,
factors which are not for the Board's consideration.  As
noted above, the medical evidence does not support the
criteria for a 100 percent disability rating and, therefore,
a disability rating in excess of 70 percent prior to May 16,
2006 is not warranted.

Additionally, the record contains no evidence showing the
Veteran is entitled to a higher rating at any point during
the instant appeal; therefore no staged ratings are
appropriate.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).
Thus, the Board finds that a 70 percent disability rating is
appropriate prior to May 16, 2006 and there is no basis for
awarding a higher disability rating for PTSD.

The Board has also considered referral for extra-schedular
consideration. Ordinarily, the VA Schedule will apply unless
there are exceptional or unusual factors which would render
application of the schedule impractical.  See Fisher v.
Principi, 4 Vet. App. 57, 60 (1993).

An extraschedular disability rating is warranted based upon 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 that would render impractical the application
of the regular schedular standards.  See         38 C.F.R. �
3.321(b)(1) (2009).  An exceptional case is said to include
such factors as marked interference with employment or
frequent periods of hospitalization as to render
impracticable the application of the regular schedular
standards.  See Fanning v. Brown, 4 Vet. App. 225, 229
(1993).

Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-
step inquiry for determining whether a Veteran is entitled to
an extraschedular rating.  First, the Board must first
determine whether the evidence presents such an exceptional
disability picture that the available schedular evaluations
for that service-connected disability are inadequate.
Second, if the schedular evaluation does not contemplate the
claimant's level of disability and symptomatology and is
found inadequate, the Board must determine whether the
claimant'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 Veteran'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 Veteran's
disability picture requires the assignment of an
extraschedular rating.

With respect to the first prong of Thun, the evidence in this
case does not show such an exceptional disability picture
that the available schedular evaluation for the service-
connected PTSD is inadequate.  It does not appear that the
Veteran has an "exceptional or unusual" disability; he
merely disagrees with the assigned rating for his level of
impairment.  In other words, he does not have any symptoms
from his service-connected disability that are unusual or are
different from those contemplated by the schedular criteria.
As such, referral for extraschedular consideration is not
warranted.  See VAOPGCPREC 6-96.  Further inquiry into
extraschedular consideration is moot.  See Thun, supra.

II.	TDIU

Total disability ratings for compensation may be assigned,
where the schedular rating is less than total, 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 such 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).  It is the established
policy of the 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.  38 C.F.R. � 4.16(b).  A total disability will be
considered to exist 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.  A total disability may or may not be permanent.
Total ratings will not be assigned, generally, for temporary
exacerbations or acute infectious diseases except where
specifically prescribed by the schedule.  38 C.F.R. �
3.340(a).  Consideration may be given to the Veteran's level
of education, special training, and previous work experience
in arriving at a conclusion, but not to his or her age or to
the impairment caused by nonservice-connected disabilities.
See 38 C.F.R. �� 3.341, 4.16, 4.19.

The Court has held that in determining whether the Veteran is
entitled to a total disability rating based upon individual
unemployability, neither his nonservice-connected
disabilities nor his advancing age may be considered.  Van
Hoose v. Brown, 4 Vet. App. 361 (1993).  The sole fact that a
claimant is unemployed or has difficulty obtaining employment
is not enough.  A high rating in itself is a recognition that
the impairment makes it difficult to obtain and keep
employment.  The question is whether the Veteran is capable
of performing the physical and mental acts required by
employment, not whether the Veteran can find employment.  Id.

As reflected above, the Veteran has been assigned a
disability rating of 70 percent prior to May 16, 2006 and the
Veteran has been assigned a 100 percent disability rating,
effective May 16, 2006.  Thus, he meets the percentage
criteria under           38 C.F.R. � 4.16(a).  However, it
still must be shown that the Veteran is unable to secure or
follow a substantially gainful occupation as a result of his
service-connected PTSD.

After considering the evidence of record in the light most
favorable to the Veteran, it appears that the Veteran is
unemployable.  In this respect, the evidence of record shows
that the Veteran had been unemployed since filing his claim
for an increased rating in 2002.  The Veteran has
consistently stated that he was unable to work due to his
PTSD.  In a statement received in May 2006, the Veteran
explained that over the last 39 years, he has tried to work
on at least 30 different jobs or so and that he could not
work right now.  In a July 2004 VA treatment record, the
Veteran reported that he could not work due to his stress.
He stated that he was temperamental, angry, and could not
take orders.  In a September 2003 letter from the Veteran's
therapist, D.H., it was noted that the Veteran's symptoms of
depression, survivor's guilt, and feelings of estrangement
from others remain a major obstacle which prevented him from
obtaining and/or maintaining gainful employment.  In the
March 2006 QTC examination report, it was noted that the
Veteran had difficulty establishing and maintaining effective
work and school relationships.  Furthermore, the evidence
shows that the Veteran has been unemployed since at least
2002.  The October 2003 letter from the Veteran's last
employer shows that the Veteran was relieved of his job due
to extreme difficulties of mood swings and periodic signs of
anger and frustration on the job.  Finally, in the December
2006 VA examination report, the examiner explained that the
Veteran would be unable to work due to his PTSD issues,
including paranoid ideation, depression, and irritability.

In short, the medical and other evidence of record indicates
that the Veteran's service-connected PTSD is productive of
serious symptomatology which can be said to preclude
employability.  To the extent that there is any reasonable
doubt, that doubt will be resolved in the Veteran's favor.
Based on the evidence of record, the Board finds that the
Veteran is unemployable due to his service-connected PTSD.
Accordingly, entitlement to a TDIU is granted.  38 U.S.C.A.
� 5107(b).

ORDER

Entitlement to a disability rating of 70 percent, but no
higher, prior to May 16, 2006, for the service-connected PTSD
is granted, subject to regulations governing the payment of
monetary awards.

Entitlement to a total evaluation based on individual
unemployability due to service-connected disabilities (TDIU)
is granted.

___________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


series: legacy

judge_norm: JONATHAN B KRAMER

disposition: granted

disposition: denied

text:
Citation Nr: 1016000
Decision Date: 04/30/10    Archive Date: 05/06/10

DOCKET NO.  08-30 479	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi

THE ISSUE

1.  From September 1, 2007, to August 24, 2008, entitlement
to an increased initial evaluation for coronary artery
disease, status post coronary artery bypass graft (CAD),
currently rated noncompensable.

2.  From August 25, 2008, to November 15, 2009, entitlement
to an increased initial evaluation for CAD, currently rated
60 percent disabling.

3.  From November 16, 2009, entitlement to an increased
initial evaluation for CAD, currently rated 30 percent
disabling.

ATTORNEY FOR THE BOARD

R. Morales, Associate Counsel

INTRODUCTION

The Veteran served on active duty from September 1971 to
September 1991.

This appeal comes before the Board of Veterans' Appeals
(Board) from a February 2008 rating decision, mailed to the
Veteran in March 2008, of the Department of Veterans Affairs
(VA) Regional Office (RO) in Jackson, Mississippi, which
granted service connection for CAD.  As this grant, and the
grant of increased evaluations in a subsequent December 2009
rating decision, do not represent a total grant of benefits
sought on appeal, the claims for increase remain before the
Board.  AB v. Brown, 6 Vet. App. 35 (1993).

FINDINGS OF FACT

1.  From September 1, 2007, August 24, 2008, the Veteran was
on medication for his heart but had a METs of 10.1 and no
dyspnea, syncope, fatigue, angina, dizziness, cardiac
hypertrophy or dilatation.

2.  On August 25, 2008, diagnostic testing showed left
ventricular dysfunction, but there was no evidence of acute
or chronic congestive heart failure, a workload of 3 METs or
less, dyspnea, fatigue, angina, dizziness, syncope, or left
ventricular dysfunction with an ejection fraction of less
than 30 percent.

3.  On November 16, 2009, the Veteran's estimated METs was a
3, he reported dyspnea with activity,  intermittent fatigue,
angina twice a month, and dizziness.

CONCLUSIONS OF LAW

1.  From September 1, 2007, to August 24, 2008, the criteria
for an evaluation of 10 percent for coronary artery disease,
status post coronary artery bypass graft, have been met.  38
U.S.C.A. �� 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009);
38 C.F.R. �� 3.102, 3.159, 3.321, 4.1- 4.14, 4.104,
Diagnostic Code 7017 (2009).
2.  From August 25, 2008, to November 15, 2009, the criteria
for an initial evaluation in excess of 60 percent for
coronary artery disease, status post coronary artery bypass
graft, have not been met.  38 U.S.C.A. �� 1155, 5103, 5103A,
5107 (West 2002 & Supp. 2009); 38 C.F.R. �� 3.102, 3.159,
3.321, 4.1- 4.14, 4.104, Diagnostic Code 7017 (2009).

3.  From November 16, 2009, the criteria for an evaluation of
100 percent for coronary artery disease, status post coronary
artery bypass graft, have been met.  38 U.S.C.A. �� 1155,
5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R.
�� 3.102, 3.159, 3.321, 4.1- 4.14, 4.104, Diagnostic Code
7017 (2009).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran contends he is entitled to higher evaluations for
CAD.

Duties to Notify and Assist

1.  Notify

As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), the United States Department of Veterans Affairs (VA)
has a duty to notify and assist claimants in substantiating a
claim for VA benefits.  38 U.S.C.A. �� 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R.
�� 3.102, 3.156(a), 3.159 and 3.326(a) (2008).

Proper notice from VA must inform the claimant of any
information and medical or lay evidence not of record (1)
that is necessary to substantiate the claim; (2) that VA will
seek to provide; and (3) that the claimant is expected to
provide.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).
This notice must be provided prior to an initial unfavorable
decision on a claim by the RO.  Mayfield v. Nicholson, 444
F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet.
App. 112 (2004).

As the notice requirements of the VCAA apply to all five
elements of a service-connection claim, including: (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 of the
disability, notice of the evidence required to substantiate a
claim for service connection must include information that a
disability rating and an effective date for the award of
benefits will be assigned if service connection is awarded.
See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486
(2006).

In cases such as this, where service connection has been
granted and an initial disability rating and effective date
have been assigned, the typical service connection claim has
been more than substantiated, it has been proven, thereby
rendering 38 U.S.C.A. � 5103(a) notice no longer required
because the purpose that the notice is intended to serve has
been fulfilled.  Dingess, supra; Dunlap v. Nicholson, 21 Vet.
App. 112 (2007).  The appellant bears the burden of
demonstrating any prejudice from defective notice with
respect to the downstream elements.  Goodwin v. Peake, 22
Vet.App. 128 (2008).  That burden has not been met in this
case.

2.  Assist

In addition, the duty to assist the Veteran to develop the
claim is fulfilled.  VA has a duty to assist the Veteran in
the development of the claim.  This duty includes assisting
the Veteran in the procurement of service medical records and
pertinent treatment records and providing an examination when
necessary.  38 U.S.C.A. � 5103A; 38 C.F.R. � 3.159.

The Board finds that all necessary development has been
accomplished, and therefore appellate review may proceed
without prejudice to the Veteran.  See Bernard v. Brown, 4
Vet. App. 384 (1993).  The RO has obtained and the Veteran
has submitted VA and private treatment records.  A thorough
attempt was made to obtain Social Security Administration
Records.  The Veteran was afforded multiple VA medical
examinations, most recently in November 2009.  Significantly,
neither the Veteran nor his representative has identified,
and the record does not otherwise indicate, any additional
existing evidence that is necessary for a fair adjudication
of the claim that has not been obtained.  Hence, no further
notice or assistance to the Veteran is required to fulfill
VA's duty to assist the Veteran in the development of the
claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281
F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet.
App. 143 (2001); see also Quartuccio v. Principi, 16 Vet.
App. 183 (2002).

The record establishes the Veteran was afforded a meaningful
opportunity to participate in the adjudication of the claims.
See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006).  All
requirements of the duty to notify the Veteran and the duty
to assist the Veteran are met.

CAD

The Veteran was assigned a 100 percent evaluation from April
12, 2007, to August 31, 2007.  The Veteran is currently
assigned a noncompensable evaluation from September 1, 2007;
a 60 percent evaluation from August 25, 2008; and a 30
percent evaluation from November 16, 2009.  He contends that
he is entitled to increased evaluations during each of these
time periods.  In general, when an increase in the disability
rating is at issue, it is the present level of disability
that is of primary concern.  See Francisco v. Brown, 7 Vet.
App. 55, 58 (1994).  However, when the current appeal arose
from the initially assigned rating, consideration must be
given as to whether staged ratings should be assigned to
reflect entitlement to a higher rating at any point during
the pendency of the claim.  Fenderson v. West, 12 Vet. App.
119 (1999).  Moreover, staged ratings are appropriate in any
increased rating claim in which distinct time periods with
different ratable symptoms can be identified.  Hart v.
Mansfield, 21 Vet. App. 505 (2007).  As such, staged ratings
have been considered for this claim.

In accordance with 38 C.F.R. �� 4.1, 4.2 and Schafrath v.
Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the
service treatment records and all other evidence of record
pertaining to the history of the Veteran's service-connected
disability.  The Board has found nothing in the historical
record that would lead to the conclusion that the current
evidence of record is not adequate for rating purposes.  The
Board is of the opinion that this case presents no
evidentiary considerations, except as noted below, that would
warrant an exposition of the remote clinical history and
findings pertaining to the disability at issue.

Disability evaluations are determined by the application of
the Schedule for Rating Disabilities, which assigns ratings
based on the average impairment of earning capacity resulting
from a service-connected disability.  38 U.S.C.A. � 1155;
38 C.F.R. Part 4.  Where there is a question as to which of
two evaluations shall be applied, the higher evaluation will
be assigned if the disability picture more nearly
approximates the criteria required for that rating.
Otherwise, the lower rating will be assigned.  38 C.F.R. �
4.7.

In order to evaluate the level of disability and any changes
in condition, it is necessary to consider the complete
medical history of the Veteran's condition.  Schafrath v.
Derwinski, 1 Vet. App. 589, 594 (1991).  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.  38 U.S.C.A. � 1155; 38 C.F.R., Part 4.  Each
disability must be viewed in relation to its history and
there must be emphasis upon the limitation of activity
imposed by the disabling condition.  38 C.F.R. � 4.1.

The Board has considered all possible relevant codes in order
to assure that the Veteran is afforded the most favorable
result.  The Veteran could be evaluated under Diagnostic Code
(DC) 7017, which rates coronary artery bypass surgery, or DC
7005, which rates coronary artery disease.

Under 38 C.F.R. � 4.104, DC 7017, coronary artery bypass
surgery is rated as follows:  A 100 percent rating is
warranted for three months following hospital admission for
surgery.  Thereafter, a 100 percent rating is assigned with
coronary artery disease resulting in chronic congestive heart
failure, or when a workload of 3 METs or less results in
dyspnea, fatigue, angina, dizziness, or syncope, or where
there is left ventricular dysfunction with an ejection
fraction of less than 30 percent.  A 60 percent rating is
warranted for more than one episode of acute congestive heart
failure in the past year, or when a workload of greater than
3 METs but not greater than 5 METs results in dyspnea,
fatigue, angina, dizziness, or syncope, or when there is left
ventricular dysfunction with an ejection fraction of 30 to 50
percent.  A 30 percent rating is warranted when a workload of
greater than 5 METs but not greater than 7 METs results in
dyspnea, fatigue, angina, dizziness, or syncope, or when
there is evidence of cardiac hypertrophy or dilatation on
electrocardiogram, echocardiogram, or X-ray.  A 10 percent
rating is warranted when a workload greater than 7 METs but
not greater than 10 METs results in dyspnea, fatigue, angina,
dizziness, or syncope, or; when continuous medication is
required.

Under 38 C.F.R. � 4.104, DC 7005, a 60 percent rating is
assigned when coronary artery disease, with documented
coronary artery disease, causes more than one episode of
acute congestive heart failure in the past year, or; when a
workload greater than 3 METs but not greater than 5 METs
results in dyspnea, fatigue, angina, dizziness, or syncope,
or; when left ventricular dysfunction with an ejection
fraction of 30 to 50 percent is shown.  When a workload
greater than 5 METs but not greater than 7 METs results in
dyspnea, fatigue, angina, dizziness, or syncope, or; evidence
of cardiac hypertrophy or dilation on electrocardiogram,
echocardiogram, or X-ray, a 30 percent rating is warranted.
A 10 percent rating is warranted when a workload greater than
7 METs but not greater than 10 METs results in dyspnea,
fatigue, angina, dizziness, or syncope, or; when continuous
medication required.  Id.

One MET (metabolic equivalent) is the energy cost of standing
quietly at rest and represents an oxygen uptake of 3.5
milliliters per kilogram of body weight per minute. When the
level of METs at which dyspnea, fatigue, angina, dizziness,
or syncope develops is required for evaluation, and a
laboratory determination of METs by exercise testing cannot
be done for medical reasons, an estimation by a medical
examiner of the level of activity (expressed in METs and
supported by specific examples, such as slow stair climbing
or shoveling snow) that results in dyspnea, fatigue, angina,
dizziness, or syncope may be used.  38 C.F.R. � 4.104, Note
(2).

The Board has reviewed the VA medical center (VAMC) records
associated with the claims folder, but will only discuss
those from September 2007 forward, as the Veteran was
assigned a 100 percent evaluation prior to this time.

1.  From September 1, 2007, to August 24, 2008

A May 2007 VAMC treatment note indicates that the Veteran was
prescribed Lisinopril for his blood pressure and heart.  The
Veteran attended a VA examination in October 2007.  He
reported that he was currently taking Tenormin, a medication
used to prevent heart attack.  A recent July 2007 MUGA scan
showed a normal heart.  He reported that he could walk one
mile (though the Veteran later explained that he only did
this one time).  He denied any chest pain or dyspnea.  His
heart rate was regular.  There were no murmurs, rubs, or
gallops, JVD, or CHF.  The examiner diagnosed an estimated
ejection fraction of 71 percent, coronary artery disease,
status post coronary artery bypass graft, and estimated METS
of 10.1.  A January 2008 radiologic examination showed a
normal sized heart with intact sternal wires and surgical
clips.

Under, DC 7017, continuous medication warrants a 10 percent
evaluation.  As the treatment records show that the Veteran
has been prescribed various medications for his heart,
including Lisinopril prior to this time period and Tenormin
during this time period, the Veteran is entitled to a 10
percent evaluation from September 1, 2007, to August 24,
2008.

However, the Veteran's symptoms during this period do not
warrant an evaluation greater than 10 percent.  The Veteran's
October 2007 VA examination showed METS of 10.1, in excess of
the maximum 7 METS required for the next highest rating of 30
percent.  In addition, the Veteran did not complain of
dyspnea, fatigue, angina, dizziness, or syncope.  Diagnostic
testing showed an essentially normal heart.

The preponderance of the evidence is against a more favorable
result.  Because the evidence is not in equipoise, the
provisions of 38 U.S.C.A. � 5107(b) regarding reasonable
doubt are not applicable to warrant a more favorable result.
Therefore, the Veteran is granted an increased initial
evaluation of 10 percent, but no higher, during this time
period.

2.  From August 25, 2008, to November 15, 2009

In August 2008, the Veteran was put on statin medication.  An
ECG performed 10 days later showed an estimated ejection
fraction of 45-50 percent with low to mildly reduced left
ventricular systolic function.  The left ventricle appeared
mildly hypertrophied.  It also showed normal right artrial
size and right ventricular dimensions subjectively, trace
tricuspid regurgitation, normal left artrial size, normal
mitral valve, no mitral regurgitation, normal LV relaxation,
left.  In June 2009 diagnostic testing showed a heart on the
upper limits of normal.  Little had changed from the previous
echocardiogram (ECG).

From August 25, 2008 to November 15, 2009, the Veteran's
symptoms merit the assigned 60 percent evaluation under DC
7017 or DC 7005, but no higher.  There was left ventricular
dysfunction with an ejection fraction of 45 to 50 percent.
However, there was no evidence of acute or chronic congestive
heart failure, a workload of 3 METs or less, dyspnea,
fatigue, angina, dizziness, syncope, or left ventricular
dysfunction with an ejection fraction of less than 30
percent, so as to merit the next highest evaluation of 100
percent, available under DC 7017.

Therefore, the preponderance of the evidence is against the
assignment of a rating in excess of the currently assigned 60
percent rating for the period August 25, 2008 to November 15,
2009.  Because the evidence is not in equipoise, the
provisions of 38 U.S.C.A. � 5107(b) regarding reasonable
doubt are not applicable to warrant a more favorable result.
Therefore, the claim for an increased evaluation during this
time period is denied.

3.  From November 16, 2009

The Veteran attended a VA examination in November 2009.  He
denied any problems with his job or activities of daily
living due to the CAD.  He complained that his symptoms had
increased.  Angina occurred twice a month for several minutes
and was always related to exercise.  He experienced
intermittent fatigue and dizziness but no syncope.  There was
dyspnea when active but not at rest.  His heart rate was
regular.  There were no murmurs, rubs, or gallops, JVD,
objective findings of congestive heart failure, or pretibial
edema.  There was no evidence of peripheral artery disease.
ECG showed minimal left artrial enlargement, mild left
ventricular hypertrophy with normal wall motion, normal left
ventricular function with an estimated ejection fraction of
60 to 65 percent, no significant valvular lesions, a normal
right side of the heart, and no pericardial effusion.  The
examiner diagnosed coronary artery disease, status post
coronary artery bypass graft and estimated METS of 3.

From the time of the November 16, 2009 VA examination
forward, the Veteran's symptoms warrant a 100 percent
evaluation.  His estimated METs was a 3, he reported dyspnea
with activity,  intermittent fatigue, angina twice a month,
and dizziness.  He reported that he could only walk one block
before he became short of breath.  Although his reported
symptoms were not constant, the rating criteria does not
distinguish the frequency required.  As such, the Veteran is
entitled to a 100 percent evaluation under DC 7017 from
November 16, 2009, forward.

4.  Extraschedular Consideration

The Board has considered whether the case should be referred
to the Director of the VA Compensation and Pension Service
for extra-schedular consideration under 38 C.F.R. �
3.321(b)(1).  See Barringer v. Peake, 22 Vet. App. 242
(2008).  However, the Veteran has not required frequent
hospitalization for his service-connected heart disability,
and the manifestations of the condition are consistent with
the assigned schedular evaluations.  The Board finds that the
Veteran's occupational impairment as a result of his CAD is
well and adequately reflected in the current schedular
criteria.

The Court has held that, "if the criteria reasonably
describe the claimant's disability level and symptomatology,
then the claimant's disability picture is contemplated by the
rating schedule, the assigned schedular evaluation is,
therefore, adequate, and no referral is required."  Thun v.
Peake, 22 Vet. App. 111, 115 (2008).  Therefore, the Board
concludes that referral of this case for extra-schedular
consideration is not in order.  Therefore, referral of this
case for extra-schedular consideration is not in order.  See
Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown,
9 Vet. App. 337 (1996).

ORDERS

From September 1, 2007, to August 24, 2008, a 10 percent for
CAD, but no higher, is granted.

From August 25, 2008, to November 15, 2009, the appeal for an
initial rating in excess of 60 percent for CAD is denied.

From November 16, 2009, a 100 percent evaluation for CAD is
granted.

____________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: GEORGE R SENYK

condition: back

text:
Citation Nr: 1017000
Decision Date: 05/06/10    Archive Date: 05/19/10

DOCKET NO.  08-06 081	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake
City, Utah

THE ISSUES

1.	Entitlement to a rating in excess of 20 percent for a low
back disability.

2.	Entitlement to a rating in excess of 10 percent for left
leg nerve impairment associated with the low back disability.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

Joseph P. Gervasio, Counsel

INTRODUCTION

The appellant is a Veteran who served on active duty from
July 1950 to September 1953.  These matters are before the
Board of Veterans' Appeals (Board) on appeal from an August
2007 rating decision by the Salt Lake City RO that denied
increased ratings for the Veteran's service-connected low
back disability and associated left leg nerve involvement.
In his substantive appeal the Veteran indicated he wanted a
hearing before the Board; in August 2008, he withdrew the
request.

Please note this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. � 20.900(c) (2008). 38 U.S.C.A.
� 7107(a)(2) (West 2002).

FINDINGS OF FACT

1.	At no time during the appeal period is the Veteran's
service connected low back disability shown to have been
manifested by forward flexion of the thoracolumbar spine
limited to 30 degrees or less or by favorable ankylosis of
the entire thoracolumbar spine; incapacitating episodes with
a total duration of at least 4 weeks in a prior 12 month
period are not shown.

2.	At no time during the appeal period, is the Veteran's left
leg radiculopathy shown to have resulted in impairment
greater than mild incomplete paralysis.

CONCLUSIONS OF LAW

1.	A rating in excess of 20 percent is not warranted for the
Veteran's service connected low back disability. 38 U.S.C.A.
�� 1155, 5107 (West 2002); 38 C.F.R. �� 4.1, 4.3, 4.7, 4.10,
4.40, 4.45, 4.71(a), Diagnostic Codes (Codes) 5237, 5243
(2009).

2.	A rating in excess of 10 percent is not warranted for left
leg nerve impairment related to the Veteran's low back
disability. 38 U.S.C.A. �� 1155, 5107 (West 2002); 38 C.F.R.
�� 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.124a, Code 8520 (2009).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

A.	Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist
claimants in substantiating a claim for VA benefits.
38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5106, 5107, 5126;
38 C.F.R. �� 3.102, 3.156(a), 3.159, 3.326(a).  The VCAA
applies to the instant claims.

In a claim for increase, the VCAA requirement is generic
notice, that is, the type of evidence needed to substantiate
the claim, namely, evidence demonstrating a worsening or
increase in severity of the disability and the effect that
worsening has on employment, as well as general notice
regarding how disability ratings and effective dates are
assigned.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed.
Cir. 2009).

The appellant was advised of VA's duties to notify and assist
in the development of the claim prior to the initial
adjudication of his claim.  Mayfield v. Nicholson, 444 F.3d
1328 (Fed. Cir. 2006).  June 2007 and June 2009 letters
explained the evidence necessary to substantiate his claims,
the evidence VA was responsible for providing, and the
evidence he was responsible for providing.  The appellant has
had ample opportunity to respond/supplement the record and he
has not alleged that notice in this case was less than
adequate.

The Veteran's pertinent treatment records have been secured.
The RO arranged for VA examinations in August 2007, September
2008, and January 2010.  The January 2010 examination was
scheduled pursuant to the Board's June 2009 remand.  This
examination substantially complied with the remand
instructions and is adequate for adjudication purposes as the
examiner had the claims file for review, obtained a history
from the Veteran, and conducted a thorough examination.  In
addition, the examiner addressed the prior examinations in
reaching the conclusions and explained the rationales for the
conclusions.  See Barr v. Nicholson, 21 Vet. App. 303 (2007)
(VA must provide an examination that is adequate for rating
purposes).  The Veteran has not identified any pertinent
evidence that remains outstanding.  VA's duty to assist is
met.

B.	Legal Criteria, Factual Background, and Analysis

The Board notes that it has reviewed all of the evidence in
the Veteran's claims file, with an emphasis on the evidence
relevant to these appeals.  Although the Board has an
obligation to provide reasons and bases supporting its
decision, there is no need to discuss, in detail, every piece
of evidence of record.  Gonzales v. West, 218 F.3d 1378,
1380-81 (Fed. Cir. 2000) (VA must review the entire record,
but does not have to discuss each piece of evidence).  Hence,
the Board will summarize the relevant evidence as
appropriate, and the Board's analysis will focus specifically
on what the evidence shows, or fails to show, as to the
claims.

General Criteria for Increased Rating Claims

Disability evaluations are determined by application of VA's
Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R.
Part 4.  The percentage ratings 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 their residual conditions in civil occupations.
38 U.S.C.A. � 1155; 38 C.F.R. � 4.1.

In determining the disability evaluation, VA has a duty to
acknowledge and consider all regulations, which are
potentially applicable, based upon the assertions and issues
raised in the record and to explain the reasons and bases for
its conclusion.  Schafrath v. Derwinski, 1 Vet. App. 589
(1991).

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 required for that
rating.  Otherwise, the lower rating will be assigned.
38 C.F.R. � 4.7.

The Court has held that "staged" ratings are appropriate for
an increased rating claim where the factual findings show
distinct time periods when the service-connected disability
exhibits symptoms that would warrant different ratings.  Hart
v. Mansfield, 21 Vet. App. 505 (2007).

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. � 4.3.

Lumbosacral Spine Hypertrophic Arthritis

A May 1962 rating decision awarded the Veteran service
connection for lumbosacral spine hypertrophic arthritis
[inasmuch as he now has additional low back pathology that is
recognized as service-connected, the disability at issue has
been recharacterized as "low back disability"].  His claim
seeking an increased rating for the low back disability was
received in May 2007.

The Veteran's back disability has been rated under 38 C.F.R.
� 4.71a, Code 5003, for arthritis, and 5237, for lumbosacral
strain.  Arthritis is rated on the basis of limitation of
motion of the affected joint.  Limitation of motion of the
spine is rated under the General Formula for Rating Diseases
and Injuries of the Spine (General Formula); intervertebral
disc syndrome is rated under the General Formula or Based on
Incapacitating Episodes, whichever method results in the
rating that is more favorable to the Veteran.  38 C.F.R. �
4.71a, Codes 5237, 5243.

Under the General Formula, ratings are assigned "With or
without symptoms such as pain (whther [sic] or not it
radiates), stiffness, or aching in the area of the spine
affected by residuals of injury or disease."  A 20 percent
rating is warranted when there is forward flexion of the
thoracolumbar spine greater than 30 degrees but not greater
than 60 degrees; or the combined range of motion of the
thoracolumbar spine is not greater than 120 degrees; or there
is muscle spasm or guarding severe enough to result in an
abnormal gait or abnormal spinal contour such as scoliosis,
reversed lordosis, or abnormal kyphosis.  A 40 percent rating
is warranted where there is forward flexion of the
thoracolumbar spine of 30 degrees or less; or favorable
ankylosis of the entire thoracolumbar spine.  38 C.F.R. �
4.71a, Code 5237.

Any associated objective neurologic abnormalities, including,
but not limited to bowel or bladder impairment, are to be
rated separately, under the appropriate Code.  Note (1)
(following the General Formula).

Favorable ankylosis is fixation of a spinal segment in the
neutral position (0 degrees).  Note (5).

Rating based on incapacitating episodes (38 C.F.R. � 4.71a,
Code 5243), a 20 percent rating is assigned for
incapacitating episodes having a total duration of at least 2
weeks but less than 4 weeks during the past 12 months.  A 40
percent rating is assigned for with incapacitating episodes
having a total duration of at least 4 weeks but less than 6
weeks during the past 12 months.  An incapacitating episode
is a period of acute signs and symptoms due to intervertebral
disc syndrome that requires bedrest prescribed by a physician
and treatment by a physician.  Note (1)(following the
criteria for rating based on incapacitating episodes).

The basis of disability evaluation is the ability of the body
as a whole, or of the psyche, or of a system or organ of the
body to function under the ordinary conditions of daily life
including employment.  38 C.F.R. � 4.10.

On August 2007 VA examination the Veteran reported stiffness
of the spine and constant pain when he got up.  He had no
complaints of weakness.  The pain occurred constantly and
travelled down his legs.  The pain is aching and sharp in
nature.  The pain level was listed as a 7, on a scale of 1 to
10.  It was elicited with physical activity and relieved by
rest and the medication Naproxen.  He stated that his spine
condition did not cause incapacitation.  The Veteran's
posture was kyphotic and his gate was abnormal in that he
limped with ambulation.  He did not require any assistive
devices with ambulation.  Examination revealed evidence of
radiating pain on movement and muscle spasm of the
paraspinous muscles.  No tenderness was noted.  Straight leg-
raising was positive bilaterally.  There was no ankylosis of
the lumbar spine.  Range of motion was forward flexion to 60
degrees, extension to 20 degrees, right and left rotation to
20 degrees, bilaterally.  Joint function was additionally
limited after repetitive use by pain, but not by fatigue,
weakness, lack of endurance and incoordination.  This
limitation did not involve any additional limitation of
motion.  There were no signs of intervertebral disc syndrome
with chronic or permanent nerve root involvement.  The
diagnosis was hypertrophic arthritis of the lumbosacral
spine.

Private treatment records indicate that the Veteran has
undergone treatment for his low back complaints, including
the administration of lumbar epidural steroid injections.
The records do not provide any specific range of motion
findings.

On September 2008 VA examination, the Veteran reported
significant pain located at the lower lumbar back and both
legs down to the ankles.  The pain was described as crushing,
oppressing and sharp in nature.  On a scale of 1 to 10, the
pain was constantly between levels 5 and 7, and sometimes
reached levels of 9 and 10.  It was exacerbated by activity
and long drives, but was sometimes spontaneous.  He had been
treated with Epidural Block injections and rehabilitation.
Functional impairments resulted in an inability to lift,
which affected walking, impaired daily functioning such as
gardening and normal chores.  An MRI study showed severe
degenerative discs and bulging discs in addition to
arthritis.  The Veteran's posture was abnormal, slightly
flexed at the lumbar and gait was abnormal, with a mild
shuffle movement.  He did not require any assistive devices
for walking.  Examination revealed no complaints of radiating
pain on movement and no muscle spasm or tenderness.  Straight
leg raising was positive bilaterally between 15 to 20
degrees.  The examiner stated that "the position of the
ankylosis is favorable."  Motion was forward flexion to 70
degrees and extension was to 15 degrees.  Right lateral
flexion was to 15 degrees and left lateral flexion was to 20
degrees.  Right and left rotation was to 25 degrees,
bilaterally.  After repetitive use, the joint function was
additionally limited by pain, but not by fatigue, weakness,
lack of endurance or incoordination after repetitive use.
There was evidence of intervertebral disc syndrome, with
nerve root involvement of the lumbosacral spine at S1, with
motor weakness on bilateral plantar flexion.  There was no
bowel, bladder or erectile dysfunction.

A VA examination was conducted in January 2010 specifically
to ascertain whether there is ankylosis of the lumbar spine.
The Veteran related that he experienced 10 to 15 flare-ups in
the past year, which required self-imposed bedrest of 1 to 3
days.  He did not have any incapacitating episodes of bedrest
ordered by a physician in the past year.  After review of the
claims file and the Veteran's medical records, the examiner
stated that the Veteran did not have any postural
abnormalities, fixed deformities, or abnormalities of the
musculature of the back and that there was no ankylosis of
the thoracolumbar spine.  Range of motion was forward flexion
to 65 degrees; extension to 15 degrees; left lateral flexion
to 24 degrees; right lateral flexion to 30 degrees; and
lateral rotation to 30 degrees, bilaterally.  Repetitive
movement of the thoracolumbar spine caused additional loss of
20 degrees of active flexion, with flexion limited to 45
degrees.  After repetitive use, increasing pain and
discomfort was present in the lower lumbosacral area.  Muscle
spasm and guarding were not present.  Regarding
intervertebral disc syndrome, MRI studies indicated multiple-
level disc protrusion, with signs and symptoms of left
radiculitis.  In the past year, the Veteran had received
treatments with epidural injections; however, he did not
indicate incapacitating episodes of disability that required
bed rest prescribed by a physician.  The diagnoses were
degenerative osteoarthritis of the thoracolumbar spine
superimposed on multiple-level degenerative disc disease with
disc protrusion and left radiculitis, and convex right upper
lumbar scoliosis.

Considering the General Formula criteria, the evidence does
not show the Veteran's forward flexion has been limited to 30
degrees or less at any time during the appeal period.  While
there were questionable references to ankylosis of the spine
in the report of the September 2008 VA examination, the
preponderance of the evidence shows that there is no
ankylosis of the spine.  Even when considering the evidence
of pain and functional impairment experienced by the Veteran,
his symptoms do not more nearly approximate the criteria for
the next higher 40 percent rating, given that repetitive use
restricts forward flexion to 45 degrees, which is still in
excess of that required for a rating of 40 percent.  The
Veteran's statements describing his symptoms and condition
are competent evidence to the extent that he can describe
what he experiences.  See Espiritu v. Derwinski, 2 Vet. App.
492 (1992).  However, these statements must be viewed in
conjunction with the objective medical evidence and the
pertinent rating criteria.  The competent (medical) evidence
of record does not show that he has any functional loss
beyond what is already being compensated.

Considering rating based on incapacitating episodes, there is
no evidence that the Veteran has experienced any
incapacitating episodes (as defined by regulation), much less
incapacitating episodes having a total duration of at least
four weeks in any twelve month period.  While he reports he
has had flare-ups of the disability, it is not shown (nor
does he allege) that bedrest was prescribed by a physician
(such is not reported in any VA or private treatment record.
Therefore, an increased rating under based on incapacitating
episodes is not warranted.

The Veteran's left leg radiculopathy is already separately
rated (and discussed further below).  There is no evidence
that he has any other separate, compensable neurologic
abnormalities associated with his low back disability.
Hence, the preponderance of the evidence is against a rating
in excess of 20 percent.

Nerve Involvement of the Left Leg

Service connection for motor nerve involvement of the left
leg was granted by the RO in a November 2003 rating decision.
The Veteran's claim seeking an increased rating for his left
leg disability was received in May 2007.

The motor nerve involvement of the Veteran's left leg is
rated under Code 8520 (for impairment of the sciatic nerve).
38 C.F.R. � 4.124a.  Incomplete paralysis of the sciatic
nerve warrants a 10 percent rating when mild, a 20 percent
rating when moderate, a 40 percent rating when moderately
severe, and a 60 percent rating when severe, with marked
muscular atrophy.

The term "incomplete paralysis" indicates a degree of lost or
impaired function substantially less than the picture for
complete paralysis given with each nerve, whether due to
varied level of the nerve lesion or to partial regeneration.
When the involvement is wholly sensory, the rating should be
for the mild, or at most, the moderate degree.  38 C.F.R. �
4.124a.

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
degree that its decisions are "equitable and just."
38 C.F.R. � 4.6.  Furthermore, 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.  The entire record must be considered.  38 U.S.C.A.
� 7104(a); 38 C.F.R. �� 4.2, 4.6.

On August 2007 VA examination, the Veteran complained of
tingling and numbness and constant pain shooting down the
left leg.  There was no abnormal sensation, anesthesia, or
weakness of the affected parts, but pain down the left leg.
The pain was burning and aching in nature, with the level
described as a 7 on a scale of 1 to 10.  Examination of the
peripheral nerves was within normal limits.  Motor and
sensory function were both described as within normal limits
and reflexes in the left lower extremity were 2+ at the knee
and the ankle.  The diagnosis was motor nerve involvement of
the left leg, associated with hypertrophic arthritis of the
lumbosacral spine.

On September 2008 VA examination the Veteran complained of
pain radiating down both of his legs, described as being
steady pain rated from between 5 and 7 , sometimes increasing
to 9 and 10, on a scale from 1 to 10.  Examination revealed
evidence of intervertebral disc syndrome, with nerve root
involvement of the lumbosacral spine at S1, with motor
weakness on bilateral plantar flexion that was described as
mild.  Neurologic examination of the lower extremities
revealed motor and sensory function to be normal.  Right and
left lower extremity reflexes were 3+ at the knees and 2+ at
the ankles.  There was no peripheral nerve involvement.  The
diagnosis was motor nerve involvement of the left leg
associated with hypertrophic arthritis of the lumbosacral
spine, no significant change with intervertebral disc
syndrome involving the superficial peroneal nerve and pain in
the lumbosacral area, with radiation to both ankles and minor
weakness on dorsiflexion.

On January 2010 VA neurological examination, sensory
perception to light touch was intact in the lower segments,
except along the left lateral calf.  Diminished sensation was
noted in this area.  Girth measurements were equal at 16-
5/8th inches at the thigh.  Measurements at the calf were 12
inches on the right and 12-1/2 inches on the left.  There was
no noticeable atrophy of the major muscle groups of the lower
limbs.  Muscle motor strength of the major muscle groups of
the hip flexors, knee quadriceps extensors, ankle
dorsiflexors, and extensors of the great toe were equal
bilaterally at +5 muscle motor strength.  Deep tendon
reflexes were equal bilaterally at +2 at the patellar and
Achilles levels.  There was no diagnosis regarding neurologic
impairment of the lower extremities.

Based on the foregoing evidence, the Board finds that the
Veteran's service-connected left leg neuropathy has been no
more than slightly disabling, and thus warrants no more than
a 10 percent rating under Code 8520.  As noted, while the
Veteran clearly has neurological impairment of the left lower
extremity, the impairment is sensory only and, as it was not
demonstrated on all examinations, intermittent.  A
preponderance of the evidence is against the Veteran's claim
for a rating in excess of 10 percent for motor nerve
involvement of the left leg and it must be denied.

Extraschedular Considerations

The Board also has considered whether the Veteran is entitled
to a greater level of compensation for his disabilities on an
extraschedular basis.  An extraschedular disability rating is
warranted based upon 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 that would render impractical the
application of the regular schedular standards.  38 C.F.R.
� 3.321(b)(1); see Fanning v. Brown, 4 Vet. App. 225, 229
(1993).

Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-
step inquiry for determining whether a Veteran is entitled to
an extraschedular rating.  First, the Board must determine
whether the evidence presents such an exceptional disability
picture that the available schedular evaluations for that
service-connected disability are inadequate.  Second, if the
schedular evaluation does not contemplate the claimant's
level of disability and symptomatology and is found
inadequate, the Board must determine whether the claimant'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
Veteran'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 the Veteran's disability picture requires
the assignment of an extraschedular rating.  In this case,
comparing the Veteran's disability level and symptomatology
to the rating schedule, the degree of disability throughout
the entire appeal period under consideration is contemplated
by the rating schedule and the assigned rating is, therefore,
adequate, and no referral for an extraschedular rating is
required.

Finally, the record shows that the Veteran worked without
restriction as an administrative manager until his retirement
in 1997.  He has not indicated, nor does the record suggest,
that he is unemployed as a result of his service connected
disabilities.  Consequently, the matter of entitlement to a
total disability rating based on individual unemployability
is not raised by the record.  See Shinseki v. Rice, 22 Vet.
App. 447 (2009).

ORDER

A rating in excess of 20 percent for low back disability is
denied.

A rating in excess of 10 percent for left leg nerve
impairment associated with low back disability is denied.

____________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs