Citation Nr: 0813172 Decision Date: 04/22/08 Archive Date: 05/01/08 DOCKET NO. 05-00 804 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for chronic hypertension. 2. Entitlement to service connection for a chronic back disorder. 3. Entitlement to a disability evaluation in excess of 50 percent for the veteran's post-traumatic stress disorder for the period prior to April 13, 2004. 4. Entitlement to a disability evaluation in excess of 70 percent for the veteran's post-traumatic stress disorder for the period on and after April 13, 2004. 5. Entitlement to an effective date prior to April 13, 2004, for the award of a total rating for compensation purposes based on individual unemployability. REPRESENTATION Veteran represented by: Kenneth M. Carpenter, Attorney ATTORNEY FOR THE BOARD K. Morgan, Counsel INTRODUCTION The veteran had active service from February 1966 until April 1970. This matter came before the Board of Veterans' Appeals (Board) on appeal from a September 2003 rating decision of the St. Louis, Missouri, Regional Office (RO) which, in pertinent part, established service connection for post-traumatic stress disorder (PTSD); assigned a 30 percent evaluation for that disability; effectuated the award as of November 15, 2002; and denied service connection for chronic hypertension. In August 2004, the RO denied service connection for a chronic back disorder. In June 2005, the RO increased the evaluation for the veteran's PTSD from 30 to 50 percent; effectuated the award as of November 15, 2002; and denied a total rating for compensation purposes based on individual unemployability. In January 2007, the RO increased the evaluation for the veteran's PTSD from 50 to 70 percent; granted a total rating for compensation purposes based on individual unemployability; and effectuated the awards as of April 13, 2004. The Board observes that the veteran has appealed from the initial evaluation assigned for his service-connected PTSD. In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (Court) addressed a similar appeal and directed that it was specifically not a claim for an increased disability evaluation. However, the Court did not provided a specific name for the issue in lieu of "increased disability evaluation." In the absence of such direction, the Board has framed the issues as entitlement to an evaluation in excess of 50 percent for the veteran's PTSD for the period prior to April 13, 2004, and an evaluation in excess of 70 percent for his PTSD for the period on and after April 13, 2004. The veteran is not prejudiced by such action. The issues of service connection for chronic hypertension and a chronic back disorder and an effective date prior to April 13, 2004, for the award of a total rating for compensation purposes based on individual unemployability are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The Department of Veterans Affairs (VA) will notify the veteran if further action is required on his part. FINDINGS OF FACT 1. Prior to April 13, 2004, the veteran's PTSD was objectively shown to be manifested no more than Vietnam War-related intrusive thoughts and nightmares; anxiety; irritability; a startle reaction; hypervigilance; suicidal thoughts; auditory hallucinations; social isolation; and Global Assessment of Functioning scores of between 40 and 75-80. 2. On and after April 13, 2004, the veteran's PTSD has been objectively shown to be manifested by no more than Vietnam War-related intrusive thoughts and nightmares; anxiety; irritability; a startle reaction; hypervigilance; homicidal thoughts; paranoid ideation; auditory hallucinations; and Global Assessment of Functioning scores of between 36 and 52. CONCLUSIONS OF LAW 1. The criteria for a 70 percent evaluation for the veteran's PTSD for the period prior to April 13, 2004, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R §§ 3.102, 3.159, 3.326(a), 4.7, 4.130, Diagnostic Code 9411 (2007). 2. The criteria for an evaluation in excess of 70 percent for the veteran's PTSD for the period on and after April 13, 2004, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R §§ 3.102, 3.159, 3.326(a), 4.7, 4.130, Diagnostic Code 9411 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held, in part, that a Veterans Claims Assistance Act of 2000 (VCAA) notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable RO decision on a claim for VA benefits. In reviewing the evaluation of the veteran's PTSD, the Board observes that the RO issued VCAA notices to the veteran in February 2003, March 2003, May 2003, January 2005, March 2006, and May 2006 which informed the veteran of the evidence generally needed to support a claim for service connection and the assignment of an evaluation and effective date of an initial award of service connection; what actions he needed to undertake; and how the VA would assist him in developing his claim. Such notice effectively informed him of the need to submit any relevant evidence in his possession. The February 2003, March 2003, and May 2003 VCAA notices were issued prior to the September 2003 rating decision from which the instant appeal arises. The VA has attempted to secure all relevant documentation. The veteran was afforded multiple VA examination for compensation purposes. The examination reports are of record. There remains no issue as to the substantial completeness of the veteran's claims. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002); 38 C.F.R §§ 3.102, 3.159, 3.326(a) (2007). Any duty imposed on the VA, including the duty to assist and to provide notification, has been met. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, No. 05-7157 (Fed. Cir. Apr. 5, 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007); petition for cert. filed, __ U.S.L.W.__ (U.S. Mar. 21, 2008) (No. 07A588). II. PTSD A. Historical Review The veteran served in the Republic of Vietnam; participated in combat; and sustained right lower extremity shell fragment wounds. The report of a July 2003 VA examination for compensation purposes states that the veteran was diagnosed with PTSD. A Global Assessment of Functioning (GAF) score of 75-80 was advanced. In September 2003, the RO established service connection for PTSD; assigned a 30 percent evaluation for that disability; and effectuated the award as of November 15, 2002. In June 2005, the RO increased the evaluation for the veteran's PTSD from 30 to 50 percent and effectuated the award as of November 15, 2002. In January 2007, the RO increased the evaluation for the veteran's PTSD from 50 to 70 percent and effectuated the award as of April 13, 2004. B. Evaluation Disability evaluations are determined by comparing the veteran's current symptomatology with the criteria set forth in the Schedule For Rating Disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2007). A 50 percent evaluation is warranted for PTSD which is productive of 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 himself 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 Code 9411 (2007). 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 (2007). 1. Period Prior to April 13, 2004 In an undated written statement received in May 2002, the veteran's spouse indicated that the veteran experienced a violent startle reaction and significant social isolation. A May 2003 VA psychiatric evaluation indicates that the veteran complained of Vietnam War-related nightmares; irritability; hypervigilance; a startle reaction; and impaired sleep. He reported that he was working. At the July 2003 VA examination for compensation purposes, the veteran complained of Vietnam War-related dreams; a startle reaction; an uncontrolled temper; hypervigilance; impaired sleep; frequent suicidal thoughts; paranoid ideations; and occasionally hearing voices. He reported that he was married and employed at a lead smelter on a full time basis. The veteran was observed to be clean; "normally groomed;" cooperative; alert; and oriented. On mental status examination, the veteran exhibited a constricted affect; coherent and goal oriented speech; fair attention, concentration, insight, and judgment; and no homicidal thoughts. The veteran was diagnosed with PTSD. An estimated GAF score of between 75 and 80 was advanced. The examiner commented that it "seems that the veteran is fairly coping well with his symptoms." VA clinical documentation dated in March 2004 indicates that the veteran complained of anxiety; irritability; and anger. He reported that he had not worked since the lead smelter at which he had been employed closed. On mental status examination, the veteran exhibited an affect "appropriate to mood of mixed anxiety and depression, but not marked;" and intact intellectual faculties. A GAF of 40 was advanced. In a September 2004 written statement, the veteran's attorney advanced that the veteran's GAF score of 38 warranted assignment of an initial 100 percent schedular evaluation for his PTSD. In a June 2006 written statement, the veteran's attorney conveyed that the veteran's GAF scores of 38 and 40 warranted assignment of a 70 percent evaluation. The Board has reviewed the probative evidence of record including the veteran's written statements on appeal. Prior to April 13, 2004, the veteran's PTSD was objectively shown to be manifested by no more than Vietnam War-related intrusive thoughts and nightmares; anxiety; irritability; a startle reaction; hypervigilance; suicidal thoughts; auditory hallucinations; social isolation; and Global Assessment of Functioning scores of between 40 and 75-80. The GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 32 (4th ed. 1994). A GAF score of between 31 and 40 reflects some impairment of reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. A GAF score of between 41 and 50 denotes 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 score of between 55 and 60 rating indicates moderate difficulty in social, occupational, or school functioning. Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); Richard v. Brown, 9 Vet. App. 266, 267 (1996). Prior to April 13, 2004, the veteran's PTSD was objective shown to productive of significant social and occupational impairment clearly meriting assignment of a 70 percent evaluation. In the absence of objective evidence reflecting 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 himself or others, an intermittent inability to perform activities of daily living, disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name, the Board concludes that a 70 percent evaluation and no higher is warranted for the relevant time period. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2007). The veteran's PTSD symptomatology falls squarely within the relevant diagnostic criteria. Therefore, an evaluation on an extra-schedular basis is not warranted. 38 C.F.R. § 3.321(b)(1) (2007). Hart v. Mansfield, 21 Vet. App. 505 (2007). 2. Period on and After April 13, 2004 An April 13, 2004, VA treatment record notes that the veteran complained of Vietnam War-related nightly nightmares and daily intrusive thoughts; a bad temper; domestic conflicts; and social isolation. On mental status examination, he exhibited a restricted affect and an observable startle reaction. A GAF score of 38 was advanced. In his April 2004 notice of disagreement, the veteran advanced that his PTSD was manifested by progressive nightmares; isolation from his family and his community; and a startle reaction. At a March 2005 VA examination for compensation purposes, the veteran complained of Vietnam War-related nightmares and thoughts; being "jumpy;" progressive irritability; hypervigilance; a startle reaction; isolation from his family; hearing voices and seeing things; and homicidal thoughts. The veteran reported that he was married and unemployed. He stopped working when the lead smelter at which he was employed closed. The veteran denied active suicidal thoughts. The examiner observed that the veteran was alert; oriented; cooperative; unshaven; and wearing clothing which was inappropriate to the weather. He noted that the veteran's spouse managed the veteran's financial affairs. On mental status examination, the veteran exhibited a neutral affect; a stable mood; a startle reaction; normal speech; "fairly poor" attention and concentration; adequate insight; and fair judgment. A GAF score of 55 was advanced. An April 2006 VA treatment record states that the veteran complained of frequent nightmares and intrusive thoughts; irritability; a "very marked startle reaction;" social isolation; and impaired sleep. A GAF score of 36 was advanced. The treating VA physician commented that the veteran's PTSD symptoms rendered him unemployable. At the December 2006 VA examination, the veteran complained of progressive PTSD symptoms. On mental status examination, he exhibited a blunted affect; a stable mood; clear, coherent, and goal oriented speech; suicidal thoughts; paranoid ideation; poor attention and concentration; and fair memory, insight, and judgment. A GAF score of 52 was advanced. The VA examiner opined that "the veteran's ability to manage his own funds remains questionable at present." On and after April 13, 2004, the veteran's PTSD has been objectively shown to be manifested by no more than Vietnam War-related intrusive thoughts and nightmares; anxiety; irritability; a startle reaction; hypervigilance; homicidal thoughts; paranoid ideation; auditory hallucinations; and Global Assessment of Functioning scores of between 36 and 52. In the absence of objective evidence reflecting 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 himself or others, an intermittent inability to perform activities of daily living, disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name, the Board concludes that the current 70 percent evaluation and no higher is warranted. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2007). The veteran's PTSD symptomatology falls squarely within the relevant diagnostic criteria. Therefore, an evaluation on an extra-schedular basis is not warranted. 38 C.F.R. § 3.321(b)(1) (2007). Hart v. Mansfield, 21 Vet. App. 505 (2007). ORDER A 70 percent evaluation for the veteran's PTSD for the period prior to April 13, 2004, is granted subject to the law and regulations governing the award of monetary benefits. An evaluation in excess of 70 percent for the veteran's PTSD for the period on and after April 13, 2004 is denied. REMAND The veteran asserts that service connection is warranted for chronic hypertension as that disability was incurred secondary to his service-connected diabetes mellitus. He also contends that he sustained a chronic back disorder as the result of jumping from helicopters and other military duties performed during combat in the Republic of Vietnam. The report of an August 2003 VA examination for compensation purposes states that the veteran reported that: "he recently had some tests done that shows that he did have a heart attack in the past;" had undergone a recent stress test; and had "an appointment set up with a cardiologist." Clinical documentation of the cited treatment is not of record. An October 2003 treatment record from the Primary Care Clinic notes that the veteran's "high blood pressure may be the result of diabetes." Clinical documentation from the cited treatment is not of record. The VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the veteran's claim. Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990). A September 2004 treatment record from the Primary Care Clinic notes that the veteran's "back pain started during his tenure in the Army and has progressed since then." The veteran has not been afforded a VA examination for compensation purposes which addressed his spine. The VA's statutory duty to assist the veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Therefore, the Board finds that an additional VA evaluation would be helpful in resolving the issues raised by the instant appeal. The issue of an effective date prior to April 13, 2004, for the award of a total rating for compensation purposes based on individual unemployability is inextricably intertwined with the issues of the veteran's entitlement to service connection for both chronic hypertension and a chronic back disorder given that such determination requires an accurate assessment of the functional impairment associated with all of the veteran's service-connected disabilities. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, this case is REMANDED for the following action: 1. Review the claims files and ensure that all notification and development action required by the VCAA is completed. In particular, the RO should ensure that the notification requirements and development procedures contained in 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R §§ 3.102, 3.159, 3.326(a) (2007); and the Court's holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) and Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) are fully met. 2. Then request that the veteran provide information as to all post-service treatment of his chronic hypertension and back/spine disorders including the names and addresses of all treating health care providers. Upon receipt of the requested information and the appropriate releases, contact the Primary Care Clinic and all other identified health care providers and request that they forward copies of all available clinical documentation pertaining to treatment of the veteran, not already of record, for incorporation into the record. 3. Then request that copies of all VA clinical documentation pertaining to the veteran's treatment after April 2006, not already of record, be forwarded for incorporation into the record. 4. Then schedule the veteran for a VA examination for compensation purposes in order to determine the nature and etiology of his chronic hypertension and back/spinal disabilities. All indicated tests and studies should be accomplished and the findings then reported in detail. The examiner or examiners should advance opinions as to the following: a. Whether it is more likely than not (i.e., probability greater than 50 percent); at least as likely as not (i.e., probability of 50 percent); or less likely than not (i.e., probability less than 50 percent) that the veteran's chronic hypertension had its onset during active service; is etiologically related to the veteran's combat experiences; otherwise originated during active service; and/or is etiologically related to and/or increased in severity beyond its natural progression due to his diabetes mellitus and other service-connected disabilities. b. Whether it is more likely than not (i.e., probability greater than 50 percent); at least as likely as not (i.e., probability of 50 percent); or less likely than not (i.e., probability less than 50 percent) that any identified chronic back/spine disability had its onset during active service; is etiologically related to the veteran's combat experiences; otherwise originated during active service; and/or is etiologically related to and/or increased in severity beyond its natural progression due to his service-connected disabilities. Send the claims folders to the examiner or examiners for review of pertinent documents therein. The examination report should specifically state that such a review was conducted. 5. Then readjudicate the issues of service connection for chronic hypertension and a chronic back disorder and an effective date prior to April 13, 2004, for the award of a total rating for compensation purposes based on individual unemployability with express consideration of the provisions of 38 U.S.C.A. § 1154(b) (West 2002) and 38 C.F.R. § 3.310 (2007) and the Court's holding in Allen v. Brown, 7 Vet. App. 439 (1995). If the benefits sought on appeal remain denied, the veteran and his attorney should be issued a supplemental statement of the case (SSOC) which addresses all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations considered since the issuance of the last SSOC. The veteran should be given the opportunity to respond to the SSOC. The veteran is free to submit additional evidence and argument while the case is in remand status. See Kutscherousky v. West, 12 Vet. App. 369 (1999). The veteran's appeal must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. ____________________________________________ J. T. Hutcheson Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs