Citation Nr: 1106191 Decision Date: 02/15/11 Archive Date: 02/28/11 DOCKET NO. 09-36 297 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to an initial rating in excess of 50 percent for PTSD from June 1, 2006, to January 29, 2010. 3. Entitlement to an initial rating in excess of 50 percent for PTSD from January 30, 2010, onward. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty from February 1968 to October 1969 This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In November 2010, the Veteran and his wife testified at a video hearing before the undersigned. In September 2010, the Veteran raised a claim of service connection for a heart disorder including as due to his exposure to Agent Orange while serving in the Republic of Vietnam. The record also raises a claim for a total rating based on individual unemployability (TDIU) for the June 1, 2006, to January 29, 2010, time period. See Rice v. Shinseki, 22 Vet. App. 447 (2009). These claims have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action. The claim for an initial rating in excess of 50 percent for PTSD from June 1, 2006, to January 29, 2010, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In January 2010, prior to the promulgation of a decision in the appeal, VA received notification from the Veteran that he wanted to withdraw his appeal of the denial of his claim of service connection for hepatitis C. 2. From January 30, 2010, onward the preponderance of the competent and credible evidence of record shows the Veteran's PTSD has been manifested by symptoms that cause total occupational impairment. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a Substantive Appeal of the issue of entitlement to service connection for hepatitis C have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2010). 2. From January 30, 2010, the Veteran has met the schedular criteria for a 100 percent rating for PTSD. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Hepatitis C Claim Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. Here, the Veteran in a November 2010 statement withdrew his appeal of the denial of his claim of service connection for hepatitis C. Therefore, there remains no allegation of error of fact or law for appellate consideration with respect to this issue. Accordingly, the Board does not have jurisdiction to review it and the appeal as to this issue is dismissed. The PTSD Claim The Veterans Claims Assistance Act of 2000 (VCAA) The following decision assigns the Veteran a 100 percent schedular rating for PTSD as of January 30, 2010. The Board's decision represents a full grant of the benefit with respect to the PTSD rating as of January 30, 2010. See Grantham v. Brown, 114 F.3d 1156 (1997). As such, the Board finds that any error related to the VCAA on this aspect of the PTSD claim is moot. See 38 U.S.C. §§ 5103, 5103A (West 2002 & Supp. 2009); 38 C.F.R. § 3.159 (2009). The Rating Claim The Veteran, his wife, and his representative contend that the claimant's PTSD is manifested by symptomatology that makes him unable to work and therefore warrants the assignment of a higher evaluation. It is requested that the Veteran be afforded the benefit of the doubt. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. In cases where the original rating assigned is appealed, consideration must be given to whether the veteran deserves a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Regulations require that where there is a question as to which of two evaluations is to 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 a December 2007 rating decision, the RO granted service connection for PTSD and assigned a 50 percent rating under 38 C.F.R. § 4.130, Diagnostic Code 9411, effective from June 1, 2006. Under 38 C.F.R. § 4.130, if PTSD causes occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships a 50 percent evaluation is in order. 38 C.F.R. § 4.130, Diagnostic Code 9411. If PTSD causes occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships then a 70 percent evaluation is in order. Id. Finally, the rating schedule provides that a 100 percent rating for PTSD is warranted for total occupational and social impairment, due to such symptoms as a 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. Id. The above set of symptoms is not an exclusive or exhaustive list. Rather, it serves as an example of the symptoms that would justify a total rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). With the above criteria in mind, the Board notes that the Veteran underwent a VA evaluation on January 30, 2010. The VA examiner, after a review of the record on appeal and an examination of the Veteran, opined that the claimant's PTSD signs and symptoms had increased in severity and frequency and this had resulted in a much lower level of functioning. It was also opined as follows: Due to depression, anxiety, sleep problems, nightmares, night sweats, isolating himself, relationship problems, concentration problems, emotional numbing, intrusive thoughts, anxiety attacks, flashback, anger problems, irritability, mood swings, a loss of interest in everyday activities, hypervigilance, an increased startled response, fear of the dark, and crying spells there is total occupational and social impairment with the Veteran. It is unlikely that he would be able to obtain and maintain gainful employment now or in the future due to the severity of his PTSD signs and symptoms. (Emphasis added). Lastly, it was opined that the Veteran's Global Assessment of Functioning (GAF) score due to his PTSD was 43, suggesting that his PTSD is manifested by "serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friend, unable to keep a job)" and/or "some impairment in 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 (e.g., depressed man avoids friends, neglects family, and is unable to work . . .)." See AMERICAN PSYCHIATRIC ASSOCIATION: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th Edition (1994) (DSM IV). The January 2010 VA examiner's opinions regarding the severity of the Veteran's PTSD symptoms are not contradicted by any other medical opinion of record. See Colvin v. Derwinski 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Therefore, the Board finds that the Veteran's adverse psychiatric symptomatology amounts to total occupational impairment as contemplated by a 100 percent rating. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. Accordingly, the Board finds that the Veteran has met the criteria for a higher, 100 percent, scheduler rating for his PTSD. In this regard, a review of the record on appeal does not show any material variance in the degree of the Veteran's adverse psychiatric symptomatology since January 30, 2010. Therefore, the Board finds that the 100 percent rating is warranted from January 30, 2010, onward Fenderson, supra. (The Board will not comment on the degree of the Veteran's PTSD symptomatology prior to the January 30, 2010 VA examination. This matter must be fully developed prior to appellate review. ) ORDER The appeal of the denial of service connection for hepatitis C is dismissed. From January 30, 2010, a 100 percent schedular evaluation is granted for PTSD, subject to those provisions governing the payment of monetary benefits. REMAND As to the claim for a rating in excess of 50 percent for PTSD from June 1, 2006, to January 29, 2010, the Veteran in February 2009 and November 2010 statements in support of claim as well as at his November 2010 hearing notified VA that he received ongoing treatment for his PTSD for at least the last five years at the Battle Creek VA Medical Center. Similar claims by the Veteran regarding his receiving ongoing treatment at VA is also found in the January 2010 VA examination report. However, while some of the Veteran's records from this facility are found in the claims folder, all of his records document his treatment for PTSD are not. Therefore, the Board finds that a remand is required to obtain these records. See 38 U.S.C.A. § 5103A(b); Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA adjudicators are deemed to have constructive notice of VA treatment records); Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992) (holding that when reference is made to pertinent medical records, VA is on notice of their existence and has a duty to assist the Veteran to attempt to obtain them). Accordingly, this issue is REMANDED to the RO/AMC for the following actions: 1. The RO/AMC should obtain and associate with the record all of the Veteran's post-2005 treatment records from the Battle Creek VA Medical Center. If any of the pertinent records are not available, or if the search for the records yields negative results, that fact should clearly be documented in the claim's file and the claimant notified in writing. Because these are Federal records, if they cannot be secured, a written unavailability memorandum must be prepared and added to the claim's folder and the Veteran provided with a copy of that memorandum as well as offered an opportunity to respond. 2. After undertaking the above development, the RO/AMC should provide the Veteran and his representative with updated VCAA notice in accordance with the Court's holding in Dingess, supra; 38 U.S.C.A. §§ 5103, 5103A; and 38 C.F.R. § 3.159. 3. The RO/AMC should thereafter readjudicate the claim. Such adjudication should consider additional staged ratings. See Fenderson, supra. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, any evidence not received, and all applicable laws and regulations considered pertinent to the issue currently on appeal. A reasonable period of time should be allowed for response before the appeal is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs