Citation Nr: 0805445 Decision Date: 02/15/08 Archive Date: 02/26/08 DOCKET NO. 05-28 142 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to an increased rating for post-traumatic stress disorder (PTSD), currently evaluated as 70 percent disabling. 2. Entitlement to an increased rating for diabetes mellitus, currently evaluated as 20 percent disabling. 3. Entitlement to service connection for gout. 4. Entitlement to service connection for tumor, right breast. 5. Entitlement to service connection for an eye condition, secondary to service-connected diabetes mellitus. 6. Entitlement to service connection for onychomycosis of the toenails. 7. Entitlement to service connection for scars of the chest, the right lower stomach, and left thigh. 8. Entitlement to service connection for arthritis of the lower back and bilateral hips. 9. Entitlement to service connection for peripheral neuropathy. 10. Whether new and material evidence has been submitted to reopen the claim for service connection for fractured collarbone. 11. Whether new and material evidence has been submitted to reopen the claim for service connection for chloracne. 12. Whether new and material evidence has been submitted to reopen the claim for service connection for renal failure, secondary to a service-connected disability. 13. Whether new and material evidence has been submitted to reopen the claim for service connection for Crohn's disease, secondary to a service-connected disability. 14. Whether new and material evidence has been submitted to reopen the claim for service connection for heart disease with hypertension, secondary to a service-connected disability. 15. Whether new and material evidence has been submitted to reopen the claim for service connection for pancreatitis, secondary to a service connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The veteran served on active duty from August 1965 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February and November 2004 rating decisions, which denied the issues on appeal. The issues of entitlement to an increased rating for diabetes mellitus, service connection for gout, tumor of the right breast, an eye condition secondary to diabetes mellitus, onychomycosis of the toenails, scars of the right lower stomach, chest, and left thigh, arthritis of the lower back and bilateral hips, and peripheral neuropathy, and whether new and material evidence has been submitted to reopen the claims for chloracne, and a fractured collarbone, and renal failure, Crohn's disease, heart disease with hypertension, and pancreatitis, secondary to a service connected disability being remanded are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The veteran's PTSD more nearly approximates total occupational and social impairment, due to such symptoms as: persistent delusions or hallucination; gross inappropriate behavior; persistent danger of hurting others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); and memory loss. CONCLUSION OF LAW The criteria for a total rating for PTSD have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In view of the favorable decision in this case, it is unnecessary to enter any discussion regarding whether there has been full compliance by VA with respect to its duty to notify and duty to assist the veteran in connection with this claim of increased rating for PTSD. Service connection was established for PTSD by rating decision of March 2002. A 70 percent evaluation was assigned, effective from December 2000. This evaluation has been in effect to this date. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Separate diagnostic codes identify the various disabilities. Regulation requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. Each disability must be considered from the point of view of the veteran working or seeking work. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter under consideration, the benefit of the doubt in resolving the issue shall be given to the claimant. 38 U.S.C.A. § 5107 (West 2002). Furthermore, 38 C.F.R. § 4.7 provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, as in this case, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). Under the General Rating Formula for Mental Disorders, 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, will be rated as 100 percent disabling. Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships is to be rated as 70 percent disabling. 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 is to be evaluated as 50 percent disabling. Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal, due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events) is to be evaluated as 30 percent disabling. 38 C.F.R. § 4.130, Diagnostic Code 9411. By rating decision of March 2002, service connection was granted for PTSD and awarded a 70 percent rating, effective December 2000. The 70 percent rating was not considered permanent and he was scheduled for a future review examination in October 2004. From that time, he has participated in VA anger management sessions, treatment at the VA Vet Center, and group and individual treatment at the VA. Outpatient treatment records from October 2002 to September 2003, and VA compensation and pension examination of October 2004, show that his PTSD symptoms are most consistent with a total rating during the appeal period. VA outpatient treatment record of October 2002 showed that the veteran was prescribed three different medications for his PTSD and still continued to hear voices of his friends and Vietnamese soldiers calling him to help them. He reported that he continued to feel down and lonely, slept only 4 to 5 hours per night, and felt tired, hopeless, and worthless. He indicated that his appetite was "OK." He denied thoughts or plans to hurt himself or others. Mental status examination revealed the veteran was casually dressed and engaged good eye contact. His speech was slow and the tome was goal directed. His mood was depressed and his affect constricted. He denied suicidal or homicidal hallucinations, but he had paranoid features. His insight and judgment were fair. The pertinent diagnosis was PTSD. His global assessment of functioning was 55. His medication was increased. In February 2003, the veteran was seen on an outpatient basis by VA. He reported nightmares and auditory hallucinations. He feared someone was trying to hurt him. He was having intrusive thoughts about the war. He was having problems with his siblings and also with his wife. Mental status examination showed him to have good eye contact and slow speech. His rate and tone were goal directed, his mood was depressed, and his affect constricted. He denied suicidal and homicidal ideations, but reported auditory hallucinations. The diagnosis was PTSD. His GAF was 45. His medication was increased for his insomnia and he was to continue to attend treatment for his PTSD at the Vet Center and to be seen by VA in supportive therapy. In May 2003, the veteran was seen by VA complaining of feelings of hopelessness and helplessness. He reported that he went to church and had panic attacks, and was only able to stay in church 15 minutes. He had shortness of breath, cold sweats, and palpitations. He continued to have problems with his sleep and was having more intrusive thoughts of the war. Mental status examination showed him to have good eye contact and slow speech. His rate and tone were goal directed, his mood was depressed, and his affect constricted. He denied suicidal and homicidal ideations, but reported auditory hallucinations. The diagnosis was PTSD. His GAF was 55. In September 2003, the veteran was again seen on an outpatient basis by VA. He was upset at the hospital police who searched and surrounded him for a gun having mistaken him for someone else. He was having severe problems with his PTSD symptoms and was unable to sleep. He had more intrusive thoughts regarding the war, nightmares, and guilt feelings. He remained isolated and unable to be in crowded places. Mental status examination revealed the veteran was anxious and fidgety, peeling his nails and tapping his feet. His rate and tone were goal directed, his mood was depressed, and his affect constricted. He denied suicidal and homicidal ideations, but reported auditory hallucinations. His insight and judgment were fair. The diagnosis was PTSD. The veteran underwent a VA psychiatric evaluation in October 2004. He related that he was diagnosed with PTSD in 2000 and was seen every two to three months for his PTSD at the VA Medical Center and every other week at the Vet Center for individual and group therapy for his PTSD. He reported nightly nightmares and intrusive thoughts. He reportedly walked around the house with a gun, scaring his wife. He reportedly was isolated from his relatives and felt disconnected from others. He had panic attacks in a crowd. He was irritable and angered easily. He startled easily and had problems falling asleep, even with sleep medication. His wife, who was in attendance at the examination, reported that his symptoms had worsened over the last one to two months. It was noted that he was divorced from his first wife 20 years prior and had two adult children. He was remarried and was currently married to his second wife. They argued and his wife reported that he often got angry and threatening. He used to hit her but had not done so in the previous five years. She stated that she stayed with him because he was "sick." He had no contact with his children. He related he had no social relationships. He stated that he got into arguments with his family very often and argued with anyone who did not agree with him. He reported arguments with his neighbors and denied violence, although he had a history of hitting his current wife and of shooting his ex-brother-in- law in the 1990's. He was known to keep a loaded gun in his home. The veteran was unemployed and stated that it was because he could not get along with others due to the severity of his PTSD symptoms. His wife indicated that she had to assist him with bathing and preparing his food. He refused to socialize and had panic attacks when attending church. Mental status examination showed he did not have impairment of thought process or communication. He did have delusions and hallucinations. He did not have appropriate behavior in the session as he was very sedated. He had no suicidal ideation but reported thoughts of harming others when he was in a fight. In April 2004, he had thoughts of "bashing" his neighbor's head when they were in an argument. He was able to maintain personal hygiene and basic activities of daily living with the help of his wife, as he became disoriented because of the medications he takes. He reported difficulty with short term memory, and had panic attacks about once per week. He had depression and an angry mood that limited his ability to function. He had problems with impaired impulse control as he has lashed out physically and verbally with others. His neighbors no longer talked to him and he was unable to work as a result of this problem. He had great difficulty sleeping, irritability, and exaggerated startle response. It was indicated that his PTSD impaired his functioning in all areas. The examiner commented that the veteran's multiple medical problems likely affected his quality of life and psychosocial functioning to some extent, but these problems were so entwined with the veteran's PTSD that it was not possible to quantify their independent effects. PTSD was said to exacerbate his physical symptoms. The prognosis for improvement for the veteran's psychiatric condition was poor. His GAF was 40. On the record during this appeals period, the evidence shows symptoms of total occupational and social impairment to such symptoms as intermittent inability to perform activities of daily living, persistent delusions and hallucinations, danger of hurting others, and short term memory loss. The veteran's symptomatology shows that he is totally disabled by his PTSD during this period. The veteran was isolated from others, had an inability to get along with his family or neighbors, was threatening on occasion, had a violent history of hitting his wife and shooting his brother-in-law, had been in anger management therapy, and had no social contact with his adult children. He attended biweekly sessions at the Vet Center for individual and group therapy, and had ongoing treatment by VA to include prescribed psychotropic medication. Although his medication has been increased, he continued to have auditory hallucinations and sleep disturbance. His insight and judgment were noted to be fair. He had weekly panic attacks, and the most recent examiner related that although he had multiple medical problems, his PTSD was so entwined with his medical conditions that it was not possible to quantify their independent effects. His PTSD was found to exacerbate his physical symptoms. Based on the foregoing, the veteran's PTSD symptoms revealed that they caused total occupational and social impairment. Under 38 C.F.R. § 4.130, the nomenclature employed in this portion of the rating schedule is based upon the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, Fourth Edition, of the American Psychiatric Association (DSM-IV). As indicated in Carpenter v. Brown, 8 Vet. App. 240, 242 (1995), the GAF is a scale reflecting the psychological, social and occupational functioning on a hypothetical continuum of mental health- illness and a 61-70 score indicates some mild symptoms (e.g. depressed mood and mild insomnia) or some difficulty in social occupational, or school functioning (e.g., occasional truancy, or within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. A 51-60 score indicates moderate symptoms, e.g., flattened affect, circumstantial speech, occasional panic attacks, or moderate difficulty in social, occupational or school functioning; e.g., having few friends or having conflicts with peers or co-workers. A GAF score of 41 to 50 reflects a serious level of impairment, e.g., suicidal ideation, severe obsessive rituals, frequent shoplifting or serious impairment in social, occupational or school functioning, e.g., no friends, unable to keep a job. A GAF score of 31 to 40 reflects some impairment in reality testing or communication, e.g., speech is illogical at times, obscure or irrelevant, or major impairment in several areas such as work, school, family relations, judgment, thinking or mood, e.g., depressed man avoids friends, neglects family, and is unable to work. See 38 C.F.R. § 4.130. The veteran's GAF scores ranged from 40 to 55, indicating serious symptoms to impairment in reality testing. The medical evidence during that period was reflective of symptoms showing constricted affect, panic attacks, no friends or family contacts, a danger to others, memory loss, and an inability to work. Given the foregoing, the Board must find that the veteran's disorder meets the criteria for the next higher rating of 100 percent. . In sum, and resolving reasonable doubt in the veteran's favor, the Board finds that the evidence favors a total rating for the veteran's PTSD. ORDER A 100 percent rating for PTSD is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND Additional development is needed in this case. Initially, the veteran claims service connection for peripheral neuropathy, gout, tumor of the right breast, an eye condition, secondary to diabetes mellitus, onychomycosis of the toe nails, scars of the chest, left thigh, and right lower stomach and arthritis, lower back and bilateral hips. The veteran has not received a VCAA letter indicating, in pertinent part, what evidence is necessary for the veteran to show in order to prove service connection for these disorders. The veteran should receive proper notice required under 38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159. Additionally, the veteran claims that new and material evidence has been submitted to reopen the claims for service connection for chloracne and a fractured collarbone, and renal failure, Crohn's disease, heart disease with hypertension, and pancreatitis, secondary to diabetes mellitus. In Kent. v. Nicholson, 20 Vet. App. 1 (2006) the United States Court of Appeals for Veterans Claims (Court) clarified VA's duty to notify in the context of claims to reopen. The Court held that VA must notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit sought. In addition, the Court held that VA's obligation to provide a claimant with notice of what constitutes new and material evidence to reopen a service- connection claim may be affected by the evidence that was of record at the time that the prior claim was finally denied. The question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied. In order to satisfy the legislative intent underlying the VCAA notice requirement, the VCAA requires, in the context of a claim to reopen, the bases for the denial in the prior decision and the necessity to respond with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. Moreover, it is the Board's jurisdictional responsibility to consider whether a claim should be reopened, no matter what the RO has determined. Wakeford v. Brown, 8 Vet. App. 237 (1995). In this case, the RO has not given the veteran notice of evidence and information that is necessary to establish entitlement to the underlying claims. This must be done, prior to the final adjudication of the claims. It is also important to note that the VA examiner in October 2004, raised the issue of service connection on a secondary basis as to all of the veteran's physical disorders, and this should be addressed also. See 38 C.F.R. § 3.310(b). Finally, the veteran claim that his diabetes mellitus is more severe than the current evaluation reflects. For an increased rating claim, section 5103(a) requires, at a minimum, that the Secretary notify the veteran, that to substantiate a claim, he must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect of that worsening on the veteran's employment and daily life. Vasquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008). The veteran also 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 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 the disability compensation is being sought, their severity, and duration and their impact upon employment and daily life. Notice must also provide examples of the type of medical and lay evidence that the veteran may submit that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, slip op. 5-6. He was not informed of what was necessary to substantiate an increased rating claim nor was he notified of the types of evidence to provide that would show the severity, duration, and impact of the disability upon his employment and daily life. This should be done prior to adjudication of the veteran's increased rating claim for diabetes mellitus. Accordingly, the case is REMANDED for the following action: 1. Send the veteran a notice letter which is consistent with 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) pertaining to the claims of service connection for peripheral neuropathy, gout, tumor of the right breast, eye condition, secondary to diabetes mellitus, onychomycosis of the toenails, scars of the chest left thigh, and right lower stomach and arthritis, lower back and bilateral hips; also as to whether new and material evidence has been received to reopen the claims of service connection for chloracne and a fractured collarbone, and renal failure, Crohn's disease, heart disease with hypertension, and pancreatitis, secondary to diabetes mellitus; and an increased rating claim for diabetes mellitus. The notice letter must describe the information and evidence not of record that is necessary to substantiate the claims. The notice letter should inform the veteran about the information and evidence that VA will seek to provide; the information and evidence the veteran is expected to provide; and the notice letter should request or tell the veteran to provide any evidence in the veteran's possession that pertains to the claims. The corrective notice letter must also describe the elements necessary to establish service connection, must explain the definition of new and material evidence, and must describe what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denials in the claims for new and material evidence. It should also include for the increased rating claim, the types of evidence to provide that would show the severity, duration, and impact of the disability upon his employment and daily life. 2. Upon completion of the requested development above, the RO should readjudicate the claims for service connection, for finality, and for increased rating on appeal. If any of the decisions are adverse to the veteran, he and his representative should be provided with an appropriate Supplemental Statement of the Case, which sets forth the applicable legal criteria pertinent to this appeal, to include service connection on a direct and secondary basis, to include aggravation, see 38 C.F.R. § 3.310(b), and he should be given the opportunity to respond thereto. 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). ______________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs