Citation Nr: 1004331 Decision Date: 01/28/10 Archive Date: 02/16/10 DOCKET NO. 06-22 953 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an initial evaluation higher than 30 percent for service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for headaches, to include as secondary to service-connected PTSD. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Andrew Dubinsky, Associate Counsel INTRODUCTION The Veteran had active service from March 1944 to May 1946. This matter comes before the Board of Veterans' Appeals (Board) from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In March 2007 and July 2008, the Board remanded the case to the RO via the Appeals Management Center (AMC) for further notification, development, and readjudication of the claims. Specifically, in the most recent remand, the Board ordered the AMC to ask the Veteran to sign release forms for his private medical records and readjudicate his claim. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). When remand orders are not complied with, the Board must ensure compliance. However, only substantial compliance, not strict compliance, is necessary. D'Aries v. Peake, 22 Vet. App. 97 (2008). The AMC sent the Veteran the appropriate release forms in September 2008, but he did not return them to the AMC. Based on the foregoing, the Board finds that the AMC substantially complied with the July 2008 remand. In January 2007, the Veteran testified at a Travel Board hearing in front of the undersigned Veterans Law Judge. The transcript of the hearing has been reviewed and is associated with the claims file. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to service connection for headaches, to include as secondary to service-connected PTSD, 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. FINDING OF FACT The competent evidence of record shows that the Veteran's PTSD has been manifested by no more than occupational and social impairment with reduced reliability and productivity due to such symptoms as hypervigilance, poor sleep, intrusive recollections, avoidance of reminders of his trauma, and occasional panic attacks, as well as feelings of guilt, detachment, and isolation. CONCLUSION OF LAW The criteria for an initial evaluation of 50 percent for the Veteran's service-connected PTSD have been approximated for the entire appeal period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1- 4.14, 4.126, 4.130, Diagnostic Code 9411 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information and any medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and 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. The Board notes that the requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule revising 38 C.F.R. § 3.159(b) to rescind fourth element notice as required under Pelegrini II, effective May 30, 2008). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); but see Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (when VCAA notice follows the initial unfavorable AOJ decision, remand and subsequent RO actions may "essentially cure [] the error in the timing of notice"). VCAA notice should also apprise the claimant of the criteria for assigning disability ratings and for award of an effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In May 2005, July 2005, February 2007, and April 2007 correspondence, the RO/AMC advised the Veteran of what the evidence must show to establish entitlement to an increased evaluation for his claimed disorder and described the types of evidence that the Veteran should submit in support of his claim. The RO/AMC also explained what evidence VA would obtain and make reasonable efforts to obtain on the Veteran's behalf in support of the claim. These VCAA notice letters also addressed the elements of degree of disability and effective date. Although the decision was subsequently modified, the Board notes that the United States Court of Appeals for Veterans Claims (Court) held in Vazquez-Flores v. Peake that certain notice elements were required for an increased rating claim. 22 Vet. App. 37 (2008); see Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). However, the Court drew a distinction between the notice requirements for a claim involving an initial disability rating and a claim for additional (increased) compensation of an already-service connected disability and only indicated that the notice requirements were relevant to claims for increased compensation. Id. As the issue of entitlement to a higher evaluation for service-connected PTSD arises from an initial disability rating, the Board finds that no discussion of VA's compliance with the notice elements outlined in Vazquez is necessary in this case. The Board observes that the Veteran was provided with adequate notice with respect to his PTSD claim by virtue of the aforementioned VCAA notice letters. Any defect with respect to the timing of the VCAA notice was cured when the AMC subsequently readjudicated the Veteran's claim in October 2009. Therefore, the Board concludes that the requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. Quartuccio, 16 Vet. App. at 187. To fulfill its statutory duty to assist, the RO/AMC afforded the Veteran with compensation and pension examinations in August 2006 and August 2005, obtained the Veteran's VA and private medical records to the extent possible, associated the Veteran's service treatment records (STRs) and hearing transcript with the claims file, and attempted to obtain the Veteran's Social Security Administration records. As mentioned previously, the AMC asked the Veteran to complete release forms for his private physicians, but he did not return the forms to the AMC. Furthermore, the Board notes that, although the most recent compensation and pension examination of record is more than three years old, there are no records in the claims file showing treatment after the August 2006 examination and the Veteran has not claimed that his condition has worsened. Thus, VA's duty to assist does not require a new examination. VAOPGCPREC 11-95 (April 7, 1995) cf. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). 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 VA examinations obtained in this case are, collectively, more than adequate, as the examinations were predicated on a full reading of the private and VA medical records in the Veteran's claims file. Both examinations included the Veteran's subjective complaints about his disability and the objective findings needed to rate the disability. Besides the aforementioned private treatment records and the Veteran's own testimony, the Veteran has not made the RO, AMC, or the Board aware of any other evidence relevant to this appeal that he or the VA needs to obtain. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim. Accordingly, the Board will proceed with appellate review. Legal Criteria Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained 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 (West 2002); 38 C.F.R. § 4.1 (2009). 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2009). All benefit of the doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3 (2009). In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Governing regulations include 38 C.F.R. §§ 4.1 and 4.2, which require the evaluation of the complete medical history of the veteran's condition. In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the veteran's claim is to be considered. An appeal from the initial assignment of a disability rating, such as in this case, requires consideration of the entire time period involved and contemplates staged ratings where warranted. Fenderson v. West, 12 Vet. App. 119 (1999). Analysis The Veteran filed his claim for entitlement to service connection for PTSD in April 2005, and the RO granted him a 30 percent disability rating in an August 2006 rating decision effective April 2005. The Veteran disagreed with this decision and appealed to the Board. He claims that his symptoms warrant a disability rating higher than 30 percent. A 30 percent disability rating reflects evidence of 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, and mild memory loss (such as forgetting names, directions, recent events). In order for the Veteran to receive the next higher rating of 50 percent, the evidence must show that his PTSD symptoms approximate 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability rating is the next possible disability rating above 50 percent. Such a rating is appropriate when PTSD symptoms approximate occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 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 inability to establish and maintain effective relationships. Finally, a 100 percent disability rating is warranted when PTSD symptoms approximate 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; and memory loss for names of close relatives, own occupation, or own name. The amended regulations in 38 C.F.R. § 4.130 established a general rating formula for mental disorders. They assign ratings according to the manifestation of particular symptoms. However, the use of the term "such as" 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 the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)). Id. The Board has reviewed the Veteran's complete claims file. Overall, the Board finds that the Veteran's symptomatology most closely approximated the criteria for a 50 percent disability rating for the entire appeal period. To be sure, the Veteran's claims file indicates he began treatment for PTSD as early as December 2003. For the most part, the Veteran's symptoms have been consistent throughout the appeal period. He has demonstrated hypervigilance, poor sleep, intrusive recollections, avoidance of reminders of his trauma, and occasional panic attacks. The Veteran has also startled easily and felt guilt, detachment, and isolation. Throughout the appeal period, the Veteran's speech was coherent and he denied hallucinations and delusions. Although doctors have described his appearance and behavior as subdued and overly calm, the Veteran became distressed at times when discussing his PTSD and displayed an anxious affect. Furthermore, the Veteran described his reoccurring dreams and claimed that he experienced tens of thousands of nightmares. Additionally, at his Travel Board hearing, the Veteran testified that he did not have many friends, did not like groups, and was very particular about where he parked his car. For example, he stated that he only ate at restaurants that had valet parking. Additionally, throughout the course of this appeal, VA afforded the Veteran two compensation and pension examinations and a social survey. The first compensation and pension examination occurred in August 2005. At this examination, the examiner reported that the Veteran had a close relationship with his wife and children but did not have any close friends. Upon examination, the Veteran maintained appropriate eye contact and communicated effectively, denied hallucinations or delusions, and demonstrated a logical and goal oriented thought process. However, the Veteran reported fleeting and passive suicidal thoughts when his blood pressure increased, but he did not have any suicidal plans or homicidal thoughts. Additionally, the Veteran's memory was intact, he did not have obsessions or compulsions, and did not experience panic attacks. As for his subjective sense of mood, the Veteran reported intermittent feelings of anxiety and depression. Moreover, the Veteran slept about four to seven hours per night and experienced nightmares five times a week. In the impressions section of the report, the examiner noted that the Veteran avoided elevators, close relationships with non- family members, and news of the war in Iraq. The examiner also found that the Veteran was hypervigilant, checked his garage every night before going to sleep, and was easily startled. Finally, the examiner concluded that the Veteran's PTSD had a minimal impact on his marriage and that he was capable of gainful employment. The Veteran also underwent a social survey in August 2005. A licensed clinical social worker noted that the Veteran's medical history was negative for any suicide attempts or drug or alcohol problems. The examiner then observed that the Veteran failed to make eye contact but appeared relaxed. The Veteran described his mood as "good," and denied guilt, hopelessness, depression, or worthlessness. Furthermore, the Veteran's answers were brief, clear, and coherent. He denied hallucinations, dissociation, and suicidal ideation. The examiner also found logical connections between the Veteran's thoughts, albeit with frequent irrelevant details, constant focus on his blood pressure problem, better long- term than short-term memory, and intact judgment and insight for safety and care. On the PTSD symptom scale, the examiner acknowledged that the Veteran denied a host of symptoms, including intrusive or distressing thoughts, flashbacks, feelings of detachment, and the inability to experience emotion. Finally, the Veteran was able to concentrate and did not tend to be overly alert, but he still experienced nightmares and was unable to go on ships. The Veteran presented for a second compensation and pension examination in August 2006. At this examination, the Veteran was neatly groomed with restless psychomotor activity and unremarkable speech. Although the Veteran had a restricted affect, the Veteran's mood was anxious and dysphoric. His attention and orientation were intact, his thought process was unremarkable, his memory was normal, and he denied delusions and understood the outcome of his behavior. The Veteran still reported sleep impairment, and the examiner noted several episodes of heart palpitations and blood pressure increases. At this time, the Veteran claimed to have transient and passive suicidal and homicidal thoughts but good impulse control and no episodes of violence. Additionally, on one hand, the examiner indicated that the Veteran experienced recurrent and intrusive distressing recollections of his traumatic events; efforts to avoid thoughts, feelings, or conversations associated with the trauma; markedly diminished interest or participation in significant activities; and persistent symptoms of increased arousal, to include difficulty falling or staying asleep, hypervigilance, and exaggerated startle response. However, on the other hand, the Veteran also reported that he enjoyed playing cards with his neighbors, reading, playing poker in casinos, and shopping. In fact, the Veteran described his PTSD as "a little bit better" except during his "panic like" attacks that were accompanied by very high, unexplained blood pressure levels. These panic episodes increased between the Veteran's two compensation and pension examinations. Otherwise, the examiner found that the Veteran's psychosocial functioning was "quite good." Nevertheless, the examiner opined that the Veteran's PTSD signs and symptoms resulted in deficiencies in judgment, work, and mood but only to the extent that he sometimes acted impulsively with anger, was unable to function after panic attacks, and experienced more anxiety. The examiner further found that the Veteran had reduced reliability and productivity due to his PTSD symptoms because his anxiety has affected his productivity and his ability to function only during the panic episodes. Finally, the Board notes that the Veteran's treatment providers have assigned him Global Assessment of Functioning (GAF) scores ranging from a low of 39 in August 2004 to a high of 70 during his August 2005 compensation and pension examination. In between those scores, the Veteran was assigned GAF scores of 50 in his August 2005 social survey report, 51 in December 2003, and 65 at his August 2006 compensation and pension examination. A GAF score ranging from 31-40 indicates that there is 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); a GAF score of 41-50 is assigned where there are serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job); a GAF score of 51-60 is appropriate where there are 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); and a GAF score of 61-70 reflects an individual with some mild symptoms, such as depressed mood and mild insomnia, or some difficulty in social, occupational, or school functioning, such as occasional truancy or theft within the household, but generally functioning pretty well and having some meaningful interpersonal relationships. Thus, the overall disability picture associated with the Veteran's PTSD as shown by the probative evidence of record most closely approximates the criteria associated with a 50 percent disability rating, representing occupational and social impairment with reduced reliability and productivity, for the entire appeal period. The Board notes that the Veteran suffered impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective social relationships, and an anxious affect. Although the Veteran's August 2006 compensation and pension examination report indicated that the Veteran's symptomatology included a restricted affect, increased anxiety, suicidal and homicidal thoughts, and increased panic attacks, he never demonstrated most of the symptoms associated with a 70 percent disability rating. For example, there is no evidence that the Veteran ever suffered from obsessional rituals that interfered with routine activities; illogical, obscure, or irrelevant speech; near- continuous panic or depression affecting his ability to function independently, appropriately, and effectively; spatial disorientation; or neglect of personal appearance and hygiene. Moreover, the August 2006 compensation and pension examiner opined that the Veteran's symptoms resulted in deficiencies only to the point of his inability to function after panic attacks, impulsive anger reactions at times, and increased anxiety. When considered in conjunction with a 65 GAF score, the Board finds that the August 2006 examination report does not indicate that the Veteran's PTSD symptomatology warrants a 70 percent disability rating. Therefore, the evidence demonstrates that the Veteran is entitled to a 50 percent disability rating, and no higher, for the entire appeal period. Thus, to that extent, the Veteran's appeal is granted. The Board further notes that there is no evidence of record that the Veteran's claimed disability warrants a higher rating on an extraschedular basis. 38 C.F.R. § 3.321(b) (2009). Any limits on the Veteran's employability due to his disability have been contemplated in the currently assigned disability rating. The evidence does not reflect that the Veteran's disability has necessitated any frequent periods of hospitalization or caused marked interference with unemployment. Thus, the record does not show an exceptional or unusual disability picture not contemplated by the regular schedular standards that would warrant the assignment of an extraschedular rating. Since the application of the regular schedular standards is not rendered impracticable in this case, referral of this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) for consideration of the assignment of an extraschedular evaluation is not warranted. ORDER Entitlement to an initial evaluation of 50 percent for service-connected posttraumatic stress disorder is granted, subject to laws and regulations governing payment of monetary benefits. REMAND After careful review of the record, the Board finds that a remand for additional development is necessary before proceeding to evaluate the merits of the Veteran's claim of entitlement to service connection for headaches, to include as secondary to service-connected PTSD. The record contains competent and credible testimony regarding the severity and frequency of the Veteran's headaches. The record also contains competent medical evidence showing treatment for these headaches and speculating about a link between the Veteran's headaches and his PTSD. Specifically, in April 2001, the Veteran's private physician, Dr. R.S., wrote that the Veteran's "attacks" can be aggravated by emotional distress and that an underlying anxiety/depressive state is present and aggravating, if not totally creating, the Veteran's problem. However, there is no adequate medical opinion of record regarding the cause of the Veteran's headaches. VA must provide a medical examination and/or obtain a medical opinion when there is: (1) competent evidence that the veteran has a current disability (or persistent or recurrent symptoms of a disability); (2) evidence establishing that the veteran suffered an event, injury, or disease in service or has a disease or symptoms of a disease within a specified presumptive period; (3) an indication the current disability or symptoms may be associated with service; and (4) there is not sufficient medical evidence to make a decision. Thus, in consideration of the foregoing, the Board finds that a remand for a medical examination and medical opinion with respect to the Veteran's claim of entitlement to service connection for headaches, to include as secondary to service-connected PTSD, is warranted. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested.) 1. Schedule the Veteran for a compensation and pension examination to determine the nature and etiology of the Veteran's headache disability. The examiner should state what disability the Veteran is diagnosed with and provide an opinion regarding whether or not it is at least as likely as not (i.e. a 50 percent probability) that this headache disability was caused by or aggravated by the Veteran's service- connected disabilities or otherwise related to his active military service. All tests and examinations should be reported in detail. The claims folder should be made available to the examiner for review before the examination, and the examiner should confirm that the claims folder was reviewed in the examination report. 2. After the development requested above has been completed to the extent possible, the Veteran's claim should be readjudicated on the merits. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for the Veteran and his representative to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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. 2009). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs