Citation Nr: 1124158 Decision Date: 06/24/11 Archive Date: 06/29/11 DOCKET NO. 10-36 142A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Evaluation of posttraumatic stress disorder (PTSD) with symptom of depression, currently rated as 30 percent disabling. 2. Entitlement to service connection for a low back disability. 3. Entitlement to service connection for a metabolic disability. ATTORNEY FOR THE BOARD T.S. Willie, Associate Counsel INTRODUCTION The appellant had active service from August 1989 to March 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The issues of entitlement to service connection for a low back and metabolic disability 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 PTSD is manifested by suicidal/homicidal thoughts, disregard for authority, disassociative behavior, obsessive overeating, avoidance of events, inability to maintain effective relationships, irritability, panic attacks, mood ranges and circumstantial speech. CONCLUSION OF LAW PTSD is 70 percent disabling. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.130; Diagnostic Code (DC) 9411 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2010), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Prinicpi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial disability-rating and effective-date elements of a service connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the originating agency provided the appellant with the notice required under the VCAA by letters dated in December 2007 and May 2008. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2010). VA has also satisfied its duty to assist the appellant under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. In connection with the current appeal, available service and private treatment records have been obtained. We also note that the appellant has been afforded an appropriate and adequate VA examination. The examination reflects a pertinent medical history, review of the documented medical history, clinical findings, a diagnosis, and opinion supported by medical rationale. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. No further assistance to the appellant with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). Accordingly, the Board will address the merits of the claim. Legal Criteria and Analysis Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2010). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2010). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Here, the Board finds that the appellant's disability has not significantly changed and that a uniform rating is warranted. The Secretary, acting within his authority to adopt and apply a schedule of ratings, chose to create one general rating formula for mental disorders. 38 U.S.C. § 1155; see 38 U.S.C. § 501; 38 C.F.R. § 4.130. By establishing one general formula to be used in rating more than 30 mental disorders, there can be no doubt that the Secretary anticipated that any list of symptoms justifying a particular rating would in many situations be either under-or over-inclusive. The Secretary's use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. Instead, the rating specialist is to 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. See 38 C.F.R. § 4.126 . If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned. Mauerhan v. Principi, 16 Vet. App. 436 (1992). The appellant's PTSD is evaluated pursuant 38 C.F.R. § 4.130 Diagnostic Code 9411, and is subject to the criteria listed under the General Rating Formula for Mental Disorders. The General Rating Formula provides a 10 percent evaluation for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. 38 C.F.R. § 4.130 (2010). The rating formula provides a 30 percent evaluation when there is 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, and recent events). A 50 percent evaluation is warranted where there is 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 or abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. A 100 percent evaluation is indicated where there is 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. Id. The use of the term "such as" in the rating criteria 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 disability rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. In assessing the evidence of record, it is important to note that the GAF score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). A score of 31 to 40 is assigned where 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; child frequently beats up younger children, is defiant at home, and is failing at school). Id. A 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). Id. A score of 51-60 is assigned 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, conflict with peers or co- workers). Id. A score of 61-70 is indicated where there are some mild symptoms (e.g., depressed mood and mild insomnia OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. Id. The appellant has appealed the assignment of a 30 percent rating for PTSD. The current rating contemplates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The appellant was afforded a VA compensation and pension examination in April 2009. During this examination, he reported distrust for people, depression, trouble sleeping, flashbacks, nightmares, hyperalert and hypervigilance. He expressed feelings of hopelessness and helplessness, and decreased motivation but not suicidal or homicidal ideations. It was noted that the appellant also had a disorder of anxiety where he feels nervous, worried, fidgety, and fearful. The appellant married his wife in 2000 and reported a good relationship with her. He has a daughter and also had a good relationship with her. Post service the appellant worked in technology jobs with four different companies over 13 years. He reported that he had no problems at work and that the relationship with his supervisors and coworkers had always been good. He related that he no longer worked out, and that he had decreased socializing with men unless women are around. The appellant demonstrated avoidance stimuli, markedly diminished interest in participation in significant activities, feelings of detachment, estrangement from others, and restricted affect. He experienced symptoms of increased arousal and had difficulty falling asleep, irritability, outbursts of anger, exaggerated startle response, difficulty concentrating and hypervigilance. Examination revealed he was oriented to time, place and person. His appearance, behavior and hygiene were appropriate. His communications, affect and mood were normal. He had some difficulty with concentration generally speaking. There was no history of panic attacks, hallucinations or delusions. He also had no obsessional rituals. Thought processes were normal and there was no impairment of judgment or abstract thinking. His memory was normal and he did not have suicidal or homicidal ideation. PTSD was diagnosed and a GAF score of 35 to 40 was assigned. The examiner stated that the appellant's psychiatric symptoms caused occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks, although generally the appellant functioned satisfactorily with routine behavior, self-care and normal conversation. The examiner stated that the appellant had depressed mood, anxiety, suspiciousness and chronic sleep impairment but he does not have any difficulty in understanding simple or complex commands. He did not appear to pose any threat or danger of injury to himself or others. The appellant's wife has related that the appellant was well liked and respected by his peers and managers at the companies that he worked at but he quickly gets frustrated and consumes petty issues that makes it difficult for him to focus on the task at hand. She related that when he talks to her he talks about random things making it difficult to follow what he is saying. According to his wife, the appellant is short tempered, has a had time controlling his anger, revealed a violent side of him, has talked about committing violent acts to people who have been unfair to him or disrespected him, threatened her in the past and has thrown objects at her. She stated that because of the above she avoids having conversations with him out of fear of upsetting him. She also stated that some days the appellant becomes extremely sensitive about certain things that she says to him and that it is like walking a mine field because she does not know which words will cause him to explode. His wife stated that she feared for herself and daughter when the appellant is in the "red zone." He experienced bouts of depression, she stated, and that when he is depressed he talks about committing suicide and blames her for making him depressed. He also talks about committing violence towards others and has no fear of being caught she said. Via various statements the appellant has reported that he has mood disorders that range from extremely happy to homicidal/suicidal. He has expressed having alcohol abuse, disregard for authority, disassociative behavior, obsessive overeating, avoidance of events and disgust with most people of authority. The appellant has related that he just does not care about his life anymore and often lack emotion. According to him, he had circumstantial speech and difficulty in establishing effective work and social relationships. He stated that he does not have lasting effective relationships because most people close to him see an episode and distance themselves. He expressed that his nickname at work is the "beast" because of his snapping at people. He reported having one work friend and one childhood friend. He stated that he cannot do anything for which he has not formed a routine, he does not like to be alone, gets panic attacks and becomes irritable without provocation. Based on the evidence presented, the Board finds that a 70 percent rating for PTSD is warranted. In this regard, the evidence shows occupational and social impairment with deficiencies in most areas, such as work, family relations, thinking and mood. The appellant has reported mood disorders that range from extremely happy to homicidal/suicidal. He expressed having a disregard for authority, disassociative behavior, obsessive overeating, avoidance of events, circumstantial speech, panic attacks, social isolation, depression, trouble sleeping, flashbacks, and nightmares. Moreover, he endorsed symptoms of increased arousal, irritability, outbursts of anger, exaggerated startle response, difficulty concentrating and hypervigilance. The appellant denied being able to have lasting effective relationships and indicated difficulty in establishing effective work and social relationships. He reported having only one work friend and one childhood friend. Although the appellant remains married and reported a good relationship with his wife, his wife stated that he was short tempered and that he has revealed a violent side of him. She further related that she feared for herself and daughter when the appellant is in the "red zone." His wife also related that it was difficult to follow the appellant during conversation as he talks about random things. We also note that examination revealed difficulty with concentration. These findings justify an evaluation of 70 percent disabling as there is a showing of deficiencies in most areas, such as work, family relations, thinking and mood due to such symptoms as suicidal ideation, speech intermittently illogical, obscure, or irrelevant; impaired impulse control (such as unprovoked irritability with periods of violence) and the inability to establish and maintain effective relationships. Furthermore, while an examiner's classification of the level of a psychiatric impairment, by words or by a GAF score, is to be considered but is not determinative of the percentage disability rating to be assigned (38 C.F.R. § 4.126), it is notable that for the period considered in this appeal the appellant's GAF score has been 35-40. A GAF score of 35-40 indicates that there is some impairment in reality testing or communication or major impairment in several areas. In the view of the Board, the GAF score is consistent with the appellant's PTSD symptomatology and the assignment of a 70 percent rating. However, we find that an evaluation higher than 70 percent disabling is not warranted. Here, we find that the appellant had been competent and credible when reporting his symptoms. We also acknowledge his reports of suicidal/homicidal thoughts, alcohol abuse, disregard for authority, disassociative behavior, obsessive overeating, avoidance of events, inability to maintain effective relationships, irritability, panic attacks, mood ranges and circumstantial speech. However, the above does not justify an evaluation of 100 percent disabling. Stated differently, the medical and lay evidence as well as the GAF scores establish that there is occupational and social impairment with deficiencies in most areas. However, the manifestations, even when accepted as credible, do not establish total impairment. Although he reports occupational and social impairment, he nevertheless reported that his relationship with his supervisors and coworkers were always good. We also note that he has reported having at least one work friend and one childhood friend. Furthermore, he remains married. Examination has also revealed that he was oriented times three, and that his appearance, behavior and hygiene were appropriate. His memory was normal and his communications, affect and mood were normal. Also, his thought processes were normal and there was no impairment of judgment or abstract thinking. Such findings do not warrant a 100 percent evaluation when all the other manifestations are considered. See Mauerhan, supra, 16 Vet. App. 436. In sum, the appellant's symptoms are more characteristic of a disability picture that is contemplated by a 70 percent rating and no more. We have also considered referral for an extraschedular rating. Consideration of referral for an extraschedular rating requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. Here, the Board finds that the record reflects that the appellant has not required frequent periods of hospitalization for his disability and that the manifestations of the disability is contemplated by the schedular criteria. Therefore, there is no reason to believe that the average industrial impairment from the disability would be in excess of that contemplated by the schedular criteria. Therefore, referral of the case for extra-schedular consideration is not in order. ORDER A 70 percent disabling for PTSD is granted, subject to the controlling regulations applicable to the payment of monetary benefits. REMAND The appellant has appealed the denial of service connection for a low back and metabolic disability. The record reveals that since service the appellant has changed him name from S.A.R. to A.A.H. In an April 2009 memorandum, it was determined that the appellant's service treatment records (STRs) for his service from 1989 to 1996 were unavailable for review. It was noted that all procedures to obtain the STRs for A.A.H. had been correctly followed. However, the Board notes that in the memorandum the appellant's social security number was incorrect and the RO did not indicate that all the procedures to obtain the STRs for S.A.R. were followed. It appears that the social security number and the name were mismatched in some requests. As such, we find that the RO should again request the appellant's STRs using the appellant's name in service (S.A.R.) with the correct social security number. Furthermore, the appellant has linked his metabolic condition to his service connected PTSD. He indicated that his weight gain started around the time that he was assaulted and that he became morbidly obese because of his emotional problems. Secondary service connection shall be awarded when a disability "is proximately due to or the result of a service- connected disease or injury." 38 C.F.R. § 3.310(a) (2010). Effective October 10, 2006, VA amended 38 C.F.R. § 3.310 the regulation concerning secondary service connection. The revised regulation provides that any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice- connected disease or injury was aggravated by a service- connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice- connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. The Board notes that since the appellant's claim for service connection was filed in December 2007 the current version of 38 C.F.R. § 3.310 is applicable to the claim. The appellant has not been afforded a VA compensation and pension examination in relation to his claim for service connection for a metabolic disability also claimed as secondary to his PTSD. In view of VA's duty to assist obligations, which include the duty to obtain a VA examination or opinion when necessary to decide a claim, and based upon guidance from the Court, remand for the purpose of obtaining a VA examination(s) is required. Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain the appellant's service treatment records. If no records are found, a negative response should be indicated. The RO must ensure that the appellant's correct name and social security numbers are provided. 2. The appellant should be afforded a VA examination to determine the nature and etiology of his metabolic disability, if found on examination. The claims folder must be sent to the examiner for review. Following a review of the relevant evidence in the claims file, the clinical evaluation and any tests that are deemed necessary, the examiner is requested to address the following question, providing a rationale for any opinion offered: 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 currently present metabolic disability was caused by service and/ or caused or aggravated by the appellant's service- connected PTSD. If the appellant has a metabolic disability that was aggravated by his service- connected PTSD, the examiner is requested to provide an opinion as to the approximate baseline level of severity of the disability before the onset of aggravation. The medical basis for any opinion provided should be cited for the record. 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. 2010). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs