Citation Nr: 1124937 Decision Date: 06/30/11 Archive Date: 07/06/11 DOCKET NO. 06-06 470 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to an increased rating for posttraumatic stress disorder (PTSD), currently rated as 50 percent disabling since December 10, 2004, and as 70 percent disabling since September 22, 2010. 2. Entitlement to an increased rating for residuals of a right hip shell fragment wound, currently rated as 30 percent disabling. REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jennifer Hwa, Counsel INTRODUCTION This matter came to the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which in pertinent part continued the 30 percent rating in effect for PTSD and the 10 percent rating in effect for scar, shrapnel wound of the right hip. In February 2010, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. In January 2008, December 2009, and April 2010, the Board remanded the claims for additional development. The case has been returned to the Board for further appellate review. In a December 2010 rating decision, the RO increased the disability rating for PTSD, from 30 to 50 percent disabling, effective December 10, 2004, and from 30 to 70 percent disabling, effective September 22, 2010. The RO also assigned a separate 30 percent disability rating for muscle injury, right hip shell fragment wound, effective December 10, 2004. However, as these grants do not represent total grants of benefits sought on appeal, the claims for increase remain before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The Veteran originally appealed the issue of entitlement to a total disability rating based on individual unemployability (TDIU). A December 2010 rating decision granted TDIU, effective December 1, 2008. That represents a total grant of the benefits sought on appeal for the issue of entitlement to service connection for a TDIU, and therefore, that issue is no longer before the Board. The issue of an increased rating for residuals of a right hip shell fragment wound 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. For the period from December 10, 2004, to September 22, 2010, the Veteran's PTSD was productive of occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect, impairment of short-term memory, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. 2. For the period since September 22, 2010, the Veteran's PTSD was not productive of total social and occupational impairment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent for PTSD have not been met from December 10, 2004, to September 22, 2010. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code (DC) 9400 (2010). 2. The criteria for a rating in excess of 70 percent for PTSD have not been met since September 22, 2010. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code (DC) 9400 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist For increased rating claims, the Veterans Claims Assistance Act of 2000 (VCAA) requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. See Vazquez-Flores v. Shinseki, 580 F. 3d 1270 (Fed. Cir. 2009); Wilson v. Mansfield, 506 F.3d 1055 (Fed. Cir. 2007). In this case, the Veteran was provided pertinent information in letters dated in February 2005 and March 2008 as well as other correspondence provided by the RO. Specifically, VA informed the Veteran of the necessity of providing, on his own or by VA, medical or lay evidence demonstrating a worsening or increase in severity of the respective disability, and the effect that the worsening has on his employment and daily life. The Veteran was informed that should an increase in disability be found, a disability rating would be determined by applying the relevant diagnostic codes; and provided examples of pertinent medical and lay evidence that he could submit relevant to establishing entitlement to increased compensation. The Veteran was also provided notice of the applicable relevant diagnostic code provisions. The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Veteran and his representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. Increased Rating Ratings for service-connected disabilities are determined by comparing the symptoms the Veteran is presently experiencing with criteria set forth in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2010). Separate diagnostic codes identify the various disabilities. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2010). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2010). Also, when making determinations as to the appropriate rating to be assigned, VA must take into account the Veteran's entire medical history and circumstances. 38 C.F.R. § 4.1 (2010); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Under Diagnostic Code 9411, a 50 percent rating is assigned for a mental disorder (including posttraumatic stress disorder) when 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; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned when the psychiatric condition produces 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 rating is assigned when there is total occupational or 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. 38 C.F.R. § 4.130, DC 9411 (2010). The psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). December 10, 2004, to September 22, 2010 The Veteran's PTSD was rated as 50 percent disabling from December 10, 2004, to September 22, 2010. On VA examination in March 2005, the Veteran reported that he had been married for 32 years and that he had two adult daughters. He stated that he had a good relationship with his wife although she recognized that he had problems left over from his period of service. He complained of frequent depression and anxiety, lack of emotion, loss of sense of humor, sleep difficulties, startle reactions in connection with hearing helicopters, intrusive thoughts of combat, and avoidance of war-related news stories and entertainment. He denied any hallucinations, suicidal or homicidal ideation, and problems with managing his temper. Examination revealed the Veteran to be well-oriented and not psychotic. His deportment, demeanor, and appearance were appropriate to the occasion. Although his memory was not formally tested, it appeared adequate for examination purposes. There were no peculiarities in the pacing, phrasing, relevance, or logic of his speech. The Veteran was diagnosed with moderate PTSD, and he was assigned a Global Assessment of Functioning (GAF) score of 53. Post-service VA and private medical records dated from June 2006 to April 2010 show that the Veteran received intermittent psychiatric treatment. He suffered from such symptoms as mild nightmares/flashbacks, intense psychological distress at exposure to internal and external cues that resemble his experiences in Vietnam, markedly diminished interest and participation in significant activities, detachment and estrangement from others, sense of a foreshortened future, restricted range of affect, sleep difficulties, horrible nightmares several times a month, irritability, unprovoked outbursts of anger, difficulty concentrating, short-term memory loss, hypervigilance, isolation, avoidance, emotional numbing, panic attacks, depression, auditory hallucinations, suicidal thoughts without intent or plan, and hopelessness. In a December 2008 letter from the Veteran's private physician, the Veteran was noted to have been terminated from his employment as a lounge manager because he had been unable to keep up with everything and was getting into arguments for no reasons. The Veteran was variously assigned GAF scores of 55, 50, and 48. The Veteran testified before the Board at a video conference hearing in February 2010. Testimony revealed, in pertinent part, that the Veteran was a loner who tended to internalize his problems. The Veteran testified that he currently suffered from daily intrusive thoughts about Vietnam, interrupted sleep of only 2 hours at a time, mood swings, anger, feeling ill at ease, not having any emotions for other people, inability to concentrate or be self-motivated, and loss of interest in formerly pleasurable activities. He reported that he last worked at a bar and restaurant but was let go because he was getting frustrated and angry at the customers, which was not good for the organization. The March 2005 VA examination assigned a GAF score of 53, and various treatment visits assigned GAF scores of 48, 50, and 55. The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. See Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV); Carpenter v. Brown, 8 Vet. App. 240 (1995). An examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. 38 C.F.R. § 4.126; VAOPGCPREC 10-95 (Mar. 1995); 60 Fed. Reg. 43186 (1995). Under DSM-IV, GAF scores of 48 and 50 indicate serious symptoms (suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (no friends, unable to keep a job). GAF scores of 53 and 55 indicate moderate symptoms (flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (few friends, conflicts with peers or co-workers). See Diagnostic and Statistical Manual of Mental Disorders (4th ed.). The Board finds that past VA examinations and VA and private treatment sessions have tended to show that the Veteran's PTSD symptoms have been moderately severe in nature. There was no evidence to show that the Veteran had any severe obsessional rituals or severely impaired impulse control, and although he preferred to be isolated, he still had a good relationship with his wife and daughters. The Veteran's symptoms do not appear to have increased to such an extent that he is severely disabled by his PTSD. Accordingly, the Board finds that his symptoms related to PTSD have not worsened to the extent that an increased rating is warranted. Based upon the above findings, the Board finds that the Veteran's disability more nearly approximates a 50 percent disability rating than any higher rating. The evidence does not support a finding of deficiencies in most areas. His treating physicians and the VA examiner have reported that he does not have symptoms such as homicidal ideation, and there is no evidence of speech that is intermittently illogical, obscure, or irrelevant. Rather, the Veteran's speech is consistently noted to be normal. Assessments of his condition have not shown that he has near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively. Likewise, the medical evidence generally shows fair judgment, fair insight, and a neat appearance. Thus, the findings do not support the conclusion that the Veteran has impaired impulse control, spatial disorientation, or neglect of personal appearance and hygiene. While his symptoms have been noted to interfere in his ability to relate to others, these factors alone are not sufficient to warrant an increased rating of 70 percent for his PTSD. The Veteran has remained married for 35 years. As such, the Board finds that an evaluation in excess of 50 percent is not warranted. In sum, the weight of the credible evidence demonstrates that the Veteran's posttraumatic stress disorder does not warrant a rating in excess of 50 percent under DC 9411 for the period under consideration. As the preponderance of the evidence is against the claim for an increased rating, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). September 22, 2010, to Present The Veteran's PTSD was rated as 70 percent disabling since September 22, 2010. On VA examination in September 2010, the Veteran reported that he had worked as a bartender for about 30 hours a week for several years but that his employer had informed him in December 2008 that the company was "going in a different direction" and he was let go. He stated that he had not worked since then. He maintained that his marriage of 35 years was "okay" and that he had two 30-year-old children who remained at home. He reported that in his leisure time, he took some walks and watched television but that he mostly stayed by himself. He stated that he did not currently abuse alcohol and drank about 3 or 4 times a week. He complained of experiencing nightmares about once or twice a month. He reported that his wife had moved out of his bed because she was afraid that he might hit her during his nightmares. He also indicated that he had intrusive thoughts, hypervigilance, overreaction to helicopters, depression, anger, and avoidance of things that reminded him of Vietnam. The Veteran maintained that his hypervigilance, hyperarousal, and depression had worsened. Examination revealed the Veteran to be casually dressed and generally cooperative with appropriate eye contact and interaction. He was not noted to be a good historian. There was no overt evidence of a thought disorder. The Veteran denied homicidal ideation, delusions, and ideas of reference although he did sometimes hear a voice saying "hurry, hurry." He was oriented in all spheres, able to maintain his activities of daily living, and had normal rate and flow of speech. He reported some suicidal ideation at present and stated that he sometimes thought of driving his car into the woods. He complained of bad memory and indicated that his wife managed the financial affairs because he did not like to do it. He reported having panic attacks "sometimes," feeling depression with a 7/10 in severity, and getting about 5 to 6 hours of sleep a night. He maintained that he was often tired. The examiner assigned a GAF score of 48. The September 2010 VA examination assigned a GAF score of 48. The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. See Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV); Carpenter v. Brown, 8 Vet. App. 240 (1995). An examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. 38 C.F.R. § 4.126; VAOPGCPREC 10-95 (Mar. 1995); 60 Fed. Reg. 43186 (1995). Under DSM-IV, a GAF score of 48 indicates serious symptoms (suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (no friends, unable to keep a job). See Diagnostic and Statistical Manual of Mental Disorders (4th ed.). The Board acknowledges that VA examinations show that the Veteran's PTSD has been severe in nature. However, the evidence does not show that the Veteran had grossly impaired thought processes or communication; grossly inappropriate behavior; persistent delusions or hallucinations; persistent danger of hurting self or others; disorientation to time, place, or space; intermittent inability to perform activities of daily living; or memory loss for names of close relatives, own occupation, or own name. Although the Veteran has been noted to suffer from some auditory hallucinations, these hallucinations are occasional and are not considered to be persistent. The Board finds that the Veteran's symptoms do not appear to have increased to such an extent that he is totally disabled by his PTSD. Accordingly, the Board finds that his symptoms related to PTSD have not worsened to the extent that an increased rating is warranted. Based upon the above findings, the Board finds that the Veteran's disability more nearly approximates a 70 percent disability rating than any higher rating. The evidence does not support a finding of total occupational or social impairment. While the VA examiner has reported that the Veteran experiences some auditory hallucinations, he does not have grossly impaired thought processes or communication. Assessments of his condition have not shown that he has grossly inappropriate behavior, nor do the findings support the conclusion that the Veteran has memory loss for the names of close relatives or his own name or spatial disorientation. The Veteran did not neglect his personal appearance and hygiene and was not found to have an inability to perform daily living activities. While his symptoms have been noted to interfere in his ability to relate to others, these factors alone are not sufficient to warrant an increased rating of 100 percent for his PTSD. The Board finds that a rating in excess of 70 percent is not warranted. In sum, the weight of the credible evidence demonstrates that the Veteran's posttraumatic stress disorder does not warrant a rating in excess of 70 percent under DC 9411 for the period under consideration. As the preponderance of the evidence is against the claim for an increased rating, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extra-schedular Rating The Board finds no evidence that the Veteran's service-connected PTSD presents such an unusual or exceptional disability picture at any time so as to require consideration of an extra-schedular rating. 38 C.F.R. § 3.321(b)(1) (2010). The objective medical evidence of record shows that manifestations of the Veteran's service-connected PTSD during the period for which service connection has been established do not result in a marked functional impairment to a degree other than that addressed by VA's Rating Schedule. The schedular rating criteria are designed to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155 (West 2002). Generally, the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2010). The Board finds that the evidence does not show frequent hospitalization due to the PTSD beyond that envisioned by the schedular ratings already assigned. Although the evidence indicates that the Veteran is unable to work due to his PTSD, the Board notes that the Veteran is in receipt of a TDIU rating and that this TDIU rating, along with the schedular ratings currently assigned for the PTSD, are adequate to describe the severity of the Veteran's disability. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Thun v. Peake, 22 Vet. App. 111 (2008); Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996). ORDER A rating in excess of 50 percent for PTSD from December 10, 2004, to September 22, 2010, is denied. A rating in excess of 70 percent for PTSD since September 22, 2010, is denied. REMAND Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(c), (d) (2010). Regarding the Veteran's claim for an increased rating for residuals of a right hip shell fragment wound, the Board finds that another medical examination is required so that the decision is based on a record that contains a current examination. The statutory duty to assist specifically includes the conduct of a thorough and contemporaneous medical examination, so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991). A review of the record indicates that VA examinations in February 2005 and August 2010, which were conducted for the purposes of determining the level of severity of the Veteran's residuals of a right hip shell fragment wound, failed to evaluate whether the Veteran had any limitation of motion in the right hip. While the most recent VA examination in August 2010 provided ranges of motion for the Veteran's lumbar spine, it did not provide any ranges of motion for the Veteran's right hip. Thus, these examinations are not adequate for rating purposes because they do not contain information relating to all of the criteria for rating the disability. See 38 C.F.R. § 4.2 (2010) (If the findings on an opinion and/or examination report do not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes); Massey v. Brown, 7 Vet. App. 204, 208 (1994). Specifically, the Veteran should be examined for any limitation of flexion, extension, abduction, adduction, and rotation of the right thigh. The Veteran should also be evaluated for any ankylosis of the right hip, flail joint of the hip, malunion of the right femur, or nonunion of the right femur. The Board notes that the Veteran is currently in receipt of a 30 percent rating for the muscle injury due to his right hip shell fragment wound. However, the diagnostic criteria pertaining to limitation of motion of the hip and thigh provide for ratings in excess of 30 percent. See 38 C.F.R. § 4.71a, Diagnostic Codes 5250-5255 (2010). Accordingly, a current examination which includes a review of the claims file and contains sufficient findings to evaluate the claim under the relevant diagnostic criteria is necessary. Therefore, the Board has no discretion and must remand the Veteran's claim for an additional examination. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a joints examination to determine the manifestations and severity of all symptoms associated with the Veteran's right hip shrapnel wound residuals, to include any limitation of flexion, extension, abduction, adduction, and rotation of the right thigh. The examiner should also determine whether there is any ankylosis of the right hip, flail joint of the right hip, malunion of the right femur, or nonunion of the right femur. The examiner should also evaluate whether there is any pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40 (2010), taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). As regards the requested examination, all pertinent symptomatology and findings should be reported in detail, and all appropriate studies should be performed. The claims folder and a separate copy of the REMAND must be made available to and reviewed by the examiner prior to completion of the examination. Moreover, a notation to the effect that this record review took place must be included in the examination report. 2. Following completion of all indicated development and any additional notification and/or development deemed necessary, readjudicate the issue of entitlement to an increased disability rating for service-connected residuals of a right hip shell fragment wound, in light of all the evidence of record. 3. If the benefits sought are not granted, a supplemental statement of the case should be issued to the Veteran and his representative. The Veteran's representative should also be provided with an opportunity to submit a VA Form 646. An appropriate period of time should be allowed for response. Thereafter, the claim should be returned to this Board for further appellate review, if in order. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs