Citation Nr: 1100572 Decision Date: 01/05/11 Archive Date: 01/14/11 DOCKET NO. 03-32 646 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to February 22, 2006. 2. Entitlement to an evaluation in excess of 70 percent for PTSD from February 22, 2006. 3. Entitlement to a total disability rating based upon individual unemployability (TDIU) prior to June 10, 2006. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1964 to June 1967. This matter comes before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (hereinafter "the Court") on May 26, 2009, which vacated a January 2007 Board decision and remanded the issues on appeal for additional development. It is significant to note that the Court also found error in VA not having adjudicated the issue of entitlement to TDIU, but that VA records show entitlement to TDIU was established in an August 2007 rating decision effective from June 10, 2006. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (a request for a TDIU, whether expressly raised by Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather can be part of a claim for increased compensation). The Board noted in an October 2009 remand that there was no evidence of a notice of disagreement from the August 2007 rating determination, but found that in light of the Court's instructions the issue of entitlement to TDIU prior to June 10, 2006, required specific adjudication. The requested development has been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). Although the Veteran submitted additional evidence in support of his claims subsequent to an October 2010 supplemental statement of the case, the Board finds the information is either cumulative or redundant of the evidence previously of record. But see 38 C.F.R. § 20.1304 (2010). The issues on appeal initially arose from a January 2002 rating decision by the Detroit, Michigan, Regional Office (RO) of the Department of Veterans Affairs (VA), which established service connection for PTSD and assigned a 10 percent rating effective from May 8, 2001. A subsequent February 2002 rating decision granted an increased 30 percent rating for PTSD effective from May 8, 2001. In a May 2006 rating decision the RO granted an increased 70 percent rating effective from March 9, 2006, and subsequently an effective date for a 70 percent PTSD rating was awarded from February 22, 2006, by the Board. In June 2005, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The Board notes that in correspondence received by the Board in November 2010 the Veteran asserted that he had depression caused by his service-connected PTSD. VA regulations, however, provide that pyramiding disability ratings, the evaluation of the same disability or manifestations under various diagnoses, is to be avoided. 38 C.F.R. § 4.14 (2010). It is also significant to note that depressed mood is included in the criteria for disability ratings under the general rating formula for mental disorders and that these criteria apply to both anxiety (PTSD) and mood (major depressive disorder) disorders. See 38 C.F.R. § 4.130 (2010). Although it may be theoretically possible that the Veteran meets the criteria for separate diagnoses of PTSD and major depressive disorder, the evidence does not demonstrate this fact nor that an adjudication of this claim could result in any additional benefit to the Veteran. Therefore, the Board finds no additional action is required prior to appellate review. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of this appeal has been obtained. 2. Prior to February 22, 2006, the Veteran's service-connected PTSD was manifested by no more than an occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to depressed mood, anxiety, suspiciousness, panic attacks, and chronic sleep impairment. 3. The Veteran's service-connected PTSD, from February 22, 2006, is manifested by no more than occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to suicidal ideation, impaired impulse control, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships. 4. The evidence of record does not demonstrate any unusual circumstances beyond that contemplated by the assigned 70 percent service-connected disability rating. 5. The Veteran's service-connected disability prior to June 10, 2006, was not shown to be so disabling as to preclude him from securing or following substantially gainful employment in keeping with his education and occupational experience. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 30 percent for PTSD prior to February 22, 2006, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2010). 2. The criteria for an evaluation in excess of 70 percent for PTSD from February 22, 2006, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2010). 3. The criteria for entitlement to TDIU prior to June 10, 2006, have not been met. 38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 3.340, 4.1, 4.16 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the Court have been fulfilled by information provided to the Veteran by correspondence dated in November 2005 and February 2010. Although these notices were provided subsequent to the initial January 2002 rating decision, the issues on appeal were readjudicated in an October 2010 supplemental statement of the case. The letters notified the Veteran of VA's responsibilities in obtaining information to assist in completing his claims and identified the Veteran's duties in obtaining information and evidence to substantiate his claims. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006), Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006). The Board also notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008, removing the sentence in subsection (b)(1) stating that VA will request the claimant provide any evidence in the claimant's possession that pertains to the claim. 73 Fed. Reg. 23,353- 23,356 (Apr. 30, 2008). During the pendency of this appeal, the Court in Dingess/Hartman found that the VCAA notice requirements applied to all elements of a claim. An additional notice as to these matters was provided in March 2006. The notice requirements pertinent to the issues on appeal have been met and all identified and authorized records relevant to the matters have been requested or obtained. The evidence of record includes service treatment records, records of VA and non-VA post-service treatment, private medical statements, VA examination reports, and statements and testimony in support of the claims. For records in the custody of a Federal department or agency, VA must make as many requests as are necessary to obtain any relevant records, unless further efforts would be futile; however, the claimant must cooperate fully and, if requested, must provide enough information to identify and locate any existing records. 38 C.F.R. § 3.159(c)(2) (2010). Although VA correspondence dated in February 2010 requested that the Veteran provide information identifying any VA or non-VA treatment he had received pertinent to his claims, there is no indication that existing treatment records pertinent to the present claims exists to warrant further VA assistance. In a March 2010 VA Form 21-4142 the Veteran reported that he had been treated for depression over 20 years earlier, but that the records of that treatment were unavailable. The Court has held that 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). A retrospective medical opinion may be necessary and helpful in cases when the evidence is insufficient for an adequate determination. See Chotta v. Peake, 22 Vet. App. 80, 85 (2008). The Veteran has asserted, in essence, that his service-connected disability interfered with his ability to be gainfully employed. The Board finds, however, that the available medical evidence is sufficient for adequate determinations and that a retrospective VA medical opinion would not be helpful in this case. As discussed in more detail below, the Veteran's service- connected disability and its effect on his employability is well documented by the available evidence. There is no indication based upon the available record that a retrospective medical opinion in this case could be reasonably expected to provide more probative evidence as to the matters on appeal. The Veteran is shown to have been gainfully employed as a special education teacher for approximately 34 years at the time of his retirement in 2006. The available evidence of record includes competent VA and non-VA assessments of the Veteran's service-connected disability. There is no reasonable possibility that a retrospective medical opinion would be additionally helpful in substantiating the Veteran's claims. The Board finds that further attempts to obtain additional evidence would be futile. There has been substantial compliance with all pertinent VA law and regulations and to move forward with the claims would not cause any prejudice to the appellant. Increased Rating Claims Laws and Regulations Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings 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 (2010). The Court has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Upon award of service connection, separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2010). Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Evaluation of disabilities based upon manifestations not resulting from service-connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses is prohibited. 38 C.F.R. § 4.14. VA regulations provide that the effect of a change of diagnosis including keeping in mind the repercussion upon a current rating of service connection when change is made of a previously assigned diagnosis or etiology. It is noted that the aim should be the reconciliation and continuance of the diagnosis or etiology upon which service connection for the disability had been granted. The relevant principle enunciated in 38 C.F.R. § 4.125, entitled "Diagnosis of mental disorders," should have careful attention in this connection. When any change in evaluation is to be made, the rating agency should assure itself that there has been an actual change in the conditions, for better or worse, and not merely a difference in thoroughness of the examination or in use of descriptive terms. This will not, of course, preclude the correction of erroneous ratings, nor will it preclude assignment of a rating in conformity with 38 C.F.R. § 4.7. 38 C.F.R. § 4.13 (2010). The absence of contemporaneous medical evidence may be weighed as a factor in determining the credibility of lay evidence, but lay evidence cannot be determined to lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has also recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). VA is free to favor one medical opinion over another provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429 (1995). Whether lay evidence is competent and sufficient in a particular case is a fact issue. Washington v. Nicholson, 19 Vet. App. 362 (2005). In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Federal Circuit held that whether lay evidence is competent and sufficient in a particular case is an issue of fact and that lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3 (2010). General Rating Formula for Mental Disorders: Ratin g 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 100 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 70 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 50 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) 30 38 C.F.R. § 4.130, Diagnostic Code 9411 (2010). The Court has held that global assessment of functioning (GAF) scale scores reflect the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); Richard v. Brown, 9 Vet. App. 266 (1996) (citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (4th ed.) (DSM-IV), p. 32). 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. 38 C.F.R. § 4.126(a) (2010). 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(b). The Court has held that GAF scale scores reflect the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); Richard v. Brown, 9 Vet. App. 266 (1996) (citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (4th ed.) (DSM-IV), p. 32). Global Assessment of Functioning (GAF) Scale Consider psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. Do not include impairment in functioning due to physical (or environmental) limitations. 60 ?- 51 Moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g.,