Citation Nr: 1301232 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 08-26 539 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to a total rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran served on active duty from June 1970 to March 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that reflected throughout the claims file are psychiatric diagnoses other than PTSD (evidence currently of record denotes the presence of separate conditions including depressive disorder with psychotic features, psychotic disorder, and paranoid schizophrenia). In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the U.S. Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. However, other records in the file show prior RO denials, including most recently in August 2010, for an acquired psychiatric disorder other than PTSD. Those earlier decisions have since become final and binding on the Veteran based on the evidence then of record. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.202, 20.302, 20.1103 (2012). So to the extent the Veteran still alleges entitlement to service connection for a psychiatric disorder other than PTSD, he first needs to submit new and material evidence to reopen his claim for this other mental illness. 38 C.F.R. § 3.156(a). See also Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). The Board also notes that in his substantive appeal (VA Form 9) received by the RO in August 2008, the Veteran indicated that he wished to testify at a hearing before a Veterans Law Judge at the local RO. See also VA Form 9, date stamped by the RO as received in August 2008, and correspondence from the Veteran received in October 2009. He has since submitted a December 2011 letter indicating he longer wants a hearing. Therefore, his hearing request has been withdrawn. 38 C.F.R. § 20.702(e) (2012). The issue of entitlement to service connection for 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 Based on the medical and lay evidence of record, the Veteran is unable to secure and follow a substantially gainful occupation as a result of his service-connected disabilities. CONCLUSION OF LAW Resolving all doubt in favor of the Veteran, the criteria for a TDIU have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.15, 4.16, 4.18 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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. 38 C.F.R. § 3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30, 2008). This notice must be provided prior to an initial decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, as will be discussed in further detail in the following decision, the Board finds that the evidence of record supports the grant of a TDIU. Accordingly, this aspect of the appeal is being granted in full, and no further discussion of VA's duty to notify and to assist the Veteran with respect to this issue is warranted. Law and Analysis The Veteran contends that his service-connected disabilities render him unemployable and therefore is entitled to a TDIU. Generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2012). Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Id. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where the Veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may not be given to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. In this case, the Veteran is service-connected for right lower extremity peripheral neuropathy, rated as 40 percent disabling; left lower extremity peripheral neuropathy, rated as 40 percent disabling; right upper extremity peripheral neuropathy, rated as 30 percent disabling; left upper extremity peripheral neuropathy, rated as 20 percent disabling; type II diabetes mellitus, rated as 20 percent disabling; bilateral hearing loss rated as 10 percent disabling; and tinnitus, rated as 10 percent disabling. His combined disability rating is 90 percent, effective April 14, 2009. Thus, the minimum percentage requirements for a TDIU set forth in 38 C.F.R. § 4.16(a) are met. As such, the remaining inquiry is whether his service-connected disabilities render him unemployable. The Veteran reported in his December 2005 Veteran's Application for Increased Compensation Based on Unemployability (VA Form 21-8940) that he was unable to secure and follow any substantially gainful occupation due to nonservice-connected PTSD and recurrent depression. He indicated that he last worked full time in 1992 as a nurse and had become too disabled to work. The Veteran reported that he finished college and had some training as a paralegal. Notably, there are clinical findings contained in VA examination and VA treatment records that lend strong support to an award of a TDIU. Specifically, a June 2007 VA psychological note indicates the Veteran was unemployed due to chronic medical problems. A December 2007 Environmental Examination report shows the Veteran's medical history was complicated beginning with the onset of peripheral neuropathy in 1999 and diabetes mellitus in 2004. He had progressive loss of strength in his lower extremities and his upper extremities with neuropathy symptoms yielding to total loss of sensation from the ankles down. The Veteran has been in a wheelchair since 2004. See also January 2010 VA examination report. Moreover, the Veteran has submitted statements asserting that the effects of his service-connected disabilities, are so overwhelming that he is unemployable. See March 2008 Aid and Attendance Medical Statement and attachments and VA Form 21-4138, dated in March 2008. The Board is charged with the duty to assess the credibility and weight given to evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In this capacity, the Board finds the Veteran's statements about his ability to obtain and maintain employment to be credible, as they are consistent with the physical disabilities described in the evidence of record. The Board reiterates that the Veteran is in a wheelchair because of significant service-connected moderately severe incomplete paralysis of the lower extremities. The Veteran also has significant service-connected weakness/incomplete paralysis of the upper extremities. These service-connected disabilities, in conjunction with several other service-connected disabilities, have clearly placed significant, if not insurmountable, barriers to the Veteran obtaining and securing substantially gainful employment in the fields for which he has experience, namely, nursing or as a paralegal. Indeed, the record shows that the Veteran is unemployed. These findings together are enough to support a determination that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. The Board acknowledges that, in this case, VA has not obtained an examination for the purpose of determining whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. However, as he now carries a combined disability rating of 90 percent, the Board has reviewed the evidence of record and determined that he is unable to secure or follow a substantially gainful occupation, specifically due to his service-connected disabilities. Based on this evidentiary posture, the Board finds that the evidence of record supports the grant of a TDIU. Accordingly, this aspect of the appeal is granted. ORDER Entitlement to a TDIU is granted, subject to the statutes and regulations governing the payment of monetary awards. REMAND The Veteran seeks service connection for PTSD. In this case, the information in the current record is inadequate to make an informed decision and discloses a need for further development prior to final appellate review of this claim. In support of his claim, the Veteran has submitted numerous statements regarding the stressful events that occurred during his military service, which he believes are the basis of his PTSD diagnosis. Specifically, he described being a tail gunner in Vietnam and how he shot two women and hurt 34 people. During an outpatient treatment visit he stated that his job in Vietnam was as a long range reconnaissance patrol (LRRP) and that his unit had been overrun by the North Vietnamese with many US soldiers dying. He also described engaging in hand-to-hand combat and that he sustained a knife injury to his arm and a bullet/shrapnel injury to his leg. The Veteran also mentioned that most of his unit was killed during another operation in Cambodia. During another outpatient visit the Veteran talked at length about some of his combat experiences including cutting off the heads of enemy soldiers and making a necklace of ears and bracelet of fingers. He reported being involved in covert operations with the CIA where he would go into villages and kill everybody including women and children. He reported that he volunteered for five of these missions in an attempt to save as many children as he could. See VA outpatient treatment records dated in July 2005, August 2005, and November 2005. In other statements the Veteran claimed that he suffered a gunshot wound to his left arm in October 1970, a gunshot wound to his left leg in September 1971, and in September 1972 suffered a broken coccyx when he was shot down in Vietnam. He indicated that all of these events happened while on LRRP with the 101st Airborne. See VA Forms 41-4138 received in January 2006 and April 2006. The Veteran also indicated the receipt of combat medals including three Purple Hearts, a Combat Infantry Badge, and a Sliver Star Medal and has submitted documents, purportedly from the Army Department in support of this assertion. See correspondence from the Veteran received in December 2008. Unfortunately, the Veteran's DD-214 as well as available personnel records, do not list any awards indicative of combat, any commendations or citations typically awarded primarily or exclusively for circumstances relating to combat. Moreover his service treatment records do not show treatment for wounds consistent with combat injuries. The record also reflects that the RO attempted to verify the Veteran's claimed in-service stressors through the United States Army & Joint Services Records Research Center (JSRRC), but was unsuccessful. See April 2007 VA memorandum. In October 2010, the RO made additional efforts to verify the Veteran's in-service stressors through the JSRRC and the Defense Personnel Records Information Retrieval System (DPRIS). In response, DPRIS indicated that they were unable to document that the Veteran's unit (1st Battalion, 36th Field Artillery) was in Vietnam during 1971-1972. That notwithstanding, the Board notes that during the pendency of this appeal the VA regulation at 38 C.F.R. § 3.304(f) was amended to liberalize the requirement of verification or corroboration of a veteran's claimed in-service stressor events in a PTSD claim. 38 C.F.R. § 3.304(f)(3), as added in 75 Fed. Reg. 39,843-852 (July 13, 2010). The issuance of the amended 38 C.F.R. § 3.304(f)(3) relaxes the evidentiary standard for establishing in-service stressors in claims for PTSD. This revision adds to the types of PTSD claims that VA will accept through credible lay testimony alone as being sufficient to establish occurrence of an in-service stressor without undertaking other development to verify the Veteran's account. The primary effect of the amendment of 38 C.F.R. § 3.304(f) is the elimination of the requirement for corroborating evidence of a claimed in-service stressor if it is related to the Veteran's "fear of hostile military or terrorist activity" and provided that the claimed stressor(s) is(are) consistent with the places, types, and circumstances of the Veteran's service. In place of corroborating reported stressors, a medical opinion must instead be obtained from a VA, or VA contracted, psychiatrist or psychologist. The amendment to the regulation is effective, in pertinent part, for all claims pending at the Board on July 13, 2010. Despite the Veteran's credibility issues with respect to reported service details and also with respect to the combat injuries he has claimed, he has most recently reported that he was assigned to the C Btry, 12th Battalion, 36th Field Artillery and that his unit received daily rocket and sapper attacks. He also reported that during the 1972 Easter Offensive his unit's main ammunition supply area was blown up by enemy forces. See VA Forms 21-0781a, received in October 2009 and VA Form 21-4138 received in December 2009. These events, if credible, are consistent with a stressor based on "fear of hostile military activity" as defined above. The Board finds that due to the changes in the governing PTSD regulation, the Veteran's claim warrants additional consideration under the revised subpart (f)(3). To that end, the Veteran has not been provided a VA compensation examination concerning this claim. The record contains favorable evidence in the form of a positive PTSD screen in April 2004 and in subsequent mental health records, which have diagnosed the Veteran with several psychiatric disorders, including PTSD. Recognition is given to records diagnosing the Veteran with PTSD in various VA mental health outpatient appointments. However, the Board stresses that, while the amended regulations provide for a way to establish PTSD without supporting documentary evidence, the lower evidentiary standard applies only if a VA psychologist or psychiatrist (or a psychiatrist or psychologist with whom VA has contracted) confirms the claimed stressor which supports the diagnosis. Moreover, the comments associated with the proposal of the amended regulations indicate the intent that the VA examiner's diagnosis must be within the context of a Compensation and Pension examination. As was noted very recently by the U.S. Court of Appeals for the Federal Circuit, the reasons for this were several: (1) VA practitioners are given specific instruction on how to conduct PTSD examinations, including guidance materials and a certification process. (2) The VA reviews the quality of its practitioners' examinations, including taking steps to address identifiable problems with feedback and training. (3) The VA provides VA associated practitioners with the veterans' claims folders in connection with all mental-disorder examinations, including PTSD examinations, who are instructed that a PTSD diagnosis cannot occur without a review of the folder. (4) The VA noted that limiting the rule to VA associated practitioners, accompanied by periodic review of these examinations, would ensure standardization and consistency. Nat'l Org. of Veterans' Advocates, Inc. v. Shinseki, 669 F.3d 1340, 1344-5 (Fed. Cir. 2012) (citing 75 Fed.Reg. 39,843, 39,847-48 (July 13, 2010)). Therefore, while the Veteran has been diagnosed with PTSD by various mental health professionals in clinical settings, these assessments are not sufficient to warrant service connection under the amended regulations. Therefore, the Veteran should be scheduled for an examination in which a VA psychiatrist or psychologist addresses whether the Veteran has the required DSM-IV diagnosis of PTSD due to a stressor related to fear of hostile military or terrorist activity. Further review of the record indicates that service personnel records relating to the Veteran's first period of service from June 1970 to April 1972 are not in the claims file. While the case is in remand status an attempt should be made to obtain them in order confirm the Veteran's unit of assignment in Vietnam during the period from September 1971 to June 1972. Also on remand, ongoing medical records should be obtained. 38 U.S.C.A. § 5103A(c) (West 2002). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). In this regard, medical records, available through the Compensation and Pension Records Interchange (CAPRI), were uploaded to the Veteran's electronic Virtual VA folder in November 2011. The most recent record of any outpatient psychiatric treatment that the Veteran has undergone is dated in June 2011. The Board notes that the because the current appeal includes records that are located only in the Virtual VA system, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should contact the National Personnel Records Center (NPRC), the Records Management Center (RMC), the Veteran's unit, and any other appropriate location, to request service personnel records covering the Veteran's first period of service from June 1970 to April June 1972. If any of these records cannot be obtained, a memorandum should be included in the file explaining the procedures undertaken to attempt to find the records and why such attempts were not fully successful. 2. After procuring the appropriate release of information forms where necessary, the AMC/RO should obtain records of any psychiatric treatment or evaluation that the Veteran has received since June 2011. Document the attempts to obtain such records. If the AMC/RO is unable to obtain any pertinent evidence identified by the Veteran, so inform him and request that he obtain and submit it. If any records are unavailable, do not exist, or further attempts to obtain them would be futile, document this fact in the claims file. All such available documents should be associated with the claims folder or Virtual VA folder (as appropriate). 3. Schedule the Veteran for an appropriate examination to determine the nature and etiology of any psychiatric disability, including PTSD, diagnosed on evaluation. Prior to the examination, the claims folder must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report. All indicated tests and studies, including psychological testing, if necessary, are to be performed and the examiner should review the results of any testing prior to completing the report. The examiner should take into consideration the Veteran's statements regarding his in-service activities. After all appropriate diagnoses are rendered, the examiner should answer the following questions: a) Is it at least as likely as not (50 percent or greater probability) that the Veteran has PTSD? b) If the Veteran has PTSD, what stressor or stressors caused the PTSD? c) If the Veteran has PTSD, is a stressor that caused the PTSD related to fear of hostile military or terrorist activity (in accordance with the revised criteria)? If PTSD is not diagnosed, the examiner should explain why the Veteran does not meet the criteria for this diagnosis. Also if the examiner feels that the requested opinion cannot be rendered without resorting to speculation, he/she should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts), by a deficiency in the record (i.e. additional facts are required), or by the examiner himself/herself (because he/she does not have the needed knowledge or training). 4. After completing the requested action, and any additional notification and/or development deemed warranted, readjudicate the PTSD taking into consideration the regulatory changes to 38 C.F.R. § 3.304(f)(3), effective July 13, 2010. If the benefit sought on appeal remain denied, furnish the Veteran and his representative an appropriate supplemental statement of the case and give them an appropriate time period in which to respond. All evidence should be reviewed, to include evidence submitted since the November 2011 Supplemental Statement of the Case. The Veteran 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. 2012). ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs