Citation Nr: 1301345 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 10-18 989 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to a higher initial disability evaluation for posttraumatic stress disorder (PTSD), rated 30 percent disabling, prior to May 11, 2011, and 50 percent disabling, since May 11, 2011. 2. Entitlement to a higher initial disability evaluation for right upper extremity peripheral neuropathy, rated 10 percent disabling. 3. Entitlement to a higher initial disability evaluation for left upper extremity peripheral neuropathy, rated 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Terrence T. Griffin, Counsel INTRODUCTION The Veteran had active service from June 1967 to April 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2005 and January 2007 decisions of the Jackson, Mississippi, Regional Office (RO). The September 2005 decision granted service connection for right upper extremity peripheral neuropathy and left upper extremity peripheral neuropathy (bilateral upper extremity peripheral neuropathy) and assigned initial 10 percent disability evaluations for each, effective July 11, 2005. The Veteran appealed the assigned ratings. The January 2007 decision granted service connection for PTSD and assigned an initial 30 percent rating, effective July 11, 2005, and the Veteran appealed the assigned rating. Prior to the matter being certified to the Board, an August 2011 decision granted a 50 percent rating, effective May 11, 2011. In March 2012, the Veteran had a hearing at his local RO before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. The issue of entitlement to service connection for sleep apnea was raised by a May 2009 statement of the Veteran, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issues of entitlement to higher initial rating for bilateral upper extremity peripheral neuropathy 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 has at most manifested by occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for a 70 percent disability evaluation, and no more, for PTSD are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial and will not be discussed. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran's service treatment records and VA treatment records have been obtained; he did not identify any additional records pertinent to the appeal and no such records are reasonably identified by the record. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. VA examinations were conducted in August 2005, September 2005 and May 2011, and the record does not reflect that these examinations are inadequate for rating purposes because each provides sufficient evidence and opinion to make a fully informed assessment as to the nature, extent and severity of service-connected PTSD. 38 C.F.R. § 3.159(c)(4); see also Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). There is no indication that any additional evidence, relevant to the issue decided, is available and not part of the claims file or the Virtual VA system. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Dingess/Hartman, 19 Vet. App. at 486. PTSD claim Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disability. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Veteran is appealing the initial assignment of a disability rating and the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Words such as "moderate," "moderately severe" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. 4.6. Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim, or whether a preponderance of the evidence is against the claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The January 2007 decision assigned an initial 30 percent disability rating for PTSD, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411, effective July 11, 2005, the date of the claim. An August 2011 decision assigned a 50 percent rating, effective May 11, 2011. Diagnostic Code 9411 provides that a 70 percent disability rating contemplates 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 disability rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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. The symptoms recited in the criteria in the rating schedule for evaluating mental disorders are "not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In adjudicating a claim for an increased disability rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. A Global Assessment of Functioning (GAF) rating 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 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994). A higher GAF score reflects less impairment. Numerous Vet Center treatment records have been associated with the claims folder. An August 2005 treatment record reports the Veteran being irritable with others, having outburst of anger and impaired sleeping ability. During an August 2005 VA examination, the Veteran reported difficulties interacting with others, including communicating in an occupational setting. He conveyed depression, loss of interest in previously enjoyable activities, nightmares, insomnia, intrusive thoughts and hypervigilance as being some of his psychiatric symptoms. The examiner concluded that the Veteran's social impairment, including his 1976 divorce and lack of a long-term relationship due to verbally abusive behavior, continued to manifest as noted in a May 2001 VA examination report. The examination report also notes the Veteran's social isolation and estrangement from his family, although residing with his older brother. A depressed and restricted affect were the only abnormalities noted on mental status examination. The Veteran's GAF score was 55. In September 2005, the Veteran presented with a flat affect, an anxious mood and poor eye contact, and continued intrusive thoughts, isolation, and hypervigilance. A January 2006 treatment record documents the Veteran's account of experiencing fatigue, nightmares, and sudden feelings of depression and anxiety. At a September 2006 VA examination, the Veteran's continued intrusive thoughts, flashbacks, nightmares and sleep impairment (e.g., approximately 3-to-4 hours per night) were documented. He also conveyed having no friends, minimal contact with his child, a negative relationship with his siblings, difficulty getting along with others and depressive episodes lasting as long as one-to-two weeks. The examiner reported that the Veteran isolated himself because of his short temper and irritability, which resulted in results in moderate-to-severe social impairment. On mental status examination, he presented a restricted and depressed affect (e.g., crying during the examination), and a slow more circumstantial thought process but demonstrated no other abnormalities. The Veteran's GAF score was 55. Records of the Veteran's VA psychiatric care are also of record. A June 2007 VA treatment record noted the Veteran's sad affective and mood, slow and overly elaborated speech and a GAF score of 51. In a June 2008 VA treatment record, the psychologist indicated an increase in the Veteran's isolative behavior which negatively impacted his occupation. In a December 2008 treatment record, a VA psychologist noted continuing depression and pessimism of an increasing severity. In a May 2009 VA treatment record, the Veteran described his outburst of anger towards his brother for not being exposed to combat. In May 2011, the Veteran was provided a VA examination. He detailed psychiatric symptoms that included nightmares, sleep impairment, fatigue, anxiety, intrusive thoughts and avoidance behaviors. The examiner noted the Veteran's account of never feeling happiness or enjoying life and how his occupation is negatively impacted by mood. The examiner reported the absence of any family relationships or many close friends. Aside from a dysphoric mood and a blunted affect, the Veteran's mental status examination was essentially normal. Although he reported no suicidal or homicidal ideation, the examiner noted that the Veteran reported instances of hearing voices telling him to harm himself. The examination results further revealed poor short-term memory and fair long-term memory, insight and judgment. The Veteran demonstrated mild-to-moderate cognitive impairment. The Veteran's GAF score was 55. The Veteran provides a competent and credible account of psychiatric symptomatology, including irritability, and of its negative impact on his occupation (e.g., losing clients). . See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Further, he has provided a generally consistent account of his psychiatric symptoms; significantly, including solely for the purpose of seeking and obtaining medical treatment. Consistent with the other medical evidence of record the August 2005, September 2006 and May 2011 VA examination reports, as well as September 2005 and January 2006 Vet Center records, and December 2008 and May 2009 VA treatment records, document the Veteran's severe and near continuous depression and anxiety. The evidence of record consistently confirms his irritability and outbursts of anger that negatively impacted his occupational and social functioning, as noted in the August 2005 and September 2006 VA examination reports and an August 2005 Vet Center treatment record. The September 2006 and May 2011 VA examination reports and a September 2005 Vet Center treatment record also detail some level of thought and memory impairment, with the May 2011 VA examiner also characterizing mild-to-moderate cognitive impairment. A VA psychiatrist in June 2007 reported at least some evidence of speech impairment. Essentially, the medical evidence of record indicates that the evident psychiatric manifestations impair the Veteran's ability to function appropriately and effectively. The June 2008 VA treatment record and other medical evidence of record also strongly suggest the Veteran's psychiatric manifestations negatively impact his ability to adapt to stress and interact with others, and this has negatively impacted his occupational functioning. The August 2005 and May 2011 VA examination reports, coupled with all other evidence of record, establish that the service-connected psychiatric condition produces an inability to establish and maintain effective relationships. The Board finds that the Veteran's PTSD symptomatology most closely approximates a 70 percent disability rating, throughout the time period of the appeal. Nonetheless, the evidence shows that the Veteran is not entitled to a 100 percent disability rating at any time during the period of the appeal. The Veteran is consistently shown to be oriented in all spheres and there is no demonstration of grossly inappropriate behavior(s). The evidence clearly reflects his consistent ability to maintain self-care and manage his own funds. While there is evidence of episodes of hearing voices directing self harm, the evidence does not establish that he presents a threat to himself or others. While the Veteran experiences intrusive thoughts, flashbacks and nightmares, the record does not suggest such symptoms are delusions or hallucinations. While there is evidence of impaired occupational and social relationships, there is no evidence of total social and/or occupational relationship impairment, as the veteran maintains, albeit strained/limited, relationships with his family. Extraschedular Considerations The Board has considered whether the Veteran's claim warrants referral to the Chief Benefits Director of VA's Compensation and Pension Service under 38 C.F.R. § 3.321 for extraschedular consideration. If the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. The rating criteria do reasonably describe the disability level and symptomatology of the Veteran's PTSD disability; a higher evaluation is possible upon the showing of further manifestations which are not present. Accordingly, referral for consideration of an extraschedular rating is not warranted. ORDER A 70 percent initial disability evaluation for PTSD, and no more, is granted, effective July 11, 2005. REMAND At his March 2012 Board hearing, the Veteran indicated that his bilateral upper extremity peripheral neuropathy has worsened since his most recent June 2011 VA examination. VA is required to afford him a contemporaneous VA examination to assess the current nature, extent and severity of the service-connected disabilities. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). The record suggests the Veteran receives regular VA treatment for his service-connected bilateral upper extremity peripheral neuropathy, but records dated since January 2011 have not been associated with the claims folder nor are any such records available via the Virtual VA system. Attempts to obtain these records must be undertaken. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment and/or hospitalization records related to the Veteran's service-connected right and left upper extremity peripheral neuropathy, dated since January 2011. Any negative response(s) must be in writing and associated with the claims folder. 2. Then, schedule the Veteran for a VA peripheral nerve examination by an appropriate medical professional. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner is to identify all peripheral neuropathy pathology found to be present. The examination report must discuss the nature and severity of the right-and left-upper extremity peripheral neuropathy, including a description of the impact that relevant manifestations have on the Veteran's occupational functioning. The examination report must reflect consideration of both the medical and lay evidence of record. All tests deemed necessary by the examiner must be performed. 3. Review the claims file to ensure that all of the foregoing development has been completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal. If either benefit remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative an appropriate period of time to respond. The case is to then be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the 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). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs