Citation Nr: 1304567 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 10-14 830 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. What evaluation is warranted for posttraumatic stress disorder (PTSD) from July 18, 2009 to December 15, 2010? 2. What evaluation is warranted for PTSD from December 16, 2010? 3. Entitlement to total disability rating based on individual unemployability due to service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his mother ATTORNEY FOR THE BOARD A. Barner, Associate Counsel INTRODUCTION The Veteran served on active duty from May to August 2003, October 2003 to March 2005, October 2007 to February 2009. He also served in the National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the North Little Rock, Arkansas, Regional Office (RO) of the Department of Veterans Affairs (VA). In December 2010, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript of that hearing is of record. In May 2011, the Board remanded the claim for additional development, to include obtaining outstanding treatment records, and to afford the Veteran a new VA PTSD examination. A July 2011 VA psychiatric examination was afforded the Veteran. In May 2012 the Board remanded the claim in order to ensure compliance with its previous remand directives; specifically, to request the Veteran's treatment records and provide him an opportunity to identify whether he received medical leave for his PTSD. VA treatment records have been associated with Virtual VA. A May 2012 notice to the Veteran requested that he indicate whether he received medical leave for his PTSD, and the appellant was afforded another VA examination in November 2012. Given the foregoing, the Board finds that VA has substantially complied with the Board's prior remands with regard to this appeal. Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required where there was substantial compliance with Board's remand instructions). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of what evaluation is warranted for PTSD from December 16, 2010, and entitlement to a total disability evaluation based on individual unemployability due to service connected disabilities 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 Between July 18, 2009, and December 15, 2010, the Veteran's PTSD was manifested by occupational and social impairment, with deficiencies in most areas. Total occupational and social impairment due to PTSD was not shown. CONCLUSION OF LAW Between July 18, 2009 and December 15, 2010, the criteria for a 70 percent evaluation, but no higher, for PTSD were met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.1, 4.7, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met as to the issue decided herein. As service connection, an initial rating, and an effective date have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate this claim. The Veteran was afforded a VA examination as recently as November 2012, and the report contains sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disability on appeal, and is adequate for purposes of this appeal. He was provided the opportunity to present pertinent evidence and testimony before the Board. In sum, there is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Indeed, the Veteran has not suggested that such an error, prejudicial or otherwise, exists. The case is ready for adjudication on the instant matter. Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies 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 applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). PTSD is rated under Diagnostic Code 9411, which provides for a 70 percent rating where there is 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); and inability to establish and maintain effective relationships. A 100 percent rating is warranted where there is total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. In evaluating psychiatric disorders, the Board is mindful that the use of the term "such symptoms as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve only 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 (2002). The Global Assessment of Functioning scale reflects psychological, social, and occupational functioning of a hypothetical continuum of mental health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM -IV). A global assessment of functioning score of 31 to 40 is indicative of some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or any major impairment in several areas, such as work or school, family relations, judgment, thinking or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). Global assessment of functioning scores between 41 and 50 reflect serious symptoms, (e.g. suicidal ideation, severe obsessional rituals, frequent shoplifting), or any serious impairment in social, occupational, or school functioning, (e.g., no friends, unable to keep a job). Global assessment of functioning scores between 51 and 60 reflect moderate symptoms, (that is, flat affect, circumstantial speech, occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (e.g., few friends, contacts with peers or co- workers). An examiner's classification of the level of psychiatric impairment, by words or by a score, is to be considered, but is not determinative of the percentage rating to be assigned. VAOPGCPREC 10-95. The Board must assess the credibility and weigh all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In a June 2009 rating decision the Veteran was granted entitlement to service connection for PTSD evaluated as 50 percent disabling effective February 26, 2009. A May 2012 Board decision increased the rating for posttraumatic stress disorder to 70 percent for the term from February 26, to July 17, 2009, and remanded the issue of whether the Veteran was entitled to a rating in excess of 70 percent since July 18, 2009. For reasons discussed further in the remand, the Board addresses what evaluation is warranted from July 18, 2009, to December 15, 2010, the date of the Veteran's hearing before the undersigned. VA treatment records from August 2009 show that the Veteran had improved hygiene; however, he continued to experience flashbacks described as seeing things, and was considered significantly symptomatic for PTSD, to include a bad mood and restricted range of affect. He was assessed as having a global assessment of functioning score of 44. Other treatment notes from that time period showed that his wife needed to remind him to bathe, and that he reported seeing his deceased sergeant when he was out and about. He also reported seeing corn fields morph into palm trees, such that he tried not to take the same route to work. He indicated that co-workers called him crazy. Treatment records from September 2009 indicate that the Veteran reported angry outbursts with his children, but also indicated that he was no longer experiencing visual hallucinations. December 2009 treatment notes show that the Veteran experienced flashbacks and intrusive thoughts, as well as difficulty sleeping. January 2010 treatment notes show that the Veteran reported incidents in which he screamed at his children, and his supervisor told him that he had a bad attitude at work. He reported nightmares, sleep disturbances, depression, amotivation, and isolating behaviors. February 2010 treatment notes show that the Veteran reported feeling paranoid about co-workers discussing the way he acted, and was concerned they considered him crazy. In addition, he reported that he displayed irritability and anger at work. Treatment note from March 2010 indicated that the Veteran was assessed as having a global assessment of functioning score of 44. Treatment record from April 2010 shows that the Veteran became paranoid when his position at work was moved following a verbal conversation regarding a physical injury; however, it was suggested that it was reasonable his supervisor honored his request to move positions without discussing the details with him. The Veteran experienced fleeting suicidal thoughts, although when this occurred consideration of his daughter was a deterring factor. June 2010 treatment record indicates that the Veteran had filed for bankruptcy, was prescribed various medications for anxiety and depression, was hypervigilant, and was assessed as having a global assessment of functioning score of 44. July 2010 treatment notes include an outpatient emergency room treatment note showing that the Veteran was seen after experiencing a panic attack, during which he experienced suicidal ideation involving shooting himself with a gun. He indicated that his children were barriers to suicidal intent. He was assessed as having a global assessment of functioning score of 55. August 2010 treatment notes indicate that the Veteran reported experiencing a major panic attack such that he thought he was having a stroke. He indicated that he continued to have familial difficulties in that he screamed at his wife and children. He reported experiencing depression and being socially isolated. He indicated that he had experienced suicidal ideation on the day that he sought emergency room treatment. He was assessed as having a global assessment of functioning score of 45. Treatment notes from October 2010 show that the Veteran reported being isolated, having little motivation, an exaggerated startle response, hypervigilance, and being irritable with angry outbursts. He exhibited anxiety, depression, and fluctuating moods. The Veteran's appearance included unkempt hair, and his mood was described as a "kinda don't care attitude." He did not report suicidal or homicidal ideation, hallucinations or delusions. He did endorse sleep problems, to include nightmares. He experienced apathy, depressive symptoms, amotivation, and irritability. The Veteran was assessed as having a global assessment of functioning score of 45. November 2010 treatment notes show that the Veteran reported experiencing nightmares several times weekly. He worked guarding inmates at night, and indicated that he enjoyed this time as it allowed him to be by himself. He experienced anxiety, depression, fluctuating mood, and other ongoing PTSD symptoms. The Board has carefully considered the Veteran's pleadings regarding his symptoms, which include experiences with panic attacks, irritability, nightmares, hallucinations and depression. In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through the senses. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). He is not, however, competent to identify a specific level of disability for his disorder, according to the appropriate diagnostic codes, or, to attribute specific symptoms to a disability. Robinson v. Shinseki, 557 F.3d 1355 (2009). Competent evidence concerning the nature and extent of the Veteran's disability has, however, been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and treatment records) directly address the criteria under which the disability is evaluated. After considering the totality of the record, the Board finds the evidence supports a 70 percent disability rating between July 18, 2009 and December 15, 2010, and no higher for the Veteran's PTSD. The evidence demonstrates that the Veteran has significant impairment due to such symptoms as nightmares, anxiety, depression, difficulty sleeping, and hypervigilance. He has also competently and credibly reported that he experiences irritability, panic attacks, visual hallucinations, and has at times felt suicidal. He reported familial difficulties, such as anger and irritability with his children and screaming at his children and wife. As such, he appears to have difficulties in thinking, familial and social relationships, and mood. Finally, he has been assigned global assessment of functioning scores between 44 and 55, with the lower scores indicative of serious symptoms. Although the Veteran experienced some variation in PTSD symptomatology, his symptoms more nearly approximate those associated with a 70 percent rating. Though he does not meet all the criteria for a 70 percent rating, his symptomatology reflects many of the criteria. Thus, in an effort to properly rate this appellant, the Board resolves reasonable doubt in the Veteran's favor and finds that he is entitled to a 70 percent rating for his PTSD. With respect to whether the Veteran is entitled to a rating in excess of 70 percent for his PTSD, he has not demonstrated total occupational and social impairment. Indeed, during this term the evidence shows that the appellant continued to work. There was no evidence of an impairment in thought processes or communication, and he was not in persistent danger of hurting himself or others. There is no evidence that he was disorientated, or suffered from a profound memory loss. Moreover, although the Veteran has experienced suicidal ideation, there is no indication of intent from the record. During the time period in question the Veteran was married. Although the Veteran has experienced visual hallucinations, his most recent treatment records suggest that that they are not persistent. Although the Veteran reported being short-tempered, the evidence does not indicate that he was a danger to others, rather he avoids others. Overall, the preponderance of the evidence is against a finding of total social or occupational impairment due to the Veteran's PTSD, as would warrant a 100 percent rating at any time during this appellate term. With regard to extraschedular consideration, the threshold determination is whether the disability picture presented in the record is adequately contemplated by the rating schedule. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the Veteran's symptomatology, to include nightmares, depression, hypervigilance, anger, hallucinations, and anxiety are adequately contemplated by the rating schedule for PTSD. Therefore, referral for assignment of an extra-schedular evaluation in this case is not in order. Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). Overall, the evidence supports an initial disability rating of 70 percent for the Veteran's PTSD from July 18, 2009, to December 15, 2010; however, the preponderance of the evidence is against a rating in excess of 70 percent. The benefit-of-the-doubt doctrine has been appropriately applied where applicable. 38 U.S.C.A. § 5107(b). ORDER Entitlement to an initial 70 percent rating, but no higher, from July 18, 2009, to December 15, 2010, is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND The Veteran contends that he should be in receipt of a higher disability evaluation for PTSD. Unfortunately, the available evidence is insufficient to accurately determine the appropriate rating beyond December 15, 2010, the date of his hearing wherein he denied having applied for Social Security benefits. Since then, in a December 2011 memo written to the President, and only later associated with the claims folder, the Veteran reported that he had been waiting for a decision on his disabilities, referencing in part his PTSD, and that he had files for Social Security disability that VA had not obtained. As such, the Board finds that remand is necessary to request any outstanding Social Security Records, as they appear to be relevant to the Veteran's PTSD. See Murincsak v. Derwinski, 2 Vet. App. 363, 370-72 (1992). In addition, regarding the question of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders, the Board observes that at his most recent VA examination in November 2012 the Veteran indicated that he had last worked in August 2011, having resigned from his position with the Department of Corrections following an altercation with a nurse and being written up for having a bad attitude. The record also indicates that he divorced his spouse in 2012, and that he has since filed for bankruptcy. Treatment notes that were recently added to the claims folder show that in September 2011 the Veteran reported that he had lost his job after "going off" at someone at work. Although the question of individual unemployability is part of the increased rating issue, that question has not been initially addressed by the RO, and the Veteran has not been advised of the regulatory requirements for this benefit. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The Veteran's Social Security disability records should be obtained, and associated with the claims folder. If the RO cannot locate such records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Issue a notice letter consistent with the Veterans Claims Assistance Act of 2000 regarding the appellant's entitlement to a total disability evaluation based on individual unemployability due to service connected disorders. 3. The RO must conduct a VA a social and industrial survey to assess the Veteran's employment history and day-to-day functioning, as well as to assess the impact of each service-connected disorder. The social worker who conducts this survey must opine whether it is at least as likely as not that the Veteran's service connected disorders alone preclude all forms of substantially gainful employment that are consistent with the appellant's education and occupational experience. A written copy of the report should be inserted into the claims file, and a complete rationale . 4. After conducting any indicated additional development, adjudicate the issues. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs