Citation Nr: 1307040 Decision Date: 03/01/13 Archive Date: 03/11/13 DOCKET NO. 10-41 322 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an increased rating for posttraumatic stress disorder (PTSD), currently evaluated as 50 percent disabling. 2. Entitlement to a total disability evaluation based on individual unemployability due to the Veteran's service-connected disabilities (TDIU). ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from October 1966 to January 1975. He received the Purple Heart medal and Combat Infantryman Badge. This appeal comes before the Board of Veterans' Appeals, hereinafter the Board, from a November 2009 rating decision of the Winston-Salem, North Carolina, Regional Office (RO), of the Department of Veterans Affairs (VA). The issues of entitlement to an increased rating beyond 70 percent for PTSD and entitlement to TDIU are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. FINDING OF FACT The Veteran's service connected psychiatric disability causes deficiencies in most of the areas of work, school, family relations, judgment thinking and mood. CONCLUSION OF LAW The criteria for a 70 percent rating for PTSD have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). This decision grants a 70 percent rating for PTSD and remands the question of entitlement to a rating in excess of 70 percent and entitlement to TDIU. There is no need for further notice or assistance to aid the Veteran in substantiating the aspect of his appeal being decided in this decision. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the disability. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 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 a rating 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) (2012). When evaluating the level of disability from a mental disorder, VA will also consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b) (2012). The schedular criteria for rating psychiatric disabilities incorporate the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). See 38 C.F.R. §§ 4.125, 4.130 (2012). PTSD is rated under 38 C.F.R. § 4.130, DC 9411, according to the General Rating Formula for Mental Disorders. Under the General Rating Formula, a 50 percent disability rating is warranted 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability rating is warranted when 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 worklike setting); and inability to establish and maintain effective relationships. The criteria for a 70 percent rating for PTSD are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). In the instant case the Veteran underwent a VA examination in August 2009. The examiner found that PTSD symptoms resulted in deficiencies in all of the areas specified for a 70 percent rating, except for school, which he found was not applicable to the Veteran. The examiner also assigned a global assessment of function of 50. That score contemplates serious impairment in social, occupational or school functioning. DSM-IV. The examiner did note a diagnosis of major depression, which he opined was unrelated to PTSD, but made it difficult to independently assess the effects of PTSD; and the examiner did not do so. In cases where the effects of a service connected disability cannot be separated from those of a non-service connected disability, all of the manifestations will be rated as part of the service connected condition. Mittleider v. West, 11 Vet. App. 181 (1998). The only other evidence consists of the Veteran's statements, in which he reported worsening psychiatric symptoms, and notes of private treatment that confirm ongoing treatment for symptoms of depression and PTSD. In sum, all of the pertinent evidence is to the effect that the Veteran meets the criteria for a 70 percent rating for PTSD. An increased rating of 70 percent, for PTSD is; therefore granted. OREDER An increased rating of 70 percent for PTSD is granted. REMAND The examiner who conducted the VA examination in August 2009 did not have an opportunity to review the private mental health treatment records, because there were received after the examination. The Veteran contends that these records show a more severe disability than was found on the examination. VA has a duty to insure that examinations take into account the records of prior medical treatment (the complete claims folder) so that the disability evaluation will be a fully informed. 38 C.F.R. §§ 4.1, 4.2; see Hyder v. Derwinski, 1 Vet. App. 221 (1991); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). In light of the applicable provisions of the Veterans Claims Assistance Act of 2000 (VCAA), it is the Board's opinion that such an examination should be afforded the Veteran before an appellate decision on the merits of his claim. In a statement dated in March 2004 a clinical psychologist at a Vet Center reported that the Veteran continued to receive weekly therapy and that it would be difficult for the Veteran to maintain substantial gainful employment in the future. Records of the Veteran's treatment at the Vet Center are not associated with the claims folder. These records would be relevant to his claim, and VA has a duty to obtain them. 38 U.S.C.A. § 5103A(b)-(c). In the case of a claim for total rating based on individual unemployability, the duty to assist requires that VA obtain an examination which includes an opinion on what effect the appellant's service-connected disabilities have on his ability to work. Friscia v. Brown, 7 Vet. App. 294, 297 (1994). The examiner who conducted the August 2009 examination did provide an opinion as to the impact of PTSD on the Veteran's ability to work but did not consider the Veteran's other service connected disabilities, which consists of the residuals of shell fragment wounds in both lower extremities. Accordingly, the case is remanded for the following actions: 1. The agency of original jurisdiction (AOJ) should obtain all available records of the Veteran's treatment at the Raleigh Vet Center. 2. Ask the Veteran to identify any other sources of treatment received since January 2009 for his psychiatric disorder and other service-connected disorders, and to provide necessary authorizations for VA to obtain records. If the Veteran fails to provide any necessary authorizations, tell him that he may obtain and submit the records himself. If requests for any treatment records are not successful, the AMC should inform the Veteran of the missing records, of the efforts made to obtain the records, and of any further action that will be taken with regard to his claim. Efforts to obtain records in Federal custody must continue until the records are obtained, unless it is reasonably certain that they do not exist or that further efforts would be futile. 3. After obtaining available treatment records, the AOJ should afford the Veteran an examination to evaluate the current severity of his service-connected psychiatric disability. The examiner should review the claims folder, including any relevant records stored in an electronic format. The examiner should provide an opinion with reasons as to whether the psychiatric disability results in total occupational and social impairment or has been manifested by such impairment at any time since January 2009. 4. The Veteran should be afforded an examination in order to obtain an opinion as to whether his service connected disabilities in combination have precluded substantially gainful employment for which his education and occupational experience would otherwise qualify him; or whether they have precluded such employment at any time since January 2009. The examiner should review the claims folder, including any relevant records stored in an electronic format; and provide reasons for this opinion. If the examiner is unable to provide the requested opinion without resorting to speculation, the examiner must provide an explanation for the basis of that determination, for example, does the examiner lack the expertise to render such an opinion, or is some additional testing or information needed, and possibly available that would permit an opinion. If so, a qualified examiner should provide an opinion and/or the additional testing should be accomplished. If the examiner cannot provide an opinion because it cannot be determined from current medical knowledge whether the Veteran's service-connected disabilities impinges on his ability to be employed, this should be fully explained. 6. If any development is incomplete, the AOJ should take appropriate corrective action. Specific attention is directed to the examination reports. 8. If the benefits sought on appeal remain denied, the AOJ should issue a supplemental statement of the case (SSOC). Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. The purpose of the examinations requested in this remand is to obtain information or evidence (or both), which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (2012) failure to cooperate by attending the requested VA examinations may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 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). _________________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs