Citation Nr: 1307066 Decision Date: 03/01/13 Archive Date: 03/11/13 DOCKET NO. 11-29 792 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD) with major depressive disorder. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: David Russotto, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Veteran served on active duty from August 1979 to July 1982, and from December 1990 to July 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA), regional office (RO), in Winston-Salem, North Carolina. That rating decision denied the Veteran's claim for an evaluation in excess of 30 percent for his service connected psychiatric disability. The Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in Winston-Salem, North Carolina, in January 2013; a transcript of the hearing is of record. The issue of entitlement to a TDIU has been reasonably raised by the Veteran's statements at the hearing and has been added on the title page. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The issue of entitlement to TDIU is being REMANDED to the Department of Veterans Affairs Regional Office. FINDING OF FACT The December 31, 2012 private psychiatric evaluation of record demonstrates occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activity, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships. CONCLUSION OF LAW The criteria for a 70 percent disability evaluation, and no more, for PTSD with major depressive disorder, are met from December 31, 2012. 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 FINDINGS AND CONCLUSION Notice and Assistance The Veteran stated at his hearing before the undersigned that a 70 percent rating will satisfy his claim for a higher rating for his service connected psychiatric disorder. As the Board is granting in full the benefit for an increased rating for PTSD with major depressive disorder sought on appeal, no discussion of VA's duty to notify and assist is necessary. Increased Rating Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 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). 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). An August 2008 rating decision granted service connection for PTSD with major depressive disorder, and assigned an initial 30 percent rating from January 2007. The Veteran filed his current claim for an increased rating in November 2009. Pursuant to the General Rating Formula for Mental Disorders, a 30 percent evaluation is warranted where the disorder is manifested by occupational and social impairment with an 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; and mild memory loss (such as forgetting names, directions, and recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). A 50 percent evaluation 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 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. Id. A 70 percent evaluation contemplates occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activity; speech intermittently illogical, obscure or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances and inability to establish and maintain effective relationships. Id. Lastly, a 100 percent evaluation is warranted where there is total occupational and social impairment, due to symptoms such as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting 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 name. Id. 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. A GAF of 41 to 50 is defined as serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF of 51 to 60 is defined as moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). A VA examination in May 2008 noted the Veteran reported problems staying asleep, irritability, exaggerated startle, difficulty concentrating, and hypervigilance. He avoided crowds but did like to talk to a few soldier friends. On examination, orientation was normal. Appearance and hygiene were appropriate. Affect and mood appeared normal. His communication and speech were normal. Concentration was normal other than difficulty in understanding complex commands. The Veteran reported having road rage. He had no significant panic attacks. There were no delusions, hallucinations, or obsessional rituals. The Veteran reported mild forgetting of names, directions, and recent events. There was no suicidal or homicidal ideation. The examiner diagnosed PTSD and major depressive disorder. The GAF score was 55. On VA examination in January 2010, the Veteran reported that his psychiatric symptoms had worsened in the past year. He reported more problems with nightmares and that he had interrupted sleep most every night. The Veteran reported problems with working as a painter due to pain in his knees and feelings of tiredness from his lack of sleep. Loud noises upset him. He lived with a girlfriend. On examination, the Veteran was oriented in all spheres. His appearance and hygiene were appropriate. His behavior was appropriate, with good eye contact. He had a near-continuous depressed mood and some problems with impairment in impulse control. He flew off the handle easily and was irritable. Communication and speech were normal, but his attention span was short. The Veteran described having panic attacks. He reported suspiciousness, but denied hallucinations and delusions. He checked doors several times at night. The Veteran denied suicidal or homicidal ideation. The examiner assigned a GAF score of 50. VA mental health psychiatric notes of record dated in June 2010, September 2010, December 2010, January 2011, and October 2011, each of which was signed by a VA staff psychiatrist, all include specific findings that the Veteran did not have suicidal or homicidal ideations. The Veteran reported symptoms of depression, insomnia, and nightmares. He had no feelings of helplessness or hopelessness. There were no auditory or visual hallucinations, thought disorders, or paranoid ideations. The December 2010 and January 2011 treatment records noted that the Veteran exhibited good impulse control and judgment, and had insight. In January 2011 the Veteran reported that he was going through a period of sadness due to financial hardship. A private initial intake evaluation of the Veteran dated December 31, 2012 notes that the Veteran has "no long term/short term memory, very irritable, easily frustrated, doesn't drive anymore because of road rage, always feels like someone is watching him, hides in closet during thunderstorms, doesn't sleep because of nightmares, sleeps about 2 hours a night, anxiety attacks 2-3 times a week, feels like giving up, doesn't socialize, doesn't go anywhere but church, has to write everything down,...obsessively checks stove is off and doors lock and sometimes takes 20-25 minutes to leave house because of this, starting to have suicidal thoughts." On examination, the Veteran appeared clean and well-groomed. He was cooperative but became visibly upset when discussing past trauma. His speech was loud at times. Mood and affect were anxious and congruent with re-experiencing trauma. He had poor insight and judgment, and reported past suicidal feelings. The examiner assigned a GAF score of 41. The Veteran provided testimony before the undersigned in January 2013 that referred to symptomatology consistent with that described in the December 31, 2012 private psychiatric evaluation. The December 31, 2012 private psychiatric evaluation of record demonstrates occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activity, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships. Accordingly, a 70 percent evaluation for PTSD with major depressive disorder is warranted from the date of that examination. The evidence of record prior to December 31, 2012 shows findings consistent with the 30 percent evaluation assigned during that period. Specifically, the record shows occupational and social impairment with an 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; and mild memory loss. The Veteran denied suicidal or homicidal ideation on all treatment records or examinations prior to December 31, 2012, and the record did not demonstrate a level of obsessional rituals sufficient to interfere with routine activities prior to that date. The December 2010 and January 2011 treatment records noted that the Veteran exhibited good impulse control and judgment, and had insight. The December 31, 2012 intake evaluation findings are the first evidence of record demonstrating a significant worsening of symptoms since the initial grant of service connection. As noted above, the assignment of a 70 percent rating resolves the Veteran's claim for increased rating. He does not contend, and the record does not show, that a schedular 100 percent rating is warranted. Extraschedular Consideration The record does not establish that the rating criteria are inadequate for rating the Veteran's service-connected PTSD with major depressive disorder. His psychiatric disability is primarily manifested by impairment in social and occupational functioning. The extent of that impairment, however, is appropriately and adequate addressed by the 70 percent rating under the rating schedule. As the effects of the Veteran's disability has been fully considered and are contemplated in the rating schedule, referral for extraschedular ratings is unnecessary. Thun v. Peake, 22 Vet. App. 111, 115 (2008). ORDER A 70 percent evaluation for PTSD with major depression is granted from December 31, 2012. REMAND The record, specifically the Veteran's statements and the December 2012 private intake evaluation report, reasonably raise claim for a TDIU. See Rice, supra. In light of the above grant of a 70 percent rating, the Veteran is schedularly eligible for TDIU consideration and the record suggests he has likely been unemployed for the entire period under review. See 38 C.F.R. § 4.16(a) (2012). The record suggests the Veteran receives regular VA treatment for his service-connected disabilities, but no records dated since June 2012 have been associated with the claims folder nor are any such records available via the Virtual VA system. Under the law, VA must obtain these records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). On remand, attempts to obtain these records must be undertaken. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with appropriate notice of the evidence and information needed to establish entitlement to TDIU, and of VA's and the Veteran's responsibilities to provide evidence and information in support of that claim. Allow an appropriate amount of time for response and associate the notification with the claims file. 2. Obtain all outstanding VA treatment and/or hospitalization records related to the Veteran's service-connected disabilities, dated since June 2012. Any negative response(s) must be in writing and associated with the claims folder, to include notation that no additional records are available on the Virtual VA system. 3. After undertaking any additional development deemed necessary, to include scheduling a VA examination if indicated, adjudicate the claim for a TDIU, with consideration of all evidence of record. If the benefit sought is denied, the Veteran and his representative must be provided with a supplemental statement of the case and an appropriate period of time allowed for response. The appellant has the right to submit additional evidence and argument on the matter 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. 2010). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs