Citation Nr: 1307402 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 10-15 924 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE 1. Entitlement to an initial disability evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1965 to July 1967, including combat service in the Republic of Vietnam, and his decorations include the Combat Infantryman Badge and Purple Heart Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire, granting entitlement to service connection for PTSD and assigning a 30 percent disability evaluation. In November 2009, a hearing was held at the local RO before a Decision Review Officer (DRO). In September 2010, a videoconference hearing was held at the local RO before the undersigned Veterans Law Judge (VLJ). A transcript from the hearing is of record. Following the September 2010 Board hearing, the Veteran submitted additional evidence with a waiver of RO jurisdiction. This evidence will thus be considered by the Board in the adjudication of this appeal. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The Board notes that the case caption, above, has been amended to include the issue of whether a TDIU rating is warranted. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. The Veteran's claims for an evaluation in excess of 50 percent for PTSD and to a TDIU 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. FINDINGS OF FACT The Veteran's PTSD is manifested by at least occupational and social impairment with reduced reliability and productivity due to such symptoms as panic attacks more than once a week, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. CONCLUSION OF LAW The criteria for an initial disability rating of at least 50 percent for PTSD have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board finds that the Veteran's PTSD warrants an evaluation of at least 50 percent and remands that portion of the appeal that seeks a rating in excess of 50 percent. As such, no discussion of VA's duty to notify and assist is necessary. I. Relevant Laws and Regulations Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings will be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). See also 38 C.F.R. §§ 4.1, 4.2. As such, the Board has considered all of the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. As is the case here, where entitlement to compensation 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. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, in Fenderson v. West, 12 Vet. App. 119, 126 (1999), the Court noted that where the question for consideration is propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required. The General Rating Formula for Mental Disorders, including Diagnostic Code 9411, at 38 C.F.R. § 4.130 provides the following ratings for psychiatric disabilities. A 30 percent evaluation is provided for occupational and social impairment with 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, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130. A 50 percent rating is warranted if it is productive of 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; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent 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. Id. The use of the term 'such as' in the general rating formula for mental disorders 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 as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase 'such symptoms as,' followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each Veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. Id. In addition, the Veteran's statements and testimony describing the symptoms of his service-connected disability are deemed competent evidence. 38 C.F.R. § 3.159(a)(2) (2012). However, these statements must be considered with the clinical evidence of record and in conjunction with the pertinent rating criteria. In evaluating psychiatric disorders, the VA has adopted and employs the nomenclature in the rating schedule based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). See 38 C.F.R. § 4.130. As such, the diagnosis of a mental disorder should conform to DSM-IV. See 38 C.F.R. § 4,125(a). Diagnoses many times will include an Axis V diagnosis, or a Global Assessment of Functioning (GAF) score. The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). Scores ranging from 41 to 50 illustrate serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning. Scores ranging from 51 to 60 reflect more 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). Scores ranging from 61 to 70 reflect mild symptoms (e.g., depressed mood and mile insomnia) or difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household). Further, in making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. 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). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). II. Facts and Analysis In April 2008, the Veteran submitted a letter from Joseph Viana, a licensed clinical professional counselor at Lakeview Community Services, who stated that he had treated the Veteran on four separate occasions and diagnosed the Veteran with PTSD. He noted that the Veteran complained of interrupted sleep, irritability and recurring thoughts of combat. The Veteran described his active military duties and indicated that he experienced daily memories of combat. He noted that he often had nightmares, but rarely experienced flashbacks. The Veteran noted that he prefers to live in semi-isolation and does not have a wide circle of friends. Besides his wife, the Veteran does not feel connected with anyone else. He gets annoyed easily and is quick to anger, which he contends has affected his relationship with his son. He does not have suicidal tendencies and does not want to hurt others. The report of a July 2008 VA PTSD examination reflects that the Veteran described his symptoms of difficulty sleeping, irritability and hypervigilance due to his thoughts about his military service. He described intrusive thoughts and nightmares and stated that he tried to avoid discussing his traumatic experiences. The examiner noted that there was no impairment of communication and no evidence of delusions or hallucinations. It was noted that the Veteran made good eye contact, was pleasant and had no inappropriate behavior. He denied panic attacks and depressed moods, but indicated that he felt uncomfortable in social situations. A GAF score of 55 was assigned and the examiner assessed that the Veteran's PTSD diagnosis was primarily responsible for the Veteran's impairment in functional states and quality of life. VA treatment records indicate that he Veteran sought treatment for his PTSD. In a May 2009 record, it was noted that the Veteran felt depressed or hopeless more than half the days and that he was either constantly on guard, watchful or easily startled. In a June 2009 VA mental health evaluation, the report contains a GAF score of 65. In December 2009, Veteran indicated that he was feeling anxious and depressed. It was noted that the Veteran was taking medication to treat his PTSD symptoms. In February 2010, the Veteran was afforded a VA PTSD examination. The examiner reported that the Veteran's current psychosocial functional status and quality of life was average to occasionally below average. It was noted that his social functioning was limited to his wife and he had minimal contact his son. The Veteran preferred to be alone and liked solitary activities. He had no obsessive or ritualistic behavior and there were no panic attacks. The report reflected that the Veteran suffered from insomnia and fluctuating anxiety, along with a significant amount of anger and irritability. The examiner found the Veteran to be well-groomed and cooperative with no impairment of thought process or communication. There were no suicidal or homicidal thought or ideas. The examiner indicated that the Veteran showed no substantial or significant change in his diagnosis. The examiner reported the Veteran had an increased awareness of his condition. However, he continued to show an inability to perform social and occupational tasks and there was an occasional decrease in work efficiency. The Veteran's GAF score related to the PTSD diagnosis was found to be between 60 to 70. In a September 2010 treatment letter from Nicole Maher-Whiteside, an advanced registered nurse practitioner, she indicated that she had treated the Veteran while employed at the VA until December 2009. She reported that the Veteran suffered from recurring symptoms related to PTSD. It was noted that the Veteran experienced intrusive thought and memories, flashbacks and exaggerated startled responses. She indicated that these symptoms affected the Veteran on a daily basis. Some of the effects were problems with panic and anxiety, interactions with others and sleeping. She determined that the Veteran's GAF score was 50. The record also contains a statement dated May 2009 from the Veteran's wife. She indicated that the Veteran is distant and does not want to make close connections with anyone. She noted that his only friends were those who he has known from his military service. The Veteran often turned to alcohol to be able to interact with others, until he stopped drinking in excess when he was 40 years old. She described the Veteran's temper and stated that he would ignite at a moment's notice and this would scare her, as well as the Veteran's co-workers. She stated that the Veteran's relationship with their son is "at arm's length." She reported that since returning from Vietnam, the Veteran has had to sit facing the door in restaurants and at family gatherings. The Veteran's wife stated that he speaks about his combat service in Vietnam often and that he frequently wakes up in the middle of the night and cannot go back to sleep. She discusses the Veteran's consulting work, since retiring, but notes that the Veteran is note motivated to look for new jobs or write a manual, as was his intention after retiring. The Veteran has submitted lay statements indicating his experience in Vietnam, and his symptoms of PTSD since service. In a March 2010 statement, the Veteran reported that he had suffered from panic attacks, which at first he believed was a heart problem. He stated that he was currently taking medication for depression and panic attacks, as well as insomnia and nightmares. He also indicated that he has had an aversion to authority and an inability to maintain relationships, both social and work related. He noted that he is uncomfortable and not at ease if he is not aware of his surroundings. Because of this, he must be the first person to pick a seat at a table, before anyone else. He indicated that he is observant of his surroundings. He also noted that he is quick to anger. In a September 2010 Board hearing, the Veteran reported that he had become more aware of PTSD symptoms. He indicated that he has frequent panic attacks and that he suffers from depression. He stated that he has difficulty in establishing and maintaining effective work and social relationships and has difficulty dealing with people in social situations. Throughout the pendency of this appeal, the Veteran's GAF scores ranged from 50 to 70. These scores indicate a range of mild to serious symptoms. Although GAF scores are important in evaluating mental disorders, the Board must consider all the pertinent evidence of record and set forth a decision based on the totality of the evidence in accordance with all applicable legal criteria. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). Accordingly, an examiner's classification of the level of psychiatric impairment, by word or by a GAF score, is to be considered but is not determinative of the VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. Id.; see also 38 C.F.R. § 4.126 (2012); VAOPGCPREC 10-95, 60 Fed. Reg. 43186 (1995). In light of the aforementioned evidence the Board finds that his PTSD approximates the criteria for at least a 50 percent disability rating. Throughout the pendency of the appeal, the Veteran's VA examination and treatment records reflect that his PTSD was manifested by depression, nightmares, panic attacks, decreased ability to establish and maintain social relationships. The Veteran also reported episodes of hypervigiliance and anger. The Veteran has reported preferring to do most activities alone, and although the Veteran has not had many social relationships and his interaction with his son is occasional, he has maintained a good relationship with his wife and a few friends. ORDER An initial disability rating of 50 percent, for PTSD is granted, subject to controlling regulations applicable to the payment of monetary benefits. REMAND In this decision herein, the Board granted the Veteran a 50 percent initial disability evaluation for PTSD, but finds that additional development efforts are necessary prior to finally adjudicating this claim. Specifically, during the September 2010 Board hearing held before the undersigned VLJ, the Veteran testified that he had been receiving ongoing treatment from the VA Community Based Outpatient Center (CBOC) in Conway, New Hampshire. Further, the Veteran stated that for a period of time, he was treated at the VA CBOC in Tilton, New Hampshire and he had inquired about treatment at the VA Vet Center in Berlin, New Hampshire. A review of the entire claims file shows that the VA treatment records are not of record. VA is required to make reasonable efforts to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. See 38 U.S.C.A. § 5103A(b)(1) (West 2002); 38 C.F.R. § 3.159(c)(1) (2012). In Bell v. Derwinski, 2 Vet. App. 611, (1992), the Court held that VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record, and that such documents are thus constructively part of the record before the Secretary and the Board, even where they are not actually before the adjudicating body. Accordingly, as these records are potentially probative, attempts should be made to obtain the Veteran's treatment records, either physically or electronically, from the VA CBOC's in Conway, New Hampshire and Tilden, New Hampshire and the VA Vet Center in Berlin, New Hampshire. In light of the likely outstanding treatment records, the newly submitted evidence, including the Veteran's testimony, the Board finds that after they are associated with the claims folder the Veteran should be afforded a contemporaneous VA psychiatric examination. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007). A review of the Veteran's entire file shows that the last examination was in February 2010. Therefore, the Board finds that an additional examination is necessary to ascertain the current severity and manifestations of the Veteran's PTSD. In a May 2009 statement from the Veteran's wife, she indicated that the he is not motivated to seek consulting work since retiring. At his DRO hearing conducted in November 2009, the Veteran stated that he is uncomfortable dealing with people when trying to obtain consulting jobs and at the Board hearing in September 2010, the Veteran noted that he finds it unbearable to deal with people in the hiring process. The various statements, when considered in light of Rice and all other evidence of record, reasonably raise the part-and-parcel matter of entitlement to a TDIU. Finally, in light of Rice and the Board's remand of the higher initial PTSD rating claim, the TDIU issue must be remanded because the claims are inextricably intertwined. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim.). Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of the nature, extent and severity of his psychiatric symptoms and the impact of the condition socially and on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. Provide the Veteran with appropriate notice of the evidence and information needed to establish entitlement to a TDIU, and VA's and the Veteran's responsibilities to provide evidence and information in support of a TDIU claim, which has been raised by the record. The Veteran should be provided an appropriate amount of time to respond to this notification. This notification should be associated with the claims file. 3. Obtain, physically or electronically, copies of the Veteran' s outstanding VA psychiatric treatment from the VA CBOC's in Conway, New Hampshire and Tilden, New Hampshire and the VA Vet Center in Berlin, New Hampshire. Any negative response should be in writing, and associated with the claims file. 4. Then RO shall afford the Veteran a VA psychiatric examination to determine the nature, extent and severity of his psychiatric disability. The claims file must be made available to and reviewed by the examiner. All tests deemed appropriate by the examiner should be performed. The examiner should report all pertinent findings and estimate the Veteran's GAF score and comment on the severity of any social and occupational impairment related to his psychiatric disability. Thereafter, the examiner should opine as to whether it is at least as likely as not that the Veteran's PTSD renders him unable to secure or follow a substantially gainful occupation. All findings and conclusions should must be supported with a complete rationale and set forth in a legible report. 5. The RO should then adjudicate whether the Veteran's PTSD warrants a rating in excess of 50 percent and thereafter consider his entitlement to a TDIU. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs