Citation Nr: 1307591 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 10-39 993 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to total disability based upon individual unemployability due to service-connected disabilities (TDIU). 3. Entitlement to an initial compensable evaluation for onychomycosis of the right foot. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran served on active duty from April 1987 to September 2007. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in November 2011. A transcript of the hearing has been associated with the Veteran's Virtual VA file. The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record. The evidence reflects that the Veteran may be unemployable due to his service-connected PTSD. At the videoconference hearing he testified that he had trouble maintaining jobs due to his emotional state and that he was currently unemployed. In light of the Court's holding in Rice, the Board has considered the TDIU claim as part of the pending increased rating claim and has accordingly listed the raised TDIU claim as an issue. The issues of entitlement to an evaluation in excess of 70 percent for PTSD and entitlement to a total disability rating based on individual unemployability (TDIU) are addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. For the entire appellate period, PTSD has been manifested by symptoms of depression, anxiety, irritability, concentration problems, anhedonia, frequent nightmares and flashbacks, detachment, social isolation, homicidal thoughts, and anger control problems. 2. At the November 2011 videoconference hearing, prior to the promulgation of a decision in the appeal, the Veteran stated, through his authorized representative, that a withdrawal of the appeal as to the issue of the evaluation of onychomycosis of the right foot is requested. CONCLUSIONS OF LAW 1. The criteria for an evaluation of 70 percent for PTSD have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130; Diagnostic Code 9411 (2012). 2. The criteria for withdrawal of the appeal of the evaluation of onychomycosis of the right foot by the Veteran have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Public Law No. 106-475, 114 Stat. 2096 (2000), substantially amended the provisions of chapter 51 of title 38 of the United States Code, concerning the notice and assistance to be afforded to claimants in substantiating their claims. VCAA § 3(a), 114 Stat. 2096, 2096-97 (2000) (now codified as amended at 38 U.S.C.A. §§ 5103 , 5103A (West 2002 & Supp. 2012)). In addition, VA published regulations, which were created for the purpose of implementing many of the provisions of VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (now codified, in pertinent part, at 38 C.F.R. § 3.159 (2012)). In regards to the issue of the evaluation of onychomycosis of the right foot, the Veteran has withdrawn that issue and therefore, there is no longer a pending appeal with regards to that issue. In regard to the issue of the evaluation of PTSD, the Board is granting a 70 percent evaluation for PTSD based on the evidence of record. The Board is not, however, denying an evaluation in excess of a 70 percent rating, but is instead remanding that matter for further development. Under these circumstances, the Board finds that compliance with the VCAA need not be discussed at this time. I. Appeal Withdrawal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran, through his authorized representative, has withdrawn the appeal as to the issue of the evaluation of onychomycosis of the right foot, hence, there remains no allegations of errors of fact or law for appellate consideration with regards to this issue. Accordingly, the Board does not have jurisdiction to review the appeal as to this issue and it is dismissed. II. Evaluation of PTSD A. Factual Background A February 2008 PTSD assessment summary indicates the Veteran reported struggling with sleep, problems with concentration, expressing his thoughts out loud, mood problems and problems with image. Mental status examination showed good eye contact; he was guarded and confused; speech was coherent but illogical; mood was depressed, suspicious, hopeless and perplexed; affect was appropriate; thought process was problem focused and thought content showed paranoia. He showed fair judgment and impulse control. The examiner noted the Veteran showed a depressed mood. He denied any propensity to violence. The appointment was finished early due to the Veteran's problems with responding appropriately to questions such as getting dates wrong, and having a hard time focusing or remembering his children's ages. It was noted the Veteran appeared to have a marked problem with memory, concentration, expression and retention both of past and present information. Axis I diagnosis was deferred. He was assigned a GAF score of 48. It was noted he was currently unemployed. A December 2008 psychiatric note shows the Veteran endorsed anhedonia, increased withdrawal, insomnia, decreased energy, decreased concentration and guilt. He denied suicidal or homicidal thoughts. He could not answer if he was sad as he indicated he had a problem with that word. He endorsed nightly nightmares, flashbacks, persistent avoidance, feelings of detachment, decreased interest in activities, irritability and anger outbursts, difficulty concentrating, hypervigilence, and exaggerated startle response. Mood was euthymic and affect was within normal limits in intensity and range, not labile and appropriate to thought. He was alert and oriented times three. Thought process was coherent, logical and very circumstantial. He denied any hallucinations or delusions, and denied suicidal and homicidal thoughts. He was diagnosed with PTSD and was assigned a GAF score of 60. A May 2009 psychiatry note shows the Veteran reported increased irritability when he was off his medications. Mood has been good but he still frequently argues with his wife. Irritability has improved, nightmares have decreased, and he is still hypervigilant. He denied suicidal ideations and psychotic symptoms. Physical examination showed he was oriented times three; thought process was coherent, logical and very circumstantial. He denied hallucinations and delusions, and suicidal or homicidal thoughts. He was assigned a GAF score of 60. Private treatment records of April 2010 show the Veteran reported symptoms of depressed mood, sleep problems, anger problems, low self-esteem, anxious mood, and panic/anxiety attacks. Mental status exam showed he was oriented times three; he was restless and fidgety; grooming and eye contact was good; and, he was agitated. Speech had normal rate and rhythm, it was soft and clear. Affect was sad, depressed and anxious, range was constricted and thought process was hopeless, helpless, and showed feelings of worthlessness and suspiciousness. Thought process was coherent, goal oriented, tangential and rambling. He denied hallucinations. Insight was fair and judgment was adequate. He was assigned a GAF score of 49. Similar symptoms are reported in private treatment records of May through September 2010. GAF scores reported during that time ranged form 47-49. VA outpatient treatment records of June 2010 the Veteran reported sleeping only 3-4 hours a night. He has nightmares and endorsed avoidant symptoms. He was euthymic with appropriate affect and speech was normal. Memory was intact. He denied hallucinations or delusions. Thought process was coherent and logical; and, judgment and insight were good. He was assigned a GAF score of 65. VA outpatient treatment records of April 2011 show the Veteran was mildly depressed with fair insight and judgment. He was assigned a GAF score of 50. A VA examination was carried out in June 2011. The Veteran's history was reviewed. The Veteran reported being depressed for longer than two weeks; and, feelings of worthlessness, low energy, inability to concentrate, and loss of interest in activities. He denied suicidal thoughts, intent or ideations. He demonstrated psychomotor retardation but no psychomotor agitation. He is on anti-depressants and anti-anxiety medication. Physical examination showed a clean appearance, spontaneous speech, constricted affect, anxious mood, rambling thought process and ruminations. He denied delusions, and he understood the outcome of his behavior and that he has a problem. He reported problems with sleep and hypervigilance. He was noted to have obsessive and ritualistic behavior and panic attacks. He reported homicidal thoughts but no suicidal thoughts. He denied episodes of violence and was noted to have good impulse control. Memory was normal. The examiner noted reports of recurrent and intrusive distressing recollections of the stressors, including images, thoughts, or perceptions. Recurrent distressing dreams of the event were also noted. Hypervigilence, avoidance behavior and difficulty with concentration were noted. The examiner noted that the disturbance causes clinically significant distress or impairment in social and occupational functioning. He was diagnosed with PTSD and was assigned a GAF score of 60. It was noted that while he was currently employed, he had constant conflict with his boss. Further, he does not get along with his wife and while he has a big extended family, he does not engage in activities with them. He reported one activity he enjoys, gardening, and he does it in isolation. He is mostly isolative and is not involved in any social functioning other than work which he prefers to do at night and with only a limited number of people. VA outpatient treatment records of September 2011 show the Veteran was mildly depressed with fair insight and judgment. He was assigned a GAF score of 50. VA outpatient treatment records of March 2012 show the Veteran reported having panic attacks four times a week. He reported being out of work since February. He has nightmares three times a week as well as symptoms of hyperarousal. He denied flashbacks or avoidance symptoms. He is agitated, has difficulty sleeping and has feelings of guilt and worthlessness. He was assigned a GAF score of 50. In a November 2012 letter, the Veteran's sister stated that the Veteran is anti-social and confrontational. She further stated that he had distanced himself from her. In a November 2012 letter form the Veteran's daughter, she stated that in the past years, the Veteran has become more difficult to interact with. He is confrontational and is always on edge. He cannot control his anger and resorts to physical aggression when he cannot communicate. He is always suspicious of everyone and had no friends. He is always in constant alertness and has problems sleeping as he is always patrolling the house. He is isolative and does not leave the house. At the November 2012 videoconference hearing the Veteran testified that he has panic attacks every two to three days and has problems with concentration. Regarding employment, he testified he left his employment due to a hostile environment. He further stated that he had had about nine jobs in the previous five years and that he had concluded it was not the work environment that kept interfering with work, but rather him. His wife testified that she had been married to him for 32 years and had noticed a lot of changes in his personality. She testified he suffered from nightmares and had in the past assaulted his daughter. She testified his children are afraid of him and that he has trouble concentrating. She further stated that he withdraws and is isolative. He has no friends. He further testified that he has had thoughts of hurting or killing others but he knows he can't hurt himself. B. Legal Criteria and Analysis Disability evaluations are determined by the application of a schedule of ratings, which is based on average industrial impairment. 38 U.S.C.A. § 1155. A proper rating of the Veteran's disability contemplates its history, 38 C.F.R. § 4.1, and must be considered from the point of view of a Veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board observes that in cases where the original rating assigned is appealed, consideration must be given to whether a higher rating is warranted at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). The Board has considered whether further staged ratings are warranted but has determined that the disability has not significantly changed, and that a uniform rating is for application. Under the rating criteria of 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012), a 100 percent evaluation is provided for PTSD 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; memory loss for names of close relatives, own occupation, or own name. A 70 percent evaluation is provided 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 or hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 50 percent evaluation is appropriate 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. 38 C.F.R. § 4.130 (2012). In evaluating psychiatric disorders, it must be shown that industrial impairment is the result of actual manifestations of the service-connected psychiatric disorder. The severity of a psychiatric disability is based upon actual symptomatology, as it affects social and industrial adaptability. Two of the most important determinants of disability are time lost from gainful employment and decrease in work efficiency. 38 C.F.R. § 4.130 (2012). The Secretary, acting within his authority to "adopt and apply a schedule of ratings," chose to create one general rating formula for mental disorders. 38 U.S.C. § 1155; see38 U.S.C. § 501; 38 C.F.R. § 4.130. By establishing one general formula to be used in rating more than 30 mental disorders, there can be no doubt that the Secretary anticipated that any list of symptoms justifying a particular rating would in many situations be either under- or over-inclusive. The Secretary's 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. This construction is not inconsistent with Cohen v. Brown, 10 Vet. App. 128 (1997). The evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, the rating specialist is to consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV. If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned. Mauerhan v. Principi, 16 Vet. App. 436 (1992). In assessing the evidence of record, it is important to note that the Global Assessment of Functioning (GAF) score 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 (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). A score of 31-40 indicates some impairment in reality testing or communications or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. A score of 41-50 is assigned where there are, "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)." Id. A score of 51-60 is assigned where there are 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, conflict with peers or co-workers). I d. A score of 61-70 is assigned where there are mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, of theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. Id. Upon careful consideration of the evidence pertaining to this claim the Board has determined that for the entire appeal period an PTSD symptomatology has more closely the severity of at least a 70 percent evaluation. In that regard, the Board observes that during this period, the Veteran reported almost continuous panic attacks and depression. He noted that he did not socialize and that he had few to no friends, although it appears that he has maintained relationships with a few close relatives, such as his wife, sister, and adult son. His only hobby is gardening and he likes to do that by himself. He was observed to be withdrawn and isolative. Hyper vigilance has also been documented. The Veteran has been noted to experience nightmares. Anger management problems have also been noted as well as problems with concentration. The Veteran has also endorsed homicidal thoughts and ideations. Further, the evidence shows the Veteran has had difficulty in holding a job and his family relationship is strained. In essence, the evidence reflects symptoms that are best contemplated by the criteria for a 70 percent evaluation in that he experiences significant deficiencies in most areas. The Board notes that at the November 2012 videoconference hearing the Veteran and his representative stated that they would be satisfied with a 70 percent evaluation, and the Board appreciates their bluntness in that regard. Upon further review, however, the Board is concerned that the extent of social and occupational impairment remains unclear. Therefore, as will be discussed in greater detail below, the Board is remanding the matter of whether an evaluation in excess of 70 percent is warranted for further development. ORDER Entitlement to an initial evaluation of 70 percent for PTSD is granted, subject to the controlling regulations applicable to the payment of monetary benefits. The appeal as to the issue of the evaluation of onychomycosis of the right foot is dismissed. REMAND As discussed in detail above, the Board finds that the evidence of record supports an award of a 70 percent rating for PTSD. Although the Veteran and his representative indicated that they would be satisfied with a 70 percent evaluation, upon further review the Board is concerned that the issue of entitlement to a 100 percent rating remains unclear in light of statements of the Veteran and family members of record regarding both his social impairment and his inability to keep a job due to his disability. Therefore, the Board finds that another examination is warranted to clarify whether his PTSD is manifested by total social and occupational impairment. A request for a TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Here, the Board finds that the issue of entitlement to a TDIU has been raised, and is inextricably intertwined with the claim of entitlement to a 100 percent schedular evaluation for PTSD. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a VCAA compliant duty-to-assist letter on the issue of entitlement to a TDIU. 2. The RO/AMC should then schedule the Veteran for a VA examination to determine the current severity of his PTSD. The complete claims folder should be provided to the examiner. Upon review of the record and examination of the Veteran, the examiner should set forth all manifestations of the Veteran's service-connected PTSD and discuss the impact of such symptoms on the Veteran's social and occupational functioning. A Global Assessment of Functioning (GAF) score should be assigned, and the examiner should explain the basis for such score. The examiner should also provide a specific opinion as to whether the Veteran's service-connected PTSD results in total social and/or occupational impairment. 3. After ensuring that the requested actions are completed, the RO/AMC should adjudicate the issues of entitlement to an increased evaluation for PTSD (now evaluated as 70 percent disabled) and entitlement to a TDIU. If the benefits sought on appeal remain denied, in whole or in part, the Veteran should be provided a supplemental statement of the case (SSOC) and given an appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further consideration, if otherwise in order. No action is required of the Veteran and his representative until they are notified by the RO or AMC; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). 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). ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs