Citation Nr: 1309445 Decision Date: 03/20/13 Archive Date: 04/01/13 DOCKET NO. 11-14 529 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for a right ankle disability. 2. Entitlement to an initial disability rating in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. J. Wells-Green, 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 December 1966 to December 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from January 2011 and June 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. In February 2013, the Veteran testified at a video conference Board hearing at the RO before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with his claims folder. The issue of entitlement to service connection for a right ankle disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT During the pendency of his appeal, the Veteran's service-connected PTSD has been manifested by complaints of sleep disturbance, nightmares, irritability, hyper startle response, hypervigilance and avoidant behavior, and resulted in occupational and social impairment with reduced reliability and productivity; there is no evidence of thought disorder, obsessional rituals, intermittently illogical, obscure or irrelevant speech, near continuous panic attacks, disorientation, or inability to work or to maintain interpersonal relationships attributed to his PTSD. CONCLUSION OF LAW The criteria for a 50 percent initial disability rating, and no more, are met for PTSD. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321(b)(1), 4.1-4.7, 4.21, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties To Notify And Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). At his February 2013 hearing, the Veteran stated that he would consider a 50 percent disability rating for his PTSD to be a complete grant of the benefits he was seeking. See AB v. Brown, 6 Vet. App. 35 (1993). The Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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 for that rating. 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 regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the "present level" of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. Thus, VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's service-connected PTSD is currently rated as 30 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under this code, a 30 percent rating is assigned when there is 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). A 50 percent rating is warranted for 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. A 70 percent rating is warranted for 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); inability to establish and maintain effective relationships. A 100 percent rating is warranted for 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. VA treatment records, dating from September 2010 to June 2011, show the Veteran complained primarily of nightmares, sleep disturbance, anxiety, irritability, hyperstartle response, hypervigilance and social isolation. There was no evidence of hallucinations or delusions, or of homicidal or suicidal ideations during this period, and treatment records repeatedly show the Veteran was casually dressed and appropriately groomed. His speech was frequently described as logical with either a mild or moderate circumstantial quality. The Veteran's mood was frequently described as anxious or sad and grieving. His affect was often incongruently described as bright. His thought processes were coherent and organized during this period and he was consistently judged to not be an immediate risk to himself or others. During this period, the Veteran's grandson was murdered and he was observed to be grieving. A March 2011 treatment record indicates that he was experiencing a great deal of emotional upheaval and grief reactions and that he had not been bathing frequently or caring for his basic ADLs. Treatment records repeatedly note that he was self-employed during this period. In June 2011, the Veteran underwent VA psychological examination. At that time he complained of difficulty sleeping with periodic nightmares that would awaken him. He also complained of psychomotor retardation, fatigue, feelings of guilt and difficulty concentrating. During testing, he identified significant traumatic memories and re-experiencing symptoms, significant avoidant behavior, decreased interest in activities he previously enjoyed, and social isolation. The Veteran was married since 1972 and had 3 living adult children. An adult daughter had died some years before and his grandson had been murdered months before the examination. He reported that he and his wife remained married out of convenience and described his relationship with his adult children as mediocre, occasionally staying in touch. He had recently resumed a relationship with a granddaughter who had not talked to him in many years. However, he felt that he had no close relationships. Examination results revealed the Veteran to be casually dressed and slightly disheveled. He was lethargic, with a depressed mood and his affect was blunted and flat. His speech was unremarkable. His thought content was unremarkable, although he was evasive at times in thought processes, while being logical for the most part. The examiner felt that the Veteran was guarded towards her during the examination. He denied any suicidal or homicidal thoughts and there was no evidence of delusions or hallucinations noted. Although he reported showering less frequently than usual, he was assessed as independent in activities of daily living. The diagnoses included both major depressive disorder and PTSD linked to his service and whose symptoms were exacerbated by the symptoms of the other. The examiner opined that his depressive and PTSD symptoms caused moderate impairment in functioning, and, at times, severe impairment. The assessed GAF score was 55. Subsequent VA treatment records, dating to January 2013, show the Veteran continued to complain of recurrent nightmares, significant anxiety, sleep disruption, feelings of detachment and estrangement, irritability and avoidant behavior. He also reported having a heightened startle response and was noted to continue to struggle with grief and loss. During this period his mood was described as irritable or "ok" and his affect as appropriate or "bright." His speech was logical and goal directed, and his thought processes were coherent and organized. He denied homicidal or suicidal ideation and he was repeatedly judged to not be an immediate risk to himself or others. Throughout the course of his appeal, the Veteran's PTSD has been manifested by sleep disturbance, nightmares, intrusive memories, hyper startle response, hypervigilance, anxiety, irritability, avoidance behavior, and some social isolation. Although he has remained married to his wife since 1972 and has 3 adult children, he describes the marriage as one of convenience and his relationship with his children as mediocre. He has reported feeling detached and estranged from others, as well as having no close relationships. He has also reported diminished interest and participation in activities he one enjoyed. Treatment records often show his mood to be anxious, depressed or irritable and his speech was frequently assessed as having either a mild or moderate circumstantial quality. During his June 2011 examination, his mood was determined to be depressed and his affect to be blunted and flat. He was also provided a GAF score indicative of moderate impairment. While there is no evidence to show circumlocutory or stereotyped speech, panic attacks, impaired abstract thinking or judgment, or difficulty understanding complex commands, some if not all of the criteria for the assignment of a 50 percent evaluation have been met. Based on these findings, the evidence is, at worst, in equipoise as to whether a 50 percent rating is warranted. Resolving all reasonable doubt in favor of the Veteran, a 50 percent initial evaluation is warranted. Although the Veteran has been noted to occasionally neglect his personal appearance and hygiene and he does not endorse strong familial relationships, he does not have symptoms manifested by impaired thought processes; suicidal ideation; obsessional rituals; illogical, irrelevant or obscure speech; near-continuous panic or depression that affects his ability to function independently, appropriately and effectively; impaired impulse control; or spatial disorientation. Moreover, none of the VA treatment records or the June 2011 VA examination report indicated that there was any evidence of any inability to perform activities of daily living, including maintenance of minimal personal hygiene. Likewise, although the June 2011 VA examiner determined that the Veteran's PTSD symptoms at times caused severe impairment in his functioning, she opined that they generally were moderately impairing and assigned a commensurate GAF score. The evidence of record further shows that, while he describes them as not close, he has nonetheless maintained relationships with his wife of many years and his 3 adult children, as well as recently renewing a relationship with a granddaughter. The criteria for an initial evaluation in excess of 50 percent have not been met or approximated at any time during the pendency of the appeal and an initial rating in excess of 50 percent for PTSD is not warranted. The evidence does not show such an exceptional disability picture that the available schedular evaluations for the Veteran's service-connected PTSD are inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology for his PTSD. As such, it cannot be said that the available schedular evaluations are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008). A claim for a total evaluation due to individual unemployability due to service-connected disabilities (TDIU) is part of an increased rating claim when raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board has jurisdiction to consider the Veteran's possible entitlement to TDIU rating when the issue is raised by an assertion or is reasonably indicated by the evidence and is predicated at least in part on the severity of the service-connected disability in question, regardless of whether the RO has expressly addressed this additional issue. During the pendency of this appeal, the Veteran has repeatedly indicated he is self-employed as a maintenance worker and during his personal hearing, he stated that he would consider a 50 percent disability rating for his PTSD to be a complete grant of the benefits he was seeking. The issue of entitlement to a total disability rating based on TDIU has not been raised. ORDER Entitlement to 50 percent disability rating for service-connected PTSD is granted. REMAND Although service treatment records indicate he was treated for a fracture of the right distal tibia in April 1968, the VA examiner who conducted the November 2010 orthopedic examination for the Veteran's claim for service connection for a right ankle disability specifically noted that the Veteran's claims file was unavailable for review. The examiner diagnosed degenerative joint disease of the right ankle that was likely secondary to trauma, but she stated that she was unable to link it to service without resorting to speculation since there was no documentation of a service-related injury and the Veteran was discharged from service more than 40 years before. A remand is necessary to provide the Veteran another VA orthopedic examination to determine whether any currently diagnosed right ankle disability had its onset in service or is otherwise etiologically linked to service with consideration of service treatment records showing treatment for a fractured right distal tibia. The VA examiner must review the Veteran's claims file and provide an opinion with a detailed supportive rationale regarding the etiology of the Veteran's currently diagnosed right ankle disability. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA orthopedic examination by an appropriate medical professional to determine the current nature and etiology of any right ankle disability found to be present. The entire claims file must be reviewed by the examiner. All necessary studies or tests must be accomplished. Based on review of all the evidence of record, the examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's current right ankle disability is related to service or the documented in-service fracture of the right distal tibia. A clear rationale for all opinions must be provided with a discussion of the facts and medical principles involved. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). The Veteran is advised that failure to report for any scheduled VA examination without good cause shown may have an adverse effect on his claim. 2. Review the claims file to ensure that the foregoing development has been completed, and arrange for any additional development indicated. Then readjudicate the issue on appeal. If the benefit remains denied, issue a supplemental statement of the case and provide the Veteran and his representative an appropriate period of time to respond. The case is to then be returned to the Board for further appellate review. The Veteran 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. 2012). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs