Citation Nr: 1310552 Decision Date: 04/01/13 Archive Date: 04/11/13 DOCKET NO. 09-28 980 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for migraine headaches, to include as secondary to service-connected post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for hypertension, to include as secondary to PTSD. 3. Entitlement to increases in the "staged" ratings (of 50 percent prior to July 12, 2012, and 70 percent from that date) assigned for the Veteran's PTSD. 4. Entitlement to total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1968 to September 1971. These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, in October 2008 (which granted service connection for PTSD, rated 50 percent, effective August 11, 2008) and January 2009 (which denied service connection for migraine headaches and hypertension). An interim [August 2012] rating decision granted a 70 percent rating for PTSD effective July 12, 2012. In November 2012, a Travel Board hearing was held before the undersigned; a transcript of the hearing is included in the Veteran's claims file. At the hearing, additional evidence was submitted accompanied by a waiver of RO consideration. The Board notes that it has reviewed both the Veteran's physical claims file and "Virtual VA" (VA's electronic data storage system) to ensure that the complete record is considered. The matters of entitlement to service connection for migraine headaches and hypertension and to an increased rating for PTSD and to a total disability rating based on individual unemployability prior to February 22, 2010 are being REMANDED to the RO via the Appeals Management Center (AMC) in Washington D.C. VA will notify the veteran if further action on his part is required. FINDING OF FACT It is reasonably shown that, from February 22, 2010, the Veteran's PTSD has been manifested by symptoms productive of total occupational and social impairment. CONCLUSION OF LAW A 100 percent schedular rating is warranted for the Veteran's PTSD from February 22, 2010. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code (Code) 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Inasmuch as the full benefit sought is being granted as to the matter of the rating for PTSD from February 22, 2010, there is no reason to belabor the impact of the VCAA on the matter; any notice defect or duty to assist oversight is harmless. Legal Criteria, Factual Background, and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file, and in Virtual VA, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000)(VA must review the entire record, but does not have to discuss each piece of evidence.) Hence, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claim. In general, disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by a given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part IV. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In a claim for increase of an initial rating assigned with an award of service connection (as here), all of the evidence pertaining to the entire time period is to be considered, and staged ratings may be assigned for specific periods of time, as warranted based on facts found. Fenderson v. West, 12 Vet. App. 119 (1999). PTSD is rated under 38 C.F.R. § 4.130, Code 9411. The psychiatric symptoms listed in the rating criteria below are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Under the general rating formula for mental disorders a 50 percent 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent 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); inability to establish and maintain effective relationships. A 100 percent rating is warranted when 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. 38 C.F.R. § 4.130, Code 9411. The Veteran has been assigned various Global Assessment of Functioning (GAF) scores for his PTSD. 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 41 to 50 reflect 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). Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school). A score from 21 to 30 is indicative of behavior that is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or inability to function in almost all areas. Lesser scores reflect increasingly severe levels of mental impairment. See 38 C.F.R. § 4.130 [incorporating by reference VA's adoption of the American Psychiatric Association: DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), for rating purposes]. 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 an evaluation 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). When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" 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 the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The evidence of record reveals psychiatric diagnoses other than PTSD (depression). Where it is not possible to distinguish the effects of a nonservice-connected condition from those of a service-connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to the veteran's service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). VA treatment records show that, on February 22, 2010, the Veteran reported he "wasn't completely honest the last time" he was seen for treatment. He reported that he has no relationship with his wife, children or grandchildren and he "just doesn't even care" about the relationships anymore. On mental status examination, his judgment/insight was intact, mood was dysphoric, affect was very constricted and sad with prominent irritable edge, thought process was logical and linear but thought content was very negative and hopeless, he denied homicidal intent and reported chronic passive suicidal ideation (he did not want to "be here anymore" but denied any plan or intention to act on this feeling.) The assessment was chronic and severe PTSD with depression. The examiner noted that the Veteran had been extremely isolated and ambivalent regarding treatment and his level of discomfort had increased to the point that he was reluctantly willing to consider treatment and medication. A March 2010 treatment report notes that the Veteran reported an increase in symptoms over the past 4-5 years. He noted significant daily intrusive memories, nearly nightly nightmares regarding his traumatic experiences, and increased irritability (about which his wife complained). He endorsed daytime panic attacks (usually triggered by a noise or a memory) and waking from nightmares. He reported significant avoidance (he does not go to the park, had not gone hunting, and prefers to stay home alone) and was quite concerned regarding something "bad happening." He spent much of his time securing his perimeter (checking locks, etc.) and reported having a minimal relationship with his wife of over 40 years, children and grandchildren. The Veteran endorsed significant problems with hypervigilance, hyperarousal and anxiety (which had increased since retirement). He endorsed daily low mood, problems with attention and concentration, low energy, feelings of wondering "what's this all about," and passive thoughts of being better off dead or not having returned from Vietnam (he denied any intent or plan). He denied homicidal ideation, AVH (auditory/visual hallucination), delusions, and manic or hypomanic symptoms. On mental status examination, the Veteran was well groomed, had fair eye contact, was very guarded, and his speech had normal rate, rhythm, decreased volume, and decreased prosody. His mood was depressed and irritable and his affect was anxious, constricted, and blunted. Thought process was logical and linear, cognition was grossly intact, and he had fair insight and judgment. The assessment was severe symptoms of PTSD, including restricted affect, depressed, anxious, and irritable mood, panic symptoms, severe avoidance, isolation, and intrusive recollections (day and night). A GAF score of 40 was assigned. A subsequent (March 2010) treatment report notes that the Veteran complained of feeling worse after trying to engage more with his grandchildren because they wanted to go outside (he felt it was "too dangerous" to outside because he "could get shot"). He reported significant symptoms of depression, anhedonia, isolation, intrusive memories, extreme avoidance behavior/fears, and irritability. On mental status examination, his mood was dysphoric, affect was very constricted and sad with prominent irritable edge, and his thought process was logical and linear but his thought content was very negative and hopeless. The assessment was that the Veteran has extreme avoidance behaviors that feed a cycle of anxiety, shame and hopelessness. The examiner noted that the Veteran reported feeling better before his latest spiral of inadequacy and hopelessness after "failing" an attempt to play outside with his grandchildren. A January 2011 VA treatment report notes the Veteran's fleeting suicidal ideations and that he has a gun in the house which is locked up and his wife has the only key. A July 2011 VA treatment report notes that the Veteran was "not found to be acutely suicidal" and he refused further assessment. On July 2012 VA examination, the examiner reviewed the Veteran's claims file and his VA treatment records (from the Computerized Patient Record System (CPRS)). The Veteran reported symptoms of re-experiencing, avoidance, survivor guilt, and guilt that he was unable to provide a better life for his children and unable to take his grandchildren places. He reported that he and his wife share a home out of financial necessity and have "no relationship" and he "tries not to see her in order to avoid arguing with her." He also reported that he has had no contact with his brother and sister for 20 to 30 years and with his two daughters and grandchildren for several years. The Veteran reported that his father lives in a state veterans' home located not far from him; however, he has not visited in 4 or 5 years because it is "in an unfamiliar area and he is anxious about his safety associated with his PTSD." He stated that he has no friends. The Veteran reported he worked as a Philadelphia firefighter for 30 years and having to leave his job because it was becoming too difficult due to the PTSD. Every time he got on a fire engine, he felt like he was back in a helicopter in Vietnam, seeing accidents involving broken limbs and bleeding and burned bodies triggered memories of Vietnam, he was easily set off by his coworkers and became angry and verbally aggressive (people intervened and fights were stopped before they became physical). He was up all night walking around, not sleeping (he sleeps a "couple" of hours per night). After leaving the fire department, he tried a job delivering circulars; however, he lasted only 2 days because he had difficulty being around unfamiliar people (he stated that approximately 80 percent of his contacts with strangers result in verbal confrontations) and in areas away from his home (he becomes severely anxious going more than 4 blocks from his home). He would continue to have these impairments in any work setting and would be very uncomfortable being told what to do by anyone, especially by someone younger than he is. Because of severe concentration problems, he does not complete tasks. The Veteran had a sense of foreshortened future and did not expect to live to be an old man. He has had suicidal thoughts, owns a gun, and thinks about shooting himself (most recently on the day prior to the examination). The examiner noted that symptoms primarily associated with PTSD were anxiety, difficulty establishing and maintaining effective work and social relationships, impaired impulse control, and severe avoidance of going more than 4 blocks from his home and of being in unfamiliar situations or with unfamiliar people. Further, symptoms associated with major depressive disorder were depressed mood, suicidal ideation, and neglect of personal appearance and hygiene. Chronic sleep impairment and impaired concentration were associated with both disorders. The examiner noted that, since the Veteran has severe impairment in social functioning. The examiner further noted that the Veteran neglects his self-care and personal hygiene (he showers once every 2 weeks, brushes his teeth once every 4 or 5 days, and wears the same shorts for 2 or 3 weeks). The diagnoses were PTSD and major depressive disorder and a GAF score of 44 was assigned. The examiner commented that the Veteran's mental diagnoses were best summarized as resulting in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. An October 2012 statement from the Veteran's private physician, G. Yeoman, D.O., at Founders Medical Center notes that the Veteran has been a patient [of Dr. Yeoman] for 15 years and suffers from PTSD, which shortened his career as a firefighter for the city of Philadelphia. An October 2012 statement by the Veteran, a November 2012 statement by his spouse, and his November 2012 Travel Board hearing testimony reiterate the symptoms noted on July 2012 VA examination. His appearance at the hearing reflected neglect of self-care. From the February 22, 2010 date of a VA psychiatric evaluation, the Veteran, his VA mental health treatment-providers, and the July 2012 VA examiner have reported he has symptoms associated with PTSD consistent with total occupational and social impairment, due to such symptoms as: grossly inappropriate behavior; persistent danger of hurting himself or others; and intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene). The disability picture during this period is one of near total social and occupational impairment due to PTSD. The Board finds particularly noteworthy the Veteran's withdrawal and near-total isolation (including from immediate family), neglect of appearance/personal care functions, and avoidance of unknown (or remote from home) locales. The Board finds no reason to question the credibility of the Veteran's own accounts; they are consistent with reports by his treating mental health personnel and the VA examiner. Such symptoms present a disability picture consistent with total occupational and social impairment, and warrant the assignment of schedular 100 percent rating from February 22, 2010. As a 100 percent schedular rating for PTSD is being granted from February 22, 2010, the matter of entitlement to a TDIU rating (i.e., a total rating under alternate criteria) for such period of time is rendered moot. For reasons explained therein, the matters of the rating for PTSD and entitlement to a TDIU rating prior to February 22, 2010 are addressed in the remand below. ORDER A 100 percent rating is granted for the Veteran's PTSD from February 22, 2010, to that extent the appeal is allowed, subject to the regulations governing payment of monetary awards. REMAND The Veteran claims that his hypertension and migraine headaches are secondary to his service-connected PTSD. Service connection may be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires (1) competent evidence of current chronic disability; (2) evidence of a service-connected disability; and (3) competent evidence that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Effective October 10, 2006, 38 C.F.R. § 3.310 was revised to implement the Allen decision. The revised 38 C.F.R. § 3.310 institutes additional evidentiary requirements that must be satisfied before aggravation may be conceded and service connection granted. In essence, it provides that in an aggravation secondary service connection scenario, there must be medical evidence establishing a baseline level of severity of disability prior to when aggravation occurred, as well as medical evidence showing the level of increased disability after the aggravation occurred. VBA Fast Letter 01-05 (January 16, 2001) indicates that in a claim of service connection for hypertension as secondary to PTSD, the examiner would, at a minimum, have to discuss the known risk factors for hypertension, what role they play in this particular veteran, and explain why he or she considers PTSD to be at least as likely as not the cause/or not the cause of the hypertension in this veteran. The Fast Letter adds that in some cases an additional medical opinion, either by a mental health professional or a cardiologist, or both, may be requested. In either case, the conclusions must be supported by evidence that the cardiovascular disorder is or is not related to the PTSD. A Federal Register entry on June 28, 2005 (70 F.R. 37040) notes that a presumption of service connection is warranted for hypertensive vascular disease for prisoners of war (POW). The stated rationale for such presumption is that, based on several studies, veterans who have a long-term history of PTSD have a high risk of developing cardiovascular disease and myocardial infraction, and since POWs have a relatively high rate of PTSD incurrence, they would presumably be at risk of cardiovascular disease to include hypertension. The Veteran has not been afforded a VA examination to determine whether his PTSD caused or aggravated his hypertension and/or migraine headache disabilities. As the record shows diagnoses of hypertension and migraine headaches, as PTSD is service connected, and as there is medical evidence suggesting a connection between the Veteran's hypertension and migraine headache disabilities and his PTSD (a medical opinion from Founders Medical Practice read by the Veteran's representative at the Travel Board hearing states that his psychiatric symptoms can generate his high blood pressure and migraine headaches), an examination to secure a medical nexus opinion in the matter is necessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The July 2012 VA examination report notes that the Veteran was receiving treatment at the Philadelphia VA Medical Center until March 2010 (the Veteran also testified that he received VA mental health treatment during such period). Records of VA treatment for PTSD/psychiatric disability from October 2008 to February 2010 have not been associated with the claims file or "Virtual VA." Such records are pertinent (and perhaps critical) evidence in the matter of the rating for PTSD prior to February 22, 2010 that remains outstanding, and must be secured. Notably, outstanding VA treatment records are constructively of record. Furthermore, an October 2012 statement from Dr. Yeoman notes that the Veteran had been his patient for 15 years. Although records from Dr. Yeoman have been obtained, the clinical records are dated from February 2006 to June 2008 and some laboratory reports are dated prior to 2006 and after 2008 (but are not accompanied by corresponding clinical records); they do not include the opinion read by the Veteran's representative at the Travel Board hearing. The October 2012 statement from Dr. Yeoman suggests that the records received from his office are incomplete. As the private treatment records are likely to include pertinent evidence and/or information, they must be secured. The matter of entitlement to a TDIU rating prior to February 22, 2010, is inextricably intertwined with the other claims being remanded, and appellate consideration of the matter must be deferred pending resolution of the other claims. Accordingly, the case is REMANDED for the following: 1. The RO should ask the Veteran to identify the providers of all evaluations and/or treatment he has received for the disabilities at issue, and to provide the releases needed for VA to secure any private records of such evaluation/treatment. He must specifically provide releases for complete records from Dr. Yeoman. The RO should obtain for the record complete clinical records (those not yet secured) from all sources identified (to specifically include complete clinical records of all VA psychiatric evaluations or treatment the Veteran received from October 2008 to February 2010). If any private provider does not respond to an RO request for records, the Veteran and his representative should be so advised, and reminded that ultimately it is his responsibility to ensure that private records are received. 2. Thereafter, the RO should then arrange for the Veteran to be examined by an appropriate physician to determine whether his hypertension and/or migraine headache disabilities were caused or aggravated by his service-connected PTSD. The Veteran's claims file must be reviewed by the examiner in conjunction with the examination. Based on the examination of the Veteran and review of the record, the examiner should provide an opinion that responds to the following: a. Is it at least as likely as not (50 percent or greater probability) that the Veteran's hypertension and/or migraine headache disabilities were caused or aggravated by service-connected PTSD? The physician is advised that aggravation is defined as a chronic worsening of the underlying disability beyond its natural progression (versus a temporary flare-up of symptoms). The explanation of rationale for the opinion should reflect consideration of both the Federal Register entry on June 28, 2005 (summarized above) and VBA's Fast Letter 01-05 (which provides that, at a minimum, the examiner has to discuss the known risk factors for hypertension, what role they play in this particular veteran, and explain why he or she considers PTSD to be at least as likely as not the cause/not the cause of the hypertension in this veteran.) b. If the examiner finds that the hypertension and/or migraine headache disabilities were not caused but were aggravated by service-connected PTSD, the examiner should identify the baseline level of severity of hypertension and/or migraine headaches prior to the onset of aggravation, or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity. The examiner must explain the rationale for all opinions, citing to supporting clinical data and/or medical texts/treatises as deemed appropriate. If the provider determines that a requested opinion(s) cannot be given without resort to speculation, the provider must explain the reason for that conclusion. 3. The RO should then review the record and readjudicate the claims of service connection for hypertension and migraine headaches, and those seeking an increased rating for PTSD and a TDIU prior to February 22, 2010. If any claim remains denied, the RO should issue an appropriate supplemental statement of the case, and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ______________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs