Citation Nr: 1311364	
Decision Date: 04/05/13    Archive Date: 04/19/13

DOCKET NO. 08-19 632	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1. Entitlement to a higher initial rating for posttraumatic stress disorder (PTSD) in excess of 10 percent prior to June 3, 2011 and in excess of 70 percent since June 3, 2011.

2. Entitlement to service connection for a skin disorder, to include as a result of herbicide exposure.

3. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States




ATTORNEY FOR THE BOARD

S. Finn, Counsel

INTRODUCTION

The Veteran served on active duty from April 1964 to January 1967, including service in the Republic of Vietnam.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.

In January 2008, the Veteran requested a travel board hearing. In a statement received in August 2009, the Veteran stated that he was unable to drive to the hearing at the regional office and cancelled the hearing. Therefore, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704 (2012).

In a January 2009, the Veteran filed an informal claim for TDIU as part of the pending increased rating claim for PTSD. (See January 2009 VA Form 646 (stating that he was prevented from gainful employment)). The issue has been rephrased on the title page accordingly. Rice v. Shinseki, 22 Vet. App. 447 (2009).

In July 2010, the Board remanded the issues for further development.

A January 2012 rating decision increased the rating for PTSD from 10 percent to 70 percent, effective June 3, 2011. Applicable law mandates that when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993).

A review of the Virtual VA paperless claims processing system reflects VA treatment records dated from May 2005 to May 2012.


The issues of service connection for a skin disorder and entitlement to 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

1. For the entire appeal period, the clinical signs and manifestations of the service-connected PTSD are shown to have been characterized by flashbacks, recurrent distressing dreams, physiological reactions, avoidance, emotional numbing, loss of interest in activities, detachment, hyperasousal, anger outbursts, difficulty concentrating, easily startled, hopelessness, irritability, memory difficulties, depression, feelings of helplessness, mood swings, social withdrawal, feelings of isolation, tearfulness, difficulty falling or staying asleep, and suicidal ideation without intent.

2. With the assignment of GAF scores that range from 35 to 51, the Veteran's disability picture from PTSD is shown to more closely resemble that of occupational and social impairment with deficiencies in work, family relations, judgment, thinking, and mood and an inability to establish and maintain effective relationships.

3. At no time during the pendency of the appeal has he experienced total occupational and social impairment.


CONCLUSION OF LAW

For the entire appeal period, the criteria for the assignment of a higher initial rating of 70 percent, but no higher for the service-connected PTSD have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.3, 4.7, 4.125, 4.130, Diagnostic Code 9411 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the Veteran of any information and 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. See 38 C.F.R. § 3.159(b)(1).

This appeal arises from disagreement with an initial evaluation following the grant of service connection. Once service connection is granted, the claim is substantiated and additional VCAA notice is not required; any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). 

Filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as an effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105. Goodwin v. Peake, 22 Vet. App. 128 (2008). Where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. Id. There has been no allegation of prejudice with regard to the notice in this case, hence further VCAA notice is not required with regard to the initial rating appeal. 

A March 2007 pre-adjudication letter explained the evidence necessary to substantiate a claim for service connection. Another letter was sent in July 2010. The VCAA letters indicated the types of information and evidence necessary to substantiate the claim, and the division of responsibility between the Veteran and VA for obtaining that evidence, including the information needed to obtain lay evidence and both private and VA medical treatment records.

The Veteran was also notified how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-491 (2006). 

The claims file contains treatment records identified by the Veteran, VA treatment records, and the reports of October 2007 and June 2011 VA examinations. VA has a duty to ensure that its examinations or opinions are adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As the reports reflect review of the claims file and assessment of the contentions and disabilities, the reports are adequate. The duty to assist in the gathering of records and a VA examination has been met and the RO/AMC has substantially completed the July 2010 remand directives by obtaining current treatment records and another VA examination. Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 

The Veteran is in receipt of Social Security Administration (SSA) disability benefits since at least 1996. However, there is no reasonable possibility that any SSA records would substantiate the Veteran's claim for a higher initial rating for PTSD because on the question of current severity of symptomatology, any available SSA record evidence would be far outweighed by more contemporaneous and probative VA hospitalization and treatment records and a comprehensive recent VA examination. Further, the VA treatment records contained in the Veteran's claims file are sufficient to decide his claim on appeal because they contain comprehensive, contemporaneous, objective findings throughout the course of his appeal. Any SSA records created for the purpose of establishing SSA disability status would not contain any more current or more probative findings on the question of current severity of symptoms. 

The Veteran has not made the RO or the Board aware of any other additional evidence that must be obtained in order to fairly decide his claim. He has been given ample opportunity to present evidence and argument in support of his claim. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of the issue has been obtained and the case is ready for appellate review. The Board additionally finds that general due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012).

II. Higher Initial Rating for PTSD

Disability ratings are based on average impairment in earning capacity resulting from a particular disability, and are determined by comparing symptoms shown with criteria in VA's Schedule for Rating Disabilities (Rating Schedule). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.

The Veteran's entire history is reviewed when making disability evaluations. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). However, where the question for consideration is the propriety of the initial evaluation assigned after the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged ratings" is required. See Fenderson v. Brown, 12 Vet. App. 119, 126 (1999). 

Where there is a question as to which of two evaluations apply, 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 evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996).

The Veteran contends that a higher rating is warranted for his service-connected PTSD. The diagnostic criteria set forth in The American Psychiatric Association: Diagnostic And Statistical Manual Of Mental Disorders, (4th ed. 1994) (DSM- IV) for mental disorders have been adopted by the VA. 38 C.F.R. § 4.125. Diagnostic Code 9411, which is governed by the General Rating Formula for Mental Disorders set forth in 38 C.F.R. § 4.130, provides that:

A 10 percent rating is warranted when the Veteran exhibits occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication.

A 30 percent rating is warranted when the Veteran exhibits 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, and mild memory loss (such as forgetting names, directions, recent events).

A 50 percent disability rating for PTSD is warranted when the Veteran exhibits 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 (i.e., 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 disability rating for PTSD is warranted when the Veteran exhibits 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.

A 100 percent disability rating for PTSD is warranted when the Veteran exhibits 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.

The symptoms associated with each rating in 38 C.F.R. § 4.130 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. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). 

GAF scores are 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 the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (4th ed.), p. 32].

GAF scores ranging from 61 to 70 reflect some mild symptoms (i.e., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (i.e., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships.

GAF scores ranging from 51 to 60 reflect moderate symptoms (i.e., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (i.e., few friends, conflicts with peers or co- workers).

Scores ranging from 41 to 50 reflect serious symptoms (i.e., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (i.e., no friends, unable to keep a job). See 38 C.F.R. § 4.130 [incorporating by reference the VA's adoption of the DSM-IV, for rating purposes].

Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (i.e., 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 (i.e., depressed, avoids friends, neglects family, and is unable to work).

The terms "mild," "moderate," "moderately severe" and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R § 4.6. It should also be noted that use of terminology such as "mild" or "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. The record as a whole is evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6.

The Veteran had a psychology consult in January 2007. He had a history of alcohol abuse, intrusive thoughts, flashbacks, avoidance, isolation, substance abuse, loss of interest in activities that he use to enjoy, impaired sleep (i.e., 3 to 4 hours a night), easily startled, easily angered, and hypervigilant (i.e., sits with his back to the wall in restaurants). Upon mental status examination, the Veteran was causal and neatly dressed. His eye contact was good and he was cooperative. His psychomotor behavior was agitated and affect was moderately restricted in range and level of intensity, but appropriate to content of thought. His mood was slightly anxious and dysphoric. His thought process was logical and coherent with no evidence of a formal thought disorder. He had suicidal ideation for a few months prior with no plan or intent. He denied any homicidal ideation. He was alert and oriented in all spheres with good judgment and insight regarding the need for treatment. He was diagnosed with PTSD and assigned a GAF score of 40.

A February 2007 mental status examination reflects appropriate appearance and eye contact was within normal limits. He was cooperative, tearful, dysphoric, and mood was congruent and blunted. His speech was within normal limits. He had no suicidal ideation and thought process was logical, coherent, organized, and goal-directed. He expressed hopelessness, helplessness, passive thoughts of death, worthlessness, self pity, failure, pessimism, inadequacy, suspiciousness, fearfulness, somatization, complaints of pain, obsessions, and indecisiveness. His perception was within normal limits, insight was fair, and judgment was good. He had no delusions and orientation was intact. He was diagnosed with PTSD with mood disturbance-dyphoria with large somatic/pain component. He was prescribed Zoloft.

The Veteran had a VA examination in October 2007. The examiner stated that the Veteran was felt to be unreliable for the purposes of his examination as he reported difficulty remembering most of his childhood and early adulthood years. The Veteran reported that his symptoms included: bad nightmares "quite often," feeling depressed, teary-eyed, and difficulty getting along with people. He denied any current social or family relationships or hobbies. He mentioned that he thought about death and reported thoughts of suicide in the past. He reported that he drank heavily because it was the only way he would fall asleep. He stated that he has not worked since he had his bypass surgery in 1995. The examiner stated that the Veteran's current psychosocial functional status was severely impaired by chronic pain and poor memory. His current occupational functioning was impaired by chronic pain, poor memory, and physical impairment. The Veteran described the following symptoms: mild dreams, hypervigilance, hyper-startle response; mild to moderate intrusive recollections, irritability; moderate amnesia, distress; moderate to severe foreshortened future, concentration; and severe avoidance, numbing, restriction of activities, impairment in interests, emotional estrangement, restricted affect, and impaired sleep.

Upon examination, the Veteran had normal speech, poor eye contact, constricted and depressed affect, and irritable. He was oriented to person, place, time and situation. His thought process was linear, logical, and goal-directed. There were no signs of psychosis on examination. His insight into his current life situation was apparent. He did not manifest ritualistic behavior, panic attacks, or impaired impulse control. The VA examiner diagnosed him with PTSD and a mood disorder secondary to a general medical condition, alcohol dependence in sustained partial remission, and cognitive disorder not otherwise specified (NOS). Symptoms included low mood on a daily basis, decreased concentration, decreased memory, low energy, crying spells, feelings of helplessness and hopelessness, fleeting suicidal ideation, impaired memory, irritability, intrusive recollections, and emotional numbing. He was assigned a GAF score of 35. He concluded that the Veteran's psychosocial functional status and quality of life were impaired by his PTSD symptoms. He felt the Veteran was not capable of managing his financial affairs. 

A November 2007 rating decision proposed a finding of incompetency. A January 2008 written statement from R. L. stated that in his opinion the Veteran was "far from being incompetent to handle his VA benefits are personal affairs."

A February 2008 VA treatment record noted constant nervousness and pain. His mood was depressed and anxious. He had nightmares, fragmented sleep, and was isolative. He denied suicidal and homicidal ideation and any psychotic symptoms. He took medication. Upon mental status examination, mood was dysphoric with a blunted mood congruent affect. Thought process was logical and goal-directed. He had paranoia with no delusional content. His memory and concentration were impaired. He was diagnosed with PTSD and assigned a GAF score of 45.

A March 2008 rating decision found the Veteran competent. The RO determined that the medical evidence showed that the Veteran was able to discuss treatment options, was oriented to person, place and time, and able to converse in complex thought process.

In August 2008, the Veteran was depressed and tearful. Upon mental status examination in January 2009, he had good hygiene, fair eye contact, increased psychomotor activity, and extraneous movements. His speech was spontaneous and mood wad dysphoric with a blunted, mood congruent affect. Thought process was logical and goal-directed. He had no delusions or suicidal or homicidal ideation, but was paranoid. His memory was impaired and insight and judgment were good. In July 2009, he was assigned a GAF score of 45. (See also December 2009 VA treatment record). In May 2010, the Veteran reported nightmares, being easily startled, being tearful, easily angered, and impaired sleep. Upon mental status examination, he had good hygiene, fair eye contact, increased psychomotor activity, spontaneous speech, dysphoric mood, and thought processes were logical and goal-directed. There were no delusions, suicidal or homicidal ideations, but he had paranoia. His memory, concentration, and attention were impaired. He was assigned a GAF score of 40.

A June 2011 VA examination reflected moderate flashbacks, recurrent distressing dreams, physiological reactions, avoidance, emotional numbing, loss of interest in activities, detachment, hyperarousal, anger outbursts, difficulty concentrating, easily startled, hopelessness, irritability, memory difficulties, depression, feelings of helplessness, mood swings, social withdrawal, feelings of isolation, tearfulness, difficulty falling or staying asleep, and mild suicidal ideation without intent. Upon mental status examination, the Veteran was oriented to person, place, and time. His communication was grossly intact. He had no thought disorder and denied auditory and visual hallucinations, as well as homicidal ideation, but continued to experience suicidal ideation without intent. He denied delusions, panic attacks, obsessive or ritualistic behaviors, depression, anxiety, impaired impulse control, or decreased motivation that interfered with routine activities. The examiner stated that the Veteran's current social and economic situation was consistent with the course of the diagnosis. He had no hospitalizations and was unemployed since 1996. The examiner stated that there was reduced reliability and productivity due to PTSD. He was diagnosed with PTSD and assigned a GAF score of 51 (moderate symptoms). 

The Board initially notes that GAF scores are significant descriptive statements referable to the Veteran's disability picture that must be considered in this case. However, they must be weighed in light of all relevant evidence. See, i.e., Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995) (it is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in so doing, the Board may accept one medical opinion and reject others).

In resolving all reasonable doubt in favor of the Veteran, the medical evidence tends to show that the service-connected PTSD currently is productive of a disability picture that more nearly approximates the criteria for the assignment of a 70 percent for the entire appeal period.

For the entire appeal period, the service-connected PTSD is shown by the VA medical reports and examinations to have been manifested by symptoms such as flashbacks, recurrent distressing dreams, physiological reactions, avoidance, emotional numbing, avoidance, loss of interest in activities, detachment, hyperasousal, anger outbursts, difficulty concentrating, easily startled, hopelessness, irritability, memory difficulties, depression, feelings of helplessness, mood swings, social withdrawal, feelings of isolation, tearfulness, difficulty falling or staying asleep, and suicidal ideation without intent. In fact, the June 2011 VA examiner found that the Veteran suffered from moderate impairment in social and occupational recreation and familial functioning and assigned a GAF score of 51. Further, the Veteran provided statements, as well as evidence that he was competent after the October 2007 VA examiner found him not competent. The Veteran was able to discuss treatment options, oriented to person, place and time, and able to converse in complex thought process. The Veteran has not been hospitalized for his psychiatric disorder.

This evidence demonstrates that the Veteran has PTSD resulting in occupational and social impairment with deficiencies in work, family relations, and mood, including near-continuous panic or depression, impaired impulse control, difficulty adapting to stressful circumstances including work or a work-like setting, and suicidal ideation.

The Board notes that it has attributed all symptomatology relating to a mood disorder to the Veteran's service-connected PTSD given that such symptomatology was found to be related to the PTSD. (See January 2012 Rating Decision); Mittleider v. West, 11 Vet. App. 181 (1998).

Accordingly, on this record, a higher initial rating of 70 percent, but no more for the service-connected PTSD is granted for the entire appeal period.

A schedular rating of 100 percent consistent with total social and industrial inadaptability is not assignable. Although his PTSD symptoms prevent him from working full-time, they do not reach the level of those manifestations for the 100 percent schedular evaluation.

Specifically, this inability to work full-time has not been due to gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; an intermittent inability to perform activities of daily living such as disorientation to time or place; or memory loss for names of close relatives, his own occupation or his own name. Rather, the Veteran has consistently stated that his inability to work has been due to chronic pain and heart problems. Although GAF scores in the range of 31 to 40 have been assigned, indicative of some impairment in reality testing or communication, the record does not show that the Veteran's disability picture is such that he has gross impairment in his thought processes or ability to communicate. The record instead shows that he is consistently fully oriented and is not a danger to himself or others. 

The above determination is based on application of pertinent provisions of VA's Schedule for Rating Disabilities. There is no showing that the service-connected psychiatric disability reflects so exceptional or unusual a disability picture as to obviate the application of regular schedular criteria established for the purpose of rating the service-connected disability.

As outlined by the Court of Appeals for Veterans Claims, the Board uses a three-step inquiry to determine whether an extraschedular rating is warranted; "initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability." Thun v. Peake, 22 Vet. App. 111, 115 (2008).

In this case, as the Veteran's symptoms of flashbacks, recurrent distressing dreams, physiological reactions, emotional numbing, avoidance, loss of interest in activities, detachment, hyperasousal, anger outbursts, difficulty concentrating, easily startled, hopelessness, irritability, memory difficulties, depression, feelings of helplessness, mood swings, social withdrawal, feelings of isolation, tearfulness, difficulty falling or staying asleep, and suicidal ideation without intent are addressed by the applicable rating criteria (which is not an exhaustive list of symptomatology), the initial requirement of the Thun analysis is not met, ending the Board's inquiry.


ORDER

A higher initial rating of 70 percent, but no more for the service-connected PTSD is granted, subject to the regulations controlling disbursement of VA monetary benefits.


REMAND

In July 2010, the Board remanded the issue of a skin disorder, to include as a result of herbicide exposure, for further development. The RO was to obtain a VA examination with an opinion as to whether the skin disorder had its clinical onset during active service or was related to any in-service disease, event, or injury, to include herbicide exposure. The August 2010 examiner did not provide an opinion as to whether the Veteran's skin disabilities were related to his in-service Agent Orange exposure. She also did not discuss all of the Veteran's skin disabilities (i.e., psoriasis). Once VA undertakes the effort to provide an examination, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Stegall v. West, 11 Vet. App. 268 (1998). Thus, an addendum to the VA examination is required.

The remand also directed the RO to obtain private treatment records. Specifically, the RO was to solicit treatment records from his non-VA fee basis provider. The VCAA notice letter was not compliant in that it solicited treatment records for bilateral hearing loss. (See July 2010 VCAA Letter in the "What we still need from you" section). Although attempts to obtain these records would be futile because the Veteran subsequently clarified that he only received treatment at the VA Medical Center Mountain Home, the RO should send proper notice on remand. Stegall v. West, supra.

The Court has held that a TDIU is encompassed in a claim for increased rating or the appeal of an initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the Veteran's claim for a higher initial rating for PTSD includes a claim for TDIU. 

The Veteran related that he was, in essence, precluded from any meaningful employment due to his service-connected disabilities. (See January 2009 VA Form 646). He has not been gainfully employed since 2003. Therefore, the Veteran's TDIU claim should be developed and adjudicated on remand.

Finally, to ensure completeness of the record, the RO should obtain all outstanding VA treatment records, if any. See Bell v. Derwinski, 2 Vet. App. 611 (1992).

The Veteran has been receiving SSA benefits since at least 1996. (See August 2010 VA examination). There is no evidence of VA having made efforts to obtain these records. SSA records must be obtained before a decision on TDIU can be made. See Murincsak v. Derwinski, 2 Vet. App. 363 (1993). 


Accordingly, the case is REMANDED for the following action:

1. Contact the SSA and obtain copies of records pertinent to the Veteran's claim for SSA benefits and a copy of any determination awarding benefits. If the records are not available, make a notation to that effect in the claims folder.

2. The RO should take appropriate steps to send the Veteran and his representative, a letter requesting that the Veteran provide information, and, if necessary, authorization, to enable VA to obtain any additional evidence pertinent to the TDIU claim. 

In particular, the RO should specifically request that the Veteran complete and submit a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, so that VA will have information concerning his past employment. The RO should explain the type of evidence that is the Veteran's ultimate responsibility to submit to substantiate entitlement to a TDIU and what VA will do. 

The letter should clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 

3. After obtaining any pertinent, outstanding records, schedule the Veteran for an appropriate VA examination. The claims folder should be made available to and reviewed by the examiner. All appropriate tests and studies should be conducted. Thereafter, the examiner should opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that his service-connected disabilities, either alone or in the aggregate, render him unable to secure or follow a substantially gainful occupation. 

The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 

If the examiner is unable to render the requested opinion(s) without resort to speculation, he or she must so state. However, a complete explanation for such a finding must be provided, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion. 

4. The RO should obtain an addendum from the August 2010 examiner (or schedule another examination if necessary). The examiner should review the claims folder in conjunction with the examination.

The examiner should provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that any current skin disorders had their clinical onset during the Veteran's active service or is related to any in-service disease, event, or injury, to include herbicide exposure. The examiner should also comment about the Veteran's diagnosis of psoriasis. (Emphasis added).

The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 

If the examiner is unable to render the requested opinion(s) without resort to speculation, he or she must so state. However, a complete explanation for such a finding must be provided, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion. 

5. After the above has been completed, the RO must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 

6. After completion of the above development, the Veteran's claims for entitlement to TDIU and service connection for a skin disorder should be readjudicated. If the determination remains adverse to the Veteran, he should be furnished with a Supplemental Statement of the Case and given an opportunity to respond.


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).




______________________________________________
D. MARTZ AMES
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs