Citation Nr: 1312733 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 10-41-792 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to an initial compensable disability rating for bilateral hearing loss. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A.E.H. Gibson, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marines from June 1967 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In that decision, the RO granted service connection for PTSD, assigning a 10 percent disability rating, and bilateral hearing loss, assigning a noncompensable disability rating, both effective May 14, 2009. The Veteran timely appealed these issues. The Veteran testified at a personal hearing in June 2012, conducted via videoconferencing equipment, which was chaired by the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the Veteran's VA claims folder. At the hearing, the Veteran stated that his PTSD interferes with his ability to work. He currently works sporadically, estimating that he has worked a total of six months over the last six years. See Hearing transcript, page 17. When evidence of unemployability is presented in cases such as this, the issue of whether a TDIU will be assigned should be handled during the determination of the initial disability rating assigned at the time disabilities are determined to be service connected, considered part and parcel of the claim for benefits for the underlying disability. See Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009). Therefore, pursuant to Rice, the Board will consider entitlement to a TDIU as part and parcel of his increased rating claim. The issues of entitlement to an initial compensable disability rating for bilateral hearing loss, entitlement to a rating in excess of 30 percent for PTSD, and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's PTSD is manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to such symptoms as depression, anxiety, avoidance of new people and new situations, sleep troubles, and intrusive thoughts. CONCLUSION OF LAW The criteria for an evaluation of 30 percent for PTSD have been met. 38 C.F.R. §§ 3.102, 4.7, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each piece of evidence. See Gonzales, 218 F.3d at 1380-81. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Id. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When all 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 preponderance of the evidence is against a claim, in which case, the claim is denied. Id. The Veterans Claims Assistance Act (VCAA) provides that 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 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Here, because the Board is awarding a 30 percent rating for PTSD and remanding the issue of entitlement to a rating in excess of 30 percent, any defect in the duty to notify and assist is nonprejudicial. Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2012). Separate diagnostic codes (DCs) identify the various disabilities. See 38 C.F.R. Part 4 (2012). If two disability evaluations are potentially applicable, 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 (2012). Reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2012). Pyramiding, the evaluation of the same disability under various diagnoses, is to be avoided. 38 C.F.R. § 4.14 (2012). Consistent with the facts found, the rating may be higher or lower for periods of the time under review on appeal, that is, the rating may be "staged." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The criteria for evaluating PTSD are found at 38 C.F.R. § 4.130, DC 9411 (2012). A 10 percent evaluation is warranted for 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. Id. A 30 percent evaluation is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily), with routine behavior, self-care, and conversation normal, due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent evaluation is warranted where 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and, difficultly in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted 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 and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. Id. A 100 percent evaluation requires 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; and, memory loss for names of close relatives, own occupation, or own name. Id. Symptoms listed in VA's general rating formula for mental disorders serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, and are not intended to constitute an exhaustive list. See Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). The examples are not all inclusive or exhaustive, but they do provide guidance as to the effect and severity of symptomatology contemplated for each rating. The nomenclature employed in the rating formula is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). See 38 C.F.R. § 4.130 (2012). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. See 38 C.F.R. § 4.126(a) (2012). In addition, the evaluation must be 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. See Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. See 38 C.F.R. § 4.126(b) (2012). As noted above, the Veteran is seeking an increased initial rating for PTSD, which has been evaluated as 10 percent disabling since May 14, 2009. The Veteran attended a VA psychiatry consultation in February 2009. He was appropriately dressed, and made fair eye contact with the physician during the appointment. He had a flat affect and said he was depressed and anxious, but he also stated that his mood varies. He listed a number of activities that he used to enjoy but has lost the desire to do. He said that he does not sleep well, and that the slightest sound has him out of bed and checking on the house. He said he did not have any nightmares. The Veteran was noted to be very talkative during the consultation. His GAF was 65. See VA treatment record dated February 5, 2009. In April 2009, he reported intermittent anxiety with racing thoughts and feelings of apprehension. He complained of trouble sleeping. He denied flashbacks and nightmares, as well as hypervigilance or hyperstartle reactions. Cognition and thought processes were normal. He was assessed as having an anxiety disorder, and his GAF was 65. See VA treatment record dated April 13, 2009. A psychiatry outpatient note indicates the Veteran continued to complain of intermittent anxiety nearly a year later. He denied hopelessness, and had no suicidal or homicidal ideations. He was alert and oriented to all spheres, and his behavior was cooperative, although his eye contact with the physician was fair. He was dressed appropriately and hygienically. Cognition was intact and thought processes appeared coherent and goal directed. His GAF was 63. See VA psychiatry note dated February 18, 2010. At a psychiatric assessment and evaluation held on the same day, the Veteran complained of intrusive thoughts, which he thought were triggered by a reunion he was to have with some members of his platoon. He said that he will have trouble forgetting incidents from the war while around the men he served with, or during ceremonies commemorating the soldiers who went to the Republic of Vietnam. He said that he had been sleeping better, but did not feel rested when he woke up. He also said that his energy level was low but that he can find energy to do things that he wants to do. His GAF score on that day was 65. See Psychiatry assessment/evaluation note dated February 18, 2010. At the March 2010 VA examination, the Veteran arrived on time. He was appropriately dressed and hygienic. He cooperated with the examiner, made good eye contact, and was friendly and easily engaged during the meeting. He was alert and oriented to all spheres, and there was no indication of cognitive impairment. There was also no indication of disturbed thought processes, and he appeared to be goal-directed and organized. He told the examiner that his current wife wanted a divorce because he does not like doing things that she enjoys, such as spending time in the community with other people. He said that he does enjoy spending time with a select group of people, but he no longer engages in other activities that he used to enjoy, such as woodworking and weight lifting. He said that unless he is with someone that he totally trusts, he is not able to express the whole range of emotions. He avoids people that he does not know. The Veteran showed many symptoms of depression and anxiety, including an overall lack of positive emotional experiences and a tendency to be introverted and isolating. He also showed elevated levels in anxiety/arousal, anger/irritability, depression, intrusive experiences, and defensive avoidance of experiences. He complained of difficulty in falling and staying asleep, difficulty concentrating, hypervigilance, and an exaggerated startle response. He indicated that he occasionally has irritable or angry outbursts. He had a GAF of 65. See VA examination dated March 29, 2010. At his June 2012 personal hearing, the Veteran testified that he had always had problems with his memories of Vietnam and symptoms of PTSD, but they increased significantly when members of his platoon coordinated a reunion in 2008 and 2009. He said that the reunion worked out well but he had a very hard time with it, both in arranging the accommodations and the subject matter. He said that he slept and ate poorly, and there were times when his heart was beating very fast. He thinks of Vietnam all the time, regardless of what he is doing. He wonders why his friends were affected by herbicidal exposure when he has not been. He becomes tearful, and he is embarrassed about that. He feels anxious and depressed. He said that he occasionally has trouble with concentrating. He is not comfortable around people he does not know, or around crowds, and avoids new situations because of it. This also makes working difficult, as he is hesitant to put himself into new situations with new people. He retired in 2004, from assembly line work, and since then he works on high-end woodworking and cabinetry with a neighbor, on a part-time basis. He said that he belongs to veterans' organizations, but he does not participate in their activities. He has some close friends, his neighbors, who are also all veterans. When asked about family relationships, he indicated that he and his sister did not speak for fifteen years. They recently reconciled, but he regrets the time lost. He gets along fairly well with his daughter, although he testified that their relationship had been tumultuous until two years ago. He does not speak with his son. He has been married three times. He attends one-on-one therapy to learn to handle his PTSD symptoms, and testified that he did not like attending group sessions. He felt the other attendees were strange and that they were lying about their experiences. He is not willing to try group therapy again. As far as his one-on-one therapy, he said he had been attending sessions for nearly three years, and while he and his therapist have developed a rapport, he does not feel like the therapy is helping him at all. He also testified that he refuses to take prescription medication to alleviate his symptoms, he worries about their effect. He does, however, drink on a nightly basis. See Hearing transcript dated June 26, 2012. As mentioned above, the medical evidence also shows the Veteran was assigned a GAF score of between 63 and 65 between February 2009 and March 2010. The Board notes that a physician's classification of the level of psychiatric impairment, by words or by a GAF score, is to be considered but is not determinative of the percentage rating to be assigned. See VAOPGCPREC 10-95. A Global Assessment of Functioning (GAF) rating is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing to Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994). The DSM-IV contains a GAF scale, with scores ranging from zero to 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. Higher scores correspond to better functioning of the individual. GAF scores ranging from 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. See American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th. ed., 1994). Based on the foregoing, the Board finds that the Veteran is entitled to an initial disability rating of 30 percent. The Veteran has shown social and occupational impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to his symptoms, such as depression and anxiety, and avoidance of social situations. He has also consistently complained of trouble sleeping. He testified to occasionally having trouble maintaining concentration. He has intrusive thoughts. He testified that he has lost the desire to do things that he used to enjoy doing, and that he cannot bring himself to accompany his wife when she is in the community spending time with other people, which was the reason he stated for their divorce. He also noted that he is extremely closed off with people that he does not know and already trust, making it difficult to forge new relationships, including work relationships. Finally, he said that he occasionally has angry or irritable outbursts. Accordingly, applying the doctrine of the benefit of the doubt, the Board finds the Veteran is entitled to an initial disability rating of 30 percent for his PTSD. See 38 U.S.C.A. § 5107(b) (West 2002); see also 38 C.F.R. §§ 4.3, 4.7 (2012). The issue of entitlement to a rating in excess of 30 percent for PTSD is addressed in the Remand below. ORDER Entitlement to an initial rating of 30 percent for PTSD is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND After careful consideration, and for the reasons set forth below, the Board finds that additional development of the record is necessary before the remaining issues on appeal may be decided. The Board sincerely regrets the delay a remand of these claims may cause, but the additional development requested will ensure procedural due process and that there is a complete record upon which to decide the claims so the Veteran is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. With respect to the claim for a rating in excess of 30 percent for PTSD, the Veteran testified in June 2012 that he had been receiving treatment at the Warren VA treatment facility for approximately three years and was seen most recently at the beginning of June 2012. The most recent VA treatment records associated with the claims folder are dated in February 2010. Therefore, the more recent records must be obtained. As the case must be remanded to obtain treatment records, the Veteran should also be afforded a current VA examination for his PTSD. The Veteran underwent a VA audiological examination in May 2009. During his June 2012 hearing, he testified that his hearing loss has worsened since that examination. See Hearing transcript, page 9. Although the mere passage of time is insufficient to require a new VA examination, the Court has held that where a veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately determine the current state of the disability, the VA must provide a new examination. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007), See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Given the circumstances of this case, the Board believes the Veteran's claim for an increased initial rating for bilateral hearing loss should be remanded so that the Veteran may undergo an updated VA examination. As mentioned above, there is also a derivative claim for a TDIU. While the Board has jurisdiction over such issue as part and parcel of the Veteran's disability rating claim, further development is necessary for an appropriate adjudication of the TDIU aspect of such claim. On remand, the RO should conduct all appropriate notification and development, to include providing the Veteran with proper VCAA notice and affording him a VA examination to determine the effect his service-connected disabilities on his employability. After all appropriate development has been completed, the Veteran's TDIU claim should be adjudicated based on all evidence of record. Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran about (1) the information and evidence not of record that is necessary to substantiate his claim for a TDIU; (2) the information and evidence that VA will seek to obtain on his behalf; and, (3) the information or evidence that he is expected to provide. A copy of this notification must be associated with the claims folder. 2. Make arrangements to obtain copies of the Veteran's complete treatment records from the Warren Community Based Outpatient Clinic, dated since February 2010. Efforts to obtain these records should also be memorialized in the Veteran's claims file. 3. When the above has been accomplished, schedule the Veteran for a VA audiological examination to determine the current severity of his bilateral hearing loss, and the functional effects caused by that loss, if any. Puretone threshold testing, the Maryland CNC speech audiometric test, and any other tests or studies deemed necessary by the examiner should be performed. The entire claims file and a copy of this remand must be made available to and reviewed by the designated examiner. The examiner is specifically requested to fully describe the functional effects caused by the Veteran's hearing disability. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. 4. Schedule the Veteran for a VA psychiatric examination. The entire claims file and a copy of this remand must be made available to and reviewed by the designated examiner. All necessary tests and studies, including appropriate psychological studies (if determined to be necessary by the examiner), should be conducted in order to identify the degree of social and occupational impairment attributable to PTSD. The report of examination should contain a detailed account of all manifestations of PTSD found to be present. A multi-axial assessment should be provided, and a thorough discussion of Axis V, with an explanation of the numeric code assigned, should be included. The examiner should also take a detailed history regarding the Veteran's employment, education and vocational attainment in connection with the claim for TDIU. The examiner is requested to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected disabilities, either individually or in the aggregate, render him unable to secure or follow substantially gainful employment consistent with his education and occupational experience. Service connection is currently in effect for PTSD; bilateral hearing loss; a wound to the left shoulder, Muscle Groups (MG) II and IV; a wound to the left arm, MG VI; and a wound to the chest, MG XXI, with a thoracotomy scar. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. 5. After the requested examinations have been completed, the reports should be reviewed to ensure that they are in complete compliance with the directives of this remand. If either report is deficient in any manner, it should be returned to the examiner for corrective action. 6. Finally, readjudicate the claims on appeal (i.e., entitlement to an initial disability rating in excess of 30 percent for PTSD; entitlement to an initial compensable disability rating for bilateral hearing loss; and entitlement to a TDIU). If the claims are not granted to the Veteran's satisfaction, send him and his representative an SSOC and give them an opportunity to respond before returning the file to the Board for further appellate consideration of these claims. The Veteran has the right to submit additional evidence and argument on the 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). ______________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs