Citation Nr: 1313273 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 10-20 125 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an initial rating for post-traumatic stress disorder (PTSD) in excess of 50 percent. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Wade Bosley, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant and the appellant's spouse ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran had active service from May 1966 to June 1968. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, in July 2008 which granted service connection for PTSD and assigned an initial 30 percent disability rating, effective July 26, 2007 (date of receipt of claim), and July 2009 which denied entitlement to a TDIU rating. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The Veteran and his wife testified at a December 2012 videoconference and a transcript thereof is on file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran's 1968 claim for service connection for having been shell shocked was denied in January 1969 because he failed to attend a VA examination. The Veteran's PTSD, rated 50 percent disabling, is his only service-connected disability. The Veteran's September 2008 VA Form 21-8940, Application for Increased Compensation Based on Unemployability, reflects that he had last worked in July 2004 and had no more than a high school education. On VA psychiatric examination in February 2008 it was noted, in part, that the Veteran denied work related problems. His Global Assessment of Functioning (GAF) score was 50. It was felt that his PTSD did not cause total occupational and social impairment but did impact in a number of areas. On VA general medical examination in July 2009 it was opined that as the Veteran's PTSD "[i]t is likely that this condition would hinder him from being gainfully employed in any activity involving sustained mental focus or in a situation in which he has to deal with others whether physical or sedentary." On VA psychiatric examination in July 2009 the diagnoses were PTSD and a major depressive disorder. It was noted that depression appeared to be a means of coping with his PTSD symptoms. His GAF score was 54. It was reported that he had not worked in several years due to physical and emotional limitations. His PTSD symptoms were moderately impairing. As to his major depressive disorder, these symptoms were also moderately impairing. Separate GAF scores could not be assigned for the PTSD and major depressive disorder without a resort to mere speculation. It was felt that his PTSD symptoms would likely mildly impair his ability to engage in physical and/or sedentary employment due to difficulties concentrating, interacting with other, maintaining concentration, and feeling estranged from others and his activities. It was felt that he did not have total occupational and social impairment due to PTSD but did have deficiencies in multiple areas. At the videoconference, the Veteran reported that he had not provided complete information to the 2008 VA examiner. He also felt that the 2009 VA psychiatric was too short, having lasted only 10 minutes. On the other hand, his attorney indicated that that 2009 VA psychiatric examination, while now several years old and, so, was "stale" was nonetheless adequate. See pages 14 though 16 of the transcript. Also at the hearing, it was indicated that the Veteran had been awarded Social Security Administration (SSA) disability benefits by virtue of having been disabled since 2004, due to psychiatric disability. The Veteran indicated a willingness to attend a more recent and up-to-date VA psychiatric rating examination. Page 14 of the transcript. The Veteran's attorney indicated that additional information and evidence would be submitted, possibly including a report of a private psychiatric examination. Page 17. Since the August 2009 Statement of the Case (SOC) addressing an higher initial rating for PTSD and the April 2010 SOC addressing a TDIU rating, the Veteran's attorney has submitted additional evidence, together with a waiver of initial RO consideration of that evidence. This includes a report of a December 2012 private psychiatric examination which also reflects (again) that the Veteran was dissatisfied with the 2009 VA psychiatric rating examination. The Veteran's GAF score was 50. The diagnoses were PTSD, severe; and chronic major depressive disorder, severe, without psychotic features, secondary to PTSD. The private examining psychologist agreed that depression appeared to be a means of coping with PTSD symptoms. In the supporting December 2012 brief by the Veteran's attorney it was indicated that the Veteran met the criteria for a 70 percent rating because he had symptoms or deficiencies that affected most areas, such as work, family relations, judgment, thinking or mood. This matter has recently been addressed by the United States Court of Appeals for the Federal Circuit in Vazquez-Claudio v. Shinseki, 2012-7114, slip op. (Fed. Cir. Apr. 8, 2013); --- F.3d ----, 2013 WL 1395804 (C.A.Fed.) which held that under 38 C.F.R. §§ 4.126 and 4.130 the ratings under the General Rating Formula for Mental Disorders are symptom-driven, i.e., the greater the severity, frequency and duration of symptoms the higher the rating. However, a 70 percent disability rating requires sufficient symptoms of those listed, or others of similar severity, frequency or duration, that cause occupational and social impairment with deficiencies in most areas such as the six enumerated, i.e., work, school, family relations, judgment, thinking, or mood. Thus, there must be an initial assessment of the symptoms displayed and an assessment of whether they result in occupational and social impairment with deficiencies in most of the six enumerated areas. Thus, for a 70 percent rating it is not enough that there is an impact in the six enumerated areas; rather, there must be symptoms such as those listed for a 70 percent rating, or symptoms similar thereto in severity frequency, and duration. Vazquez-Claudio v. Shinseki, 2012-7114, slip op. (noting in that case that a veteran's symptoms were generally less than required for a 70 percent rating but severe enough to cause only mild impact in five of the six enumerated areas and, so, did not warrant a 70 percent rating). In view of the foregoing, the Board is of the opinion that an up-to-date VA psychiatric rating examination would be helpful in adjudicating the claims. The fulfillment of the statutory duty to assist includes providing conducting a thorough and contemporaneous medical examination. See Hyder v. Derwinski, 1 Vet. App. 221 (1991); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall provide the Veteran with an opportunity to identify any additional relevant medical treatment records, from either private or VA facilities, which pertain to his increased rating claim for a psychiatric disability that have not yet been associated with the claims file. Appropriate steps should be taken to obtain any such identified records, as well as to obtain VA records dated from April 2010 forward. 2. The RO should afford the Veteran a VA psychiatric examination. The claims folder and a copy of this remand should be made available to and reviewed by the examiner prior to the examination. The examination should include any tests or studies necessary for an accurate assessment. The claims folder must be made available to the physician for review in conjunction with the examination. All necessary tests and studies should be conducted in order to identify and describe the symptomatology attributable. The report of examination should contain a detailed account of all manifestations of the disability(ies) found to be present. If there are found to be multiple psychiatric disorders, the examiner should reconcile the diagnoses and should specify which symptoms are associated with each of the disorder(s). If certain symptomatology cannot be disassociated from one disorder or the other, it should be so specified. The examiner should also comment on the extent to which the service-connected PTSD impairs the Veteran's occupational and social functioning. The examiner is requested to assign a numerical code for the GAF score. 3. The Veteran is advised that failure to cooperate by reporting for scheduled examinations may result in the denial of the higher rating claim. 38 C.F.R. § 3.655 (2012). 4. Thereafter, if the benefits sought on appeal remain denied, the appellant and the appellant's attorney should be provided a Supplemental SOC (SSOC). The SSOC must contain notice of all relevant actions taken and an appropriate period of time should be allowed for response. The appellant 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). _________________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).