Citation Nr: 1313335 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 07-35 821 ) DATE ) ) On appeal from the Department of Veterans Affairs Hartford Regional Office in Newington, Connecticut THE ISSUES 1. Entitlement to a 70 percent rating prior for posttraumatic stress disorder (PTSD) during the period of the claim prior to October 5, 2011. 2. Entitlement to a 100 percent rating for PTSD. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due service-connected disabilities during the period of the claim prior to October 5, 2011. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran had active service from March 1967 to March 1969. This appeal comes before the Board of Veterans' Appeals (Board) from November 2006 and August 2007 rating decisions by the Department of Veterans Affairs (VA) Hartford Regional Office (RO) in Newington, Connecticut. In June 2011, the Board remanded the claims for further development. While the claims were in remand status, the rating for the Veteran's PTSD was increased to 70 percent, effective October 5, 2011, and a TDIU was granted from that date as well. These actions did not resolve the Veteran's appeal. The issues of entitlement to a 100 percent rating for PTSD and entitlement to a TDIU due service-connected disabilities during the period of the claim prior to October 5, 2011 are addressed in the REMAND that follows the ORDER section of this decision. FINDING OF FACT During the period of the claim prior to October 5, 2011, the Veteran's PTSD resulted occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW During the period of the claim prior to October 5, 2011, the Veteran's PTSD met the criteria for a 70 percent rating. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.126, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Legal Principles Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). Separate diagnostic codes identify the various disabilities. PTSD is rated under the rating formula for mental disorders. Under this formula, a 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and the inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Factual Background and Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to this disability. In this regard the Board notes that where entitlement to compensation has already been established and an increase in the disability is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Veteran's claim for an increased rating was received in August 2006. The record reflects the Veteran's endorsement of symptoms including irritability, depression, sleep disturbance, avoidance, anxiety, social withdrawal, lack of motivation, emotional detachment, and low frustration to stress. The record further reflects that the Veteran is married, goes to a social club two to three times a week, and participates in group therapy. The Veteran has not worked full-time since August 2006; he has worked part-time (one day a week) since December 2006. VA treatment records dating between August 2005 and September 2006 reflect findings that the Veteran was well-groomed and oriented, with normal, though nonspontaneous, speech; goal-directed thoughts; grossly intact cognition; and no suicidal ideation, homicidal ideation, or psychotic signs or symptoms. The records indicate that the Veteran was working in a job that he enjoyed, though he had work-related stress. Global Assessment of Functioning (GAF) scores of 50 and 55 were assigned in August 2005 and June 2006 respectively. A September 2006 VA examination record reflects the Veteran's history of numerous difficulties in his employment and relationship with his wife and a "general increase" in overall symptoms, including more frequent intrusive thoughts, isolation, and nightmares. The Veteran reported experiencing anxiety attacks two to three times per week and symptoms of mild depression. He also reported passive suicidal ideation without intent or plan and indicated that he became "quite compulsive" in his organizing behavior "at times." The Veteran added that he had begun drinking again, admitting it had become a problem for him. The Veteran indicated that he had been unemployed for one month after being fired from his job due to mistakes made on the job. The Veteran explained that he had had increased difficulty managing his levels of stress over the previous few months. The examiner noted that the Veteran's irritability was "quite evident" during the examination, and the Veteran explained that it caused difficulties with his employment and in his relationship with his wife. Examination revealed that the Veteran was cooperative, though he appeared quite agitated and irritable at times when describing his difficulties. Mood was anxious and irritable. There was some passive suicidal ideation but no homicidal ideation. Thought processes were logical and goal-oriented, and there was no perceptual disturbance. Insight was fair, and judgment was good. The examiner assigned a GAF score of 50, indicating that the highest GAF in the previous year was 50 to 55. The examiner explained that the Veteran presented with chronic symptoms and reported experiencing anxiety attacks, depression, and alcohol use. The examiner added that the Veteran described significant employment difficulties secondary to his low stress tolerance, indicating that the Veteran had recently lost his job which caused a clear exacerbation of his symptoms. The examiner found the Veteran's functional impairment and symptoms were "notably more severe" than reported in the previous exam in January 2005. Subsequent VA treatment records, which date up to October 2011, indicate that the Veteran's psychiatric disability was generally stable, with periods of increased depression, anxiety, and irritability. Speech was generally nonspontaneous but normal in rate and tone, and the Veteran was consistently well-oriented and well-groomed. Thoughts were always goal-directed; cognitive function was always grossly intact; and there were no psychotic signs or symptoms. The Veteran consistently denied homicidal ideation but reported occasional suicidal ideation in November 2010 and January and August 2011. Furthermore, beginning in June 2007, the Veteran reported episodes of depression: he initially reported that the episodes occur once a week but in March 2008, he reported that the episodes occur twice a week. Additionally, in March 2008, the Veteran reported paralyzing anxiety, and in June 2008, he explained that he experiences anxiety attacks twice a week. The records include findings that it was, "unlikely that [the Veteran could] sustain [full-time employment] given the severity of his PTSD." See, e.g., January 2007 VA treatment records. The records also generally reflect the assignment of GAF scores of 46 to 48; the highest GAF score assigned is a 50 in August 2011. See, e.g., January 2007, April 2008; December 2009, March 2010, January and August 2011 VA treatment records. A January 2009 VA vocational therapy record indicates that the Veteran had a neat appearance with no apparent hygiene issues. The Veteran reported that he worked one day each week as a driver. The Veteran indicated that he wanted employment with more hours and more pay if possible. He explained that he was retired and wanted to work part-time to supplement his income and gain more structure during the week The Veteran reported that the barrier to working was difficulty dealing with people. He explained that he would like not to work with people. He indicated that he did not have problems with attendance, punctuality, or following directions. The Veteran underwent a VA examination on October 5, 2011. The examiner determined that the Veteran's psychiatric disability resulted in occupational and social impairment with deficiencies in most areas. The examiner noted that the Veteran reported a history of deficit in social and occupational functioning, shown by a history of problems with interpersonal relationships due to a pattern of irritability, mood swings, and anger. The examiner further noted that the Veteran reported deficits related to symptoms of depression, including difficulties concentrating and low energy and motivation. The examiner explained that the Veteran's problems in occupational functioning appeared to be exacerbated by a pattern of hypervigilance and stress related to recurring intrusive thoughts and memories, poor sleep pattern, and anxiety attacks, severe at times. The record reflects the Veteran's history that he tried to work in 2009 for the Census Bureau but only lasted approximately three weeks due to intense anxiety. The record further reflects the examiner's findings of symptoms of feelings of detachment, restricted range of affect; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; mild memory loss, such as forgetting names or recent events; disturbances in motivation and mood; difficulty in establishing and maintaining effective relationships, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships; and suicidal ideation. The examiner found it was unlikely that the Veteran would be able to maintain substantially gainful employment. The examiner explained that it was possible, given a high level of supervision in a moderately controlled environment free of stressors with simple occupation requirements, that the Veteran could potentially sustain limited, part-time employment. However, given the Veteran's history of psychological distress, including extreme anxiety, the examiner found it unlikely the Veteran would be able to sustain employment for a substantial period of time. Thus, the examiner found the Veteran more likely than not to be unemployable. The Board has determined that a 70 percent rating is warranted for the period of the claim prior to October 5, 2011. The Board acknowledges that the record does not include a specific finding of deficiencies in most areas prior to October 5, 2011. The record does include findings of inability to maintain gainful employment and some suicidal ideation, and the assignment of GAF scores predominantly corresponding to serious symptoms or serious impairment prior to that time, however, and the Board finds the evidence indicates that the Veteran experienced periodic exacerbations of his psychiatric symptoms ORDER A 70 percent rating for PTSD is granted for the period of the claim prior to October 5, 2011, subject to the criteria applicable to the payment of monetary benefits. REMAND The Veteran has reportedly been awarded benefits from the Social Security Administration (SSA). See, e.g., June 2008 VA treatment record. As these records are potentially relevant, they must be obtained. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. Obtain the Veteran's SSA records. Efforts to obtain these records should be documented if the records are not obtained. 2. Obtain a copy of all relevant, outstanding VA treatment records from the West-Haven VA medical facility dating from October 28, 2011, forward. 3. Undertake any other indicated development. 4. Thereafter, readjudicate the appellant's claim of entitlement to a 100 percent rating for PTSD and, if it has not been rendered moot, the claim for a TDIU due to service-connected disabilities prior to October 5, 2011. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative should be provided a supplemental statement of the case and the requisite opportunity to respond before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court 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). ______________________________________________ Shane A. Durkin 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). Department of Veterans Affairs