Citation Nr: 1316207 Decision Date: 05/16/13 Archive Date: 05/29/13 DOCKET NO. 09-23 627 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for a disability manifested by dizziness, to include as secondary to service-connected tinnitus. 2. Entitlement to a disability evaluation in excess of 50 percent for a psychiatric disorder, to include generalized anxiety disorder, bipolar disorder, and posttraumatic stress disorder (PTSD). 3. Entitlement to an initial disability evaluation in excess of 10 percent for an injury to Muscle Group XXI. 4. Entitlement to an effective date earlier than May 10, 2012, for the assignment of a 50 percent disability evaluation for a psychiatric disorder, to include generalized anxiety disorder, bipolar disorder, and PTSD. 5. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Calvin Hansen, Esquire ATTORNEY FOR THE BOARD S. Coyle, Counsel INTRODUCTION The Veteran served on active duty from July 1967 to July 1971, and from June 1978 to March 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2008, August 2009, November 2011 and May 2012 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). The psychiatric disorder and muscle group injury issues have been recharacterized to comport with the evidence of record. In May 2011, the Board remanded the matter to the agency of original jurisdiction (AOJ) for further evidentiary development. On remand, the issue of entitlement to a separate compensable evaluation for a muscle group injury was granted; the Veteran perfected a timely appeal with respect to the assigned rating. The issues of entitlement to service connection for a disability manifested by dizziness, increased ratings for a muscle group injury and a psychiatric disorder, and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Lincoln, Nebraska, RO. FINDINGS OF FACT 1. In a September 2006 rating decision, the RO confirmed and continued a 30 percent evaluation for the Veteran's psychiatric disorder. The veteran was notified of this decision by letter dated September 26, 2006. He did not appeal. 2. A June 25, 2011 VA examination report constitutes an informal claim for an increased rating for the service-connected psychiatric disorder. 3. A claim for an increased rating for the service-connected psychiatric disorder was factually ascertainable on June 28, 2010, within one year prior to the date of the informal claim for benefits. CONCLUSION OF LAW The criteria for an effective date of June 28, 2010, for the assignment of a 50 percent disability evaluation for a psychiatric disorder, to include generalized anxiety disorder, bipolar disorder, and PTSD, are met. 38 U.S.C.A. §§ 5103 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. Earlier Effective Date Except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. The effective date for the grant of increase in disability compensation is the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date, otherwise, the date of the receipt of the claim. 38 C.F.R. § 3.400(o)(2). The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). A "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); see also Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. A report of examination or hospitalization may be accepted as an informal claim for benefits, but only after there has been a prior allowance or disallowance of a formal claim for compensation. 38 C.F.R. § 3.157; Crawford v. Brown, 5 Vet. App. 33, 35-6 (1993). Where a VA examination or VA hospital report is accepted as an informal claim for increase, the effective date will be the date of examination or admission. See 38 C.F.R. § 3.157(b)(1) and (2). In September 2006 the RO issued a rating decision confirming and continuing a 30 percent evaluation awarded for the Veteran's service-connected psychiatric disorder. Notice of the decision was sent to the Veteran by letter dated September 26, 2006. He did not appeal. On June 25, 2011, the Veteran was afforded a VA mental disorders examination. The examiner diagnosed PTSD, which he stated was a continuation of the service-connected anxiety disorder; however, the examiner did not link PTSD to fear of hostile military activity or to a verified military stressor. The RO ordered a second VA examination to determine whether the Veteran's PTSD was related to his service. The Veteran underwent a second VA mental disorders examination on May 12, 2012. The examiner diagnosed PTSD as a result of fear of hostile military activity, and noted that the Veteran's service-connected anxiety disorder, bipolar disorder and PTSD were "so intertwined and inseparable" that it was impossible to distinguish the symptoms caused by each disease. In a May 17, 2012 rating decision, the RO assigned a disability evaluation of 50 percent for the psychiatric disorder, effective May 12, 2012, the date of the Veteran's second VA examination. The decision stated that PTSD could not be service-connected until that date, and noted that the June 25, 2011 examination was "nearly a year old" and therefore not representative of the Veteran's "current level of disability." However, the RO does not appear to have considered whether the June 25, 2011 VA examination report or any of the June 2010 treatment reports constituted informal claims for an increased rating. The Veteran was examined for his service-connected anxiety disorder in August 2009, which noted a Global Assessment of Functioning (GAF) score of 63, indicative of moderate symptomatology. Richard v. Brown, 9 Vet. App. 266, 267 (1996). The June 2011 examination report, however, diagnosed PTSD, bipolar disorder, and generalized anxiety disorder. The examiner specifically noted that the Veteran's generalized anxiety disorder should be "considered as part of PTSD and bipolar." A GAF of 50, indicative of serious symptoms, was assigned. Id. The Veteran's psychiatric disorder is rated under Diagnostic Code 9411. 38 C.F.R. § 4.130. Under this Diagnostic Code, a 50 percent evaluation is to be assigned for 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; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). 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. 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. 38 C.F.R. § 4.126(b). A GAF rating is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. Richard, supra. A GAF score of 71 to 80 indicates that if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument), and there is no more than slight impairment in social, occupational, or school functioning (e.g., temporary falling behind in schoolwork). A GAF score of 61 to 70 is reflective of 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 with some meaningful interpersonal relationships. A GAF score of 51 to 60 is illustrative of 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). A GAF score of 41 to 50 is reflective of 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). Although GAF scores do not fit neatly into the rating criteria, the Board is under an obligation to review all the evidence of record. The fact that evidence is not neat does not absolve the Board of this duty. See Carpenter v. Brown, 8 Vet. App. 240 (1995). On June 28, 2010, the Veteran was seen on a "walk in basis for [a] brief eval[uation.]" The treatment report is an informal claim. His mental health symptoms included nightmares, flashbacks, reminder distress, avoidance, and hyperarousal, as well as a long history of mood swings, with hypomania for a 2-3 day period followed by 4-7 days of depression. He also reported auditory hallucinations. The Veteran stated that he was in communication with the spirit world and that he experienced suicidal ideation with no plan to carry it out. His mental status was otherwise normal. A GAF score of 55, illustrative of moderate symptoms, was assigned. He was prescribed several psychiatric medications, and in the subsequent weeks reported to his treatment providers that his symptoms were somewhat improved; however, he still experienced suicidal ideation and auditory hallucinations, as well as periods of irritability with violent outbursts. The Veteran underwent a neuropsychological assessment in July 2010. The treatment report is an informal claim. The examiner found that the Veteran's answers were indicative of subtle exaggerations in his symptoms, which were "not severe enough to preclude interpretation of the results." The assessment found that the Veteran had "significant thinking and concentration problems, accompanied by prominent distress and dysphoria." His profile suggested an individual who was "quite withdrawn and isolated, feeling estranged from others," which put a strain on his interpersonal relationships. He also exhibited symptoms of psychosis, including auditory hallucinations and "magical thinking." His symptoms were also indicative of significant depression and accompanying thoughts of worthlessness, hopelessness, and personal failure. He was preoccupied with medical problems and experienced anxiety and tension. He was also "quite emotionally labile, manifesting fairly rapid and extreme mood swings" with "poorly controlled anger." He was easily slighted or insulted by others and manifested impulsive behavior. He had experienced frequent suicidal ideation, although this symptom was mitigated by medications. A GAF score of 50, indicative of serious symptoms, was assigned. The Veteran continued to take his medications, attend psychotherapy sessions, and completed a VA course in prolonged exposure therapy to learn to cope with his PTSD triggers. His symptoms appeared to be improving until November 2011, when he experienced an increase in symptoms of anxiety as a result of the anniversary of the death of a fellow servicemember. The only relevant evidence dated after November 2011 is the May 2012 VA examination. It is factually ascertainable that the Veteran became entitled to a 50 percent disability evaluation for a psychiatric disorder on June 28, 2010, when he began reporting for VA psychotherapy. In June and July of 2010, the Veteran reported a long history of mood swings with violent outbursts, auditory hallucinations, suicidal ideation, depression, anxiety, and other symptoms approximating the criteria for a 50 percent disability evaluation. Although the Veteran's symptoms abated with the introduction of psychiatric medications and coping strategies, the evidence reflects that the Veteran would likely continue to experience these symptoms were it not for the medications he was prescribed. The GAF scores reflecting moderate symptomatology are not representative of the Veteran's overall clinical picture, particularly one that includes chronic suicidal ideation, auditory hallucinations, and delusional thinking. The evidence supports an effective date of June 28, 2010 as the date upon which it was factually ascertainable that a 50 percent evaluation for the service connected psychiatric disorder, to include generalized anxiety disorder, bipolar disorder, and PTSD, was warranted. ORDER An effective date of June 28, 2010 is granted for the assignment of a 50 percent evaluation for the service connected psychiatric disorder, to include generalized anxiety disorder, bipolar disorder, and PTSD. REMAND The May 2011 remand directed that the Veteran be notified of the evidence necessary to support a claim of service connection for a disability manifested by dizziness as secondary to service-connected tinnitus. Specifically, the Veteran was to be notified that any increase in severity of a nonservice-connected disease that is proximately due to or the result of a service-connected disability can be service-connected, as set forth in 38 C.F.R. § 3.310(b). The RO sent the requested notice to the Veteran in June 2011; however, the letter did not inform him that a nonservice-connected disability can be service-connected if it is shown that an increase in severity of the nonservice-connected disability is proximately due to or the result of the service-connected disability. Corrective notice must be sent to the Veteran upon remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The May 2011 remand also directed that the Veteran be afforded a VA examination to ascertain the extent to which all of his service-connected disabilities, taken as a whole, affect his ability to obtain or retain substantially gainful employment, without regard to his age or nonservice-connected disabilities. The requested examination was conducted in July 2011, and an addendum was received in April 2012. Since the Veteran's employability was last evaluated, however, the rating for his service-connected psychiatric disorder has been increased, potentially affecting the examiner's view of the Veteran's overall clinical picture. In addition, the examiner's findings did not fully indicate the extent to which the combined effect of all of the Veteran's service-connected disabilities affects his employability. Specifically, the examiner noted that the Veteran was unable to engage in physical employment, but may be able to engage in sedentary employment. Although the Veteran may be able to engage in sedentary employment, this does not answer the question of whether or not he can engage in "substantially gainful employment" as contemplated by 38 C.F.R. § 4.16(b). The question must be addressed. According to supplemental statements of the case (SSOCs) filed in February 2013, VA treatment records dating from September 2012 and January 2013 were reviewed and considered; however, they have not been associated with the evidence. Remand is required so that these records, the Veteran's vocational rehabilitation folder, and any additional VA records generated since January 2013, may be obtained and made available for Board review. The Veteran was a longtime employee of the U.S. Postal Service, and the evidence indicates that he took a medical retirement. His employment records have not been requested or received from the Office of Personnel Management (OPM). VA must make attempts to obtain records in the custody of a Federal department until it is determined that the records do not exist or that further efforts would be futile. 38 C.F.R. § 3.159(c)(2). Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran that service connection may be awarded on a secondary basis upon a showing of aggravation of a nonservice-connected disability by service-connected disability. 2. Obtain all relevant VA treatment records dated since September 2012 and any vocational rehabilitation records which may exist. 3. Obtain from OPM copies of any disability retirement determination and all medical records used to support such a decision. 4. Return the claims folder to the July 2011 VA examiner, if available, for review. The claims folder and a copy of this remand must be provided to the examiner, and the examination report must reflect review of both. The examiner must determine whether the combined effect of all of the Veteran's service-connected disabilities precludes him from engaging in substantially gainful employment, without regard to his age or nonservice-connected disabilities. The examiner must be advised that although VA regulations do not provide a definition of substantially gainful employment, VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the term as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). If the July 2011 examiner is no longer available, another examination must be scheduled and the examiner directed to address the questions set forth above. 5. Review the claims file to ensure that all of the foregoing development is completed, and arrange for any additional development indicated. Then readjudicate the claims. If any benefit sought remains denied, issue a supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case is to then be returned to the Board for further appellate review. 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). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs