Citation Nr: 1318637 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 09-37 361A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial rating greater than 30 percent prior to October 30, 2012 for posttraumatic stress disorder (PTSD). 2. Entitlement to an initial rating greater than 70 percent since October 3, 2012 for posttraumatic stress disorder (PTSD). 3. Entitlement to an initial compensable evaluation for onychomycosis, claimed as infected toes with toenail removal, both feet. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran served on active duty from June 2002 to August 2006. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of October 2008 and December 2012 the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing in April 2013. A transcript of the hearing has been associated with the Veteran's Virtual VA file. The issue of entitlement to an disability rating in excess of 70 percent from October 30, 2012 for PTSD and the evaluation of onychomycosis 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 Prior to October 30, 2012, the Veteran's PTSD was manifested by symptoms such as nightmares, intrusive thoughts, flashbacks, social withdrawal or isolation, depression, slow speech, anger, poor judgment and insight, but without suicidal ideation, near continuous panic or depression affecting the ability to function, spatial disorientation, or neglect for personal appearance or hygiene. CONCLUSION OF LAW The criteria for a disability rating of 50 percent prior to October 30, 2012, but no higher, for PTSD have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) As a preliminary matter, the Board notes that the Veteran has been provided all required notice, to include notice pertaining to the disability-rating and effective-date elements of the claim. In addition, all relevant evidence has been obtained and associated with the file, including October 2008, October 2012 and November 2012 VA examinations that thoroughly describe the severity of the Veteran's service-connected disabilities. The Board is of the opinion that these examinations, in conjunction with the other evidence of record, provide sufficient basis for evaluating the claims, and that no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012) or 38 C.F.R. § 3.159 (2012). II. Legal Criteria and Analysis Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). It is noted that competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. The rating criteria provide that 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; mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is warranted 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; difficulty in establishing effective work and social relationships. Id. A 70 percent rating is warranted 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); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted for 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. Id. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation 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. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. The use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase 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. Mauerhan v. Principi, 16 Vet. App. 436 (2002). A GAF (Global Assessment of Functioning) score 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 the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994). This is more commonly referred to as DSM-IV. A GAF of 21 to 30 is defined as behavior considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriate, suicidal preoccupation) or an inability to function in almost all areas (e.g., stays in bed all day, no job, home or friends). A GAF of 31 to 40 is indicative of some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or any major impairment in several areas, such as work or school, family relations, judgment, thinking or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). A GAF of 41 to 50 is indicative of serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF of 51 to 60 is defined as 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). The Board notes that an examiner's classification of the level of psychiatric impairment by a GAF score is to be considered, but is not determinative of the percentage rating to be assigned. VAOPGCPREC 10-95. VA outpatient treatment records of January 2008 show the Veteran reported having a hard time keeping a job. He stated he had had eight jobs since release from service due to not being able to get along with people. He reported poor sleep with only 2-3 hours of sleep per night. He further endorsed poor appetite, weight loss, low energy, anger, occasional hopelessness, thoughts of beating up people, withdrawal, occasional anxiety, nightmares, flashbacks, irritability, avoidance behavior, paranoia and hypervigilence. He denied any suicidal or homicidal thoughts, manic symptoms or tearfulness. The examining psychiatrist noted his mood was anxious, affect was congruent but dysphoric; speech was spontaneous with increased speech latency and decreased volume; insight and judgment were fair. He was oriented in all planes; thought process was organized and he had no suicidal or homicidal thoughts. He was assigned a GAF score of 50. Similar symptoms were reported in February 2008 this time also noting social isolation and a very flat affect. GAF score remained at 50. In April 2008, similar symptoms as in January 2008 were noted now with constant anger, poor concentration and anhedonia. Similar symptoms were reported in June and July 2008 with a continued assigned GAF score of 50. The Veteran was afforded a VA examination in October 2008. The examiner, noted he was well groomed; psychomotor activity, speech, and, thought process and content were unremarkable. He was cooperative. Affect was normal and mood was good. He was oriented in all spheres. It was noted he was easily distracted and could not spell a word forward and back. He could understand the outcome of his behavior. He can only sleep four hours per night. He denied any hallucinations, obsessive or ritualistic behavior, panic attacks, or homicidal and suicidal thoughts. There were no problems with activities of daily living and his memory was normal. PTSD symptoms included recurrent and intrusive thoughts, avoidance tendencies, difficulty falling asleep, irritability or outburst with anger, difficulty concentrating, hypervigilence, and exaggerated startle response. It was noted the disturbance causes clinically significant distress or impairment in social, occupational or other important area of functioning. The examiner described the symptoms as mild and noted there were no periods of remission. A GAF score of 61 was assigned. VA outpatient treatment records of March 2009 note reports of continued anxiety and depression, social isolation, poor sleep, anger issues, poor appetite and concentration, and anhedonia. He denied suicidal or homicidal ideations. Appearance was clean, eye contact was good, speech had decreased content, he had mild poor motor reaction, affect was blunted, and, insight and judgment were poor. Thought process was logical and he was alert. A GAF score of 50 was assigned. Records of August 2009 show reports of worsening temper while other symptoms remained the same. This time, eye contact was fair and speech had normal rate, although it had slightly low volume and he was not very talkative. A GAF score of 55 was assigned. Symptoms remained the same in November 2009 but with poor eye contact. A GAF score of 55 was assigned. Similar symptoms were noted between September 2010 and July 2012 with GAF scores ranging from 50 to 55. At the outset, the Board notes that the RO has staged the disability rating assigned for PTSD. Prior to October 30, 2012, the Veteran's PTSD is rated as 30 percent disabling, with a 70 percent disability rating thereafter. As will be discussed in the remand portion of this decision, the Board is remanding the claim of the disability rating since October 30, 2012; therefore, the focus of the analysis below will be the time period prior to October 30, 2012. Having carefully reviewed all of the evidence of record, the Board concludes that resolving all doubt in the Veteran's favor, the overall competent evidence of record shows a disability that more nearly approximates that which warrants the assignment of a 50 percent disability rating for the time period prior to October 30, 2012. See 38 C.F.R. § 4.7 (2012). The Board concludes that the symptoms prior to October 30, 2012 are substantially consistent. For this reason, a staged rating prior to October 30, 2012 is not warranted. See Fenderson, 12 Vet. App. at 119. Prior to October 30, 2012, the record shows near constant symptoms of sleep difficulty, anxiety, poor appetite, weight loss, low energy, anger, occasional hopelessness, thoughts of violence, withdrawal, anxiety, nightmares, flashbacks, irritability, avoidance behavior, paranoia, social avoidance, fair insight and judgment, and hypervigilence. He has constantly denied any suicidal or homicidal thoughts, and he has been oriented in all spheres at all times. Moreover, his GAF scores have been predominantly 50 which signify serious symptoms. The Board acknowledges the findings of the October 2008 VA examination and the examiner's finding of mild symptoms and an assigned GAF score of 61. However, the Board notes that VA outpatient treatment records proximate to the examination show a more severe symptomatology picture than the October 2008 VA examination. Significantly, the outpatient treatment records were dates within two to three months prior to and after the examination. Moreover, while the examiner characterized the Veteran's symptoms as mild, he still reported symptoms of trouble sleeping, anger, violence, hypervigilence, avoidance, social isolation, and depression. Furthermore, the examiner noted the disturbance causes clinically significant distress or impairment in social, occupational or other important area of functioning. Despite the characterization of "mild" and the assigned GAF of 61, the symptoms noted also support a 50 percent disability evaluation. The Board finds that considering the evidence as a whole, the disability picture prior to October 30, 2012, more nearly approximates that of a 50 percent disability rating. Considering the findings of the October 2008 VA examination in conjunction with the VA outpatient treatment records around the same time, the Board finds that, as a whole, the Veteran's symptoms have been serious throughout most of the time period prior to October 30, 2012 and a 50 percent disability rating is warranted. However, a rating greater than 50 percent is not appropriate prior to October 30, 2012 because the Veteran does not have severe or total social and occupational impairment. Although the Veteran clearly has a significant disability, he exhibits few of the symptoms noted as applicable for a 70 or 100 percent rating. His speech is not illogical, obscure, or irrelevant. The Veteran has consistently denied suicidal ideation. While he does have anger and depression, they do not prevent him from functioning independently. He is fully oriented and does not exhibit spatial disorientation. His hygiene and personal appearance are good and appropriate. While the Veteran does have some social withdrawal or isolation, the medical records and his statements clearly demonstrate that he is able to maintain employment. With respect to the Veteran's occupational impairment, the Board acknowledges that the Veteran has had difficulty in maintaining a constant employment. Indeed in January 2008 he reported having had eight different jobs since leaving service in August 2006. However, the Veteran continued to be employed throughout the period in question. Although the Veteran has some level of occupational impairment, the Board finds that based on the Veteran's work history he does not have severe or total occupational impairment. In this regard, the Board notes that the 50 percent rating assigned herein is a recognition of significant industrial impairment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). As to the Veteran's social impairment, the Board observes he has some social withdrawal or isolation. That said, the record clearly indicates that he is able to interact with others at times. As noted, he continues to work. While the Veteran's PTSD symptoms result in some social problems, he can and does function in social situations. Thus, the Veteran does not have severe or total social and occupational impairment. He does have some deficiencies in several areas, but the greater weight of evidence demonstrates that it is to a degree that is contemplated by the 50 percent rating assigned herein. Furthermore, even resolving any reasonable doubt in the Veteran's favor, the Board finds that he does not meet the requirements for an evaluation greater than the current 50 percent schedular rating. While the Veteran may have some of the criteria for a 70 or 100 percent rating, see Mauerhan, supra, the Board concludes his overall level of disability does not exceed the criteria for a 50 percent rating. The Veteran's speech is not illogical, obscure or irrelevant. There is no suicidal ideation. He is not in a near-continuous state of panic or disorientation. Although he exhibits some memory problems, his thought process and communication is overall logical and coherent. He does not exhibit inappropriate behavior. His personal hygiene is appropriate. There is no objective evidence of disorientation. He does have some social and occupational impairment, but he is able to perform his job duties. While the Veteran is competent to report that his disability is worse than presently evaluated, whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran's complaints coupled with the medical evidence. Here, although the Veteran may believe he meets the criteria for the next higher disability rating, his complaints and the medical findings do not meet the requirements for the next higher rating. Accordingly, resolving all doubt in favor of the Veteran, the Board finds a 50 percent rating for the appeal period prior to October 30, 2012 is warranted. 38 U.S.C.A. § 5107; Gilbert, supra; Fenderson supra. The Board has also considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(a) (2012). In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the manifestations of the disability are contemplated by the schedular criteria. Therefore, referral for extra-schedular consideration is not warranted. ORDER A 50 percent evaluation for PTSD is granted for the time period prior to October 30, 2012, subject to the criteria applicable to the payment of monetary benefits. REMAND The Veteran seeks a compensable disability rating for the service connected onychomycosis of the bilateral feet, and a higher disability rating for PTSD. As noted above, the Board has rendered a decision regarding the disability rating for PTSD prior to October 30, 2012. Accordingly, the issue remaining is the disability rating after October 30, 2012. VA's duty to assist includes obtaining a medical examination or opinion where necessary to decide the claim. 38 C.F.R. § 3.159. Furthermore, when a Veteran claims that his condition is worse than when originally rated, VA's duty to assist includes providing a new examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997). In regards to the issue of the disability rating for onychomycosis, the Board notes that the only VA examination of record, of November 2012 is inadequate for appellate review. The Veteran's disability is rated under Diagnostic Code (DC) 7813 which provides ratings for dermatophytosis (or ringworm) in various locations on the body, including the body (tinea corporis), the head (tinea capitis), the feet (tinea pedis), the beard (tinea barbae), the nails (tinea unguium), and the inguinal area, also known as jock itch (tinea cruris). DC 7813 provides that dermatophytosis is to be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), or dermatitis (Diagnostic Code 7806), depending upon the predominant disability. 38 C.F.R. § 4.118 (2008). The Board notes that DC 7813 was amended on October 23, 2008. The Veteran's claim was filed in March 2008. Therefore, as the amendment applies to applications for benefits received by VA on or after October 23, 2008, these changes do not apply to the claim currently under consideration. DC 7806 for dermatitis or eczema, which the RO has considered in deciding the disability rating, provides for a 10 percent disability rating where at least 5 percent but less than 20 percent of the entire body or exposed areas are affected. While the examiner noted onychomycosis in all of the toes on both feet, the examiner did not provide an assessment as to what percentage of the body is affected by the onychomycosis. Therefore, the Board finds that a new examination is needed to obtain this assessment. Regarding the evaluation of PTSD form October 30, 2012, at the videoconference hearing of April 2013, the Veteran testified his symptoms had worsened since his October 2012 VA examination. Specifically, he stated he now had what amounted to homicidal thoughts. In view of the evidence above and the Veteran's testimony, the Board finds that remand is necessary for reexamination to ensure that VA has met its duty to assist obligations. In regards to the onychomycosis, the Board notes that a VA examination report must described the disability in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991). See also, Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). Here, the Board does not have sufficient information to properly apply the applicable rating criteria. Regarding the PTSD, credible evidence has been presented indicating that there has been a material change in the severity of the Veteran's service- connected disability since he was last examined. Where there is a material change in the severity of the disorder, reexamination is warranted. See 38 C.F.R. § 3.327(a). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a psychiatric VA examination to determine the current level of severity of his PTSD. All clinical findings should be reported in detail. The examiner should opine on whether the Veteran is precluded from obtaining or retaining substantially gainful employment due to service-connected disability. The claims file along with any pertinent medical records located in the Veteran's Virtual VA file should be made available to and reviewed by the examiner. A complete rationale for any opinion rendered must be provided. 2. Schedule the Veteran for an appropriate VA examination to determine the current level of severity of the service connected onychomycosis. The claims file along with any pertinent medical records located in the Veteran's Virtual VA file should be made available to and reviewed by the examiner. The examiner should specifically state the percentage of the body or exposed areas affected by the onychomycosis. 3. The RO should conduct any other development deemed to be appropriate and ensure that the report of VA examination includes the necessary rating information for evaluating the disabilities at issue. 4. Following completion of the above development, the RO should readjudicate the Veteran's claims. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC). 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). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs