Citation Nr: 1320363 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 08-06 956A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. What evaluation is warranted for posttraumatic stress disorder from September 20, 2006 to October 30, 2007? 2. What evaluation is warranted for posttraumatic stress disorder from October 31, 2007? REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from July 1967 to May 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal of September 2007 and October 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In addition to the evaluations currently in effect for posttraumatic stress disorder during various periods, the Veteran has been awarded a 100 percent evaluation from March 23 to June 1, 2009, and again from October 6 to November 1, 2009, based on hospitalization for a period in excess of 21 days for treatment of service-connected posttraumatic stress disorder under the provisions of 38 C.F.R. § 4.29 (2012). The Veteran also seeks entitlement to service connection for alcohol abuse secondary to posttraumatic stress disorder. Inasmuch as that issue has not been developed or certified for appellate review, it is not for consideration at this time. It is, however, being referred to the RO for clarification, and if necessary, appropriate action. Finally, for reasons which will become apparent, the question what evaluation is warranted for posttraumatic stress disorder from October 31, 2007 is remanded to the RO via the Appeals Management Center (AMC) in Washington, D.C. VA will notify you if further action is required on your part. FINDING OF FACT During the period from September 20, 2006, to October 30, 2007, the Veteran's posttraumatic stress disorder was not manifested by occupational and social impairment, with reduced reliability and productivity. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 30 percent for posttraumatic stress disorder during the period from September 20, 2006 to October 30, 2007 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Inasmuch as service connection, an initial rating, and an effective date have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. Moreover, VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claim, and, as warranted by law, affording VA examinations. Currently, there is no evidence that additional records have yet to be requested, or that additional examinations are in order with respect to the issue addressed in this decision. There is no evidence of any error or issue which precludes the Board from addressing the merits of the Veteran's appeal. Increased Rating In reaching this determination, the Board has reviewed all the evidence in the Veteran's claims file, which includes his multiple contentions, including those offered during the course of a hearing before the undersigned in March 2013, as well as VA including Virtual VA treatment records and examination reports. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claim, and what the evidence in the claims file shows, or fails to show, with respect to that claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran in this case seeks an increased evaluation for posttraumatic stress disorder. In pertinent part, it is contended that manifestations of that disability are more severe than presently evaluated, and productive of a greater degree of impairment than is reflected by the initial 30 percent evaluation in effect from September 20, 2006 to October 30, 2007. In this regard, disability evaluations, in general, are intended to compensate for the average impairment of earning capacity resulting from a service-connected disability. They are primarily determined by comparing objective clinical findings with the criteria set forth in the Rating Schedule. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations apply, the higher evaluation will be assigned where the disability picture more nearly approximates the criteria for the next higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. While the Board must consider the Veteran's medical history as required by various provisions under 38 C.F.R. Part 4, including 38 C.F.R. § 4.2 [see Schafrath v. Derwinski, 1 Vet. App. 589 (1991)], the degree of impairment resulting from a service-connected disability is a factual determination, with the Board's primary focus in such cases being upon the current severity of the service-connected disability. See Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that the Francisco rule does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an award of service connection for the disability in question. Rather, at the time of the initial rating, separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id. at 126. Accordingly, the analysis in this decision is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Ratings are to be based as far as practicable upon the average impairment of earning capacity, with the additional proviso that the Secretary shall, from time to time, readjust the schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in 38 C.F.R. § 3.321 an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture, with such related factors as a marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). In the case at hand, in a September 2007 rating decision the RO granted service connection and a 30 percent evaluation for posttraumatic stress disorder, effective from September 20, 2006. The Veteran voiced his disagreement with that assignment of benefits. In an October 2009 rating decision the Veteran was awarded a 50 percent evaluation for posttraumatic stress disorder, effective from October 31, 2007, the date of a period of hospitalization for posttraumatic stress disorder. The current appeal ensued. At a July 2007 VA psychiatric examination the Veteran indicated that he was working as a lineman for a local utility company, a job he had held for the prior 23 years. When questioned, the Veteran noted that he suffered from flashbacks, nightmares, a startle response, and hypervigilance, and that, while he still experienced memories of inservice trauma, he was nonetheless able "to work and do things." According to the Veteran, he had received no psychiatric treatment for his service-connected posttraumatic stress disorder. Nor did he think such treatment "would make any difference." While by the Veteran's own admission, his ability to relate was "good," he was unable to discuss his Vietnam experiences. On mental status examination, the Veteran was reasonably kempt, awake, and alert, with eye contact which sometimes fluctuated. According to the examiner, the Veteran appeared somewhat depressed and anxious, though with no evidence of suicidal or homicidal ideation, and no delusions or hallucinations. Noted at the time of examination was that the Veteran became "rather tense" when talking about Vietnam. Reportedly, the Veteran continued to experience problems with flashbacks, nightmares, hypervigilance, startle response, and a "continual process of loneliness." Additionally noted was a sense of guilt, in conjunction with somewhat lower psychomotor activity, low self-esteem, and a poor self-image. According to the examiner, there appeared to be a lack of drive, foresight, and initiative, as well as a lack of motivation, though, as previously noted, with no evidence of suicidal or homicidal ideation. The Veteran's memory on the whole was good for past, present, and recent events, and immediate recall was also good. Attention and concentration level were fair. The Veteran was oriented in all spheres. In the opinion of the examiner, the Veteran did appear to have insight into his problems, and his judgment was described as fair. The pertinent diagnosis noted was unresolved posttraumatic stress disorder with features of depression and anxiety, with a Global Assessment of Functioning Score of "about 50 to 55." Pursuant to applicable law and regulation, the 30 percent evaluation in effect from September 20, 2006 to October 30, 2007 for the Veteran's posttraumatic stress disorder contemplates the presence of occupational and social impairment, with a 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/or mild memory loss (such a forgetting names, directions, and recent events). In contrast, a 50 percent evaluation requires demonstrated evidence of occupational and social impairment with reduced reliability and productivity due to such symptoms as: a 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/or difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. Global Assessment of Functioning scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) [citing the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), page 32]. A Global Assessment of Functioning Score of between 41 and 50 is defined as "serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment of social, occupational, or school functioning (e.g., no friends, unable to keep a job). Id. A Global Assessment of Functioning Score of between 51 and 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)." While the Rating Schedule does indicate that the rating agency must be familiar with the Diagnostic and Statistical Manual of Mental Disorders it does not assign disability percentage based solely on Global Assessment of Functioning Scores. See 38 C.F.R. § 4.130. Rather, Global Assessment of Functioning Scores are but one factor to be considered in conjunction with all other pertinent evidence of record. In this case the evidence is clear that, during the period from September 20, 2006 to October 30, 2007, no more than a 30 percent evaluation was warranted for the Veteran's posttraumatic stress disorder. At no time during that period did the Veteran exhibit symptomatology such as a flattened affect, or circumstantial, circumlocutory, or stereotyped speech. Further, there was no evidence of difficulty in understanding complex commands, or any impairment of short- and/or long-term memory. In fact, the Veteran's memory "on the whole" was good for past, present, and recent events, and his immediate recall was "good." Attention, concentration, and judgment were described as fair, and the Veteran appeared to have insight into his problems. There was no evidence of impaired abstract thinking, or any disturbance of motivation and mood. Moreover, the Veteran was working full-time and had been so employed for more than 20 years. Under the circumstances, the 30 percent evaluation in effect for the Veteran's service-connected posttraumatic stress disorder during the period from September 20, 2006 to October 30, 2007 is appropriate, and an increased rating is not warranted. As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008). The first question is whether the schedular rating criteria adequately contemplate the Veteran's disability picture. Id. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. The discussion above reflects that the symptoms of the Veteran's posttraumatic stress disorder are fully contemplated by the applicable rating criteria. The July 2007 VA examiner indicated that the Veteran was employed full time and there was no suggestion that he missed work due to posttraumatic stress disorder. His memory was good, he was oriented, he demonstrated insight, and he exercised fair judgment. The pathology associated with his posttraumatic stress disorder is appropriately rated by using symptoms such as those described in the rating criteria. Certainly, posttraumatic stress disorder caused some degree of impairment, but it did not constitute "marked interference" with employment. 38 C.F.R. § 4.1 (2012).. There is no evidence that the Veteran was frequently hospitalized for this disability during the term addressed herein. The Board therefore finds that referral for consideration of an extraschedular evaluation for posttraumatic stress disorder is not warranted. 38 C.F.R. § 3.321(b)(1) . ORDER An initial evaluation in excess of 30 percent for posttraumatic stress disorder during the period from September 20, 2006 to October 30, 2007 is denied. REMAND The Veteran seeks entitlement to an evaluation in excess of 50 percent for posttraumatic stress disorder effective from October 31, 2007. However, a review of the record raises some question as to the current severity of that particular disability. In that regard, since a VA hospitalization in October and November 2007, the Veteran has received continued treatment on both an inpatient and outpatient basis for his service-connected posttraumatic stress disorder. Moreover, pertinent evidence of record is to the effect that the Veteran last underwent a VA examination for the purpose of determining the severity of his service-connected psychiatric disorder in July 2007, at this point, more than seven years ago. See Snuffer v. Gober, 10 Vet. App. 400 (1997); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Further, at his March 2013 hearing, the Veteran indicated that he was receiving treatment not only from his local VA medical facilities, but also from a private medical facility, specifically, the West Springfield Substance Abuse Clinic, records of which are not at this time a part of his claims folder. Additionally, the Veteran testified that since July 2007, his posttraumatic stress disorder symptomatology had been becoming progressively worse. See Transcript, p. 7. Based on the aforementioned, further development of the evidence is necessary prior to a final adjudication of the Veteran's claim. Accordingly, the case is REMANDED to the RO/AMC for the following actions: 1. The RO/AMC should contact the Veteran and request that he provide the full address for the West Springfield Substance Abuse Clinic from which he has reportedly been receiving treatment for his posttraumatic stress disorder. Following receipt of that information, the RO/AMC should contact the facility in question, and request that they provide copies of any and all records of treatment of the Veteran at their facility. The Veteran should be requested to sign the necessary authorization for release of such private medical records to the VA. All attempts to procure such records should be documented in the file. If the RO/AMC cannot obtain records identified by the Veteran, a notation to that effect should be included in the claims file. In addition, the Veteran and his representative should be informed of any problems securing these records. 2. Any pertinent VA or other inpatient or outpatient treatment records, subsequent to October 2012, the date of the most recent evidence of record, should then be obtained and incorporated in the claims folder. Once again, the Veteran should be requested to sign the necessary authorization for release of any private medical records to the VA. All attempts to procure such records should e documented in the file. If the RO cannot locate such records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 3. Thereafter, the Veteran must be afforded an additional VA psychiatric examination in order to more accurately determine the current severity of his posttraumatic stress disorder since October 31, 2007. The Veteran is to be notified that it is his responsibility to report for the examination, and to cooperate in the development of his claim. The Veteran is further to be advised that the consequences for failure to report for a VA examination without good cause may include denial of his claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the Veteran's last known address. It should also be indicated whether any notice sent was returned as undeliverable. Following completion of the psychiatric examination, and in accordance with the latest worksheets for rating psychiatric disabilities, the examiner is to provide a detailed review of the Veteran's pertinent psychiatric history and current complaints, as well as the nature and extent of his posttraumatic stress disorder. A complete rationale must be provided for any opinion offered, and all information and opinions, once obtained, must be made a part of the Veteran's claims folder. The claims folder, access to Virtual VA and a separate copy of this REMAND must be made available to and reviewed by the examiner prior to completion of the examination. In addition, the examiner must specify in his report that the claims file and Virtual VA records have been reviewed. 4. The RO/AMC should then review the examination report to ensure that it is in complete compliance with the directives of this REMAND, and that the examiner has documented his consideration of all records contained in Virtual VA. If the report is deficient in any manner, the RO/AMC must implement corrective procedures. 5. The RO/AMC should then readjudicate the Veteran's claim for an evaluation in excess of 50 percent for posttraumatic stress disorder effective from October 31, 2007. Should the benefit sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case which must contain notice of all relevant action taken on the claim for benefits since November 2012. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome in this case. The Veteran need take no action unless otherwise notified. 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). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs