Citation Nr: 1322818 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 10-01 772 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to a disability evaluation higher than 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a disability rating higher than 70 percent for PTSD, since April 13, 2009. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Sean Kendall, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The Veteran's active military service extended from November 1963 to November 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho which, in part, denied entitlement to a disability rating in excess of 50 percent for PTSD. In November 2011, the Board issued a decision denying a disability evaluation higher than 50 percent for PTSD. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court) which, in February 2013, based upon a Joint Motion for Remand (JMR), vacated the Board's decision and remanded the matter back to the Board for further action. Claims for service connection for psychiatric disabilities, including PTSD, may encompass claims for service connection for all diagnosed psychiatric disabilities. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The record, to include an April 2013 letter from a private counselor raises the issue of a TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The issues have been recharacterized to comport with the evidence. The issues of an evaluation higher than 70 percent, from April 13, 2009, for PTSD, and a TDIU being remanded are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office in Boise, Idaho. FINDING OF FACT PTSD is productive of at least occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, from April 13, 2009. CONCLUSION OF LAW The criteria for 70 percent disability evaluation for PTSD, from April 2009, are met. 38 U.S.C.A. §§ 1154(a), 1155, 5107, 5121A (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012). Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Letters in February 2009 and August 2009 satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1). These letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claim was subsequently readjudicated, most recently in a March 2013 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; he did not identify any additional treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran's Social Security Administration disability determination, and the records considered in that determination, have been obtained. 38 C.F.R. § 3.159 (c) (2). VA examinations were conducted in May 2008 and November 2009; the Veteran has not argued, and the record does not reflect, that these examinations/opinions were inadequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c)(4). The rationales for the opinions are based on objective findings, reliable principles, and sound reasoning. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Criteria Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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 (2012). To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Separate ratings for distinct periods of time, based on the facts are for consideration. In Fenderson v. West, 12 Vet. App. 119 (1999); see also See Hart v. Mansfield, 21 Vet. App. 505 (2007). Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). The Veteran's PTSD is currently rated pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. According to 38 C.F.R. § 4.126(a), a mental disorder shall be evaluated "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 examination." 38 C.F.R. § 4.126(a) (2012). Under Diagnostic Code 9411, the criteria for a 30 percent disability rating include: 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. A 50 percent rating is warranted if the evidence shows 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. A 70 percent evaluation is warranted if evidence shows 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 work like setting); and an inability to establish and maintain effective relationships. A 100 percent evaluation is warranted if evidence shows 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; and memory loss for names of close relatives, own occupation, or own name. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). In determining whether the Veteran meets the criteria for a higher rating, the Board must consider whether the Veteran has deficiencies in most of the following areas: work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11 (2001). In rating the severity of the Veteran's psychiatric disability under the criteria listed above, psychiatric health care providers have their own system for rating psychiatric disability. This is the Global Assessment of Functioning (GAF) rating scale, which is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM- IV); Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing DSM-IV. The GAF scale score assigned does not determine the disability rating VA assigns, but it is one of the findings employed in that determination. As relevant to this case, a GAF score from 41 to 50 is defined as serious symptoms or any serious impairment in social, occupational, or school functioning. A GAF score between 51 and 60 is indicative 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 coworkers). The Veteran's service-connected PTSD has been rated as 50 percent disabling since February 2007. A February 2008 VA outpatient treatment record notes a history of depression and that the Veteran had stopped taking prescribed antidepressants. In May 2008, a VA psychiatric Compensation and Pension examination of the Veteran was conducted. He reported having dreams or nightmares of his combat service three to four times a week. He reported having rare intrusive thoughts which were triggered by specific stimuli such as rain or smoke. He reported avoidant symptoms of not reading or discussing the war and arousal symptoms of awakening often at night. He indicated a tendency towards frustration with poor sleep and concentration. He reported staying at home mostly and doing chores around his home and watching television. He indicated that much of his activity was limited by his nonservice-connected orthopedic pain problems. He reported enjoying interaction with family members such as his wife and grandchildren. Mental status examination revealed he was oriented with normal speech. Hygiene was good. Mood was euthymic; affect was upbeat. Memory was intact. Form of thought was generally linear with purpose and without evidence of psychosis, homicidal ideation, or suicidal ideation. The diagnosis was PTSD and major depressive disorder. A Global Assessment of Functioning (GAF) scale score of 55 was assigned. Vet Center records reflect a GAF score of 45 on April 13, 2009, as well as in August 2009. Consistent with the GAF score of 45 reflected in the Vet Center records is the GAF score of 50 assigned on VA examination in November 2009. Objective findings reported include impaired judgment and thinking, disturbances of mood, and memory impairment, as well as difficulty establishing and maintaining effective work and social relationships. Prior to April 13, 2009, the evidence does not show occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Rather, the evidence, to include the May 2008 VA examination report shows at most, moderate PTSD symptoms consistent with a GAF score of 55 assigned. The May 2008 VA report of examination notes that the Veteran was enjoying his new wife and her grandsons, and reported more purpose in his life. A rating higher than 50 percent is not warranted prior to April 13, 2009. The criteria for both a 50 percent and 70 percent evaluation require occupational and social impairment and, resolving doubt in the Veteran's favor, the Board finds that symptoms associated with PTSD more nearly approximate the criteria for a 70 percent rating, from April 13, 2009, the date of the Vet Center record indicating increased symptoms resulting in decreased functioning. The evidence establishes deficiencies in the most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). The records objectively confirm that PTSD and related symptoms affect the Veteran's ability to function independently and result in social and occupational impairment, from 13, April 2009. Accordingly, a 70 percent rating is warranted from April 13 2009. ORDER A 70 percent disability evaluation for PTSD, from April 13, 2009, is granted. REMAND The Veteran's PTSD is rated as 70 percent disabling. The next higher rating requires total social and occupational impairment due to PTSD symptoms. In view of the April 2013 opinion from the Veteran's private counselor, the Veteran is to be afforded contemporaneous VA examination to assess the current nature, extent and severity of his PTSD. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The issue of entitlement to a TDIU raised by the record is inextricably intertwined with increased rating claim, and VA is required to decide those issues together. Harris v. Derwinski, 1 Vet. App. 180 (1991) (when a determination on one issue could have a significant impact on the outcome of another issue, such issues are inextricably intertwined). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA psychiatric examination by an appropriate medical professional. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner is to conduct all indicated tests. The examiner is to identify the nature, frequency and severity of all current psychiatric symptoms, and specifically address the degree of social and occupational impairment caused solely by the Veteran's psychiatric disability, and particularly, whether there is total social and occupational functioning due to PTSD symptoms. The examiner must opine as to whether it is at least as likely as not that the Veteran's psychiatric disability alone renders him unable to secure or follow a substantially gainful occupation. 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). Then, readjudicate the appeal. If either benefit sought remains denied, issue a Supplemental Statement of the Case and return the case to the Board. 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). These claims 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). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs