Citation Nr: 1323047 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 10-29 884 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The Veteran had active duty service from August 1967 to August 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the St. Louis, Missouri Department of Veterans Affairs (VA) Regional Office (RO) that granted an increased disability rating from 10 percent to 30 percent for the Veteran's service-connected PTSD. An interim December 2008 rating decision of the St. Petersburg, Florida RO further increased the rating to 50 percent. The Veteran's claims file is now in the jurisdiction of the New York, New York RO. This case was previously before the Board in September 2012 when it was remanded to schedule the Veteran for a travel board hearing. This hearing, conducted by the undersigned, took place in May 2013. A copy of the transcript is of record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran seeks increased disability compensation for his service-connected PTSD. Specifically, the Veteran alleges his PTSD symptoms are worse than described in the criteria for a 50 percent rating. The Veteran was last afforded a VA examination in August 2008. Since this examination, the Veteran reports his PTSD symptoms have worsened. VA treatment records from 2008 through 2012 detail complaints by the Veteran of worsening symptoms, such as depression, sleeplessness, flashbacks, nightmares, irritability, anxiety, and social isolation, including conflicts with his wife and son. Most notably, at the May 2013 hearing, the Veteran testified that due to his PTSD he was forced to resign from employment in January 2013. While a new examination is not required simply because of the time which has passed since the last examination, VA's General Counsel has indicated that a new examination is appropriate when there is an indication of an increase in severity since the last examination. See Green v. Derwinski, 1 Vet. App. 121 (1991); VAOPGCPREC 11-95 (1995); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (finding that VA should have ordered a contemporaneous examination of the Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating); see also Snuffer v. Gober, 10 Vet. App. 400 (1997) (a Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination). In this case, approximately five years have passed since the last VA examination, during which time the Veteran asserts his PTSD symptoms have worsened. Under the circumstances, the Board finds that another VA examination is appropriate. Additionally, the Board notes that while the Veteran asserts a worsening of PTSD symptoms, VA treatment records show an improvement in his assigned Global Assessment Functioning (GAF) scores. The GAF score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (1996). A score of 31 to 40 reflects some impairment in reality testing or communication or major impairment in several areas such as work or school, family relations, judgment, thinking, or mood. A score of 41 to 50 is assigned where there are "[s]erious 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)." DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM-IV) 47 (4th ed. 1994). A score of 51 to 60 is appropriate where there are "[m]oderate 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)." Id. A GAF score of 61 to 70 indicates the examinee has some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functions pretty well with some meaningful interpersonal relationships. Id. at 46. On VA examination in December 2007, the Veteran was noted to have a GAF score of 45, indicating serious impairment. On VA examination in August 2008, a GAF score of 55 was noted, indicating moderate symptoms. Most recently, in May 2012, a GAF score of 70 was assigned, indicating mild symptoms. The highest GAF score assigned was 75 in a VA treatment record dated May 2011. Therefore, a VA examination is needed to reconcile the Veteran's claimed symptoms and the assigned GAF scores. Furthermore, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a request for a total disability rating based on individual unemployability (TDIU), whether expressly raised by a veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue of whether a TDIU is warranted as a result of that disability. Id. at 453-54. As noted above, at the May 2013 hearing, the Veteran testified that he worked as a bus driver from 1990 until January 2013, but that due his PTSD symptoms (to include regression, fear, inability to concentrate, aggravation) he was forced to resign. He testified that he was afraid he would be in an accident or that something would happen to the school children he drove. The Veteran is currently unemployed. As the RO has not developed or adjudicated the matter of whether the Veteran is entitled to TDIU, under Rice, the Board has no option but to remand for such action. 38 C.F.R. § 4.16. The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the matter must be considered. Further, the record suggests the Veteran continues to receive treatment for his PTSD at the VA medical center in Bronx, New York. However, relevant VA treatment records, dated since May 2012, have not been associated with his file. VA is obligated to obtain and consider these records in adjudicating this appeal. 38 C.F.R. § 3.159(c)(2). Upon remand, the RO should obtain all relevant VA treatment records from May 2012 to the present. Accordingly, the case is REMANDED for the following action: 1. The RO should provide the Veteran with a TDIU application form for his completion, and send him the appropriate notice letter notifying him and his representative of what is necessary to substantiate a claim for TDIU. The Veteran and his representative should have the opportunity to respond. 2. The RO must obtain copies of all relevant VA treatment records dated from May 2012 to the present. 3. The RO should then arrange for an evaluation of the Veteran to determine (1) the current severity of his PTSD and (2) to determine whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. The entire record must be reviewed by the examiner in conjunction with the examination. Based on examination and interview of the Veteran, and review of the record, the examiner should provide opinions that respond to the following: a. Please identify all symptoms and impairment associated with the Veteran's PTSD, noting their frequency and severity. b. Please comment on the symptoms noted and GAF scores assigned in the course of the Veteran's 2007-2012 VA treatment and on December 2007 and August 2008 VA examinations, reconciling any inconsistencies (i.e., between GAF scores assigned and symptoms noted, and any improvement shown). If any apparent inconsistencies cannot be reconciled, please explain why. c. Please comment on the impact of the Veteran's service-connected PTSD on his employability. The examiner should discuss all impairment and/or symptoms caused by PTSD and state the impact that these impairment and/or symptoms have on his ability to work; and d. Please comment on the impact of the Veteran's service-connected disabilities (PTSD; diabetes; residuals of a fragment wound to the left knee, to include osteoarthritis; residuals of a fragment wound to the right forearm; degenerative disc disease of the cervical spine to include radiculopathy; intervertebral disc syndrome of the lumbar spine to include radiculopathy; residuals of fragment wounds to the right shoulder and abdomen; and left lateral femoral cutaneous nerve damage due to mortar wound) on his employability. The examiner should discuss all impairment and/or symptoms caused by his service-connected disabilities and state whether he is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. A complete rationale for all opinions expressed should be provided. 4. The RO should then re-adjudicate the matter of the rating assigned for the Veteran's service-connected PTSD as well as entitlement to TDIU. If any benefit sought remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ M. C. GRAHAM Acting 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).