Citation Nr: 1323131 Decision Date: 07/19/13 Archive Date: 07/24/13 DOCKET NO. 13-00 430 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to April 4, 2013, and to a rating in excess of 50 percent thereafter. 2. Entitlement to service connection for left ear hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran served on active duty from October 1967 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The RO granted service connection for PTSD and assigned a 30 percent rating effective June 27, 2011. The RO also denied service connection for left ear hearing loss and tinnitus. In a May 2013 rating decision, the RO granted a 50 percent rating for PTSD effective April 4, 2013. In a June 2013 statement, the Veteran indicated that he was satisfied with the 50 percent rating but wished to continue his appeal for the rating assigned prior to that award. However, in its July 2013 Informal Hearing Presentation, the Veteran's representative continued to take issue with the 50 percent rating as well. Therefore, the Board will address the ratings assigned throughout the entire appeal period. A portion of the Veteran's records are contained in the Virtual VA system. Instead of paper, a highly secured electronic repository is used to store and review every document involved in the claims process. The use of this system allows VA to leverage information technology in order to more quickly and accurately decide a Veteran's claim for benefits. Because the current appeal was processed as part of the Virtual VA system, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The issues of entitlement to service connection for left ear hearing loss and tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington D.C. FINDINGS OF FACT 1. Prior to April 4, 2013, the Veteran's PTSD was manifested by disturbances in mood and motivation, chronic sleep impairment, anxiety, and a GAF score of 65. 2. From April 4, 2013, the Veteran's PTSD was manifested by some irritability, hypervigilance, chronic sleep impairment, anxiety, and a GAF score of 62. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for PTSD have not been met prior to April 4, 2013. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9411 (2012). 2. The criteria for a rating in excess of 50 percent for PTSD have not been met from April 4, 2013. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 A. Duty to Notify Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it 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. 38 C.F.R. § 3.159 (2012). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Here, the Veteran is challenging the initial evaluation assigned following the grant of service connection. In Dingess, the U.S. Court of Appeals for Veterans Claims (Court) held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. Moreover, in the Veteran's November 2011 notice of disagreement (NOD), he appealed the initial disability rating assigned for his PTSD and is presumed to be seeking the maximum benefits available under the law for that issue. Dingess; see also AB v. Brown, 6 Vet. App. 35 (1993). Therefore, in accordance with 38 U.S.C.A. §§ 5103(a) and 7105(d), the RO properly issued a November 2012 statement of the case (SOC) which contained, in part, the pertinent criteria for establishing a higher rating. See 38 U.S.C.A. § 7105(d)(1). VA complied with the procedural statutory requirements of 38 U.S.C.A. §§ 5104(b) and 7105(d), as well as the regulatory requirements in 38 C.F.R. § 3.103(b). See also Dingess. The Veteran was allowed a meaningful opportunity to participate in the adjudication of the claim. Even though the initial VCAA notice did not address a higher rating, subsequent documentation addressed this matter; there is no prejudice to the claimant. See Overton v. Nicholson, 20 Vet. App. 427 (2006). B. Duty to Assist The Veteran's service treatment records and VA treatment records have been associated with the claims file. As discussed below, additional VA treatment records are outstanding. However, these records were generated many years prior to the period on appeal. As discussed below, in increased rating claims, the most critical evidence consists of the evidence generated during the appeal period. The Veteran was also afforded VA examinations. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examinations obtained in this case are adequate as they are collectively predicated on a review of the claims file; contain a description of the history of the disabilities at issue; document and consider the relevant medical facts and principles; and record the relevant findings for rating the Veteran's PTSD. VA's duty to assist with respect to obtaining a VA examination or opinion for the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). VA has provided the Veteran with the opportunity to submit evidence and argument in support of his claims. The Veteran has not made the Board aware of any additional evidence that needs to be obtained prior to appellate review, and no further action must be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Increased Rating A. Applicable Law Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). 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 (2012). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2012). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App 119 (1999). The Court has also held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2008). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether the Veteran raised them, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). The Veteran's PTSD is rated under Diagnostic Code 9411. He was assigned a 30 percent rating prior to April 4, 2013, and a 50 percent rating from that date. A 30 percent rating is assigned 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, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is 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. Id. A 70 percent disability rating is assigned 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 that is 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); and inability to establish and maintain effective relationships. Id. A 100 percent disability rating is assigned 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, or for the Veteran's own occupation or name. Id. The record also contains Global Assessment of Functioning (GAF) scores. As described in the Fourth Edition of the American Psychiatric Association's DIAGNOSTIC AND STASTICAL MANUAL FOR MENTAL DISORDERS (DSM-IV), GAF scores range from 1 to 100, depending on the level of a person's occupational and social functioning. The GAF score is a scaled rating reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996). GAF scores from 71 to 80 reflect transient symptoms, if present, and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family arguments); resulting in no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind school work). DSM-IV at 46-47. GAF scores from 61 to 70 reflect 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. Id. GAF scores ranging from 51 to 60 reflect 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). Id. Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsession rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, inability to keep a job). Id. GAF scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech which is at times illogical, obscure, or irrelevant) or major impairment in several areas such as work or school, family relations, judgment, thinking, or mood (e.g., a depressed patient who avoids friends, neglects family, and is unable to do work). Id. B. Evidence The Veteran was seen in August 2011 for a psychiatric consult. He reported feeling "crappy" and had significant financial distress. He had a history of alcohol dependence. He reported feeling depressed about 2 days a week, usually lasting all day. He had poor sleep onset and maintenance, and awoke due to nightmares. He complained of feelings of guilt related to combat trauma, fatigue, being easily distracted, and poor concentration. He denied any suicidal or homicidal ideation. His judgment/insight was limited. He reported anxiety related to financial problems, but denied panic attacks. He continued to drink 8 to 12 beers per night. A VA examination was conducted in September 2011. The Veteran was diagnosed with chronic PTSD, as well as alcohol dependence in remission. He was prescribed medication for mental health, but was not currently taking it. He stated that various stimuli, such as media and loud noises, triggered recollections of his traumatic experiences. He also experienced sleep disturbances, and had nightmares 2 or 3 times per week. He tried to avoid any conversation or media associated with war or Vietnam. The examiner noted that the Veteran's condition was manifested by anxiety, chronic sleep impairment, and disturbances in mood or motivation. He stated that while a mental condition had been diagnosed, symptoms were not severe enough to interfere with occupational or social functioning. The Veteran's GAF score was 65. Another VA examination was conducted in April 2013. The Veteran reported drinking heavily. He watched television for 6 to 8 hours per day, and conducted maintenance activities around his apartment. He occasionally went for walks in warm weather. He had a couple of friends he meets at a bar. He continued to have nightmares and difficulty with sleeping, as well as intrusive thoughts. He avoided conversations and media reports associated with war or Vietnam. He was distrustful of people and bought another pistol to keep in his car. He was uncomfortable in crowds of 8 or more. He also experienced some irritability and hypervigilance. On examination, the Veteran presented with adequate grooming and hygiene. Eye contact was shifting but not grossly unmaintained. Speech was normal. There was no evidence of psychosis. The Veteran's mood was anxious, and his affect was congruent with mood. He was alert and generally oriented. He denied any suicidal or homicidal ideation. Testing revealed memory to be lower than expected for his age, but did not represented a pathologically reduced capacity. Attention and concentration were adequate. He appeared able to attend to the activities of daily living. The examiner noted that the Veteran sought a higher rating based upon the unpleasantness of his traumatic experiences, rather than the intensity of his current symptoms. There was relatively little functional restriction resulting from his symptoms, given that he took himself out to bars to remedy boredom. He did his own shopping and maintained his apartment. The examiner also noted that the Veteran's drinking appeared to be more of a social substitute than an act of avoidance. His GAF score was 62. C. Analysis Based on the evidence of record, a rating in excess of 30 percent for PTSD is not warranted prior to April 4, 2013. As noted above, a higher 50 percent rating is warranted for symptoms such as a flattened affect, abnormal speech, panic attacks, difficulty in understanding complex commands, impairment of long term memory, impaired judgment, impaired abstract thinking, and disturbances of motivation and mood. This is not an exhaustive list of symptoms, but examples of the level of impairment associated with a 50 percent rating. Nonetheless, the findings prior to April 4, 2013 only reflect disturbances in motivation and mood and impaired judgment. The other listed manifestations are not present. While the Veteran's condition was also noted to include anxiety and chronic sleep impairment, these symptoms are specifically contemplated by the assigned 30 percent rating. His GAF score of 65 represents a mild spectrum of symptoms, and the examiner stated that symptoms were not severe enough to interfere with occupational or social functioning. This does not reflect an overall level of impairment consistent with a 50 percent rating, which contemplates reduced reliability and difficulty in establishing and maintaining effective relationships. From April 4, 2013, a rating in excess of 50 percent is not warranted. A higher 70 percent disability rating contemplates symptoms such as suicidal ideation, obsessional rituals which interfere with routine activities, irrelevant or illogical speech, a near-continuous panic or depression, impaired impulse control, spatial disorientation, and a neglect of personal appearance and hygiene. Again, while this does not represent a complete list of symptoms consistent with the higher rating, the Veteran's PTSD was not manifested by any of them during the April 2013 VA examination. His GAF score was 62, which again represents a relatively mild spectrum of symptoms and overall adequate functioning. The examiner specifically noted that there was relatively little functional restriction resulting from his symptoms, and that the Veteran's drinking appeared to be more of a social substitute than an act of avoidance. These findings do not reflect an overall level of disability consistent with the higher 70 percent rating. As the preponderance of the evidence is against the Veteran's claim, it must be denied. D. Extraschedular Consideration In evaluating the Veteran's claims for higher ratings, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). As part of the evaluation for an extraschedular rating, the Board has considered the provisions of Mittleider v. West, 11 Vet. App. 181, 182 (1998), which holds that the benefit of the doubt applies to determinations of whether a symptom should be attributed to a service-connected condition. The Board has attributed all potentially service-connected symptoms to the Veteran's service-connected conditions in considering if the Veteran is entitled to an extraschedular rating. According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disabilities is inadequate. A comparison between the level of severity and symptomatology of the Veteran's PTSD with the established criteria found in the rating schedule for that disability shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology, as discussed above. In other words, the Veteran's symptoms of anxiety, mood and motivational disturbances, and sleep impairment are all specifically referenced under Diagnostic Code 9411. The record does not reflect that the Veteran's PTSD results in any symptoms that fall so far outside the rating schedule as to render it inadequate. ORDER A rating in excess of 30 percent for PTSD prior to April 4, 2013 is denied. A rating in excess of 50 percent for PTSD from April 4, 2013 is denied. REMAND The Veteran was afforded a VA examination for his PTSD in September 2011. The examination report reflects that the Veteran had previously received VA treatment around 1999. However, the only VA records associated with the claims file were generated in 2011, and specifically note that the Veteran sought to "re-establish" care with VA. Therefore, the matter must be remanded to obtain the Veteran's complete VA treatment records and associate them with the paper or electronic claims files. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA has constructive, if not actual, notice of this additional evidence because it is generated within VA's healthcare system and therefore deemed to be in VA's possession, even if not physically in the file). See also 38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. §§ 3.159(c)(2), (c)(3). With respect to the Veteran's tinnitus claim, no opinion has been obtained addressing the etiology of his condition. Notably, the Veteran denied having tinnitus at his October 2011 VA examination. However, through his representative, the Veteran has continued to assert that he has tinnitus and that it is related to his noise exposure in service. He is competent to report ongoing symptoms of tinnitus. Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran served as a turbine helicopter mechanic in service, and also reported serving as a helicopter gunner. Therefore, military noise exposure is conceded. In light of these facts, an opinion addressing the etiology of his tinnitus should be obtained. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Appropriate efforts should be made to obtain the Veteran's complete VA treatment records from the St. Louis VA Medical Center, dated since 1999. If the RO/AMC is unable to obtain these records after making as many requests as are necessary, and concludes that they do not exist or that further efforts to obtain them would be futile, it should make a formal finding of unavailability. A copy of the formal finding should be associated with the claims file. The RO/AMC must also notify the Veteran that it was unable to obtain these records. The notice should: (a) identify the specific records VA is unable to obtain; (b) briefly explain the efforts that VA made to obtain those records; (c) describe any further action to be taken by VA with respect to the claim; and (d) notify him that he is ultimately responsible for providing the evidence. 2. Thereafter, the claims file, including a copy of this remand, should be forwarded to the December 2012 VA examiner. The examiner should review the claims file and provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's tinnitus is etiologically related to noise exposure in service. For the purposes of this opinion, noise exposure in service is conceded, and the examiner should note that the Veteran is competent to report his own symptoms of tinnitus. All opinions should be supported by a complete explanation. If the December 2012 VA examiner is not available, then the claims file should be forwarded to another appropriate VA examiner, who should comply with the above instructions. If any examiner determines that additional examination of the Veteran is necessary to generate the requested opinion, an examination should be scheduled, and the Veteran must be given complete notice regarding the date, time, and place of the examination. 3. After the requested development has been completed, any further development that may be warranted as a result of information contained in the recently acquired VA records, such as additional examinations or opinions, should also be completed. The RO/AMC should then readjudicate the merits of the Veteran's claims based on all the evidence of record. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 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). ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs