Citation Nr: 1325424 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 11-08 760A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for bilateral tinnitus. 3. Entitlement to total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1969 to August 1971, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey that denied service connection for tinnitus and granted service connection for PTSD, assigning an initial 50 percent rating, effective November 10, 2009. The issue of entitlement to a TDIU was not certified for appeal. However, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). As the evidence suggests that the Veteran may be unemployable due to symptoms of his service-connected PTSD, the issue of entitlement to a TDIU has been raised and is within the jurisdiction of the Board. The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they do not contain any additional evidence relevant to the issues on appeal. In the decision below, the Board grants a 70 percent rating for PTSD. However, additional development is required to determine whether an even higher rating is warranted. Therefore, the issue of entitlement to an evaluation in excess of 70 percent for service-connected PTSD, as well as the issue of entitlement to a TDIU, 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. Since November 10, 2009, the Veteran's PTSD has been manifested by occupational and social impairment with deficiencies in most areas, due to such symptoms as impaired impulse control, neglect of personal appearance and hygiene, inability to establish and maintain effective relationships, restricted affect, sleep problems, flashbacks, mood swings, intrusive thoughts, startling easily, nightmares, and hypervigilance. 2. The evidence shows that bilateral tinnitus had its onset in service. CONCLUSIONS OF LAW 1. Effective November 10, 2009, the criteria for a rating of at least 70 percent for PTSD have been met. 38 U.S.C.A. § 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012). 2. Bilateral tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In light of the fully favorable determinations in this case, no further discussion of compliance with VA's duty to notify and assist is necessary. I. Higher Rating Claim Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. Separate diagnostic codes (DCs) identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's PTSD is currently rated 50 percent disabling. He contends that throughout the entire appeal period his PTSD has been more severe than the currently assigned rating and that he is entitled to a higher initial rating. The Veteran's PTSD is currently rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9411 (2012). Ratings are assigned according to the manifestation of particular symptoms. 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). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). Under the General Rating Formula for Mental Disorders, 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 and maintaining effective work and social relationships. 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 that 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. When determining the appropriate disability evaluation to assign for psychiatric disabilities, the Board's "primary consideration" is the Veteran's symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013.) The Board finds that for the entire appeal period the Veteran's PTSD has been manifested by at least occupational and social impairment with deficiencies in most areas due to such symptoms as impaired impulse control, neglect of personal appearance and hygiene, inability to establish and maintain effective relationships, restricted affect, sleep problems, flashbacks, mood swings, intrusive thoughts, startling easily, nightmares, and hypervigilance. The evidence shows that the Veteran has an inability to establish and maintain effective relationships. The April 2010 VA examiner stated that he was "remarkably isolative" and that his "very severe symptoms of PTSD...primarily take the form of isolation and avoidance. . . . He isolates to an extreme degree." The Veteran spends almost all of his free time in his garage, and lives a "very separate existence" from his wife. He actively avoids interaction with his wife and crowds. He has no friends, does not go out socially, and only engages in solitary recreational activities. He reports never being able to show emotion or affection, which negatively affects his familial relationships and led to the end of his first marriage. The VA examiner noted that his current marriage was marked by extreme distance. He reported that he does not get along with his daughter, is not in contact with his sister, and does not speak to his mother. He feels detached and estranged from others. The VA examiner also noted that the Veteran has moods swings and was easily angered, upset, and provoked. He exhibits irritability. The VA examiner described his grooming as "moderately disheveled." The VA examiner also noted that the Veteran took a premature retirement and had difficulty working with other people. He opined that the Veteran would have some difficulty maintaining employment due to his current symptoms. The evidence also shows that the Veteran has an ongoing sleep disorder, frequent nightmares, very heightened startle response, recurring intrusive thoughts, flashbacks, intense distress in response to cues, and extreme hypervigilance. His mood and affect were significantly blunted at the VA examination. The VA examiner diagnosed "severe and chronic" PTSD, with virtually continual symptoms. He opined that the Veteran "demonstrates deficiencies in most areas." The Board has also considered the Veteran's Global Assessment of Function (GAF) scores assigned during the course of the appeal. The GAF is a scale indicating the psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness. A GAF score between 31and 40 indicates some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). GAF scores ranging from 41 to 50 reflect serious 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). A GAF score between 51and 60 indicates 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). GAF scores of 61 to 70 are indicative of 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. A GAF score is highly probative as it relates directly to the Veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. DSM-IV; Massey v. Brown, 7 Vet. App. 204, 207 (1994). The VA examiner assigned a GAF of 47 "as a direct consequence of his impaired sleep, isolation, avoidance of recreation and leisure activities, heightened arousal, flashbacks, mood swings, irritability and restricted affect." This reflects serious symptoms and impairment consistent with a 70 percent rating. A February 2011 VA Mental Health Initial Evaluation Note assigned a GAF of 55, reflecting more moderate symptoms observed at that appointment. However, the Board finds that the GAF of 47 more accurately describes the Veteran's symptomatology, especially his severe isolation. The Board finds that the Veteran demonstrated symptoms characteristic of a 70 percent rating (impaired impulse control, neglect of personal appearance and hygiene, and inability to establish and maintain effective relationships) that have resulted in deficiencies in most areas. The Board notes that the evidence of record shows that the Veteran has additional symptomatology that is not enumerated in the rating criteria, including intrusive thoughts, nightmares, startling easily, and hypervigilance. Moreover, the VA examiner indicated that the Veteran suffered from chronic severe symptoms. The Board finds that the Veteran's disability picture and symptomatology, taken as a whole and in combination with the objective mental status examination, have more nearly approximated the criteria for a 70 percent rating for the entire appeal period. However, as noted in the Introduction, additional development is necessary before a decision can be made as to whether an even higher rating is warranted at any point during the appeal. Thus, the issue of entitlement to an evaluation in excess of 70 percent for PTSD is being remanded and is addressed in the Remand section below. II. Service Connection Claim Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that his tinnitus began in service as the result of exposure to excessive noise, and has continued to the present. He reports that he was exposed to excessive noise in service. Specifically, as a gunner and motor vehicle operator, he fired a 50-caliber machine gun and was subject to mortar and rocket attacks in Danang both close to the air field and on base. He states he was not provided with hearing protection. The Veteran's personnel records show a military occupational specialty (MOS) of motor vehicle operator and that he was stationed in DaNang. The Veteran is competent to report a history of in-service noise exposure. See 38 C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno. His assertions are credible as they are consistent with his documented service and with his MOS. Accordingly, the Board finds that the Veteran was exposed to excessive noise in service. The Veteran has a current diagnosis of bilateral tinnitus. Specifically, the VA examiner who conducted the April 2010 audiological examination diagnosed constant tinnitus in both ears. The April 2010 PTSD examiner also noted a complaint of significant tinnitus. Moreover, tinnitus is a disorder that is readily observable by laypersons and does not require medical expertise to establish its existence. See Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran reported to the 2010 VA examiner that his tinnitus began during his military service. In his April 2011 substantive appeal, he stated that the ringing in his ears "has been consistently with me since coming home" from Vietnam. The Veteran's service treatment records are negative for complaints of tinnitus. Nevertheless, he is competent to report a history of tinnitus that began in service. See 38 C.F.R. § 3.159(a)(2); Washington; Layno. Moreover, the mere fact that his account is not supported by contemporaneous clinical evidence does not render them inherently incredible. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). In its capacity as a finder of fact, the Board finds the Veteran is credible as to his reports of the onset and recurrence of tinnitus symptoms. The Veteran has consistently reported that the ringing in his ears had its onset during service and has continued ever since. His description of exposure to excessive noise has also been consistent. Caluza. Therefore, the Board finds that throughout the appeal period the Veteran competently, credibly, and consistently reported that his tinnitus symptoms began during his military service and have continued to the present time. The VA audiological examiner opined that the Veteran's tinnitus was not related to service because there was no evidence documenting a complaint of tinnitus during military service. However, that lack of contemporaneous medical records does not, in and of itself, render the Veteran's lay evidence not credible. Buchanan. Here, the negative medical opinion did not give due consideration to the Veteran's competent and credible account of the onset of symptoms in service, and their recurrence thereafter. The examiner provided no reason for rejecting the Veteran's lay history. Based on the foregoing, the Board finds this opinion is not probative. Lay evidence can be competent and sufficient evidence to establish etiology if the layperson is competent to identify the medical condition and lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson; Jandreau. In this case, under Charles the Veteran is competent to identify the medical condition of tinnitus and his lay testimony describes ringing in the ears in service that supports the later diagnosis by the VA examiner. The Board thus finds that the Veteran's competent and credible lay evidence is sufficient to establish a nexus between service and tinnitus. Resolving all reasonable doubt in favor of the Veteran, service connection for tinnitus is warranted. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). ORDER Effective November 10, 2009, an initial 70 percent rating for PTSD is granted, subject to the law and regulations governing payment of monetary benefits. Service connection for bilateral tinnitus is granted. REMAND The Board notes that additional development is necessary to determine whether a rating in excess of 70 percent is warranted for the Veteran's PTSD. The Veteran's PTSD was most recently assessed more than three years ago during the April 2010 VA PTSD examination. The Veteran's contends that his PTSD has worsened since that time; thus a new examination is necessary to ascertain the current severity of the Veteran's disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The most recent VA treatment records in the claims file are dated February 2011. In his Informal Hearing Presentation, the Veteran's representative indicated that he has since been treated for PTSD at the East Orange VA Medical Center (VAMC). On remand, any outstanding relevant records should be obtained. The Veteran's representative explicitly raised a claim for TDIU in the April 2012 Informal Hearing Presentation. The Veteran has not been provided with appropriate notice for this claim, as required by the Veterans Claims Assistance Act of 2000 (VCAA). On remand, such notice should be provided. The Board finds that the Veteran's claim for TDIU is inextricably intertwined with other issues on appeal. In this decision, the Board has granted service connection for tinnitus. The agency of original jurisdiction must assign a disability rating for this disability in the first instance. Assignment of an initial evaluation for this disability may impact whether the Veteran satisfies the schedular requirements for a TDIU rating, as set forth in 38 C.F.R. § 4.16(a). The Board is also remanding the issue of entitlement to a rating in excess of 70 percent for PTSD. Thus, a decision by the Board on the Veteran's TDIU claim would, at this point, be premature. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim.). Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran appropriate notice pursuant to the Veterans Claims Administration Act (VCAA) under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that includes the criteria required for a TDIU. 2. Obtain VA treatment records related to mental health, physically or electronically, from the East Orange VAMC dated since February 2011. 3. Notify the Veteran that he may submit lay statements from individuals that have first-hand knowledge and/or were contemporaneously informed of the nature, extent and severity of his PTSD symptoms and the impact of PTSD and tinnitus, to include their combined impact, on his ability to work. He should be provided an appropriate amount of time to submit this lay evidence. 4. Schedule the Veteran for an appropriate VA examination to determine the current severity of his PTSD. The entire claims file (paper and electronic), including any newly obtained treatment records, must be made available to and reviewed by the examiner and all necessary tests should be conducted. All indicated tests should be performed. The examiner should report all pertinent findings and estimate the Veteran's Global Assessment of Functional (GAF) Scale score. The examiner should also opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that his service-connected disabilities, either alone or in the aggregate, render him unable to secure or follow a substantially gainful occupation. All findings, along with a fully articulated medical rationale for all opinions expressed should be set forth in the examination report. 5. Then readjudicate the Veteran's claim for a higher rating for his PTSD, to include adjudication of the TDIU claim. If the benefits sought remain denied, the Veteran and his representative must be furnished a Supplemental Statement of the Case and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The Veteran 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 or by the Court 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs