Citation Nr: 1328351 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 09-15 216 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for tinnitus to include as secondary to hypertension. 2. Entitlement to an initial rating in excess of 30 percent for PTSD since December 8, 2006. 3. Entitlement to an initial rating in excess of 70 percent for PTSD since December 16, 2008. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD A. Barner, Associate Counsel INTRODUCTION The Veteran served on active duty service from July 1976 to July 1979, January 1991 to May 1991, and from December 2003 to March 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In December 2011, the Board denied entitlement to service connection for bilateral hearing loss and tinnitus, and granted entitlement to service connection for hypertension. The Board remanded the issues of entitlement to service connection for diabetes and right eye glaucoma, and entitlement to an increased disability rating for posttraumatic stress disorder. In May 2012 the United States Court of Appeals for Veterans' Claims (Court) remanded that portion of the Board's decision denying entitlement to service connection for tinnitus, in accordance with an April 2012 Joint Motion for Remand. In September 2012 and February 2013 rating decisions VA granted entitlement to service connection for diabetes and glaucoma of the right eye, such that these issues are no longer before the Board. Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). Although the RO in September 2012 granted entitlement to a 70 percent rating for PTSD from December 16, 2008, this was not a complete grant of benefits sought, such that this issue remains on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). The issue of entitlement to service connection for tinnitus to include as secondary to hypertension is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's PTSD has resulted in occupational and social impairment with deficiencies in most areas since December 8, 2006. 2. Total occupational and social impairment due to PTSD alone was not shown during the appellate term. CONCLUSIONS OF LAW 1. Since December 8, 2006, the criteria for a 70 percent rating, but no higher, for PTSD were met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012). 2. Since December 16, 2008, the criteria for a rating in excess of 70 percent for PTSD were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As service connection, an initial rating, and an initial effective date have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations, as recently as February 2012. The VA examination reports and the pertinent outpatient treatment records contain sufficiently specific clinical findings and informed discussions of the pertinent history and clinical features of the disability on appeal and are adequate for purposes of this appeal. The Veteran was provided the opportunity to present pertinent evidence and testimony, to include at his May 2011 hearing. In sum, there is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Applicable Laws and Regulations Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). PTSD is rated under Diagnostic Code 9411, which provides for a 30 percent rating where there is occupational and social impairment with occasional decreases 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. A 50 percent rating is warranted for PTSD where there is 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 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. Id. A 70 percent rating is warranted where there is 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 inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted where there is 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. In evaluating psychiatric disorders, the Board is mindful that the term "such symptoms as" in 38 C.F.R. § 4.130 means that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve only 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). The Global Assessment of Functioning scale reflects psychological, social, and occupational functioning of a hypothetical continuum of mental health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM- IV). Global assessment of functioning scores between 41 and 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). Global assessment of functioning scores between 51 and 60 reflect moderate symptoms, (that is, flat affect, circumstantial speech, occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (e.g., few friends, contacts with peers or co- workers). An examiner's classification of the level of psychiatric impairment, by words or by a score, is to be considered, but is not determinative of the percentage rating to be assigned. VAOPGCPREC 10-95. The Board must assess the credibility and weigh all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. 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). VA treatment notes from 2007 show that the Veteran experienced PTSD symptoms to include anger, irritability, frequent nightmares, flashbacks, rage, and hypervigilance. He reported avoiding noises and crowds, a tendency to isolate, and social anxiety. He described lacking any desire to do anything. He did not relate well to his daughters. He was at that time unemployed having lost his job with Kodak (n.b., treatment notes indicate that he was one of many employees who was laid off). His mood was depressed and anxious. He denied suicidal or homicidal ideation, and was not psychotic or manic. In January 2007 he was assigned a global assessment of functioning score of 54, which was his lowest global assessment of functioning score during the period on appeal. In June 2008 the appellant's spouse wrote comparing the Veteran to a stranger in their home due to his PTSD. The Veteran was afforded a VA psychiatric examination on December 16, 2008. At that time he had been married for twenty years, and had two children. He had a high school education and worked in security. The Veteran reported being withdrawn, and not having contact with his parents. He reported crying readily, and experiencing suicidal ideation. He denied homicidal ideation. He reported seeing ghosts of his deceased aunt in his home a couple times a month and hearing various sounds that startled him. The Veteran reported feeling angry, and fussing and hitting at his wife in his sleep. He reported having nightmares every other day and experiencing intrusive thoughts daily. The Veteran indicated that he did not have a social life. The Veteran denied leisure activities. He was capable of engaging in a normal range and variety of activities of daily living. The examiner observed that the Veteran's speech was low and muffled, difficult to understand and passive. The Veteran seemed depressed and lethargic. His thought processes were logical, coherent and relevant. The Veteran was articulate, verbal, well-dressed, and well-groomed. He exhibited good social skills, and seemed relatively intelligent. His speech was difficult to understand. The Veteran was oriented. His affect was flat and blunted, and he appeared depressed. His reasoning was good, and he did not exhibit psychomotor slowing, or agitation. Verbal comprehension and concentration were good. His sensorium was cloudy. The Veteran reportedly experienced anxiety, panic, depression, insomnia, appetite disturbances, crying spells, anhedonia, and nightmares. He endorsed obsessional ideation, including obsessions to care for his yard and home. The Veteran reported anger control problems towards his family, and reported that he was estranged from family due to anger and paranoia. He endorsed visual phenomena, including seeing a dead aunt. He reported experiencing paranoia and suicidal ideation. The Veteran denied occupational effects. Socially, he reported sexual performance problems in his marriage, estrangement from family, and no real social life. The examiner opined that the Veteran had depression and psychosis which were separate from his posttraumatic stress disorder. The examiner opined that the appellant's posttraumatic stress disorder did not appear to be worse than the 30 percent rating suggested. The Veteran was assigned a global assessment of functioning score of 60. In April 2009 the Veteran reported that he continued to experience suicidal ideation, and that he believed his PTSD was worsening. The Veteran was afforded another VA psychiatric examination in June 2009. The Veteran reported experiencing almost nightly nightmares. He reported experiencing initial insomnia, and averaging 3 to 4 hours of sleep nightly. He endorsed experiencing depression, and suicidal thoughts. The Veteran reported that he did not associate with others, and tended to isolate. He reported that he was easily angered, and that he cursed out the inmates at the jail where he worked. He stated that others had to hold him back and talk him down. The Veteran denied legal problems. The Veteran had worked for two years as a guard, during which time he cursed out inmates, slept on the job, and was often distracted. In spite of this, the Veteran reported that he had not received any formal write-ups. He missed work about once a month due to feeling overstressed. The Veteran reported dissatisfaction with his marriage, namely frustration with his erectile dysfunction, and feeling that he was not good for his wife. He reported that he did not engage with his daughters, and one of them left home due to anger. He denied having friends since his return from Iraq. He indicated that he did not see his mother or family often, and had fallen out with his brother. He reported that he was vindictive and mean towards his family, and had threatened them. The Veteran reported that other than work, he did not even go into his front yard because he did not want to be bothered by neighbors. The examiner observed that the Veteran was in individual therapy and received medication management for approximately the previous year and a half. He reported that treatment notes suggested some improvement in symptomatology. The examiner indicated that the Veteran was casually dressed and well-groomed. He had poor eye contact, but was very dramatic in presentation. He was articulate, verbal and cooperative with the examination. Social skills were poor, and intelligence was estimated to be below average. The Veteran reported difficulty focusing, preoccupation and feeling tired at work. Affect was depressed, and fund of general information and verbal comprehension were average. He was oriented. Reasoning was fair. Judgment was fair to poor. Short and long term memories were reportedly fair. Specifically, the Veteran reported experiencing initial insomnia, anxiety, nightmares, anger, irritability, and outbursts of rage. The Veteran reported significant depressive symptoms, including depressed mood, crying spells, anhedonia. He reported experiencing feelings of worthlessness, reduced concentration, fatigue, and recurrent suicidal thoughts. He reported that he had no history of suicidal attempts, or homicidal thoughts. He denied mania. He showed signs of paranoia, and was very negativistic and cynical, feeling persecuted by others. He reported seeing others in green uniforms marching when waking or falling asleep. The examiner indicated that the Veteran described moderate difficulties occupationally, and moderate to severe difficulties socially. The examiner indicated that the Veteran was very dramatic, with signs of symptom exaggeration. He was assigned a global assessment of functioning score of 55 to 60. He was competent and capable of managing his finances. VA treatment notes from 2009 to 2011 are of record, and show that the Veteran experienced symptoms such as depression, suicidal ideation, nightmares, poor sleep, isolation, fear of public places, flashbacks, impaired judgment, anger, restricted affect, hypervigilance, tangential speech, visual hallucinations, irritability, and anxiety. There were reports that the Veteran did not bathe several times a week. The Veteran reported hearing voices, and visualizing soldiers. In April 2011 the Veteran was admitted for suicide prevention. The Veteran received individual therapy for his depressive disorder and PTSD, and his conditions were considered capable of periodically preventing him from performing work functions. A suicide prevention coordinator indicated that the Veteran's wife hid knives, and handled the appellant's medication to prevent overdose. The Veteran reported that he gave his gun away to limit the means of suicide. The appellant reported that he could talk to his wife, but that he did not have any social contacts that could help him. The Veteran was on medications to cope with the PTSD symptomatology, to include for sleep, mood and depression. At his May 2011 Board hearing, the Veteran discussed receiving individual and group therapy, and April 2011 in- patient care for suicide prevention. He reported that he continued to work full-time, but had taken some time-off under Family Medical Leave Act. The Veteran endorsed feeling depressed, and experiencing nightmares and visual hallucinations. His wife stated that the Veteran had nightmares, that he did not go out with his family, and that he could just sit for several days, without even bathing. In August 2011 the Veteran indicated that his mind was racing with frustration. December 2011 Board remand observed that the records showed the Veteran was diagnosed as having PTSD, a major depressive disorder with psychotic features, and psychotic disorder not otherwise specified. The remand requested a VA examination and to the extent possible clarification as to what symptoms were manifestations of PTSD or another psychiatric disability. In February 2012 the Veteran was afforded another VA psychiatric examination. The examiner assigned a global assessment of functioning score of 58. The examiner indicated that symptoms such as being hyperalert, startling easily, intrusive thoughts, nightmares, hyperarousal, and avoidance of particular stimuli were best accounted for by the diagnosis of PTSD. These symptoms were considered to possibly result in avoidance of stimuli, general anxiety symptoms, and irritability, which resulted in reduced pace and efficiency at work and interpersonal problems. Symptoms such as anhedonia, appetite change, anergia, amotivation, worthlessness, helplessness, hopelessness, and suicidal ideation were best accounted for by the diagnosis of depression. The Veteran's depression was considered more severe, and would account for more difficulty in efficiency, pace and absenteeism. The examiner found some overlap of symptoms such as loss of interest, inattention, and restricted range of affect which could not be separated. The Veteran's social impairments (withdrawal, avoidance, indifference, suspicion) were better explained by his personality disorder traits with exacerbation from PTSD and depression. The Veteran's primary social impairment was considered to come from personality traits, and resulted in further difficulty interacting with others at work. The examiner indicated that there was occupational and social impairment due to mild or transient symptoms, which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The examiner indicated that there were few significant changes socially since the previous examination. Occupationally there was little change. Although the Veteran reported having attempted three courses the previous year, he had difficulty comprehending the material. The Veteran's hospitalization for psychiatric reasons was considered along with the appellant's reports of being written up for missing work during that time. The examiner concurred with the Veteran's diagnosis of PTSD according to diagnostic criteria for posttraumatic stress disorder from the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM -IV). The Veteran's specific symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and suicidal ideation. The Veteran was capable of handling financial affairs. The examiner indicated that the Veteran continued to meet criteria for PTSD, and depression, and that he had antisocial and paranoid personality disorder traits. The Veteran denied psychotic symptoms, but did report hearing a noise in the background and experiencing brief flashbacks to his military experiences, which were accounted for by his PTSD. The examiner indicated that a separate score for PTSD would be of 63, because the Veteran reported only mild occupational problems related to PTSD, and only a portion of his social impairment could be accounted for by PTSD. The Veteran was personally distressed from PTSD. The Veteran's depression was assigned a separate global assessment of functioning score of 58. There was some overlap of symptoms which could not be separated. In August 2012 the Veteran reported that he thought of suicide constantly. In September 2012 the RO awarded a 70 percent rating for PTSD from December 16, 2008, the date of the earlier examination. The Board notes that where it is not possible to separate the effects of service-connected conditions from nonservice- connected conditions, all symptoms must be attributed to the service-connected condition. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). The Board observes that although the February 2012 examiner attempted to differentiate symptoms based on different mental health diagnoses, he acknowledged that there was some overlap in symptoms, and used language such as "best accounted for." Given the current medical opinion, the Board finds that all of the Veteran's psychiatric symptoms must be considered to be part of the service-connected psychiatric disability picture. After considering the totality of the record, the Board finds the evidence supports a 70 percent disability rating and no higher for the Veteran's PTSD during the course of this appeal since December 8, 2006. See 38 C.F.R. § 3.344. The evidence demonstrates that the Veteran has significant impairment due to such symptoms as social isolation, heightened anger and irritability, occasional hallucinations, nightmares, anxiety, depression, and poor sleep. By his own report, he takes several days off of work each month due to his symptoms. Further, when he attempted to take several courses he found it difficult to concentrate. Although examiners have indicated that the Veteran is well-groomed, his spouse reports that the appellant goes several days without bathing, suggesting neglect of personal appearance and bathing. The Veteran reported no friends or interests outside his immediate family, and is isolated. He even described avoiding going into his own yard so that he would not need to speak with neighbors. He reported that he had little contact with family outside of his wife and daughters. Examiners noted that the Veteran's judgment was impaired, and his mood was depressed and anxious. The Veteran endorsed obsessional ideation, and his speech was variously difficult to understand, with flat or blunted affect. The appellant has repeatedly endorsed suicidal ideation. Although the Veteran experienced some variation in PTSD symptomatology, his symptomatology reflects many of the criteria associated with a 70 percent rating. Thus, in an effort to properly rate this Veteran, the Board resolves all reasonable doubt in the Veteran's favor and finds that he is entitled to a 70 percent rating for his PTSD. See 38 C.F.R. § 4.7. With respect to whether the Veteran is entitled to a rating in excess of 70 percent for his PTSD, he has not demonstrated total occupational and social impairment due to such symptoms as impairment in thought processes or communication; persistent danger of hurting himself or others; disorientation, or memory loss. The VA examiners have consistently observed that the Veteran is fully oriented on examination, and his cognitive abilities were demonstrably intact. Although the Veteran has experienced suicidal ideation he has sought and received in-patient care and developed a suicide prevention plan. Similarly, although he is irritable and angry, and described instances at work where coworkers held him back from the inmates, the evidence does not indicate that he is a persistent danger to others. He maintains a long-term marriage, although it is strained. There are no legal or substance abuse problems. In addition, the Veteran continues to be employed full-time, although he takes a couple of days off each month due to symptoms of his disability and reported being written up for time missed. The Veteran has not been considered incapable of handling his finances and has been deemed capable of performing the activities of daily living. Overall, the preponderance of the evidence is against a finding of total social or occupational impairment due to the Veteran's PTSD, as would warrant a 100 percent rating. The Board considered the Veteran and his wife's lay statements regarding the severity of his disability. They are competent and credible to report his symptoms. In this regard, the examiner indicated that the Veteran's responses were exaggerated; nevertheless, the examiner and the Board are considering his full reported symptomatology. Disability ratings are, however, made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. While the Veteran is competent to provide evidence as to his symptoms and while his statements are credible, the medical findings, which directly address the criteria under which the service-connected disability is considered, are more probative than his assessment of the severity of his disability. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). With regard to any possible extraschedular consideration, the threshold determination is whether the disability picture presented in the record is adequately contemplated by the rating schedule. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Veteran's symptomatology, to include nightmares, irritability, suicidal ideation, and visual hallucinations are adequately contemplated by the rating schedule for PTSD. Therefore, referral for assignment of an extra-schedular evaluation in this case is not in order. Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). Overall, the evidence is at least in balance as to whether an initial disability rating of 70 percent is warranted for the Veteran's PTSD since December 8, 2006. A preponderance of the evidence is against an initial rating in excess of 70 percent. The benefit-of-the-doubt doctrine has been applied where appropriate. See 38 U.S.C.A. § 5107(b) (West 2002). Additionally, the Board has considered whether to issue staged ratings, and finds that under the circumstances, staged ratings are not appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999). ORDER Entitlement to an initial rating of 70 percent since December 8, 2006, but no higher, for PTSD is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to an initial rating in excess of 70 percent since December 16, 2008 for PTSD is denied. REMAND Pursuant to the May 2013 Court order, and April 2012 Joint Motion for Remand, further development is necessary. Specifically, the December 2008 VA examiner opined that the Veteran's tinnitus was not related to service, and reasoned that tinnitus was due to many causes, to include hypertension, from which the Veteran suffered. The examiner did not opine as to whether the tinnitus was caused by or aggravated by hypertension, which was subsequently service- connected. As such, another VA examination is necessary for an opinion regarding the etiology of the Veteran's tinnitus. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to consider the nature and etiology of his current tinnitus. The examiner must be provided access to the Veteran's claims folder, Virtual VA file and a copy of this decision. Following review of the claims folder and any testing indicated, the examiner should opine as to whether it is at least as likely as not that the tinnitus is related to service, or is due to or caused by hypertension, or is permanently aggravated (worsened) by hypertension. The examiner must provide a rationale for all opinions. 2. After conducting any indicated additional development, readjudicate the issue on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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