Citation Nr: 1328694 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 07-22 173 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD), for the period prior to September 1, 2007. 2. Entitlement to a rating in excess of 70 percent for PTSD for the period beginning September 1, 2007. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran had active military duty from October 1968 to December 1970. His awards and decorations include the Combat Infantryman Badge (CIB), among others. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In that decision, in pertinent part, the RO denied the Veteran's claim for an increased evaluation for PTSD. Previously, this appeal was before the Board in June 2011, at which time it was remanded for further development, including the procurement of additional treatment records and a new VA examination. All remand directives have been completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). It is evident, as discussed below, that the Veteran's disability warrants a 100 percent rating for the period beginning September 1, 2007. He may warrant the higher rating at an earlier point in time, based on additional records that are not presently before the Board, and which are sought on remand. As the Board feels that the Veteran will be most benefitted through the staging of the increased rating issue, the Board has characterized the issue on appeal as listed on the first page of this decision. A review of the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS) does not reveal any additional documents pertinent to the present appeal. The issue of entitlement to a rating in excess of 70 percent for the period prior to September 1, 2007 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. FINDING OF FACT Since September 1, 2007, the Veteran's PTSD has resulted in total occupational and social impairment. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, for the period beginning September 1, 2007, the criteria for a 100 percent disability rating for PTSD have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.16, 4.126, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As the Board is granting in full the Veteran's claim for the period being adjudicated, no discussion of VA's duties to notify and assist is necessary. Disability Ratings Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In claims for increased rating VA must consider that a claimant may experience multiple distinct degrees of disability, resulting in different levels of compensation, from the time the increased rating claim is filed to the time a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). VA will also consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The schedular criteria for rating psychiatric disabilities incorporate the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). See 38 C.F.R. §§ 4.125, 4.130. The Veteran's service-connected PTSD is rated pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. PTSD is rated under the General Rating Formula for Mental Disorders, which provides that a 100 percent disability rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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; memory loss for names of close relatives, own occupation or own name. Id. A 70 percent disability rating is warranted when 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 worklike setting); inability to establish and maintain effective relationships. Id. Ratings are assigned according to the manifestation of particular symptoms. The symptoms recited in the criteria in the rating schedule for evaluating mental disorders 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, 442 (2002). In adjudicating a claim for an increased disability rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. When determining the appropriate disability evaluation to assign, however, the Board's "primary consideration" is the Veteran's symptoms. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). In summary, in Vazquez-Claudio v. Shinseki, the Federal Circuit held that the General Rating Formula for Mental Disorders requires not only (1) sufficient symptoms of the kind listed in the percentage requirements, or others of similar severity, frequency or duration; but also (2) that those symptoms cause the level of occupational and social impairment specified in the regulation. 713 F.3d 112, 118 (Fed. Cir. 2013). In assigning a particular rating, the Board must consider the frequency, severity, and duration of psychiatric symptoms, as well as the length of remissions and the veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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. § 4.3; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Evidence In September 2007, the Veteran sought mental health treatment, feeling "very depressed," "like he wanted to die." He acknowledged that his family was supportive, and his faith would not allow him to harm himself. He denied having any plan to die, but "prayed that God would take him." On mental status examination, the Veteran was appropriately dressed, with sufficient attention/concentration, and an intact memory. He was oriented to person, place, time, and situation. His behavior was cooperative/open, and his speech spontaneous. His mood was dysphoric (depressed/anxious/irritable), and his affect "sad/unhappy/somber." The Veteran reported insomnia, reduced interests, guilt, and reduced energy. Thought processes and content were relevant, judgment was within normal limits, and his insight was fair. The examiner diagnosed the Veteran with PTSD, major depressive disorder, and polysubstance dependence. In January 2008, the Veteran was seen for individual psychotherapy. He reported that in September 2007, he felt overwhelmed. He left his home on foot, and was gone until November 2007, ending up in New York (having traveled from Georgia). He left because he felt his wife did not care about him. He could not explain his "bizarre" (per the examiner) behavior, but reported that he had walked away from home one other time years prior. The examiner felt that the Veteran may have been responding to internal stimuli, but noted that he did not report any such stimuli. The Veteran was involved with his church, but to a lesser degree than before. He reported that he loved his grandchildren, and wanted to live for them. The Veteran denied substance abuse, but the examiner "question[ed] this." The Veteran reported reliving deaths in Vietnam, visualizing the bodies and smells present there, describing it as the odor of death. He reported much guilt due to killing other human beings. Mental status examination findings, as well as current diagnoses, were identical to those of September 2007, as discussed above. At a different January 2008 treatment, the Veteran described his "walk away" in more detail. He indicated he did not know why he went to New York. He simply decided to leave his truck parked and start walking. He hitched rides, and ultimately found a place to stay in New York with the help of police officers. The examiner noted that the Veteran had a difficult time adjusting to his "retirement lifestyle," and that his excessive free time allowed ruminations of the past to dominate. A February 2008 treatment note indicated that the Veteran was "doing better," with symptoms that were "on and off." He had a flashback during the prior month due to a thunderstorm that woke him up, causing him to jump out of bed and run into a wall, causing facial contusions. In April 2008, the Veteran's symptoms were "reasonably under control," and he felt that he was stable. Mental status examination documented a euthymic mood, with full affect, speech at a normal rate and volume, coherent and goal-directed. There was no active homicidal or suicidal ideation, and he was alert and oriented to time, place, and person. In September 2008, the Veteran reported doing well when seen for a medications check up. His PTSD symptoms were under control, and remained "on and off." His PTSD, major depressive disorder, and polysubstance abuse were deemed to be "in remission" by his treatment provider. In a January 2009 mental health note, the Veteran reported having an intense flashback. He reported reexperiencing the smell of burning flesh, and having poor sleep, nightmares, and daytime anxiety. On mental status examination, he was cooperative and calm, but with an anxious mood and constricted affect. His speech was of normal rate and volume, he had no psychotic symptoms, and no active suicidal or homicidal ideation. The examiner diagnosed the Veteran with PTSD and major depressive disorder, with a recent increase in PTSD symptoms following a flashback. In March 2009, the Veteran reported that his pastor passed away two months prior, and that he was grieving the loss. The Veteran was tearful and sorrowful at times when discussing his pastor. Although he continued to attend church regularly, he was more withdrawn. At the examination, the Veteran was cooperative and calm, but with an anxious mood and constricted affect. The examiner continued the Veteran's PTSD and major depressive disorder diagnoses, but noted that the Veteran was more depressed than previously due to his grief reaction. The Veteran was provided a suicide assessment in April 2009, at which time he described a long history of cutting, the last occurrence between eight and ten years prior. The Veteran indicated that he had hallucinations within large crowds, hearing things other people didn't hear. He had considered means of committing suicide, but indicated that his family provided him reasons for living. The examiner felt that there were current acute risk factors for suicide. In May 2009, the Veteran reported passive suicidal ideation, but denied having intent or a plan. At the examination, the Veteran was appropriate groomed and casually dressed, with clear and coherent speech and organized thoughts. There was no evidence of hallucinations or delusions. His mood was "notably depressed, as evidenced by . . . tearfulness throughout the session." His affect was congruent with his mood. The examiner noted an apparent exacerbation in symptoms, triggered by recent deaths of loved ones, and noted that there was significant evidence of depressive cognitions. He was seen again in June 2009, at which time there continued to be significant evidence of depressive conditions. The Veteran denied active suicidal or homicidal ideation at that time. In August 2009, the Veteran was tearful throughout a mental health session. The examiner noted distorted cognitions, including the fact that the Veteran reported the death of a friend who was still alive. The Veteran avoided talking about Vietnam, but the examiner felt that he remained tormented by his experiences there. There was notable psychomotor agitation throughout the treatment session, as well as a notably depressed mood and congruent affect. The examiner opined that while there were no major changes in the symptoms since the previous session, the Veteran was chronically distressed by prolonged PTSD symptoms. There was significant evidence of distorted cognitions about himself and the world. In October 2010, his mental health provider noted a recent exacerbation in symptoms. The Veteran was seen on a walk-in basis, evidencing marked agitation and crying. The Veteran had been staying with his brother, who had difficulty with the fact that the Veteran would yell, talk in Vietnamese, and "stand guard" in his sleep. The Veteran said that he could not help those behaviors. A February 2010 treatment note continued to indicate that the Veteran was "chronically and profoundly distressed by prolonged PTSD symptoms." The Veteran presented at that time with a depressed, anxious, and sullen mood, with average" psychomotor agitation. The examiner felt that the Veteran was in significant distress, despite the fact that he attempted to put up a "tough exterior." The Veteran acknowledged that he and his wife were not doing well, and he suspected that his wife was cheating on him. In March 2010, the Veteran called his treatment provider on the telephone, presenting with suicidal ideation. He reported to the examiner his continued belief that his wife was "running around" on him, based on the fact that she now slept all the way at the other end of the bed and would not let the Veteran touch her. The Veteran's acknowledged that his sexual problems, which had prevented sex for months, contributed to his feelings in that regard. The previous week, the Veteran had told a friend that he wanted to end his life. He denied having a clear plan. In May 2010, the Veteran was seen for a medications check, at which time he endorsed increased depressive symptoms, anhedonia, sad mood, poor sleep, feeling like crying, passive homicidal and suicidal ideation for the previous three weeks (but without intent or plans). The examiner noted that the Veteran may have been off of his medications. In June 2010, the Veteran again went on a "walkabout." He was gone two weeks, during which time he walked and hitchhiked to South Carolina, and then to North Carolina. The Veteran sought treatment in September 2010, at which time the examiner noted that he had missed or cancelled all of his appointments since April 2010. The Veteran acknowledged isolating himself for the previous month or so, triggered by viewing a Vietnam documentary in which he saw footage of himself. At the treatment session, the Veteran had a depressed, anxious, and sullen mood, with congruent affect, but no suicidal or homicidal ideation. The examiner felt that the Veteran was chronically and profoundly distressed due to his prolonged PTSD symptoms, and continued to express evidence of distorted cognitions of himself and the world. The Veteran was not stable enough for anything beyond "supportive/interpersonal type work." Later in September 2010, the Veteran acknowledged abusing cocaine again. In October 2010, the Veteran reported that he had stopped his drug abuse. The Veteran repeatedly informed the examiner that he did not want to die or do anything to hurt himself because of the hurt it would cause his family. In January 2011, the Veteran reported suicidal ideation. The examiner noted diagnoses of "[p]rolonged PTSD (SEVERE), major depressive disorder, and alcohol and cocaine abuse in a questionable remission state, and stated that the Veteran had significant PTSD symptoms. In March 2011, the Veteran sought treatment, informing the provider that he suspected that his wife was cheating on him with multiple people, that he was in a financial crisis, that his wife was stealing all of his money, and that he was spending a "good bit" of his monthly income on drugs and alcohol. Later that month, the Veteran was treated following a suicide attempt. The Veteran had been in an argument with his wife, and thereafter ingested 12 trazodones and using cocaine with the intent to kill himself. The event was "impulsive and not premeditated." He did not seek help following the overdose, but rather vomited and slept it off. The Veteran regretted doing it, and assured his treatment provider that it would not happen again. The Veteran reported that he had turned over his financial affairs to a lawyer because he did not trust his wife and was paranoid that she was having an affair. He denied suicidal ideation since the suicide attempt, and presented with a neutral mood, constricted affect, and without psychotic symptoms. VA thereafter kept the Veteran on suicide watch through 2011, noting him to be a "high risk" for suicide. Treatment continued on a monthly basis through the rest of the year. In August 2011, VA provided the Veteran with a PTSD examination. At the examination, the Veteran identified having a good relationship with his wife, regular contact with his pastor, and enjoyed spending time with his grandchildren and great grandchildren. He acknowledged, however, that his family members were afraid of him because he frequently talked about death and killing. The Veteran said he missed killing. The Veteran reported being medically retired. Regarding the activities of daily living, he indicated that he was unable to cook and that he would often start a task such as cooking or cleaning, but forget what he was doing. His PTSD and depression symptoms, including flashbacks and daytime ruminations regarding nightmares, impacted his motivation to complete the activities of daily living. The examiner stated in the report that, "[s]ince his most recent [] examination, [the] Veteran reportedly has periods when his symptoms stabilize then an event occurs (i.e. anniversary date of death of fellow soldier) and he decompensates. Over the course of the past 2 to 4 years, the Veteran has left home without a vehicle on several occasion and ended up in different states including New York City, North Carolina and Washington D.C." The Veteran admitted that while his "walkabouts" helped him relieve his depression, he sometimes walked out with the intent to die or be killed. The Veteran reported two suicide attempts in 2006, and a third attempt in 2011. He was still on the "high risk for suicide list" at the time of the examination. Concerning his symptoms, the Veteran reported that he was not sleeping at night, and that when he did sleep, he would jerk out of his sleep and fight and run into walls. He had nightmares every night, and flashbacks daily. He was unable to go out due to the severity of his flashbacks. He informed the examiner that his job in Vietnam required a lot of killing, and stated that he still "state[d] blood three times a week, and [could] smell bowels." He kept candy with him to suppress the taste of blood. His symptoms were triggered by thunder and lightning, as well as being in large crowds. He spent most of his time sitting and thinking about his experiences in Vietnam, despite his efforts to avoid doing all that. He did not laugh anymore. The examiner noted that the Veteran demonstrated occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The examiner determined that the Veteran presented paranoid ideation concerning his wife, which ultimately lead to the Veteran's suicide attempt in 2011. The examiner documented symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, impaired judgment, disturbances of motivation and mood, suicidal ideation, and dissociative episodes in which the Veteran left home for days or weeks at a time. The examiner noted that the Veteran's nightmares, intrusive thoughts of his combat experiences, avoidance of conversations related to Vietnam, hyperarousal, sleep disturbance, suicidal ideation, anxiety, feelings of hopelessness, and depression were all related to his PTSD. It was the examiner's opinion that the Veteran's PTSD symptoms had worsened since his 2005 examination. A subsequent August 2011 treatment report indicated that the Veteran continued to have suicidal thoughts, but that he did not want to end his life. In September 2011, VA determined that the Veteran continued to pose a safety risk to himself, and thus was maintained on the high risk protocol for suicide concerns. In October 2011, the Veteran reported that he had begun to isolate himself from his friends, after overhearing them complain that he talked about Vietnam too much. Analysis The Board finds that, beginning September 1, 2007, a 100 percent rating is warranted. As discussed above, a 100 percent rating is applicable where there is total occupational and social impairment. Although the Veteran's symptoms have waxed and waned to a degree as documented in his treatment records, the Board finds that his extreme symptoms, specifically including his suicide attempt, his paranoid reactions to his wife, and his "walkabouts," are sufficiently consistent to warrant a 100 percent rating since September 1, 2007. When applying the criteria to his symptoms, the Board considered whether, despite the evidence that the Veteran at times manifested symptoms warranting a 100 percent rating, his symptoms might most appropriately warrant only the 70 percent rating that is currently applied; the Board determined, however, that the current 70 percent rating would not adequately address the severity of the symptoms since September 1, 2007. The length and frequency of the periods of remission, that is, the times during which the Veteran's symptoms were less severe, are not sufficient to indicate that a 70 percent rating would be more appropriate than a 100 percent rating. 38 C.F.R. § 4.126(a). In this regard, whenever the Veteran disappeared, sometimes for weeks at a time, on his walkabouts, it is clear to the Board that he was totally occupationally and socially impaired. Those disappearances would occur without any notification to his family, and he would end up hundreds if not thousands of miles away. In leaving his life for periods of time, the Veteran acknowledged that he sometimes was hoping he would die in the process. Disappearing in that fashion, the Veteran disregarded all social relationships, and risked his life. Were he working at the time of the disappearances, his behavior would have been totally incompatible with employment. Further, from March 2011 through the most recent record available, the Veteran was maintained on a high risk suicide watch, following a suicide attempt. It is clear from that level of treatment that the medical providers considered him to be a persistent danger of hurting himself. That history of suicide attempts and suicidal ideation dates back prior to September 1, 2007, as evidenced by the two attempts at suicide in 2006. His flashbacks and nightmares prevented him from sleeping at night and prevented him from performing activities of daily living during the day; such symptoms are consistent with a 100 percent rating. In granting a 100 percent rating, as of September 1, 2007, the Board acknowledges that the August 2011 examiner found that the Veteran presented "with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood," rather than "total occupational and social impairment." In other words, the examiner made findings that would be more consistent with a 70 percent rating. That single finding, however, does not outweigh the evidence of the Veteran's symptoms, as discussed above. As noted above, when determining the appropriate disability evaluation to assign, the Board's "primary consideration" is the Veteran's symptoms. See Vazquez-Claudio, 713 F.3d at 118. The Board determines that the symptoms, taken as a whole, are most closely described by the criteria for the 100 percent rating, beginning September 1, 2007. 38 C.F.R. § 4.7. ORDER Beginning September 1, 2007, entitlement to a 100 percent rating for posttraumatic stress disorder is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND The issue of entitlement to a rating in excess of 70 percent for the period prior to September 1, 2007, must be remanded to obtain treatment records identified by the Veteran. Specifically, the Veteran indicated at the time of a January 2007 substance abuse/mental health treatment note indicates that he received earlier VA inpatient treatment in 2005 at the Atlanta VA Medical Center psychiatric center. The record does not include those inpatient reports, yet they are relevant to the claim. 38 U.S.C.A. § 51110 (West 2002); Hart, 21 Vet. App. at 509. These records must be obtained on remand. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that VA treatment records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any pertinent records adequately identified by the Veteran, including any ongoing VA treatment records, to specifically include records of earlier VA inpatient treatment at the Atlanta VA Medical Center in 2005. 2. Then, readjudicate the claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and the representative should be furnished a supplemental statement of the case (SSOC) and provided an appropriate opportunity to respond before the claims folder is returned to the Board for further appellate action. 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 appeal 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). ____________________________________________ PAUL S. RUBIN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs