Citation Nr: 1330235 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 13-09 402 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from October 1965 to July 1968. This matter is on appeal from a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. For the reasons stated below, the Board is granting a 50 percent disability rating for the Veteran's PTSD. The issue of entitlement to an initial rating in excess of 50 percent 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 The Veteran's PTSD has been characterized by occupational and social impairment with reduced reliability and productivity due to symptoms such as difficulty in maintaining social relationships, nightmares and insomnia. CONCLUSION OF LAW The criteria for an initial 50 percent rating for PTSD have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.321, 3.159, 4.1, 4.7, 4.130, Diagnostic Code (DC) 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In this case, to the extent it is being adjudicated, the Board is granting the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. Increased Ratings Disability ratings are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). VA must consider only those factors contained wholly in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, the reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). In cases where the Veteran's claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Acquired psychiatric disorders such as PTSD are rated through the use of a general rating formula set forth in 38 C.F.R. § 4.130. Under this formula, the Veteran is currently rated at 30 percent for his PTSD, which is specifically categorized under DC 9411. In order for the Veteran to be entitled to the next-higher 50 percent rating, the evidence must show occupational and social impairment with reduced reliability and productivity due to symptoms such 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 or impaired abstract thinking; * disturbances of motivation and mood; or * difficulty in establishing effective work and social relationships. 38 C.F.R. § 4.130, DCs 9411 (2012). Based on the evidence of record during the period on appeal, the Board determines that a 50 percent rating is warranted. Specifically, the Veteran underwent a VA examination in December 2010, where he complained of high levels of hypervigilance, anxiety and bouts of crying, and nightmares relating to his experiences in Vietnam approximately 2-3 times per week. He also described a history of difficulty in interpersonal relationships, characterized by frustration, anger, irritability and emotional numbing. When asked by the examiner to recall his active duty experiences, he was observed to become nervous and tearful. Of the symptoms he displayed or noted at that time, perhaps his most prominent relate to his social functioning. For example, he stated that he is unable to discuss his active duty experiences with other people, and that he has difficulty attending family functions and would look for excuses to avoid attending public events. He explained that his PTSD symptoms impacted his marriage, and he was often distant from his children's activities. The Board recognizes that the Veteran may not have displayed many of the objectively observable symptoms listed in the general rating formula such as panic attacks, impaired judgment or unusual speech patterns. However, the absence of such criteria is not dispositive, as it is appropriate to also consider factors outside the specific rating criteria in determining level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002). In this case, there is substantial evidence of social impairment and difficulty in establishing social relationships. Indeed, the VA examiner specifically stated that the Veteran's psychiatric symptoms had a "moderate to severe impact on his current psychosocial functioning." Therefore, given the Veteran's social impairment, especially in view of the VA examiner's characterization the effect of his symptoms as "moderate to severe," the Board determines that a 50 percent rating is warranted on this basis. ORDER An initial 50 percent rating for PTSD is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND Although the Board has determined that a 50 percent rating is warranted for the Veteran's PTSD, he was not granted the maximum rating allowable. As such, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993); Corchado v. Derwinski, 1 Vet. App. 160 (1991). This being the case, some additional development is required as to whether a rating in excess of 50 percent is warranted. Specifically, the Board notes that there appears to be outstanding records that may be relevant to the issue on appeal that have not been acquired. First, in September 2006, the Veteran submitted documentation that he received treatment from a Dr. D.S. who has treated the Veteran for his psychiatric symptoms and other disorders. While it is unclear how much treatment he received for his psychiatric disorders, the possibility that they may be relevant is sufficient for VA's duty to assist to apply. Moreover, at his VA examination in December 2010, the Veteran indicated that he had been receiving counseling at his local Vet Center. As these records may also provide pertinent information, these records must also be acquired. As an additional matter, the Board notes that the December 2010 VA examination was performed without review of the claims file and the examiner instead relied upon the records the Veteran brought with him. While this may have raised the possibility that the examination was inadequate, any resulting prejudice was avoided since the Veteran's claim was ultimately granted. However, now that the assigned rating is under appeal, the adequacy of this examination is again in question. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). While it is true that the absence of a claims file might not have a direct impact on assigning the appropriate rating, as it is the Veteran's current symptoms that are most relevant, records from periods other than a relevant period on appeal must nevertheless be considered, as 38 C.F.R. § 4.1 requires that "a veteran's disability must be evaluated in light of its whole recorded history." Moore v. Shinseki, 555 F.3d 1369, 1373 (2009). Therefore, after the required development has been completed, a new examination should be performed that includes a review of the claims file. Accordingly, the case is REMANDED for the following action: 1. If the Veteran has undergone any private treatment related to his service-connected psychiatric disorder, and the records of such treatment are not in the Veteran's claims file, the RO should attempt to obtain them after acquiring the Veteran's authorization. Particular attention should be directed toward any treatment records from Dr. D.S. in Chesterfield, Missouri. If the Veteran has undergone any treatment from a VA medical facility, these records should also be acquired. Such development should include all records generated from any "Vet Center" counseling facility. 2. When the above development is completed, schedule the Veteran for an examination to determine the current nature and extent of his acquired psychiatric disorder. The claims folder must be made available to the examiner in conjunction with the examination. Any testing deemed necessary should be performed. The examiner must elicit from the Veteran and record for clinical purposes a full work and educational history. The examiner should identify all current manifestations of the Veteran's PTSD, should provide an opinion concerning the current degree of social and industrial impairment resulting from the service-connected psychiatric disorder, and assign a Global Assessment of Functioning (GAF) score for this disorder that is consistent with the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). 3. After the above and any other development deemed warranted is completed, adjudicate the issue of entitlement to an initial rating in excess of 50 percent for PTSD. If any benefits sought on appeal remain denied, the Veteran and his representative should be provided with a new supplemental statement of the case (SSOC) that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue on appeal. 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). ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs