Citation Nr: 1330497	
Decision Date: 09/23/13    Archive Date: 09/30/13

DOCKET NO.  07-07 009	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Entitlement to a disability rating greater than 20 percent for a left eye disability.

2.  Entitlement to a disability rating greater than 50 percent for posttraumatic stress disorder (PTSD).

3.  Entitlement to a total disability rating based on individual unemployability (TDIU) due to the service-connected left eye disability and PTSD.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Michael T. Osborne, Counsel


INTRODUCTION

The Veteran had active service from January 1951 to January 1954, including in combat in the Republic of Korea during the Korean Conflict.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which denied, in pertinent part, the Veteran's claim for a disability rating greater than 20 percent for a left eye disability (which was characterized as amblyopia, left eye, secondary to anisometropia).  The Veteran disagreed with this decision in May 2006.  He perfected a timely appeal in March 2007 and requested a Travel Board hearing on this issue.  Having reviewed the evidence of record, the Board finds that this issue is characterized more appropriately as stated on the title page of this decision.  The Veteran withdrew his Travel Board hearing request in May 2007.  Thus, his March 2007 Board hearing request is deemed withdrawn.  See 38 C.F.R. § 20.704.

This matter also is on appeal from an August 2009 rating decision in which the RO denied the Veteran's claim for a disability rating greater than 30 percent for PTSD.  The Veteran disagreed with this decision in March 2010.  He perfected a timely appeal in June 2010 and requested another Travel Board hearing.

In December 2009, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development.  A review of the claims file shows that there has been substantial compliance with the Board's remand directives.  The Board directed the RO/AMC to attempt to obtain the Veteran's updated VA and private treatment records.  These records subsequently were associated with the claims file.  The Board also directed the RO/AMC to schedule the Veteran for updated VA examination for his service-connected left eye disability.  These examinations occurred in August 2010 and in February 2012.  See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).

In a June 2010 rating decision, the RO assigned a higher 50 percent rating for the Veteran's service-connected PTSD.  The Veteran continued to appeal for a higher disability rating.
 
The Veteran withdrew his June 2010 Travel Board hearing request in September 2011 correspondence.  Thus, this Board hearing request also is deemed withdrawn.  See 38 C.F.R. § 20.704.

The Board notes that, in Rice v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim cannot be considered separate and apart from an increased rating claim.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  Instead, the Court held that a TDIU claim is an attempt to obtain an appropriate rating for a service-connected disability.  The Court also found in Rice that, when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability.  

The record in this case indicates that, since the Board's most recent remand in December 2009, the Veteran has asserted that he is not employable by reason of his service-connected left eye disability and PTSD.  He filed his formal TDIU claim in July 2010.  The RO denied the Veteran's TDIU claim in rating decisions issued in March 2012 and in April 2013.  As is explained below in greater detail, the issue of entitlement to a TDIU is REMANDED to the RO/AMC.  VA will notify the Veteran if further action is required on his part.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).





FINDINGS OF FACT

1.  The record evidence shows that the Veteran's service-connected left eye disability is manifested by, at worst, distant visual acuity with correction to 20/150, pseudophakia, YAG capsulotomy, and congenital refractive amblyopia.

2.  The record evidence shows that the Veteran's service-connected PTSD is manifested by, at worst, occupational and social impairment with reduced reliability and productivity due to mild symptoms such as periodic nightmares; it appears that the Veteran is coping well with his service-connected PTSD symptomatology and he has good social support and good sleep.


CONCLUSIONS OF LAW

1.  The criteria for a disability rating greater than 20 percent for a left eye disability have not been met.  38 U.S.C.A. §§ 110, 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.383, 3.951, 4.1, 4.2, 4.7, 4.79, 4.80, 4.83a, Table V, 4.84a, Diagnostic Codes (DCs) 6066, 6074, 6077, 6079 (effective prior to December 10, 2008).

2.  The criteria for a disability rating greater than 50 percent for PTSD have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130, DC 9411 (2012).    


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined.  The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim.

In letters issued in June 2005, May 2009, August 2010, and in November 2011, VA notified the Veteran of the information and evidence needed to substantiate and complete his claims, including what part of that evidence he was to provide and what part VA would attempt to obtain for him.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  These letters informed the Veteran to submit medical evidence showing that his service-connected left eye disability and PTSD had worsened.  The Veteran also was informed of when and where to send the evidence.  After consideration of the contents of these letters, the Board finds that VA has satisfied substantially the requirement that the Veteran be advised to submit any additional information in support of his claims.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).

The Court previously held that to satisfy the first Quartuccio element for an increased compensation claim, section 5103(a) compliant notice must meet a four-part test laid out in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008).  The United States Court of Appeals for the Federal Circuit (Federal Circuit) overruled Vazquez-Flores in part, striking the claimant-tailored and "daily life" notice elements.  See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  The Court subsequently issued an opinion incorporating those surviving portions of the first Vazquez-Flores decision, namely that VA must notify the claimant that 1) to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability, 2) a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment, and 3) provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation, and must also notify the claimant that to substantiate such a claim the claimant should provide or ask the Secretary to obtain medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment.  See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 107 (2010) (Vazquez-Flores III).  For the following reasons, the Board finds that the elements of the Vazquez-Flores test that remain under Vazquez-Flores III either have been met in this case or that any error in not providing such notice is not prejudicial to the Veteran.

The first and third elements were met by the May 2009 and November 2011 notice letters.  These letters informed the Veteran that he needed to provide information showing his service-connected disabilities had worsened.  He was informed that such evidence could be a statement from his doctor or lay statements describing what individuals had observed about his disability.  He was told that he needed to provide VA information as to where he had received medical treatment, or that he could send VA any pertinent treatment records.  Examples of evidence needed to support the claim were provided, including laboratory tests, examinations, and statements from other individuals who could describe from their knowledge and personal observations the manner in which his disabilities had worsened.  He also was informed of what evidence VA would obtain on his behalf and what he needed to do to help VA process his claims.  The Veteran also has submitted personal statements and lay statements from others with respect to his service-connected disabilities.  As the Board finds the Veteran had actual knowledge of the requirement to show worsening of the disabilities and the variety of the medical and lay evidence which could support his claims, any failure to provide him with adequate notice as to the first and third Vazquez-Flores elements is not prejudicial.  

As to the second element of Vazquez-Flores notice, the Board acknowledges that the Veteran was not provided notice that a disability rating would be determined by application of the ratings schedule and relevant diagnostic codes based on the extent and duration of the signs and symptoms of his disability and their impact on his employment.  See Vazquez-Flores III, 24 Vet. App. at 107.  The Veteran received statements of the case in February 2007 and in June 2010 and supplemental statements of the case in November 2011, March 2012, and in January 2013 addressing his claims.  Specific VCAA notice to the Veteran of the ratings schedule to be applied to the symptomatology of his disability is unnecessary in light of repeated correspondence sent to the Veteran by the RO/AMC describing the Rating Schedule and applying the relevant regulations to his claims.  The Board finds that the Veteran was on constructive notice of the existence and function of the Ratings Schedule.  The Board further finds that any error in the third element of Vazquez-Flores notice is not prejudicial.  In summary, the Board concludes that the Veteran was notified and aware of the evidence needed to substantiate his claims, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence.

As will be explained below in greater detail, the evidence does not support granting increased ratings for a left eye disability or for PTSD.  Because the Veteran was fully informed of the evidence needed to substantiate his claims, any failure of the RO to notify the Veteran under the VCAA cannot be considered prejudicial.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  The claimant also has had the opportunity to submit additional argument and evidence and to participate meaningfully in the adjudication process.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

With respect to the timing of the notice, the Board points out that the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Here, with respect to the increased rating claim for a left eye disability, the June 2005 letter was issued prior to the currently appealed rating decision issued in March 2006; thus, this notice was timely.  Similarly, with respect to the increased rating claim for PTSD, the May 2009 letter was issued prior to the currently appealed rating decision issued in August 2009; thus, this notice also was timely.  Because the Veteran's claims are being denied in this decision, any question as to the appropriate disability rating or effective date is moot and there can be no failure to notify the Veteran.  See Dingess, 19 Vet. App. at 473.  And any defect in the timing or content of the notice provided to the Veteran has not affected the fairness of the adjudication.  See Mayfield, 444 F.3d at 1328. 

The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the RO and the Board, although he declined to do so.  It appears that all known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise.  The Veteran's Virtual VA claims file has been reviewed.  The Board notes that, after the RO contacted the Social Security Administration (SSA) in an attempt to obtain the Veteran's complete SSA records, SSA responded in July 2012 that all of the Veteran's records had been destroyed and his SSA disability benefits had been converted to SSA benefits based on his age.

The Veteran also has been provided with VA examinations which address the current nature and severity of his service-connected left eye disability and PTSD.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  Given that the pertinent medical history was noted by the examiners, these examination reports set forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations.  Thus, the Board finds the examinations of record are adequate for rating purposes and additional examination is not necessary regarding the claims adjudicated in this decision.  See also 38 C.F.R. §§ 3.326, 3.327, 4.2.  In summary, VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA.

Increased Rating Claims

The Veteran contends that his service-connected left eye disability and PTSD are both more disabling than currently evaluated.  He specifically contends that he is "legally blind" due to his service-connected left eye disability.  He also specifically contends that his service-connected PTSD is severely disabling.

In general, disability evaluations are assigned by applying a schedule of ratings that represent, as far as can be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities and the criteria that must be met for specific ratings.  The regulations require that, in evaluating a given disability, the disability be viewed in relation to its whole recorded history.  38 C.F.R. § 4.2; see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability.  See Francisco v. Brown, 7 Vet. App. 55 (1994).  In Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.

The Veteran's service-connected left eye disability currently is evaluated as 20 percent disabling effective April 4, 1986, under 38 C.F.R. § 4.79, DC 6077.  The Board notes that the rating schedule for evaluating disabilities of the eyes was revised and amended effective December 10, 2008.  See 73 Fed. Reg. 66543-54 (Nov. 10, 2008).  The revised criteria apply to all applications for benefits received by VA on or after that date.  Because the Veteran's increased rating claim for a left eye disability was received in May 2005, the revised rating criteria are inapplicable.

The former rating criteria for evaluating eye disabilities, in effect prior to December 10, 2008, provided that, in rating impairment of visual acuity, the best distant vision obtainable after best correction with glasses will be the basis of rating, except in cases of keratoconus in which contact lenses are medically required.  38 C.F.R. § 4.75.  Where service connection is in effect for a disability of only one eye, the degree of impairment in the nonservice-connected eye is not for consideration unless there is blindness in one eye as the result of service-connected disability and blindness in the other eye as a result of nonservice-connected disability.  38 C.F.R. § 3.383(a)(1).  In other words, where only one eye is service-connected and the Veteran is not blind in both eyes, the other eye is considered normal for rating purposes.  38 C.F.R. § 4.14.  The former rating criteria for evaluating eye disabilities also provided that, where service connection is in effect for visual impairment in only one eye (as in this case), the visual acuity in the non-service-connected eye will be considered 20/40 for purposes of evaluating the service-connected visual impairment.  38 C.F.R. § 4.75(c).

The severity of visual acuity loss is determined by applying the criteria set forth at 38 C.F.R. § 4.84a.  Under these criteria, impairment of central visual acuity is evaluated from noncompensable to 100 percent based upon the degree of the resulting impairment of visual acuity.  38 C.F.R. § 4.84a, DC's 6061 to 6079.  The percentage evaluation will be found from Table V by intersecting the horizontal row appropriate for the Snellen index for one eye and the vertical column appropriate to the Snellen index of the other eye.  38 C.F.R. § 4.83a, Table V.

Under the former DC 6077, a 20 percent rating was assigned for impairment of central visual acuity when vision in one eye is correctable to 20/200 and vision in the other eye is correctable to 20/40.  DC 6077 provides a 30 percent rating for impairment of central visual acuity when vision in one eye is correctable to 10/200 and vision in the other eye is correctable to 20/40.  38 C.F.R. § 4.84a, DC 6077 (effective prior to December 10, 2008).

The combined ratings for disabilities of the same eye should not exceed the amount for total loss of vision of that eye unless there is an enucleation or serious cosmetic defect added to the total loss of vision.  38 C.F.R. § 4.80 (effective prior to December 10, 2008).  When a Veteran is entitled to disability compensation in only 1 eye, as in this case, the maximum disability evaluation for total loss of vision of that eye is 30 percent unless there is (a) blindness in the other nonservice-connected eye, (b) enucleation of the service-connected eye, or (c) serious cosmetic defect of the service-connected eye.  38 C.F.R. §§ 3.383, 4.80 (effective prior to December 10, 2008).  A disability rating of 40 percent is warranted when service connection is in effect in only 1 eye if there is anatomical loss of that eye.  38 C.F.R. § 4.84a, DC 6066.

VA regulations permit compensation for a combination of service-connected and nonservice-connected eye disabilities when there is blindness in both the service connected and the nonservice connected eye and the nonservice-connected eye disability is not the result of the Veteran's own willful misconduct.  38 C.F.R. § 3.383(a).

The Veteran's service-connected PTSD currently is evaluated as 50 percent disabling effective March 31, 2009 (the date that he filed his increased rating claim), under 38 C.F.R. § 4.130, DC 9411 (PTSD).  See 38 C.F.R. § 4.130, DC 9411 (2012).  A 50 percent rating is assigned under DC 9411 for PTSD manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect, circumstantial, circumlocutory, or stereotyped speech, panic attacks more than once a week, difficulty in understanding complex commands, impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks), impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships.

A 70 percent rating is assigned under DC 9411 for PTSD manifested by 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), or an inability to establish and maintain effective relationships.  

A 100 percent rating is assigned under DC 9411 for PTSD manifested by total occupational and social impairment due to such symptoms as gross impairment in thought process 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.  Id. 

The Global Assessment of Functioning (GAF) is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness.  See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994).  A GAF score of 41 to 50 is defined as denoting serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).  A score of 51 to 60 is defined as indicating moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).  A GAF score of 61 to 70 is 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 score of 71 to 80 indicates that, if symptoms are present at all, they are transient and expectable reactions to psychosocial stressors with no more than slight impairment in social and occupational functioning.  See Carpenter v. Brown, 8 Vet. App. 240, 242-244 (1995).

Factual Background

The evidence shows that, on VA outpatient treatment in July 2005, the Veteran's complaints included that his "vision seems to be getting a little worse."  Objective examination showed pupils equal, round, and reactive to light with bilateral cataracts "right eye more dense than the left."  The assessment included bilateral cataracts, left greater than right.

In a March 2006 statement, the Veteran contended that he was unable to read small print and could not hunt because of his worsening service-connected left eye disability.

On VA outpatient treatment in December 2006, it was noted that the Veteran was being seen "for pre-operative medical clearance for right eye cataract surgery."  A history of a left eye cataract "which was removed and intraocular lens placed" was noted.  "He reports that he did well with this surgery and had no complications with the surgery or anesthesia."  Physical examination showed pupils equal, round, and reactive to light "with right eye having a dense cataract.  I could not see the fundus.  The left eye shows previous cataract surgery with no retinal abnormalities that I could appreciate."  The assessment included status-post cataract extraction with intraocular lens implantation in the left eye.

In January 2008, the Veteran stated that he was doing well since a recent surgery.  "He still describes symptoms consistent with PTSD, with nightmares, on average of about 3/month, with about 1 nightmare/2 months that he classifies as 'very distressing,' waking up in a cold [sweat], terrified, and very distressing to his wife, about his time as a medic in the Korean war."  His last distressing nightmare had occurred 1 month earlier.  The Veteran also reported experiencing flashbacks "with intrusive images and thoughts that appear at any time of the day."  He slept "all night, non-fragmented, and his appetite is good."  He denied any symptoms "consistent with neurovegetative signs of depression, mania, or psychosis."  He lived with his wife of 52 years and "spends his time at home pottering, watching TV, [and] exercising as best as he can."  He denied any suicidal or homicidal ideation.  It was noted that the Veteran "[c]ontinues to derive great joy in life, with his community standing, family, and friends."  Mental status examination of the Veteran showed appropriate dress and grooming, no abnormal eye movements or gestures, generally good eye contact, speech within normal limits, no suicidal or homicidal ideation or auditory or visual hallucinations, linear, coherent, goal-directed thought process, tight associations, intact insight and judgment, and full orientation.  The Veteran's GAF score was 55, indicating moderate symptoms or moderate difficulty in social, occupational, or school functioning.  A PHQ-9 screen was negative "which is suggestive of no depression."  The Axis I diagnosis was chronic PTSD.  The VA clinician stated that the Veteran was "a lot more amenable to pharmacotherapy this time, due to recent distress with PTSD symptoms."  This clinician started the Veteran on Celexa 10 mg every morning "to help manage hypervigilance, startle, improve mood and general wellbeing, [and] help with intermittent depressed mood."

In May 2008, the Veteran reported that he was doing well and had no complaints.  His sleep was "about the same" at 6 hours per night "and [he] wakes feeling refreshed."  It was noted that the Veteran "still reports having symptoms consistent with PTSD, with nightmares...on average of about 3/month with hypervigilance."  The Veteran still occupied himself at home "with projects, watching TV."  Mental status examination of the Veteran was unchanged.  The Veteran's GAF score was 40, indicating some impairment in reality testing or communication or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood.  The Axis I diagnosis was chronic PTSD.  The VA clinician advised the Veteran to continue taking Celexa 10 mg without making any dose changes "at this time."

In August 2008, the Veteran again reported that he was doing well and had no complaints.  His sleep was unchanged.  The Veteran denied any suicidal or homicidal ideation.  He also had no symptoms consistent with mania or psychosis.  "He still reports having symptoms consistent with PTSD, with a slight increase in the number of nightmares, now on average of about 4/month with hypervigilance."  The Veteran still occupied himself at home.  Mental status examination of the Veteran was unchanged.  The Veteran's GAF score was unchanged.  The Axis I diagnosis was chronic severe prolonged PTSD.  The VA clinician increased the Veteran's Celexa dose to 20 mg "to better target PTSD symptoms."

In September 2008, the Veteran reported "that he has been doing relatively well at home, since our last visit."  He denied any suicidal ideation and any significant "neurovegetative signs of depression."  He was sleeping well "although he continues to have almost daily, recurring nightmares in his dreams about his time in the Korean war, and it is physically distressing" and his wife woke him up because "he is screaming/moaning in his sleep."  The Veteran also reported an exaggerated startle response.  The VA examiner noted that the Veteran "has jumped at the sound of the telephone in my office recently."  The Veteran further reported "episodes of intrusive thoughts about these nightmares during the day, and he tries his best to deal with them as best as he can."  The Veteran's increased Celexa dose had improved his mood because he had not been short-tempered with his wife "of late."  The Veteran also denied any psychotic, hypomanic, or manic symptoms.  He continued "to enjoy time with his wife, and potters around in the house."

Mental status examination of the Veteran in September 2008 showed appropriate dress and grooming, no abnormal eye movements or gestures, generally good eye contact, speech within normal limits, no suicidal or homicidal ideation or auditory or visual hallucinations, linear, coherent, goal-directed thought process, no flight of ideas, tight associations, intact insight and judgment, and full orientation.  The Veteran's GAF score was 50-55, indicating moderate to serious symptoms or any moderate to serious impairment in social, occupational, or school functioning.  The Axis I diagnosis was chronic severe PTSD.  The VA clinician increased the Veteran's Celexa to 40 mg "to better target his continuing but improving mood symptoms related to his PTSD."

In November 2008, the Veteran complained of "rare nightmares every two to three months, but otherwise he is doing well.  He is sleeping well and he is feeling more calm since his citalopram was increased from 20 mg to 40 mg."  He reported enjoying "his retired life with his wife.  He has multiple things that he enjoys doing around the house in terms of carpentry work and painting.  He also has a flower garden and vegetable garden.  He denies any problems with PTSD, other than hypervigilance, which he states has improved with the increase in citalopram."  Mental status examination of the Veteran showed he was well groomed with no psychomotor agitation or retardation, normal speech, logical, linear, and goal-oriented cognitive processes, no suicidal or homicidal ideation, delusions, paranoia, obsessions, or hallucinosis, intact impulse control, good judgment and insight, and full orientation.  The VA examiner stated that the Veteran's PTSD was well managed with Celexa 40 mg.  "His nightmares are very rare and not providing any disruption for him.  He states that the main problems with his nightmares when they occur are that they wake[] up his wife and scare her."  The Veteran's GAF score was 80, indicating that, if symptoms were present, they were transient and expectable reactions to psychosocial stressors and no more than slight impairment in social, occupational, or school functioning.  The Axis I diagnosis was PTSD.

In March 2009, it was noted that the Veteran "continues to do quite well regarding his post-traumatic stress syndrome having very mild symptoms of an occasional nightmare every month and very minor hypervigilance which is sporadic where he states that 'I feel like someone is sneaking up on me.'  He is also still bothered by loud unexpected noises.  Both symptoms are quite normal for combat Veterans."  The VA examiner stated that the Veteran's symptoms "have greatly receded with the low dose of antidepressant (40 mg citalopram daily)."  The Veteran reported sleeping 6-8 hours a night "with no hypnotics."  He exercised daily.  He had an active church life and visited 2 daughters who lived very close to him.  Mental status examination of the Veteran showed he looked younger than his stated age, no psychomotor agitation or retardation, normal speech, logical, linear, and goal-oriented thoughts, no homicidal or suicidal ideation, paranoia, delusions, obsessions, or hallucinosis, intact impulse control, excellent judgment and insight, and full orientation.  The assessment was prolonged PTSD which was well-controlled with 40 mg of Celexa.  "He has rare nightmares and rare residual PTSD symptoms that are not bothersome to him."  The Veteran's GAF score was 80.  The Axis I diagnosis was chronic PTSD.  

On VA PTSD examination in June 2009, the Veteran's complaints included depression once a month for 30-60 minutes and brief periods of anxiety once a month.  The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records.  The Veteran lived at home with his wife of 53 years.  He cleaned his house, mowed the lawn, watched television, and read.  He walked 2 miles a day.  "He enjoys fishing, but he is unable to drive, so he has not been fishing in some time."  He visited his 5 daughters weekly.  "He and his wife went on a brief trip to Charlotte, North Carolina, for a wedding two weeks ago.  He and his wife went on a group bus trip to Branson, Missouri, two years ago, which he enjoyed and would like to make a similar trip."

Mental status examination of the Veteran in June 2009 showed full orientation, good eye contact, neat dress, good hygiene, coherent and logical speech in normal rate and volume, no evidence of impaired thinking or psychotic process, no hallucinations or rituals, no suicidal or homicidal ideation, good impulse control, limited insight, good judgment.  "He reports panic attacks accompanied by sweating and a fainting spell of 30 minutes duration.  He apparently has only experienced two or three panic attacks."  The Veteran normally slept 5 hours a night and woke up 2-3 times a night.  He also napped during the day and experienced dreams once or twice a month but did not remember the dreams.  He denied experiencing any intrusive thoughts related to service.  He reported being startled by vehicle backfiring, firing a weapon, a telephone ringing, and "when someone sneaks up behind him."  He was depressed "when he is reminded of his son who was killed in a vehicle accident at the age of 20 in 1981."  His most recent panic attack occurred in May 2009 "when he took his brother to the hospital and learned that there was some risk of death."  The Veteran's Global Assessment of Functioning (GAF) score was 80.  The VA examiner stated that the Veteran's PTSD symptoms were "moderate with minimal impact on his affective, somatic, cognitive, and behavioral functioning.  He reports engaging in a number of leisure and social activities, but there is some limitation of his activities due to visual impairment and other medical problems."  The diagnoses included chronic and moderate PTSD.

A "Clinical Update Summary" from a Vet Center dated on September 10, 2009, indicated that the Veteran "continues to present with chronic and severe PTSD symptoms."  The Vet Center social worker who completed this clinical summary stated that the Veteran "has been unable to establish and maintain effective relationships.  He has few friends and relies heavily on his wife for support."  The Veteran reported experiencing flashbacks 2-3 times a week "on average, which affects his ability to function because it carries him back to the trauma that he experienced while in Korea."  The social worker stated that the Veteran's GAF score was "between 45 and 50, and due to the severity of his PTSD symptoms there is minimal improvement expected."

On VA outpatient treatment on September 14, 2009, it was noted that the Veteran "continues to do well.  He is unhappy that he did not get his service connection increased at his last compensation pension hearing.  Nonetheless, he is still sleeping well."  He was sleeping 5 hours a night rather than 6-8 hours a night "due to the fact that it is summer and 'my wife doesn't use the air conditioning and sometimes it is hot in the summer.'  He states that this is a seasonal change in sleeping that is not unusual for him."  He reported "perhaps 'one nightmare once every two months' when he states that 'my wife says that I yell and kick.'"  He did not remember his dreams "and if I do, I only remember parts of them and I just get over it."  It also was noted that the Veteran "has nothing to complain about other than his poor eyesight, which prevents him from driving, which is a handicap that he is dealing with in a very mature way."  The Veteran denied experiencing "any signs or symptoms of depression during the winter" and could watch news about wars in Afghanistan and Iraq "without any emotional or cognitive disturbance."  He also denied any medication side effects.  

Mental status examination of the Veteran on September 14, 2009, showed he looked "younger than his stated age," normal speech, good eye contact, no psychomotor agitation or retardation, logical, linear, and goal-oriented thinking, no suicidal or homicidal ideation, no delusions, paranoia, or obsessions, no hallucinosis, good insight and judgment, and full orientation.  The assessment was prolonged post-traumatic stress syndrome that was well controlled on 40 mg of Celexa.  "His rare nightmares and symptoms of posttraumatic stress disorder are mild at worst and do not seem to be disruptive to him."  The Veteran's GAF score was 80.  The Axis I diagnosis was chronic PTSD.  The Veteran was advised to return to the PTSD clinic in 6 months.

On private psychiatric evaluation with N.D., M.D., in November 2009, the Veteran's complaints included continued "war-related flashbacks and nightmares.  He feels nervous, aggravated, and thinks about hurting himself.  He does not sleep well and stays restless during the night."  He also complained of "difficulty concentrating and remembering."  The Veteran lived with his wife "and does not drive because he is legally blind."  He had a good appetite.  The Veteran reported that his average daily activities included doing household chores, watching television, visiting his children who lived outside of the home, and shopping  with his wife.  "He used to enjoy playing baseball and going fishing but not now."

Mental status examination of the Veteran in November 2009 showed he was neatly and casually dressed, full orientation, "a poverty of thoughts, had difficulty relating with the examiner, and his speech revealed anxiety," impaired concentration, a borderline intellect, intact recent and remote memory, no difficulty repeating or recalling, no signs or symptoms of organic brain syndrome, intact judgment, adequate knowledge, fair insight, low self-esteem, and no auditory or visual hallucinations, delusional thinking, ideas of reference, or loose associations.  The Veteran's GAF score was 45, indicating serious symptoms or any serious impairment in social, occupational, or school functioning.  Dr. N.D. stated that the Veteran "continues to have emotional difficulties originating from his experiences while in the service that are effecting [sic] his everyday life significantly.  He does not appear able to handle any stress."  The impressions included severe PTSD.

On VA outpatient treatment in March 2010, the Veteran reported that he was in a "pretty good" mood and was sleeping 7 hours a night "and feeling 'pretty good in the morning.'"  He denied experiencing any anxiety.  He did odd jobs around his house and worked in his basement during the winter months.  "He states basically regarding his dreams that he does not remember any and that he denies any actual nightmares."  It was noted that the Veteran's citalopram "for depressive symptoms and posttraumatic stress disorder was stopped and the Veteran has not had any after effects and still feels as good.  His wife states that he is sleeping better without it."  The VA examiner stated that "there are no clinical indications to restart any medication for posttraumatic stress disorder symptoms."  Mental status examination of the Veteran showed full orientation, good hygiene, good eye contact, normal speech, no psychomotor agitation or retardation, no suicidal or homicidal ideation, no paranoid delusions or obsessions, no agoraphobia or panic attacks, very logical, linear, and goal-oriented thoughts.  "The Veteran is sleeping well and his mood is very stable.  He does not have any of the symptomatology of posttraumatic stress disorder or depression/anxiety that are interfering with his life quality."  The assessment was post-traumatic stress syndrome in remission.  The Veteran's GAF score was 83, indicating absent or minimal symptoms, good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, and no more than everyday problems or concerns.  The Axis I diagnosis was PTSD.  The Veteran was advised to return to the PTSD clinic in 6 months.

On VA eye examination in August 2010, the Veteran complained that his vision was "poor but stable" bilaterally.  He denied any eye pain or double vision.  He was status-post cataract surgery in both eyes "and is currently on no eye drops."  Physical examination showed best corrected distance vision 20/150 in the right eye and 20/80 in the left eye, near vision 20/400 in the right eye and 20/100 in the left eye, full visual fields to finger-counting bilaterally, no diplopia, posterior chamber intraocular lenses bilaterally, a macular scar in the right eye, drusen in the left eye, and chorioretinal scarring in the peripheral retina bilaterally.  The assessment included stable amblyopia in the left eye, pseudophakia in both eyes, and refractive error in both eyes.

On VA PTSD examination in September 2010, no complaints were noted.  The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records.  The Veteran reported that he attended group therapy twice a month at a Vet Center and "finds it helpful."  The VA examiner noted that "[t]here was no significant depression described in these psychiatry visits" that the Veteran had with his treating VA psychiatrist in 2009-2010.  "The Veteran remains retired."  He also denied any "work-related difficulties related to mental health difficulties" prior to his regular retirement at age 62.  He still was married to his wife of 54 years.  "He reports they get along fine without significant marital troubles."  He visited regularly with 2 of his 3 daughters who lived locally "and gets along well with them."  He also had good relationships with his grandchildren and great-grandchildren.  He further got along "adequately" with his twin brother who lived down the street from him.  He had "a number of friendships and social relationships" and was very active in the VFW.  He attended church regularly.  He listed to audio books, watched TV, performed household tasks, and exercised "by walking 2 miles a day."  He was unable to drive due to his severe vision problems but he went out with others "to various errands."  He had no "significant emotional distress related to these public outings."  He ate out at restaurants "without significant emotional distress either."  He slept "about 6 hours a night which he feels is adequate."

Mental status examination of the Veteran in September 2010 showed no significant emotional distress, no impairment of thought processes or communication, no delusions or hallucinations, appropriate behavior and eye contact, no suicidal or homicidal ideation, adequate personal hygiene and activities of daily living, full orientation, intact memory, no obsessive compulsive behavior, speech within normal limits, no panic attacks, adequate impulse control, and no severe anger outbursts.  "The Veteran reports some anxiety, saying he is sometimes a little nervous.  He says this occurs about once a week, and he could not specify why this was."  He denied depression and stated that "his mood is pretty good most days."  The VA examiner stated that, although the Veteran continued to experience PTSD symptoms, they were "relatively minimal to mild" as noted in prior outpatient treatment notes and at the Veteran's last VA examination in June 2009.  The VA examiner concluded that the Veteran "appears mildly affected overall" by his service-connected PTSD.  This examiner also concluded: 

[The Veteran] maintains good functioning in numerous areas despite being off of medications for awhile.  The Veteran's PTSD symptoms would not render him unemployable.  He had functioned adequately in the workplace for many years before taking regular retirement many years ago.  The Veteran gets along well with his wife and family and maintains a number of social interactions and group activities through the VFW and church.  He gets out adequately in public, he reports, with minimal emotional distress.  He maintains some friendships and activities he enjoys.  He denies significant depression.  He reports just some periodic anxiety.  He reports only very occasional nightmares with minimal recall.

The Veteran's GAF score was 76, indicating that, if symptoms are present, they are transient and expectable reactions to psychosocial stressors and no more than slight impairment in social, occupational, or school functioning.  The diagnosis was PTSD.

On VA outpatient treatment in October 2011, the Veteran reported "he is having no problems with nightmares, no problems with agoraphobia, and that his sleep is 'better, I wake up several times a night.'"  He denied any problems with guilt, had "good" energy, "okay" concentration, and a "very good" appetite.  Mental status examination of the Veteran showed good grooming and eye contact, normal speech, no signs of psychomotor retardation "but he uses his hands a lot in folding and refolding paper that he is given," logical, linear, and goal oriented thoughts, no suicidal or homicidal ideation, no paranoia, delusions, compulsions, or hallucinosis, good insight and judgment, and full orientation.  "The Veteran does not seem to be suffering any abnormal bereavement processes.  He denies symptoms of depression. He is sleeping relatively well using trazodone 50 mg" as needed.  The Veteran's GAF score was 80, indicating that, if symptoms were present, they were transient and expectable reactions to psychosocial stressors and no more than slight impairment in social, occupational, or school functioning.  The Axis I diagnosis was stable PTSD.

On VA eye conditions Disability Benefits Questionnaire (DBQ) in February 2012, no relevant complaints were noted.  A history of poor vision in both eyes and amblyopia in the left eye was noted.  The Veteran's cataract surgeries also were noted.  He was on no eye medications.  Physical examination showed distance vision with correction 20/200 in the right eye and 20/70 in the left eye, full extraocular movements in both eyes, full visual fields to confrontation in both eyes, an unremarkable external face, clear corneas bilaterally, irises within normal limits bilaterally, and posterior chamber intraocular lenses bilaterally.  Slit lamp examination was within normal limits in both eyes.  The impressions included pseudophakia in both eyes after cataract removal, YAG capsulotomy in the left eye, and congenital refractive amblyopia in the left eye.

On VA outpatient treatment in April 2012, the Veteran "reported a good response to changing medications from citalopram to fluoxetine with a titration to 20 mg.  He states that his mood is 'pretty good, I feel the normal way I used to feel, I'm more relaxed.  I'm getting back in the groove.  I'm staying busy.  Before I used to just sit around and watch television.  Now I'm going fishing (with friend driving), working in the yard, cutting wood and cutting grass."  With respect to his sleep, the Veteran stated, "I'm sleeping pretty good with sometimes wild dreams. I've been sleeping well for so long that I stopped taking the trazodone (1 month ago), and I'm still sleeping 7-8 hours."  Mental status examination of the Veteran showed normal speech, logical, linear, and goal oriented thoughts, no suicidal or homicidal ideations, no paranoia, delusions, compulsions, behavioral dyscontrol, or hallucinosis, and full orientation.  "The Veteran is improved in mood with the change in medication to fluoxetine 20 mg in the morning. He has moved back to being active inside and outside his home and he is sleeping now with no hypnotic.  The Veteran's GAF score was 65-70, indicating some mild symptoms or some difficulty in social, occupational, or school functioning but generally functioning pretty well with some meaningful interpersonal relationships.  The Axis I diagnosis was PTSD.  

In July 2012, the Veteran stated, "'I'm doing very well.  I feel well, and I'm active. I keep busy doing house cleaning, cooking, laundry, and I go out 3 times a week with buddies.'  He reports going to the Vet center at Princeton twice a month for his PTSD counseling.  He does not endorse any flashbacks or intrusive thoughts."  He also stated, 'I'm sleeping pretty good. Getting 6 to 8 hours a night, and I feel okay in the morning.'  He reports no nightmares only 'crazy dreams.'"  Mental status examination of the Veteran showed he "sits calmly in a chair, showing no psychomotor agitation or retardation," linear, logical and goal oriented thoughts, no suicidal or homicidal ideation, no paranoia, delusions, compulsions, behavioral dyscontrol or hallucinosis, and full orientation.  The VA clinician concluded, "The Veteran continues to do well on fluoxetine 20 mg in the morning. He is sleeping without a hypnotic. He is interacting in the community and going out of his house at least 3 times a week with friends."  The Veteran's GAF score was 70-75, indicating either some mild symptoms or some difficulty in social, occupational, or school functioning but generally functioning pretty well with some meaningful interpersonal relationships or if symptoms were present, they were transient and expectable reactions to psychosocial stressors and no more than slight impairment in social, occupational, or school functioning.  The Axis I diagnosis was PTSD which was stable.  

In an August 2012 statement, the Veteran's twin brother asserted that what the Veteran experienced during the Korean War had affected him "very much."  He also stated that he could not talk to his brother without the Veteran getting angry.  The Veteran's twin brother stated further that the Veteran "has lost some of his sight.  Declared blind.  Can't drive anymore or work.  Has to depend on someone to take him anywhere.  Depresses him very much."

In a separate August 2012 statement, A.M. asserted that the Veteran "is considered to be legally blind, therefore he is unable to do a lot of the things other people can do."  A.M. also asserted that, although the Veteran "used to enjoy woodworking and making things," he was unable to do these things because of his poor vision.  The Veteran also had told A.M. that his nightmares about his combat experiences had worsened.  "He doesn't like to talk about them, but I know that they bother him a lot.  There are times that he is himself, but then there are times that he is very irritable, and seems to try and pick fights, or an argument, that's just not like him, so I know something isn't right."

In another August 2012 statement, the Veteran's daughter contended that the Veteran "has to have help because of his eye sight.  He does not drive and cannot pay his bills because he doesn't see very well.  Someone has to do these things for him.  He does live alone, and takes care of himself, but does need the extra help."

A "Visual Impairment Services" note dated in August 2012 and included in the Veteran's VA outpatient treatment records indicates that "[the] Veteran has severe vision impairment secondary to macular hole [in the right eye] and cataracts [in both eyes].  He lives alone and remains independent with his [activities of daily living] and personal care.  He has very supportive family who assist him if needed."

On VA PTSD DBQ in September 2012, no relevant complaints were noted.  The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records.  The VA examiner noted that the Veteran's recent VA outpatient treatment records "indicated he is doing very well and is staying active [with] no intrusive thoughts or flashbacks and was more relaxed.  He was reported to sleep well (6-8 hours) with no sleep medication.  He was staying active as well as getting out socially."  The VA examiner stated that, since the Veteran's most recent VA examination in September 2010, his wife of 55 years had died "and now he lives alone."  The Veteran still got along well with his daughters, grandchildren, and great-grandchildren.  He also had lost a great-granddaughter unexpectedly in June 2012.  He got along "ok" with his twin brother "who lives a block away.  He does also have some friends, and they will sometimes go fishing, to the VFW, or out to lunch.  He still volunteers for VFW Honor Guard to help" at funerals of other Veterans.  "He still attends church.  He walks/hikes 2 miles a day."  He walked by himself "now that his friend has had leg problems."  He still listened to books on tape, mowed the grass with a rider mower, "and does some flower gardening."  He also "will go on errands to Walmart or grocery store with no significant emotional distress if someone drives him."  

Mental status examination of the Veteran in September 2012 showed "periodic feelings of anxiety," difficulty concentrating, normal eye contact, speech, and behavior, no suicidal or homicidal ideation, no delusions or hallucinations, grossly intact memory, no panic attacks or obsessive compulsive disorder, "periodic sadness regarding grief over his wife and greatgranddaughter's deaths" which was within normal limits, periodic war nightmares approximately 2-3 times a month "though [he] also says he often has other weird or unpleasant dreams such as about his wife dying," no significant problems with anger or irritability or hypervigilance, and good sleep.  The VA examiner stated that the Veteran "continues to have some PTSD symptoms, though [he] seems to be coping and functioning well according to today's exam and his recent VA treatment notes.  He seems to have good social support also."  The Veteran "appeared in no significant emotional distress" and "denied pervasive depression."  The VA examiner also noted that the Veteran "remains social and interested in various activities."  This examiner concluded that the Veteran's PTSD "does not render him unable to obtain or maintain gainful employment" as noted in previous examinations and "functioned adequately with no severe mental health related impairments" when he worked prior to his regular retirement at age 62.  This examiner also concluded that the Veteran's current PTSD symptoms "are mild (as can also be seen in treatment GAF scores and GAF score in this report) and his functioning in various areas of his life is good."  The Veteran's GAF score was 72, indicating that, if symptoms are present, they are transient and expectable reactions to psychosocial stressors and no more than slight impairment in social, occupational, or school functioning.  The Axis I diagnosis was PTSD.

On VA ophthalmology consult later in September 2012, no complaints were noted.  Physical examination showed distant visual acuity in the left eye of 20/150.

Analysis

The Board finds that the preponderance of the evidence is against assigning a disability rating greater than 20 percent for the Veteran's service-connected left eye disability.  The Veteran has contended that, because he is considered "legally blind," he is entitled to an increased rating.  The record evidence does not support his assertions regarding a worsening of his service-connected left eye disability, however.  The Board notes initially that a determination that the Veteran is "legally blind" is not binding on VA.  The evidence indicates instead that the Veteran's service-connected left eye disability has been manifested by, at worst, visual acuity in the left eye equivalent to 20/150 (as seen on VA ophthalmology consult in September 2012).  Because service connection is not in effect for a right eye disability, the Veteran's visual acuity in the right eye is considered 20/40 for rating purposes.  See 38 C.F.R. § 4.75(c).  This equates to a 20 percent rating for the Veteran's service-connected left eye disability under the former rating criteria for evaluating eye disabilities.  See 38 C.F.R. §§ 4.79, 4.83a, Table V, 4.84a, DC 6079 (effective prior to December 10, 2008).  The Board acknowledges that, because the 20 percent rating currently assigned for the Veteran's service-connected left eye disability has been in effect for 20 or more years, it is protected from reduction unless there is a showing that the original rating was based on fraud.  There has been no allegation of fraud with respect to the original 20 percent rating assigned for the Veteran's service-connected left eye disability in this case.  See 38 U.S.C.A. § 110; 38 C.F.R. § 3.951(b).

The Board also acknowledges that the Veteran had left eye cataract surgery during the pendency of this appeal.  Following this surgery, a VA clinician noted in December 2006 that there were "no retinal abnormalities" in the Veteran's left eye.  The Veteran himself also reported at his VA examination in August 2010 that his vision was "poor but stable."  It appears that the Veteran's visual acuity in the left eye has worsened from 20/70 in February 2012 to 20/150 in September 2012.  There is no indication in the record evidence, however, that the Veteran's visual acuity in the left eye was 10/200 or worse as is required for a 30 percent rating under DC 6077 with visual acuity in the non-service-connected right eye of 20/40.  See 38 C.F.R. §§ 4.83a, Table V, DC's 6074, 6077 (effective prior to December 10, 2008).  The record evidence also does not indicate that there is blindness in the other nonservice-connected (right) eye, enucleation of the service-connected (left) eye, or a serious cosmetic defect of the service-connected (left) eye such that an increased rating is warranted.  See 38 C.F.R. §§ 3.383, 4.80 (effective prior to December 10, 2008).  There further is no anatomical loss of the Veteran's left eye such that a disability rating of 40 percent is warranted under the former rating criteria for evaluating eye disabilities.  See 38 C.F.R. § 4.84a, DC 6066.  The Veteran finally has not identified or submitted any evidence, to include a medical nexus, which demonstrates his entitlement to a disability rating greater than 20 percent for his service-connected left eye disability under the former rating criteria for evaluating eye disabilities.  In summary, the Board finds that the criteria for a disability rating greater than 20 percent for the Veteran's service-connected left eye disability have not been met.

The Board finally finds that the preponderance of the evidence is against assigning a disability rating greater than 50 percent for the Veteran's service-connected PTSD.  The Veteran has contended that his service-connected PTSD has resulted in significant disability, entitling him to an increased rating.  The record evidence does not support his assertions regarding worsening of his service-connected PTSD, however.  It shows instead that the Veteran's service-connected PTSD is manifested by, at worst, occupational and social impairment with reduced reliability and productivity due to mild symptoms such as periodic nightmares.  The evidence also persuasively suggests that the Veteran has been coping well with his service-connected PTSD symptomatology throughout the appeal period.  It indicates further that the Veteran has good social support from his family members and gets good sleep.  

The Board acknowledges that the Veteran's GAF scores have varied widely during the pendency of this appeal.  Specifically, the Veteran's GAF scores recorded in 2008-2009 do not appear to relate to the symptomatology that he reported on VA and private outpatient treatment visits during that time period.  For example, although the VA clinician recorded a GAF score of 55 in January 2008, the Veteran stated that he was doing well and experienced 3 nightmares per month with only 1 nightmare every 2 months being distressing to him.  The January 2008 VA clinician also noted that the Veteran "[c]ontinues to derive great joy in life, with his community standing, family, and friends."  Mental status examination showed appropriate dress and grooming, no abnormal eye movements or gestures, generally good eye contact, speech within normal limits, no suicidal or homicidal ideation or auditory or visual hallucinations, linear, coherent, goal-directed thought process, tight associations, intact insight and judgment, and full orientation.  The Veteran's PHQ-9 screen was negative "which is suggestive of no depression."  In May 2008, the Veteran reported that he was doing well, he had no complaints, and his sleep was "about the same" at 6 hours per night "and [he] wakes feeling refreshed."  Mental status examination was unchanged.  The Veteran's GAF score was 40, however, indicating some impairment in reality testing or communication or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood.  The May 2008 VA clinician did not change the Veteran's antidepressant dosage, despite the decline in his GAF score from January 2008.  The Veteran's GAF score had improved to 50-55 in September 2008 when the VA clinician increased the Veteran's Celexa to 40 mg "to better target his continuing but improving mood symptoms related to his PTSD."  (Emphasis added.)  The VA clinician noted in November 2008 that the Veteran's service-connected PTSD was well managed on 40 mg of Celexa and his GAF score had improved dramatically to 80.  The Veteran stated in November 2008 that he had nightmares very rarely on the increased dosage of Celexa.

The Veteran also has not reported consistently the symptomatology associated with his service-connected PTSD.  As noted above, a Vet Center record dated on September 10, 2009, indicated that the Veteran "continues to present with chronic and severe PTSD symptoms."  The Vet Center social worker stated that the Veteran "has been unable to establish and maintain effective relationships.  He has few friends and relies heavily on his wife for support."  The Veteran reported experiencing flashbacks 2-3 times a week "on average, which affects his ability to function because it carries him back to the trauma that he experienced while in Korea."  The social worker also stated that the Veteran's GAF score was "between 45 and 50, and due to the severity of his PTSD symptoms there is minimal improvement expected."

By contrast, on VA outpatient treatment 4 days later on September 14, 2009, it was noted that the Veteran "continues to do well...[and] he is still sleeping well."  He reported "perhaps 'one nightmare once every two months' when he states that 'my wife says that I yell and kick.'"  He did not remember his dreams "and if I do, I only remember parts of them and I just get over it."  The Veteran "has nothing to complain about other than his poor eyesight, which prevents him from driving, which is a handicap that he is dealing with in a very mature way."  He denied experiencing "any signs or symptoms of depression during the winter" and could watch news about wars in Afghanistan and Iraq "without any emotional or cognitive disturbance."  Mental status examination of the Veteran on September 14, 2009, showed he looked "younger than his stated age," normal speech, good eye contact, no psychomotor agitation or retardation, logical, linear, and goal-oriented thinking, no suicidal or homicidal ideation, no delusions, paranoia, or obsessions, no hallucinosis, good insight and judgment, and full orientation.  The assessment was prolonged post-traumatic stress syndrome that was well controlled on 40 mg of Celexa.  "His rare nightmares and symptoms of posttraumatic stress disorder are mild at worst and do not seem to be disruptive to him."  The Veteran's GAF score was 80.

On private psychiatric evaluation with Dr. N.D. in November 2009, however, the Veteran's complaints included continued "war-related flashbacks and nightmares.  He feels nervous, aggravated, and thinks about hurting himself.  He does not sleep well and stays restless during the night."  He also complained of "difficulty concentrating and remembering."  Mental status examination showed he was neatly and casually dressed, full orientation, "a poverty of thoughts, had difficulty relating with the examiner, and his speech revealed anxiety," impaired concentration, intact recent and remote memory, no difficulty repeating or recalling, no signs or symptoms of organic brain syndrome, intact judgment, fair insight, and no auditory or visual hallucinations, delusional thinking, ideas of reference, or loose associations.  The Veteran's GAF score was 45.  Dr. N.D. stated that the Veteran "continues to have emotional difficulties originating from his experiences while in the service that are effecting [sic] his everyday life significantly.  He does not appear able to handle any stress."

The Court has held that the Board is free to assess medical evidence and is not compelled to accept a physician's opinion.  Wilson v. Derwinski, 2 Vet. App. 614 (1992).  A medical opinion based upon an inaccurate factual premise is not probative.  Reonal v. Brown, 5 Vet. App. 458, 461 (1993).  A bare conclusion, even one reached by a medical professional, is not probative without a factual predicate in the record.  Miller v. West, 11 Vet. App. 345, 348 (1998).  A bare transcription of lay history, unenhanced by additional comment by the transcriber, does not become competent medical evidence merely because the transcriber is a medical professional.  LeShore v. Brown, 8 Vet. App. 406, 409 (1995).  The Court also has held that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999).  Thus, a medical opinion is inadequate when it is unsupported by clinical evidence.  Black v. Brown, 5 Vet. App. 177, 180 (1995).  

The Board notes that the Veteran's GAF scores recorded on VA outpatient treatment visits in 2008 are inconsistent with each other and may reflect the inconsistent statements that he made to both VA and private treating clinicians during this time period regarding the alleged severity of his service-connected PTSD.  It is not clear why the Veteran reported radically different PTSD symptoms to a Vet Center social worker on September 10, 2009, and to a VA clinician just 4 days later on September 14, 2009.  It also is not clear why the Veteran reported radically different PTSD symptoms to the VA examiner in June 2009, his treating VA clinician in September 2009, and to Dr. N.D. in November 2009.  Having reviewed the record evidence, and given the inconsistencies in the Veteran's GAF scores and what he reported on VA and private outpatient treatment in 2008-2009, the Board finds that this evidence is not probative on the issue of whether the Veteran is entitled to an increased rating for his service-connected PTSD.

The remaining evidence indicates that, at worst, the Veteran's service-connected PTSD has been mildly to moderately disabling.  There is no indication that the Veteran experiences at least occupational and social impairment with deficiencies in most areas or total occupational and social impairment (i.e., a 70 or 100 percent rating) as a result of his service-connected PTSD such that a disability rating greater than 50 percent is warranted under DC 9411.  See 38 C.F.R. § 4.130, DC 9411 (2012).  The Board observes in this regard that his GAF scores recorded on VA outpatient treatment visits in 2010 and on VA examinations in September 2010 and in September 2012 are consistent with each other and reflect mild symptomatology.  The record evidence also indicates that the Veteran felt well enough to discontinue his antidepressant medication in March 2010 and experienced no ill effects or side effects as a result.  The Veteran's PTSD also entered a period of remission beginning in March 2010.  Following VA examination in September 2010, the VA examiner concluded that, although the Veteran continued to experience PTSD symptoms, they were "relatively minimal to mild" as noted in prior outpatient treatment notes and at the Veteran's last VA examination in June 2009.  This VA examiner also concluded that the Veteran "appears mildly affected overall" by his service-connected PTSD.  Similarly, following the Veteran's most recent VA examination in September 2012, although the Veteran had lost both his wife of 55 years and a great-granddaughter, the VA examiner stated that the Veteran "seems to be coping and functioning well according to today's exam and his recent VA treatment notes.  He seems to have good social support also."  The Veteran "appeared in no significant emotional distress" and "denied pervasive depression."  The VA examiner stated that the Veteran "remains social and interested in various activities."  This examiner concluded that the Veteran's current PTSD symptoms "are mild...and his functioning in various areas of his life is good."  The Veteran further has not identified or submitted any evidence, to include a medical nexus, which demonstrates his entitlement to a disability rating greater than 50 percent for his service-connected PTSD.  In summary, the Board finds that the criteria for a disability rating greater than 50 percent for the Veteran's service-connected PTSD have not been met.

The Board finally finds that consideration of staged ratings for the Veteran's service-connected left eye disability or for PTSD is not warranted.  The record evidence demonstrates that the Veteran has experienced essentially the same level of disability due to his service-connected left eye disability and PTSD throughout the appeal period.  Thus, consideration of staged ratings is not warranted.  See Hart, 21 Vet. App. at 505.

Extraschedular

The Board must consider whether the Veteran is entitled to consideration for referral for the assignment of extraschedular ratings for his service-connected left eye disability or for PTSD.  38 C.F.R. § 3.321; Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the Veteran or reasonably raised by the record).

An extraschedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996).  An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). 

If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization.  Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116.

The Board finds that schedular evaluations assigned for the Veteran's service-connected left eye disability and for PTSD are not inadequate in this case.  Additionally, the diagnostic criteria adequately describe the severity and symptomatology of these service-connected disabilities.  This is especially true because the 50 percent rating currently assigned for the Veteran's PTSD contemplates moderate disability.  Moreover, the evidence does not demonstrate other related factors such as marked interference with employment and frequent hospitalization.  The Veteran has been retired throughout the appeal period.  It was noted on several VA examinations conducted during the pendency of this appeal that the Veteran took a regular retirement at age 62.  Multiple examiners who saw the Veteran during the pendency of this appeal concluded that he was not unemployable due to his service-connected PTSD and had "functioned adequately with no severe mental health related impairments" prior to his retirement.  He also has not been hospitalized for treatment of either his service-connected left eye disability or PTSD during the appeal period.  The Veteran's TDIU claim finally is being remanded for additional development (as discussed below).  In light of the above, the Board finds that the criteria for submission for assignment of extraschedular ratings pursuant to 38 C.F.R. § 3.321(b)(1) are not met.  See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).


ORDER

Entitlement to a disability rating greater than 20 percent for a left eye disability is denied.

Entitlement to a disability rating greater than 50 percent for PTSD is denied.


REMAND

The Veteran has contended that his service-connected disabilities preclude him from securing or maintaining substantially gainful employment, entitling him to a TDIU.  When he filed his formal TDIU claim in July 2010, he specifically asserted that his service-connected left eye disability and PTSD caused his unemployability.  Having reviewed the record evidence, the Board finds that additional development is necessary before the Veteran's TDIU claim can be adjudicated on the merits.

A review of the claims file shows that, in a VA Examination Request form completed in August 2010, the RO requested, in pertinent part, that the Veteran be scheduled for VA examination to determine the impact of his service-connected left eye disability on his employability.  A review of the Veteran's February 2012 VA eye conditions Disability Benefits Questionnaire shows that this requested opinion was not provided by the VA examiner.  Thus, the Board finds that, on remand, the February 2012 VA examination report should be returned to the VA examiner who completed it in order for him to provide an addendum with an opinion as to the impact of the Veteran's service-connected left eye disability on his employability.

Lastly, the Board observes that while the Veteran currently has two or more service-connected disabilities, with at least one disability ratable at 40 percent or more, the Veteran's combined rating for all of his service connected disabilities is 60 percent.  Hence, the Veteran does not meet the percentage requirements for a TDIU rating under 38 C.F.R. § 4.16(a).  However, entitlement to a TDIU rating, on an extra-schedular basis, may nonetheless be established, in exceptional cases, when the Veteran is unable to secure and follow a substantially gainful occupation by reason of a service-connected disabily.  38 C.F.R. § 4.16(b).  Thus, the Board finds that the RO/AMC should consider the matter of an extra-schedular TDIU rating, due exclusively to the service-connected left eye disability and PTSD, per 38 C.F.R. § 4.16(b), in the first instance, to avoid any prejudice to the Veteran.

Accordingly, the case is REMANDED for the following action:

1.  Contact the VA Medical Center in Salem, Virginia, and ask the VA examiner who conducted the Veteran's February 27, 2012, VA eye conditions Disability Benefits Questionnaire (DBQ) to provide an addendum to this examination report.  The claims file and a copy of this remand must be provided to this examiner for review.  In his addendum, the VA examiner should be asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's service-connected amblyopia of the left eye renders him unable to secure or follow a substantially gainful occupation.  A complete rationale must be provided for any opinions expressed.

The examiner is advised that the Veteran contends that his service-connected amblyopia of the left eye renders him unable to secure or follow a substantially gainful occupation.  The examiner also is advised that the existence or degree of other non-service-connected left eye disabilities must be disregarded in rendering this opinion.

2.  If, and only if, the VA examiner who conducted the Veteran's February 27, 2012, VA eye conditions DBQ is not available, then schedule the Veteran for appropriate examination to determine the impact of his service-connected left eye disability on his employability.  The claims file and a copy of this remand must be provided to the examiner for review.  All appropriate testing should be conducted.  The Veteran should be asked to provide a complete medical history, if possible.  Based on a review of the claims file and the results of the Veteran's physical examination, and the Veteran's statements regarding the development and treatment of his claimed disorders, the examiner is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's service-connected amblyopia of the left eye renders him unable to secure or follow a substantially gainful occupation.  A complete rationale must be provided for any opinions expressed.

The examiner is advised that the Veteran contends that his service-connected amblyopia of the left eye renders him unable to secure or follow a substantially gainful occupation.  The examiner also is advised that the existence or degree of other non-service-connected left eye disabilities must be disregarded in rendering this opinion.

3.  The Veteran should be given notice of the requested examination, if scheduled, which includes advising him of the consequences of his failure to report to the examination.  If he fails to report to the examination, then this fact should be noted in the claims file and a copy of the scheduling of examination notification or refusal to report notice, whichever is applicable, should be obtained by the RO and associated with the claims file.

4.  Review all evidence received since the last prior adjudication and readjudicate the issue of a TDIU rating due to the service-connected left eye disability and PTSD, to consider whether the requirements for referral to the Director of Compensation and Pension Service have been invoked under 38 C.F.R. § 4.16(b).  If the determination remains unfavorable to the Veteran, then the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue.  An appropriate period of time should be allowed for response by the Veteran and his service representative.  Thereafter, the case should be returned to the Board for further appellate consideration, if in order.

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).



____________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs