Citation Nr: 1332623 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 11-17 566 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. What evaluation is warranted for posttraumatic stress disorder (PTSD), from April 16, 2004 to May 10, 2011? 2. What evaluation is warranted for PTSD since May 11, 2011? 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barner, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1969 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans' Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The issues of what evaluation is warranted for PTSD since May 11, 2011, and entitlement to a total disability evaluation based on individual unemployability due to service connected disorders are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's PTSD resulted in occupational and social impairment with reduced reliability and productivity from April 16, 2004 to May 10, 2011. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for a 50 percent rating, but no higher, for PTSD were met from April 16, 2004 to May 10, 2011. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As service connection, an initial rating, and an initial effective date have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations, as recently as August 2010. The VA examination reports and the pertinent outpatient treatment records contain sufficiently specific clinical findings and informed discussions of the pertinent history and clinical features of the disability on appeal and are adequate for purposes of this appeal. The Veteran was provided the opportunity to present pertinent evidence and testimony, to include at his September 2011 hearing. In January 2009 the Board remanded the claim to obtain outstanding VA treatment records and Social Security disability records, attempt to verify the Veteran's stressor(s) and obtain a VA examination. VA has substantially complied with the Board's prior remand with regard to this appeal. Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required where there was substantial compliance with Board's remand instructions). In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Applicable Laws and Regulations Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). PTSD is rated under Diagnostic Code 9411, which provides for a 30 percent rating where there is occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130. A 50 percent rating is warranted for PTSD where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty understanding complex commands; impairment of short and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted where there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted where there is total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. In evaluating psychiatric disorders, the Board is mindful that the term "such symptoms as" in 38 C.F.R. § 4.130 means that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve only as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Global Assessment of Functioning scale reflects psychological, social, and occupational functioning of a hypothetical continuum of mental health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). Global assessment of functioning scores between 41 and 50 reflect serious symptoms, (e.g. suicidal ideation, severe obsessional rituals, frequent shoplifting), or any serious impairment in social, occupational, or school functioning, (e.g., no friends, unable to keep a job). Global assessment of functioning scores between 51 and 60 reflect moderate symptoms, (that is, flat affect, circumstantial speech, occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (e.g., few friends, contacts with peers or co- workers). An examiner's classification of the level of psychiatric impairment, by words or by a score, is to be considered, but is not determinative of the percentage rating to be assigned. VAOPGCPREC 10-95. The Board must assess the credibility and weigh all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In an October 2010 rating decision, the RO awarded entitlement to service connection for PTSD, and assigned a 30 percent rating effective April 16, 2004. The Veteran contends that he is entitled to a higher initial evaluation for his PTSD. As discussed below, the Board is considering the time period from April 16, 2004 until May 10, 2011, which is the date that the Veteran has identified as when he began seeking private treatment for his psychiatric symptoms, and from which records remain outstanding. VA treatment records during the period of the Veteran's appeal show that he suffered from symptoms such as nightmares, sleep difficulties, circumstantial thinking, depressed and anxious mood, mood swings, paranoia, irritability, longwinded and pressured speech, and racing and fragmented thoughts. He was been assessed as having global assessment of functioning scores between 40 (see September 2009 report) and 55. He has reported that he had suicidal ideation in the distant past (15 to 29 years ago), but no plan. He has denied homicidal ideation, although he endorsed impaired impulse control. In various statements of record, the Veteran reported experiencing panic attacks up to four times a week. He reported experiencing mood swings, paranoia, forgetfulness, and that he was impatient. He endorsed a tendency to isolate, and having flashbacks. The representative has highlighted that treatment notes show that the Veteran speaks with a flattened affect, and that he is depressed and anxious. The Veteran's wife wrote in 2008 that the Veteran experienced nightmares four to five times a week, during which he would hit, kick and even push her onto the floor. Due to this he would sit up until three or four in the morning hoping to be too tired to have nightmares by the time that he finally slept. At a September 2004 VA psychiatric examination the examiner indicated that the Veteran had two marriages that ended in divorce, and that he was married for a third time. The Veteran had adult children and stepchildren. At that time he was employed as a nursing assistant, prior to which he had been employed as a coal miner. The Veteran reported that he experienced difficulty trying to remember things about service, because he had a tendency to try to forget. Nevertheless, he stated that he had nightmares about his experiences in Vietnam, as well as flashbacks triggered by helicopter sounds or conversations about war. The Veteran reported that he had improved his tendency to be "snappy" and "irritable." The Veteran indicated that he was "jumpy" and "nervous' over the years, and that he had a great fear of the dark. On examination, the Veteran was alert and oriented in all spheres. He was adequately groomed. His affect was stable, but also reflected a moderate decrease in range and intensity. He denied suicidal ideation, although he had suicidal thoughts many years earlier. He denied delusional ideations or hallucinatory perceptions. He also denied ever being homicidal. His thought processes were logical, goal-directed, and appropriate in speed. Judgment and insight seemed appropriate. The Veteran was considered capable of dealing with his finances. The examiner diagnosed the Veteran as having PTSD. The examiner noted the Veteran's symptoms included nightmares, dissociative flashbacks, efforts to avoid stimuli or activities related to his experiences, periodic irritability, hypervigilance and an exaggerated startle response. The examiner also observed that the Veteran experienced "survival guilt" and "psychogenic amnesia." The examiner assessed the Veteran as having a global assessment of functioning score of approximately 55, which would be defined as "moderate symptoms OR moderate difficulty in social, occupational, or school functioning." The Veteran was most recently afforded a VA psychiatric examination in August 2010. The examiner reviewed the Veteran's medical treatment records, to include his individual psychotherapy, and summarized his receipt of global assessment of functioning scores ranging from 45 to the 50s. The Veteran reported that his PTSD symptomatology continued to include nightmares as well as daytime memories. He occasionally had difficulty controlling his temper and was very anxious on a daily basis. He had symptoms of panic when in an agoraphobic settings. He had difficulty with insomnia and a strong startle response. The Veteran reported that he had occasional days of remission, and a better capacity for adjustment during such remissions. The Veteran's history of two prior marriages, and current marriage of 16 years was reviewed. He reported that his family connections were good. The Veteran denied a history of drug or alcohol abuse during his lifetime, as well as a history of suicide attempts. On examination, the Veteran's affect was stable and appropriate, but it was flat and was in a very narrow range and intensity. His thought processes showed a normal rate of flow with good coherence and logic. There were no loose associations and thought content was appropriate. The Veteran met the DSM-IV criteria for PTSD. He reported persistently re-experiencing the traumatic events of Vietnam in ways to include recurrent distressing dreams, acting or feeling as if the event were recurring during dissociative flashback episodes, and intense psychological distress and physiological reaction to exposure to event reminders. The Veteran demonstrated persistent avoidance of stimuli associated with traumatic events, a numbing of general responsiveness, diminished interest and participation in significant activities. He had a feeling of detachment and estrangement, difficulty with a restricted range of affect, which he attributed to affecting his first two marriages. The Veteran had a sense of a foreshortened future. The Veteran showed significant symptoms of increased arousal to include difficulty falling and staying asleep, irritability, and difficulty concentrating. The Veteran was hypervigilant with an exaggerated startle response. The assessment was chronic PTSD, and a global assessment of functioning score of 51 was assigned. This score was considered at the lower end of the range qualitatively described as "moderate symptoms OR moderate difficulty in social, occupational, or school functioning." The examiner indicated that the Veteran had difficulty functioning in his occupational capacity throughout his adult life, although he reached a normal retirement age. The Veteran's social functioning was judged to have been negatively affected by PTSD and to have resulted in the loss of his first two marriages. The Veteran's social functioning was at that time stabilized, as he maintained some social functioning with his family. The examiner opined that the Veteran's symptoms required continuous medication. In January 2010, the Veteran reported that he retired early because working with other veterans caused increased flashbacks, depression and nervousness. At the same time his wife submitted a statement describing the Veteran's depressed mood with crying spells, instances of fear triggered by loud noises, and sleep disturbances. In December 2010, the representative emphasized that the Veteran had circumstantial, circumlocutory, or stereotyped speech. In addition, his symptoms were described as including sleep disturbances, depression, anxiety, panic, and a flattened affect. The representative emphasized the Veteran's familial difficulties with two prior divorces, and also reported that the appellant had no social life outside of his family. The Veteran was afforded a March 2011 hearing before a Decision Review Officer, at which time he endorsed having nightmares three to four times a week, depression, flashbacks and fear of being alone. After considering the totality of the record, the Board finds the evidence supports a 50 percent disability rating and no higher for the Veteran's PTSD during the course of this appeal since April 16, 2004. The foregoing evidence reveals evidence that the appellant suffers from flashbacks, nightmares and anxiety, psychogenic amnesia, and survival guilt due to his PTSD. Notably, however, while the appellant reported a history of suicidal ideation many years ago, current ideation was not reported. Moreover, there is no evidence of such signs as obsessional rituals, illogical speech, near continuous panic which affects the appellant's ability to function independently. He was never noted to show signs of such symptoms as spatial disorientation, neglect of his own personal appearance, and while he was on his third marriage, that relationship had lasted for 16 years. There is no evidence that the appellant's judgment or thinking is serious impaired, nor is there evidence of impaired impulse control. Therefore, while the doctrine of reasonable doubt points to the appellant's entitlement to a 50 percent rating during this term, the preponderance of the most probative evidence is against a rating in excess of 50 percent. The Board considered the Veteran and his wife's lay statements regarding the severity of his disability. They are competent and credible to report his symptoms. Disability ratings are, however, made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. While the Veteran is competent to provide evidence as to his symptoms and while his statements are credible, the medical findings, which directly address the criteria under which the service-connected disability is considered, are more probative than the appellant's lay assessment of the severity of his disability. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). With regard to any possible extraschedular consideration, the threshold determination is whether the disability picture presented in the record is adequately contemplated by the rating schedule. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Veteran's symptomatology, to include nightmares, irritability, and panic attacks are adequately contemplated by the rating schedule for PTSD. Therefore, referral for assignment of an extra-schedular evaluation in this case is not in order. Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). Overall, the evidence is at least in balance as to whether an initial disability rating of 50 percent is warranted for the Veteran's PTSD from April 16, 2004 to May 10, 2011. A preponderance of the evidence is against entitlement to an initial rating in excess of 50 percent. The benefit-of-the-doubt doctrine has been applied where appropriate. See 38 U.S.C.A. § 5107(b) (West 2002). Additionally, the Board has considered whether to issue additional staged ratings, and finds that under the circumstances, staged ratings are not appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999). ORDER Entitlement to an initial 50 percent rating for PTSD, but no higher, from April 16, 2004 to May 10, 2011 is granted subject to the laws and regulations governing the award of monetary benefits. REMAND At his September 2011 hearing the Veteran and his representative described symptomatology related to PTSD. The Veteran indicated that he was scared of the dark, and experienced nightmares up to two times each week. He reported suffering from depression, flashbacks, and that he had been teased at his work place due to "nervousness." The appellant described how his wife reminded him to take care of himself, but that he otherwise had poor hygiene or wore dirty clothes. He indicated that he avoided the news, and disliked crowds. He reported, however, that he could attend local football games to support his granddaughter. He disliked being closed in. At his hearing, he indicated that over the prior four months he received treatment from Dr. Pontzer, which corresponds to May 11, 2011. Although a note from Matthew M. Pontzer, D.O. is of record, the corresponding treatment records have not been associated with the claims folder, and should be sought on appeal. As such, the issue of what rating is warranted since May 11, 2011 is remanded in order to obtain outstanding potentially relevant records from Dr. Pontzer. Regarding the question of entitlement to a total disability evaluation based on individual unemployability due to service-connected disorders, the Veteran indicated that he last worked in June 2007, having been injured when he lifted a patient at work. The Veteran indicated that he no longer worked, but received Social Security Disability benefits. Social Security records through January 2009 are of record, and show that he was evaluated in relation to disabilities other than his mental health. The Veteran has, however, indicated that he retired early due to experiencing an increase in psychological symptoms as a result of working with Veterans. A June 2007 letter discussing various of the Veteran's disabilities, to include his PTSD, concluded that his symptoms prevented him from maintaining any type of gainful employment. Although the question of individual unemployability is part of the increased rating issue, that question has not been initially addressed by the RO, and the Veteran has not been advised of the regulatory requirements for this benefit. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Outstanding VA treatment records since March 2010 should be obtained and associated with the claims folder. Accordingly, the case is REMANDED for the following action: 1. Issue a notice letter consistent with the Veterans Claims Assistance Act of 2000 regarding the appellant's entitlement to a total disability evaluation based on individual unemployability due to service-connected disorders. 2. The Veteran's Social Security disability records since January 2009 should be obtained, and associated with the claims folder. The RO should also obtain and associate with the claims folder all outstanding VA treatment records since March 2010. Finally, with the Veteran's assistance as necessary, request outstanding private treatment records from Matthew M. Pontzer, D.O. of Altoona Regional Health System, in particular as they obtain to the Veteran's mental health treatment. If the RO cannot locate such records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 3. Thereafter, the RO must conduct a VA social and industrial survey to assess the Veteran's employment history and day-to-day functioning, as well as to assess the impact of each service-connected disorder. The social worker who conducts this survey must opine whether it is at least as likely as not that the Veteran's service-connected disorders alone, i.e., hearing loss and posttraumatic stress disorder, preclude all forms of substantially gainful employment that are consistent with the appellant's education and occupational experience. A written copy of the report should be inserted into the claims file, and a complete rationale should be provided. 4. The Veteran is to be notified that it is his responsibility to report for any and all examinations and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 5. Thereafter, the AMC/RO should schedule the Veteran for an examination with a VA psychiatrist. The psychiatrist must be given access to the Veteran's claims folder and Virtual VA file, to include any newly obtained treatment records, for review. All indicated studies must be performed, and all findings should be reported in detail. In accordance with the latest worksheet for evaluating posttraumatic stress disorder, the psychiatrist must provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of his PTSD. The psychiatrist must address the degree of social and industrial impairment resulting from PTSD alone, to include whether PTSD alone renders him unemployable. A full rationale must be provided for any opinion offered, with a complete discussion of the evidence of record. A global assessment of functioning score must be assigned reflecting the impact of PTSD alone, with an explanation of the significance of the score assigned. A written rationale must be provided for all opinions expressed. 6. After the development requested has been completed, the RO should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. The AMC/RO must ensure that the examiners documented their consideration of Virtual VA. If any report is deficient in any manner, the RO must implement corrective procedures at once. 7. After conducting any indicated additional development, adjudicate the issues. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs