Citation Nr: 1332915 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 10-07 662 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether the reduction of the rating for posttraumatic stress disorder from 70 percent to 30 percent, effective March 1, 2009, was proper. 2. Entitlement to a disability rating higher than 70 percent for posttraumatic stress disorder. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Whitehead, Counsel INTRODUCTION The Veteran served on active duty from September 1983 to June 1986 and from January 1989 to January 1993. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office in Waco, Texas (RO). The issues of an increased disability rating for posttraumatic stress disorder (PTSD) and entitlement to a total disability rating based on individual unemployability (TDIU) are remanded to the RO via the Appeals Management Center in Washington, DC. FINDINGS OF FACT 1. The 70 percent disability rating previously assigned to the Veteran's PTSD was in effect for less than five years. 2. The medical evidence of record at the time of the December 2008 decision to reduce the Veteran's disability rating did not persuasively demonstrate a sustained improvement in his service-connected PTSD. CONCLUSION OF LAW The criteria for restoration of a 70 percent evaluation for PTSD have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.105, 3.343, 3.344, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this case, the Board is restoring the 70 percent evaluation for PTSD, and therefore is granting in full the benefits sought on appeal as to this issue. Accordingly, any error committed with respect to either the notice provisions in reducing the Veteran's disability evaluation for PTSD is not prejudicial to the Veteran. 38 U.S.C.A. § 3.105. In the present case, the Veteran's 70 percent rating had been in effect for less than a five-year period when it was reduced to 30 percent in the December 2008 rating decision. The law provides that where a rating has been in effect for less than five years, an adequate reexamination that discloses improvement in the disorder will warrant reduction in rating. See 38 C.F.R. § 3.343 (a); 3.344 (c). A rating reduction requires an inquiry as to "whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations." See Brown v. Brown, 5 Vet. App. 413, 420 (1993). In a rating reduction case, VA has the burden of establishing that the disability has improved. This is in stark contrast to a case involving a claim for an increased (i.e., higher) rating, in which it is the Veteran's responsibility to show the disability has worsened. The question of whether a disability has improved involves consideration of the applicable rating criteria. A 30 percent evaluation for PTSD is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of an 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, Diagnostic Code 9411. A 50 percent rating is assigned 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 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. A rating of 70 percent is assigned 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. In evaluating the evidence, the Board also considers the Global Assessment of Functioning (GAF) scores assigned during the period on appeal. The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed.) (DSM-IV); Carpenter v. Brown, 8 Vet. App. 240 (1995). A GAF score of 51 to 60 is illustrative of 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 41 to 50 is reflective of 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). A GAF of 31-40 indicates some impairment in reality testing or communication (e.g. speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g. depressed man avoids friends, neglects family, and is unable to work). A GAF of 21-30 indicates behavior is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g. sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or inability to function in almost all areas (e.g. stays in bed all day; no job, home, or friends.) The 70 percent disability rating the Veteran seeks to have restored was assigned based on the findings from an April 2006 VA examination. The mental status examination revealed that the Veteran presented with fair hygiene and was generally alert. He demonstrated significant psychomotor retardation and appeared to be cognitively intact. The Veteran's eye contact was fair and his speech was soft, with paucity of spontaneous speech. His thought processes were linear and coherent. The examiner described the Veteran's insight and judgment as "guarded." He described his mood as down, lonely, and depressed, and his affect was restricted, dysthymic in nature, and was reported as generally congruent with his mood. He reported having suicidal thoughts earlier that same month and reported previously having suicidal thoughts on a daily basis. The Veteran also reported experiencing auditory hallucinations and reported that he heard voices in the absence of any alcohol or drugs. The Veteran reported that he continued to experience persistent re-experiencing of his traumatic events from his military service and had intrusive thoughts and nightmares approximately three times a week. He also reported avoidance of activities, people, and places that reminded him of traumatic events. Additional symptoms included diminished interest in significant activities; feelings of detachment and estrangement from others; restricted range of affect; increased arousal; increased irritability; paranoia, hypervigilance, and difficulty with concentration. The examination resulted in a GAF score of 30. The April 2006 examiner commented that the Veteran's chronic and severe PTSD had a significant impact on his social and occupational functioning. The examiner noted the Veteran to demonstrate significant social impairment, in that he had no close friends and did not participate in any social activities. In discussing the Veteran's history of alcohol and drug abuse, the examiner opined that it was "as least as likely as not" that much of his ongoing drug and alcohol abuse was secondary to his significant and chronic PTSD. The examiner commented that the Veteran's substance abuse was a way of self-medicating for his severe PTSD symptoms. In addition to PTSD, the examination also revealed a diagnosis of major depressive disorder, which the examiner opined was "as likely as not" secondary to the Veteran's chronic PTSD. In a February 2007 VA examination, the Veteran reported that he had been recently fired from his job. The Veteran reported his symptoms included an "inability to cope with people," anxiety, problems with concentration, anhedonia, a desire to isolate himself from others, sleep problems, irritability, hallucinations, hypervigilance, paranoia, and problems with anger control. He stated that he did not communicate well with his girlfriend, with whom he lived. The Veteran presented as "very passive" during the mental status examination, and his voice volume was barely audible. His thought processes were logical, coherent, and relevant. He demonstrated poor social skills, and his affect was flat and blunted. His reasoning and fund of general information was poor. The Veteran demonstrated psychomotor slowing, if not psychomotor retardation. He demonstrated poor concentration and short-term memory. His symptoms also included auditory hallucinations, paranoia, and suicidal ideations. His sensorium was cloudy. The examiner determined that the Veteran's social functioning was poor and that he tended to be impulsive. The examination resulted in a GAF score of 50. The examiner stated that these symptoms did not necessarily relate to PTSD and noted that the Veteran could not give a single symptom that could absolutely be tied to his PTSD. The examiner opined that the Veteran's condition was no worse than when last examined in April 2006. The examiner determined that the Veteran's behavioral and emotional problems stemmed from his PTSD, his history of substance dependence, and also from additional diagnoses of antisocial and borderline personality disorders. The examiner acknowledged the Veteran's report of auditory hallucinations and hallucinations that he was "high and would kill someone." The examiner commented that the Veteran appeared vague and possibly evasive during the examination, and further relayed skepticism regarding the Veteran's PTSD due to his exaggerated MMPI and the difficulties in interviewing the Veteran. Nonetheless, the examiner opined that the Veteran had great difficulty maintaining employment and with social adjustment. The examiner opined that the Veteran's PTSD alone did not explain his inaptitude in relationships and employment. A VA mental status examination completed in July 2007 shows that the Veteran presented with no impairment in his psychomotor activity. He did not demonstrate any repetitive activities and behaviors, and he described his mood as "fine." His memory and concentration were intact, his insight was poor/fair; and his judgment was poor. The examination revealed a GAF score of 45. A July 2007 VA psychology note reveals that the Veteran underwent a psychological assessment to assist with his substance abuse treatment. The examiner directed that the test profiles should be interpreted with caution, as the tests indicated the Veteran's strong tendency to exaggerate his symptoms. Based on the test results, the examiner identified the Veteran's profile as consistent with those who have difficulties with impulse control. The examiner stated it was "likely" that the Veteran had difficulties with clear thinking, decision-making, communication, and self-expression that could be related to substance abuse. While the Veteran's responses during the testing indicated that he was not easily angered, the examiner noted his reported history of physically aggressive behavior, and the examiner stated that this could be related to substance abuse or an inability to express anger in appropriate manner. September 2007 VA records show that the Veteran underwent assessments associated with his participation in rehabilitation and work programs. During this time, he was assigned a GAF score of 50. A mental status examination shows that the Veteran was oriented and presented with an euthymic mood. His thought process was logical and there was no indication of suicidal thoughts, homicidal thoughts, delusions, or hallucinations. Attention, concentration, and memory were normal. His insight and judgment were fair. At that time, a mental capacity assessment did not reveal any impairments. Subsequent records dated in September 2007 show that the Veteran endorsed symptoms of increased depression and suicidal thoughts. VA treatment records October 2007 show that the Veteran sought treatment after a suicide attempt by overdosing on drugs. At that time he reported experiencing depression for a few months. An associated mental status examination revealed his behavior was calm and manipulative, and his mood was depressed. He presented with a dysphoric affect. The Veteran's thought process was linear and his thought content was significant for suicidal ideation with a plan. Insight and judgment were poor. His emotional health prognosis was characterized as guarded. A March 2008 treatment record shows that the Veteran underwent a consultation for his psychiatric medication. The physician noted that the Veteran had previously taken an antidepressant, but the physician was unable to find notation of the prescribed medication in his treatment records. The Veteran was prescribed medication for sleep problems. The examiner expressed uncertainty about the indications of the Veteran's psychiatric medications, as the examiner did not hear a clear history of anxiety or depression. The examiner stated that he did not detect any symptoms of PTSD and the Veteran did not report experiencing any symptoms during the consultation. In May 2008, the Veteran underwent an additional VA examination to assess the severity of his PTSD. At the time of the examination, the Veteran was incarcerated stemming from robbery and domestic violence charges. The examiner noted that he previously examined the Veteran in February 2007. The examiner indicated that the Veteran's medical records and claims file were reviewed, and specifically noted a review of the April 2006 and February 2007 VA examination reports. The examiner also reported a review of the March 2008 VA treatment record and the physician's comment that he "did not see any symptoms" of PTSD at that time. The Veteran's reported history included suicide attempts on five to six occasions, involvement in negative behavior, and domestic violence. The Veteran endorsed experiencing auditory and visual hallucinations. The Veteran reported having nightmares about his military service on a nightly basis and that he slept for four hours a night. His symptoms also included paranoia, worry, and hypervigilance. The examiner opined that the Veteran was very likely not experiencing a psychotic condition, but rather he was making a literal interpretation of his conscious. No rationale was provided in support of this opinion. During the clinical examination, the examiner commented that the Veteran's behavior and mood were dramatically different than when he was last examined in February 2007. The Veteran's thought processes were logical, coherent, and relevant. He was well groomed, cooperative, and exhibited excellent social skills. The Veteran's reasoning and fund of general information was good. He did not exhibit any psychomotor slowing or agitation. His verbal comprehension and concentration were both good. The Veteran reported noticing some improvement in his thinking and memory since becoming drug free, but he continued to have difficulty memorizing information. The examiner listed the Veteran's psychological symptoms as including anxiety, panic attacks, depression, insomnia, appetite disturbance, crying spells, anhedonia, and nightmares. The Veteran also endorsed a history of paranoia and both suicidal and homicidal ideations. The May 2008 examiner concluded that the Veteran was capable of working and functioning at an excellent level socially if he could remain drug free. The examiner opined that the Veteran's PTSD symptoms were exacerbated by his drug and alcohol problems, as well as antisocial tendency towards malingering and his borderline personality disorder. As an additional comment, the examiner stated that the Veteran had much improved since he was drug free because of his forced abstinence from drugs. The examiner further opined that the Veteran's PTSD symptoms were exaggerated in that he had dramatically improved since the last examination. Malingering was strongly suspected. The examiner provided a diagnosis of mild PTSD and assigned a GAF score of 60. VA treatment records dated in from June 2008 to August 2008 show that the Veteran was seeking full time employment, that he was sober, and that he was working on his relationship with his family. In a September 2008 rating decision, the RO proposed to reduce the disability rating assigned for the Veteran's PTSD from 70 percent disabling to 30 percent disabling. The RO noted that it had obtained the Veteran's VA treatment records dated from February 2006 and September 2008 and that these records showed treatment for polysubstance abuse without evidence of exacerbations of treatment for PTSD in the previous twelve months. The RO also noted the findings from the May 2008 VA examination and highlighted the examiner's opinion that the Veteran's PTSD symptoms had dramatically improved. The RO further highlighted that the examiner provided a diagnosis of mild PTSD and assigned a GAF score of 60, which the RO stated indicated moderate impairment. The RO concluded that the evidence showed that the Veteran had mild to moderate impairment due to PTSD, and noted that there was no evidence of symptoms such as suicidal ideation, impaired impulse control, or difficulty adapting to stressful circumstances to warrant a continuation of the 70 percent disability rating. In October 2008, the Veteran underwent an additional PTSD assessment, at which time he presented as moderately depressed. The examiner described the Veteran as talkative, cooperative, and informative. The Veteran reported that he had completed his period of incarceration. He experienced trauma-related dreams four or five times a week and difficulty falling asleep. He was easily aroused and got out of the bed at night to check the windows, doors, and closets. Additional symptoms included daytime intrusive thoughts; depression; anxiety; decreased concentration; short-term memory problems; avoidance of most people whenever possible; hypervigilance when attempting to function in public places; an exaggerated startle reaction; and emotional distance/detachment in relationships. He denied having any suicidal or homicidal thoughts at that time. He reported that he continued to hear voices. Regarding the Veteran's hallucinations, the examiner was inclined to view the Veteran's report similar to the May 2008 examiner's observation in that the Veteran was likely not experiencing a psychotic condition but was rather making a literal interpretation of his conscious. No rationale was provided to support this opinion. The examiner noted review of the May 2008 examination report and highlighted the May 2008 examiner's conclusion that the Veteran's PTSD symptoms at that time were exaggerated in that he had dramatically improved since he was last examined. The examiner noted, however, that during the present examination, the Veteran evidenced a full range of PTSD symptomatology. As for the diagnostic impression, the examiner determined that a diagnosis of PTSD was appropriate, along with a diagnosis of major depressive disorder, recurrent, alcohol abuse, and cocaine dependence. The examiner assigned a GAF score of 45. The Veteran expressed interest in participating in PTSD group therapy. After considering the medical history as detailed above, the Board finds that the reduction of the Veteran's disability from 70 percent to 30 percent in the December 2008 rating decision was improper. As reflected above, the Veteran's PTSD symptomatology appears to have varied to some degree from the time of the April 2006 examination and the December 2008 rating reduction. Nevertheless, the Veteran continued to endorse psychiatric symptoms such as suicidal ideations, hallucinations, intrusive thoughts, nightmares, sleep impairments, depression, impaired impulse control, impaired judgment, impaired insight, and anxiety throughout this time period. His GAF scores during this time period ranged from 45 to 60, which indicate serious to moderate impairment in social and occupational functioning. As noted previously, the RO based the reduction of the PTSD disability rating primarily on the findings from the May 2008 VA examination and the May 2008 examiner's opinion that the Veteran's PTSD had dramatically improved. However, the May 2008 examination report and subsequent medical evidence do not show sustained improvement of the Veteran's disability. The Board points out that the May 2008 examination report does not adequately address the medical evidence, such as the October 2007 suicide attempt and the Veteran's report of visual hallucinations, suggesting that his disability had not improved. Also not discussed, was the fact that the Veteran was incarcerated for robbery and domestic violence, which evidences impaired impulse control. Moreover, the Board highlights that the May 2008 examination was conducted during the Veteran's incarceration, at time when he functioned within a controlled environment and without the use of drugs and alcohol. The impact of the Veteran's PTSD on his ability to function appears to be related to some degree to his use of alcohol and drugs, as the April 2006 examiner opined that his alcohol and drug use are secondary to his PTSD. The May 2008 examiner himself cautioned that the Veteran's ability to function could change if he began to use drugs. Given that the May 2008 examination was not conducted at a time when the Veteran faced the stresses of ordinary life, to include the use of drugs and alcohol, it cannot be said that the examination reflects actual improvement of his disability. Indeed, following the completion of his incarceration, an October 2008 mental health assessment revealed that the Veteran endorsed a full range of PTSD symptoms, to include avoidance behaviors, emotional detachment, and hallucinations, that do not suggest improvement of his disability. The assessment revealed a GAF score of 45, which is similar to the GAF score of 50 provided during the April 2006 VA examination. Although the medical evidence includes opinions indicating that the Veteran's auditory hallucinations are not due to psychosis, these opinions are not supported by any medical rationale and, thus, are not given more probative weight as compared to the other evidence of record. Given that the Veteran has consistently reported experiencing hallucinations since at least 2006, the Board will resolve any doubt in this instance in the Veteran's favor. Consequently, the Board determines that it cannot be stated with certainty that there has been sustained improvement in the Veteran's PTSD. Accordingly, the 70 percent rating is restored. ORDER The 70 percent rating for PTSD is restored, and the appeal as to this issue is granted. REMAND A review of the evidence of record indicates that not all of the Veteran's VA treatment records relevant to his claims have been obtained. Specifically, a mental health record dated in August 2013 indicates that the Veteran was last seen for psychiatric treatment in July 2011. However, the claims file only includes VA treatment records dated up until October 2008, and the Virtual VA electronic records only includes VA treatment records dated in August 2013. VA is on constructive notice of all documents generated by VA, even if the documents have not been made part of the record in a claim for benefits. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Thus, the RO or the AMC must endeavor to obtain all outstanding VA treatment records. Moreover, the Veteran was last afforded a VA examination with respect to his PTSD claim in May 2008, over five years ago. As the medical evidence of record no longer reflects the current severity of the Veteran's PTSD, the Board concludes that after obtaining the Veteran's outstanding medical records, the Veteran must be afforded a new VA examination addressing the current severity of his PTSD. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); see also Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (observing that where the record does not adequately reveal the current state of the claimant's disability, a VA examination must be conducted); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (finding that the Board should have ordered a contemporaneous examination of veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating); see also 38 C.F.R. § 3.326(a) (2013). Finally, the determination of whether the Veteran is entitled to TDIU is part and parcel of the determination of the increased rating claim for PTSD. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009); see also VAOGCPREC 06-96, 61 Fed. Reg. 66749. Therefore, the TDIU claim must also be remanded along with the claim for an increased rating for PTSD. Accordingly, the case is remanded for the following action: 1. Contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims. Based on his response, attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of his response, obtain all outstanding VA records relevant to the claims being remanded, to include VA treatment records dated from October 2008 to the present. If, after making reasonable efforts the identified records are not obtained, notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. Thereafter, the Veteran must be afforded a comprehensive VA psychiatric examination to determine the current severity of his PTSD. The claims file and all electronic records must be made available to the examiner, and the examiner must specify in the report that these records have been reviewed. The examiner must specify the dates encompassed by the electronic records. Any indicated diagnostic tests and studies must be accomplished. All pertinent symptomatology and findings should be reported in detail. The examiner must comment upon the presence or absence, frequency, and severity of the Veteran's anxiety and depression symptoms to include: affect; speech; panic attacks; ability to understand complex commands; short- and long-term memory; judgment; abstract thinking; motivation; mood; ability to establishing and maintaining effective work and social relationships; suicidal and/or homicidal ideations; obsessional rituals; ability to function independently, appropriately, or effectively; impulse control; neglect of personal appearance and hygiene; ability to adapt to stressful circumstances; delusions or hallucinations; general behavior; persistent danger of hurting self or others; ability to perform activities of daily living; and orientation. The examiner must also enter a complete multi-axial evaluation, and assign a Global Assessment of Functioning score, together with an explanation of what the score represents in terms of his psychological, social, and occupational functioning. The examiner must also provide an opinion whether the Veteran's PTSD and any other psychiatric disability or characteristics, signs, or symptoms of other disability which are not differentiable from the Veteran's PTSD render him unable to obtain or retain employment. A complete rationale for the opinion must be provided. If the examiner cannot provide any of the requested opinions without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 3. The RO must notify the Veteran that it is his responsibility to report for the scheduled VA examination and to cooperate in the development of the claims. 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 (2013). In the event that the Veteran does not report for a scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. Copies of all documentation notifying the Veteran of any scheduled VA examination must be placed in the evidence of record. 4. The examination report must be reviewed by the RO to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures at once. 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claim on appeal must be readjudicated. If the issue on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs