Citation Nr: 1333158 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 09-22 602 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan THE ISSUES 1. Entitlement to a disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD), prior to April 1, 2009 2. Entitlement to a disability rating in excess of 50 percent for PTSD, from April 1, 2009. 3. Entitlement to service connection for hearing loss. 4. Entitlement to service connection for tinnitus. 5. Entitlement to a total disability rating based on individual unemployability (TDIU).due to service-connected PTSD, to include on an extra-schedular basis, pursuant to 38 C.F.R. § 4.16(b). 6. Whether the amount paid to the Veteran pursuant to an award of a temporary total rating under 38 C.F.R. § 4.30 from February 4, 2009 to March 31, 2009 was correctly calculated. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran served on active duty from November 1967 to November 1970. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2008 rating decision in which the RO in Togus, Maine continued a 30 percent disability rating for PTSD and denied service connection for bilateral hearing loss and tinnitus. In April 2008, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in May 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in June 2009. In a decision issued in November 2009, the RO granted a 50 percent rating for PTSD, effective April 1, 2009. Although the RO awarded a higher rating for PTSD during the pendency of this appeal, inasmuch as a higher rating is available for the disability both before and after April 1, 2009, and the Veteran is presumed to seek the maximum available benefit for a disability, and in light of the recharacterization of the issue in the November 2009 supplemental statement of the case (SSOC), the Board has characterized the appeal as to evaluation of PTSD as encompassing the first and second matters set forth on the title page. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); AB v. Brown, 6 Vet. App. 35, 38 (1993). As explained in further detail, below, a review of the record shows that the Veteran has been unemployed throughout the course of his appeal which he indicates is due, primarily, to his psychiatric disorder-currently, his only service-connected disability-currently, his only compensable service-connected disability In light of this (and, as explained in more detail, below), the Board has expanded the appeal (as reflected on the title page) to include a claim for a TDIU due to PTSD. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals a July 2011 rating decision in which the Veteran was granted service connection for various disabilities resulting in a combined disability rating of 80 percent effective August 25, 2010 as well as an August 2013 informal hearing presentation. For the reasons expressed below, the matters on appeal-along with the matter concerning calculation of a temporary total award, for which the Veteran has completed the first of two actions required to place this matter in appellate status-is being remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant when further action, on her part, is required. REMAND Unfortunately the Board finds that further RO action in this appeal is warranted, even though such will, regrettably, further delay an appellate decision on these matters. With regard to the evaluation of PTSD, the Board notes that, in addition to the Veteran's PTSD diagnosis, the record shows diagnoses of alcohol, cocaine, and nicotine dependence. A July 2008 VA psychiatric examiner noted that the Veteran's primary psychiatric disorder was PTSD. The examiner also noted that the Veteran's alcohol dependence started when he was in Vietnam, before he developed PTSD symptoms, for which he sought treatment in 1998. His cocaine dependence started in 1984, after he left military service. Thus, the July 2008 VA examiner opined that the Veteran's PTSD is not caused by alcohol and cocaine dependence. Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score. According to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." According to DSM-IV, scores ranging from 41 to 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). A GAF scores from 51 to 60 are indicative 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). Notably, during the course of this appeal the Veteran has been assigned GAF scores ranging from 42 to 55. Specifically, the February 2008 and July 2008 VA examiners assigned a GAF of 55, a March 2009 VA hospitalization report reflects an assigned GAF of 42/44, and the September 2009 VA examiner assigned a GAF of 50. Also, the Veteran was hospitalized for psychiatric problems from February 4, 2009 to March 18, 2009. Furthermore, there is a history of a suicide attempt in October 2007 following a drinking episode. The Board finds that evidence cited to above raises questions as to extent of impairment attributable solely due to PTSD, and whether it is possible to distinguish between the symptoms and impairment that are be attributable to his service-connected PTSD versus his nonservice-connected alcohol, cocaine, and nicotine dependence. See Waddell v. Brown, 5 Vet. App. 454 (1993) (there may be a breach in the duty to assist when there are variously diagnosed psychiatric disorders, but none of the examinations fully described the degree of disability attributable to each psychiatric disorder). Because the medical evidence currently of record does not contain sufficient information to make these determinations, the Board finds that the Veteran should undergo a comprehensive VA psychiatric evaluation to obtain a medical opinion on these dispositive issues. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 631-632 (1992). The Board notes that if it is medically determined that the impairment attributable to nonservice-connected and service-connected conditions cannot be distinguished, the benefit-of-the-doubt doctrine requires that all such impairment be attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). With regard to the bilateral hearing loss and tinnitus issues, in his June 2009 substantive appeal, the Veteran wrote that he was treated at the VA Medical Center in Allen Park, Michigan in the early 1970s for decreased hearing. However, the oldest post-service VA or private treatment records in the claims file are dated in June 1986. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the RO should obtain from the VA Michigan Healthcare System-to include the Allen Park campus-all outstanding records of relevant VA treatment of the Veteran prior to June 1986 for association with the claims file. The RO should follow the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. Also, in support of the claim for service connection for bilateral hearing loss and tinnitus, the Veteran has alleged in-service acoustic trauma involving excessive noise from 105 Howitzers in connection with his service in Vietnam. While the Veteran's DD-214 does not confirm that the Veteran engaged in combat, an October 2004 rating decision which granted service connection for PTSD indicates that military records show the base camps where the Veteran was stationed received incoming mortar fire and ground, mortar and rocket attacks. Under these circumstances, the Board accepts the Veteran's assertions of in-service noise exposure as competent evidence of such. See Arms v. West, 12 Vet. App. 188 (1999); Collette v. Brown, 82 F.2d 389 (Fed. Cir. 1996). The Veteran was afforded a VA audiological evaluation in February 2008. At that time, the examiner diagnosed bilateral hearing loss pursuant to 38 C.F.R. § 3.385 but opined that because the Veteran's hearing was within normal limits on both entrance and separation from service, the Veteran's current bilateral hearing loss is not related to the Veteran's military service. The examiner also noted the Veteran's report of tinnitus (right ear only) which occurred randomly had an onset in the early 1970s. She opined that the claimed tinnitus was "normally occurring" and not related to military service. With regard to the bilateral hearing loss issue, the February 2008 VA examiner's opinion appears to be based on a factual inaccuracy. As above, the February 2008 VA examiner wrote that the Veteran's hearing was within normal limits on both entrance and separation from service. However, a review of the Veteran's service treatment records shows a significant threshold shift, particularly at 4000 Hz bilaterally when comparing the November 1967 enlistment examination and the August 1970 separation examination. On enlistment examination in November 1967, audiometric testing revealed the following: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 0 15 5 -5 Left Ear 5 -5 10 5 Also, in a November 1967 report of medical history the Veteran denied "ear, nose or throat trouble," "running ears," and "hearing loss." Subsequently, upon separation examination in August 1970, audiometric testing revealed the following: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 0 0 15 30 Left Ear 10 10 15 20 While the Veteran denied "running ears" and "hearing loss" in an August 1970 report of medical history, he did report "yes " to "ear, nose or throat trouble." Significantly, as the Veteran had 30 dBL at 4000 Hz upon separation examination in the right ear, there was evidence of some hearing loss during service. See Hensley v. Brown, 5 Vet. App. 155 (1993) (the threshold for normal hearing is from zero to 20 dB, and higher threshold levels indicate some degree of hearing loss). Moreover, with regard to the tinnitus issue, the Board finds that the comments made by the February 2008 VA examiner are unclear, both as to current tinnitus and etiology. As above, the examiner noted that the Veteran had tinnitus of the right ear but also wrote that the claimed tinnitus was "normally occurring." Furthermore, while the examiner opined that the Veteran's tinnitus was not related to his military service, again, it does not appear that this was based on consideration of all the evidence, to include the above-noted evidence and the Veteran's assertions; nor did the examiner address the relationship, if any, between hearing loss and tinnitus. Under these circumstances, the Board finds that an addendum opinion, and readjudication of the hearing loss and tinnitus claims in light of all pertinent governing authority, is needed warranted to fairly resolve the claim on appeal. See 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2013). As regards the matter of a TDIU due to PTSD, the Board notes that, under the applicable criteria, total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2013). However, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards in 38 C.F.R. § 4.16(a) and (b). As above, a review of the record shows that the Veteran has been unemployed throughout the course of his appeal which appears to be due, at least in part, to his psychiatric problems. In light of this, the Board has expanded the appeal to include a claim for a TDIU due to PTSD. As noted, this raises a claim for TDIU as a component of the matter of his entitlement to a higher rating for PTSD See Rice, 22 Vet. App. at 447. The Board notes that the RO has not meaningfully considered the Veteran's entitlement to a TDIU due to PTSD. Therefore, after giving the Veteran an opportunity to file a formal claim for a TDIU due to PTSD (and accomplishing other actions, noted above and below), to avoid any prejudice to the Veteran, the RO should fully adjudicate this matter, in the first instance, to avoid any prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Prior to adjudicating each matter, to ensure that all due process requirements are met, and that the record is complete, the RO should obtain and associate with the claims file all outstanding pertinent records. Also, the most recent VA treatment records associated with the claims file are dated in January 2011. As above, records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Bell, 2 Vet. at 613. Accordingly, the RO should also obtain all outstanding VA treatment records dated since January 2011. The RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the claims on appeal, explaining that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2013) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). In its letter, the RO should specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent records. Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2013). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. The RO's adjudication of the claims for increased ratings should include consideration of whether any "staged" rating (assignment of different ratings for distinct periods of time, based on the facts found), pursuant to Hart v. Mansfield, 21 Vet. App. 505 (2007), is appropriate. As a final point, the Board notes that, with regard to the issue concerning whether the amount paid to the Veteran pursuant to an award of a temporary total rating under 38 C.F.R. § 4.30 from February 4, 2009 to March 31, 2009 was correctly calculated, by rating decision dated in May 2009, the RO granted a temporary total rating under 38 C.F.R. § 4.30 due to the Veteran's psychiatric hospitalization from February 4, 2009 to March 31, 2009. In July 2009, the Veteran disagreed with the dollar amount paid pursuant to this award. Specifically, the Veteran wrote that he received a check in the amount of $2,297.00 but that it was his belief that he was owed $2,673.00. The RO has yet to issue a SOC with respect to the Veteran's claim for a recalculation resulting from the temporary total rating under 38 C.F.R. § 4.30 from February 4, 2009 to March 31, 2009, the next step in the appellate process. See 38 C.F.R. § 19.29 (2013); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997). Consequently, this matter must be remanded to the RO for the issuance of a SOC. Id. The Board emphasizes, however, that to obtain appellate review of any issue not currently in appellate status, a perfected appeal must be filed. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.501, 20.502 (2013). On remand, the appellant will have the opportunity to file a timely substantive appeal if he wishes to complete an appeal as to this matter. Accordingly, these matters are hereby REMANDED for the following actions: 1. Send to the Veteran and his representative an SOC on the matter of whether the amount paid to the Veteran pursuant to an award of a temporary total rating under 38 C.F.R. § 4.30 from February 4, 2009 to March 31, 2009 was correctly calculated, along with a VA Form 9, and afford him the appropriate opportunity to submit a substantive appeal perfecting an appeal on this issue. The Veteran and his representative are hereby reminded that to obtain appellate review of any matter not currently in appellate status, a timely appeal must be perfected-here, as regards the matter of whether the amount paid to the Veteran pursuant to an award of a temporary total rating under 38 C.F.R. § 4.30 from February 4, 2009 to March 31, 2009 was calculated correctly, within 60 days of the issuance of the SOC. 2. Send the Veteran a VA Form 21-8940, to enable him to file a formal application for a TDIU due to service-connected PTSD. 3. Obtain from the VA Michigan Healthcare System outstanding, pertinent records treatment of the Veteran generated prior to June 1986 and since January 2011. Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 4. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent, private records. In the letter, explain how to establish entitlement to a TDIU due to PTSD. Also, clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 5. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 6. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo a mental disorders examination by a VA psychiatrist or psychologist (or a psychiatrist or psychologist contracted by VA). The entire claims file, to include a complete copy of the REMAND, and any pertinent Virtual VA records, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions (to include as reflected in the electronic record). All necessary tests and studies (to include psychological testing, if warranted) should be accomplished (with all findings made available to the psychiatrist or psychologist prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should render specific findings with respect to the existence and extent (or frequency, as appropriate) of: memory loss; depressed mood; anxiety; panic attacks; sleep impairment; impaired judgment, speech, impulse control and/or thought processes; neglect of personal hygiene and appearance; suicidal and/or homicidal ideation; and delusions and/or hallucinations. The examiner should not assign a percentage rating for the Veteran's PTSD, but should render a multi-axial diagnosis, to include assignment of a GAF score and explanation of what the score means. If more than one psychiatric disorder is diagnosed, the examiner should expressly indicate whether it is possible to distinguish the symptomatology attributable to service-connected psychiatric impairment from that attributable to any nonservice-connected psychiatric impairment; and, if so, the percentage or portion of the assigned GAF score representing impairment due to the service-connected PTSD. The examiner should clearly indicate if it is not possible to separate the symptoms and effects of the service-connected psychiatric disability from any nonservice-connected psychiatric disability. However, if any separately diagnosed disorders are deemed related, this also should clearly be indicated. The examiner should set forth all examination findings and any test results, along with the complete rationale for the conclusions reached, in a printed (typewritten) report. 7. After all records and/or responses received are associated with the claims file, forward the entire claims file, to include a complete copy of this REMAND, and any pertinent Virtual VA records, to the same audiologist who conducted the February 2008 VA examination, for an addendum opinion addressing whether further review of the record warrants a reversal or revision of the prior opinion that the Veteran's hearing loss and claimed tinnitus are not related to military service. In providing the requested opinion, the audiologist should specifically consider and discuss the Veteran's documented medical history reflected in the in-service and post-service treatment records (to include the February 2008 testing results) and the Veteran's assertions that the onset of his hearing loss was during service and the onset of his tinnitus was the early 1970s. In particular, the examiner should consider and discuss the significant threshold shift, particularly at 4000 Hz bilateral, which occurred between the November 1967 enlistment examination and the August 1970 separation examination, to include reflecting 30 dBL at 4000 Hz in the right ear at separation examination. The examiner should also address the Veteran's report of medical history at separation (noting ear, nose or throat trouble) . The examiner should also clearly opine-in light of the former comment that the Veteran's tinnitus is "normally occurring"-whether a tinnitus disability is present, and, if so, whether such at least as likely as not, (i.e., there is a 50 percent or greater probability) that such (a) is the result of in-service injury (in particular, noise exposure); or (b)is medically-related to hearing loss. If the February 2008 VA examiner is not available, or another examination of the Veteran is deemed warranted, arrange for the Veteran to undergo VA examination by an ENT physician, preferably, or audiologist, at a VA medical facility to obtain medical opinions addressing the etiology of current tinnitus and bilateral hearing loss (consistent with the above, and the prior remand instructions). In this event, the entire claims file, to include a complete copy of the REMAND, as well as copies of any relevant Virtual VA records-must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. The examiner should set forth all examination findings, (if any), along with complete rationale for the conclusions reached, in a printed (typewritten) report. 8. If the Veteran fails to report to any scheduled examination(s), obtain and associate with the claims file (a) copy(ies) of any notices of the date and time of the examination(s) sent to him by the pertinent VA medical facility. 9. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 10. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claims for higher ratings for the PTSD, and for a TDIU due to that disability. If the Veteran fails, without good cause, to report to any scheduled examination, apply the provisions of 38 C.F.R. § 3.655(b), as appropriate. Otherwise, adjudicate each claim in light of all pertinent evidence and legal authority.-to include, with respect to the higher rating claims, consideration of whether any, or any further staged rating of the disability, pursuant to Hart (cited above), is appropriate; and with respect to a TDIU due to PTSD, where the criteria for invoking the procedures of 38 C.F.R. § 4.16(a), for extra-schedular consideration, are met. 11. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC that includes citation to and discussion of all additional legal authority considered, along with clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet.App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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. 2013). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2013).