Citation Nr: 1334712	
Decision Date: 10/30/13    Archive Date: 11/06/13

DOCKET NO.  02-17 882	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1. Entitlement to service connection for an intestinal disorder, characterized as colitis, diverticulosis and internal hemorrhoids, to include as secondary to an acquired psychiatric disability.  

2. Entitlement to an initial rating in excess of 70 percent for an acquired psychiatric disability, diagnosed as posttraumatic stress disorder (PTSD), for the period from March 27, 2001 to April 20, 2010.  

3. Entitlement to an effective date prior to July 23, 2009 for the grant of Dependents' Educational Assistance (DEA) benefits.  

4. Entitlement to a total disability rating based on individual unemployability (TDIU) for the period prior to July 23, 2009.



REPRESENTATION

Appellant represented by:	Virginia Gerard-Brady


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

B. Thomas Knope, Counsel


INTRODUCTION

The Veteran served on active duty from April 1974 to April 1977.

This matter is on appeal from rating decisions in June 2002, February 2009 and September 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.   

The Veteran testified before a Veterans Law Judge (VLJ) in October 2003. A transcript of the hearing is of record.  Since that time, the VLJ who presided over that hearing has left the Board.  Consequently, the Veteran was sent a letter in August 2013, informing her of her right to a new hearing if she desired.  To this point, the Board has not received any request for a new hearing.  As a result, the Board determines that the duty to provide a hearing has been met, and it may adjudicate the claims without any further action in this regard.  38 C.F.R. § 20.700 (2013).  

The Veteran's claim of entitlement to service connection for an intestinal disorder, to include as secondary to her service-connected PTSD, was previously denied by the Board in March 2004.  She appealed this decision to the United States Court of Appeals for Veterans Claims (Court), which vacated the Board's decision in July 2006 and remanded the case for further development.  The Veteran was also given leave to present additional evidence.  While the issue of entitlement to service connection for PTSD was also part of that appeal, she was later granted service connection for this disorder in February 2009.  Thus, this issue is no longer on appeal.  

While the Veteran's current PTSD claim has been characterized as one for an earlier effective date for her 100 percent rating, her appeal of the assigned rating covers the entire period since she submitted her claim on March 27, 2001.  She has never disputed the effective date of the grant of service connection.  Therefore, the issue has been recharacterized as above.  


FINDINGS OF FACT

1. An intestinal disorder was not shown in service or for many years thereafter, and is unrelated to active duty service or to the Veteran's service-connected PTSD.

2. The Veteran's PTSD has been characterized by symptoms such as some isolation and distrust of others; 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/or memory loss for names of close relatives, own occupation, or own name have not been shown.



CONCLUSIONS OF LAW

1. An intestinal disorder, characterized as colitis, diverticulosis and internal hemorrhoids, was not incurred in or aggravated by service, and is not related to service or to a service-connected disability.  38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.310(2013).

2. The criteria for an initial rating in excess of 70 percent for an acquired psychiatric disability, diagnosed as PTSD, for the period from March 27, 2001 to April 20, 2010, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.130, Diagnostic Code (DC) 9411 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA Duty to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  Proper notice from VA must inform the claimant and her representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability).  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

Here, neither the Veteran nor her representative has alleged prejudice with respect to notice, as is required, and none is found by the Board.  Indeed, the Veteran's PTSD claim arises from her disagreement with the initial rating following the grant of service connection. Once service connection is granted, the claim is substantiated. Therefore, additional notice is not required and any defect in notice is not prejudicial.  See Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  

Regarding her service connection claim, a letter sent to the Veteran in May 2001 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter.  The letter informed her of what evidence was required to substantiate the claims and of her and VA's respective duties for obtaining evidence.  It also provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date.  Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of her case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).  

Next, VA has a duty to assist a veteran in the development of the claim.  This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary.  See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013).  The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  First, the RO has obtained the Veteran's service treatment records and VA outpatient treatment records.  While the RO determined that some of the Veteran's service treatment records were unavailable, the Board is satisfied that a diligent effort was made to acquire them.  Further, the Veteran submitted treatment records from a private facility as well as her own statements in support of her claim.  

VA examinations with respect to the issues on appeal were also obtained in February and April 2002, September 2007, June 2008, September and November 2009, April 2010, June 2012 and March 2013.  38 C.F.R. § 3.159(c)(4) (2013).  To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  As noted below, the Board finds that the VA examinations obtained in this case are collectively adequate, they are predicated on a full understanding of the Veteran's medical history, and provides a sufficient evidentiary basis for the claim to be adjudicated.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met.  38 C.F.R. § 3.159(c)(4) (2013).  

The Veteran was also afforded a hearing before a Veterans Law Judge in October 2003.  The hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), which consist of (1) fully explaining the issue and (2) suggesting the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010).  Notably, the Veteran was specifically asked about the symptoms she currently experiences due to her PTSD, and how she believes her intestinal symptoms are related to her PTSD.  

Finally, it is noted that this appeal was remanded by the Board in July 2006, May 2008, August 2009 and March 2012 in for further development.  Specifically, in the July 2006 Remand, the Board instructed the RO to obtain records related to the Veteran's enlistment, acquire records from the Naval Medical Clinic in Monterey, California, provide notice to the Veteran regarding Dingess requirements, and to obtain an opinion regarding the nature of her PTSD.  The remaining three Remands all required the RO to obtain a VA opinion as to whether the Veteran's intestinal disorder was related to her PTSD.  

The Board is now satisfied there was substantial compliance with these Remands.  See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  First, the grant of service connection for PTSD in February 2009 effectively rendered the requirements of the July 2006 Remand moot.  As for the remaining Remands, VA examinations were subsequently acquired that specifically addressed the potential relationship between the Veteran's intestinal disorder and her now service-connected PTSD.  As is mentioned above, the Board finds that these examinations are collectively adequate, and that the issue may be adjudicated without any prejudice to the Veteran.  

After the required development was completed, these issues were readjudicated and the Veteran was sent a supplemental statement of the case most recently in November 2012.  Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case.  Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Service Connection

The Veteran has submitted a claim seeking service connection for an intestinal disorder, which has been characterized as colitis, internal hemorrhoids and diverticulosis.  Her primary assertion is that this disorder is related to her service-connected PTSD disability, and specifically that the stress associated with her PTSD has exacerbated her intestinal distress.  She also stated that her fear of doctors has causes her to avoid treatment for this disorder.  

Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131 (West 2002).  Generally, the evidence must show:  (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995).

In some cases, the second and third elements of Shedden and Caluza may be established through a demonstration of continuity of symptomatology for certain specific chronic disorders.  38 C.F.R. § 3.303(b) (2013); see also Barr v. Nicholson, 21 Vet. App. 303 (2007).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Savage v. Gober, 10 Vet. App. 488, 495-96 (1997).  

However, service-connection may be established under 38 C.F.R. § 3.303(b) only for disorders considered to be "chronic" under 38 C.F.R. § 3.309(a).  As is relevant here, intestinal disorders such as colitis and diverticulosis are not considered chronic diseases under 38 C.F.R. § 3.309(a), and may not be service connected under 38 C.F.R. § 3.303(b).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Nevertheless, evidence of continuous symptoms since active duty is still a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a) (2013).  

In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2013).  Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). 

Next, the development undertaken by the RO indicates that the Veteran's service treatment records are at least partially unavailable.  In such cases there is a heightened obligation to assist the appellant in the development of the case, to explain findings and conclusions, and to consider carefully the benefit of the doubt rule in cases, such as in this situation, in which records are presumed to have been or were destroyed while the file was in the possession of the government. Washington v. Nicholson, 19 Vet. App. 362, 369- 70 (2005); see also Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)).  However, the legal standard for proving a claim for service connection is not lowered. Rather, it increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. Russo v. Brown, 9 Vet. App. 46 (1996).

Finally, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  Specifically, "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). 

In this case, the Board determines that a service-connection for an intestinal disorder is not warranted.  First, although the service treatment records are substantially unavailable, there are no treatment records or other indications from her active duty service to suggest that she was experiencing intestinal symptoms during active duty.  Indeed, she stated at her VA examination in February 2002 that her intestinal symptoms did not begin until 1994, and approximately 17 years after she left active duty service.  Thus, even though service connection for a disorder such as this may not be shown simply based on continuity of symptoms, see Walker, 708 F.3d at 1331, such a large gap in treatment also weighs against any notion that her intestinal disorder is related to service.  Indeed, she has not asserted that her intestinal symptoms are directly related to service.  

Next, service connection may be granted when the evidence establishes a medical nexus between either the Veteran's active duty service or her service-connected PTSD and her current complaints.  However, the Board finds that the weight of the competent evidence does not attribute the Veteran's intestinal disorder to active duty or to her PTSD, despite her contentions to the contrary.  

In this regard, the evidence includes six VA examinations and/or opinions that were specifically directed toward this claim.  At her first examination, in April 2002, the Veteran stated that she was experiencing episodes of abdominal pain, and a colonoscopy the Beaumont Army Medical Center led to her first diagnosis of ulcerative colitis in 1996.  While this colonoscopy report is not of record, there is little reason to doubt the Veteran's recollections in this regard. 

The Veteran has received treatment periodically since that time, and her symptoms have been largely consistent throughout.  After a physical examination, the examiner diagnosed chronic ulcerative colitis with recurrent acute exacerbations, but did not render an opinion as to whether this disorder was related to active duty service or to the Veteran's service-connected PTSD.  

At the Veteran's next VA examination in June 2008, the examiner noted that the Veteran was seen at a gastroenterology clinic in 2000, where she indicted a 6-year history of bloody diarrhea.  This was treated with sulfasalazine, which appeared to be effective.  A physical examination revealed pain across the right lower quadrant and along the epigastrium.  She was not in any apparent distress, and there was no evidence of anemia, malnutrition or debility.  

After the examination was complete, the VA examiner diagnosed ulcerative colitis that had stabilized, but concluded that it was less likely than not related to active duty service.  In providing this opinion, the VA examiner noted that the Veteran had not been diagnosed until the mid-1990s, and many years after she left active duty.  The examiner also noted that ulcerative colitis is at least somewhat hereditary, which was exemplified by the fact that the Veteran's mother also experienced this disorder.  

While the Veteran underwent subsequent VA examinations in September and November 2009, the opinions and observations from these examinations are of minimal probative value, as the conclusions were either not adequately supported by an underlying basis, or were provided without review of the claims file.  

However, the Veteran's most recent VA examinations in June 2012 and November 2013 more than adequately corrected any deficiencies that may have been present in the prior VA examinations.  In the June 2012 VA examination, the examiner disputed the prior diagnoses of colitis.  Specifically, it was noted that a biopsy of the Veteran's colon in 2000 did not reveal any active changes, and a subsequent diagnosis of colitis by a gastroenterologist in July 2000 was based only on the Veteran's own stated treatment history.  

The examiner also noted that colitis was not identified on a subsequent colonoscopy in October 2003.  Another colonoscopy in September 2006 revealed only normal appearing mucosa, although some internal hemorrhoids were present.  It was also notable that the Veteran has no documented weigh loss (she had in fact gained 15 pounds since 2007), no cramping or increased stool frequency.  

Given these findings, the VA examiner opined that it was less likely than not that the Veteran had colitis that was attributable to either active duty or her service-connected PTSD.  In providing this opinion, the examiner reflected that Veteran's symptoms were the result of diverticulosis and internal hemorrhoids, given the lack of findings such as weight loss, bloody diarrhea, cramping or abnormal heart rate or blood pressure.  

Although the VA examiner did not discuss whether the Veteran's diverticulosis or internal hemorrhoids were related to service or to her PTSD, an addendum opinion was provided in March 2013, where the examiner stated that it was less likely than not that the Veteran's diverticulosis was related to active duty service.  In providing this opinion, the examiner noted that a number of lifestyle factors influence the pathogenesis of diverticular diseases, to include diet, physical activity and obesity.  Moreover, histologic changes in the muscle and collagen of the ball will decrease the tensile strength of the intestinal wall.  

The Board is able to conclude from the examiner's lengthy discussion on the subject that diverticulosis is a disorder that is multifactorial and arises from a number of age-related factors as well as lifestyle choices.  None of these factors appears even tangentially related to her psychiatric symptoms, nor is there any evidence even suggestive of such a correlation.  

The Board finds that the examinations are collectively adequate for evaluation purposes.  Specifically, the claims file was reviewed, multiple interviews were conducted with the Veteran, and a number of the examiners conducted a physical examinations.  There is no indication that the VA examiners who provided adequate opinion were not fully aware of the Veteran's past medical history or that she misstated any relevant fact.

In arriving at this conclusion, the Board has also considered the statements made by the Veteran relating her intestinal symptoms to her PTSD. The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)).

In this case, however, the Veteran is not competent to provide testimony regarding the etiology of her intestinal disorder.  See Jandreau, 492 F.3d at 1377, n.4. Because intestinal disorders such as colitis and diverticulosis are not diagnosed by unique and readily identifiable features, they do not involve a simple identification that a layperson is competent to make. Therefore, the unsubstantiated statements regarding the claimed etiology of the Veteran's intestinal disorder are found to lack competency.

Additionally, while the Veteran's lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection, she has not asserted that she has experienced intestinal symptoms since service.  To the contrary, she has relatively consistently stated that her symptoms began in approximately 1994, and well after she left active duty.  See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).

In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved.  As such, the appeal is denied.

Increased Ratings

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  38 C.F.R. § 4.1 (2013).  Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013).

However, the Board has been directed to consider only those factors contained wholly in the rating criteria.  See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment).

Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating.  Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013).  When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2013).

In cases where the Veteran's claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119 (1999).

For the period from March 27, 2001 to April 20, 2010, the Veteran has been assigned a 70 percent disability rating for her PTSD.  She has received a 100 percent rating since that time and, as such, the period since April 20, 2010 is no longer on appeal.  In order to be assigned the next-higher 100 percent disability rating for PTSD, the evidence must show 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/or memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, DC 9411 (2013).

Based on the evidence of record, the Board concludes that a rating in excess of 70 percent is not warranted for the period on appeal.  As an initial matter, the evidence does not generally indicate the existence of any physically observable manifestations or similar symptoms such as impaired 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, disorientation to time or place, or memory loss of any kind. 

For example, at a psychological evaluation in March 2001, she appeared appropriately dressed, with speech that was normal in rate and tone.  While she appeared anxious, her affect was consistent and she also denied any suicidal or homicidal ideation.  While it is true that she has historically exhibited some delusions, it did not appear that she experienced them currently.  The examiner noted that the Veteran referred to her delusions in the past tense and understood that they were artificial.  She appeared oriented in all areas, and her insight and judgment were good.  

At another psychiatric evaluation in June 2001, she again appeared alert and oriented in all areas with good eye contact and normal motor functioning.  She appeared cooperative, and had a fair attention span and concentration.  There was also no psychosis, no suicidal or homicidal ideation and her memory was grossly intact.  However, the evaluating psychiatrist did note some anxiety, guilt and a depressed mood.  

The Veteran has undergone a number of VA examinations that were specifically directed toward her psychiatric complaints.  Specifically, in April 2002, she stated that she abstained from alcohol and did not use drugs.  She also reported that she had anger secondary to paranoid adulterous thoughts about her husband.  Upon examination, her communication skills appeared normal, she maintained good eye contact and she denied hallucinations or delusions.  She denied any suicidal and homicidal ideation and both reported and appeared able to maintain her maintain her personal hygiene and other activities of daily living.  She also exhibited normal short and long-term memory, and she did not report any history of obsessive or ritualistic behavior.  Her speech was normal, she displayed no impaired impulse control, and there was no history of panic attacks.  

At her next VA examination in September 2007, the Veteran indicated that she attempted to commit suicide back in 1995, but reported no recent hospitalizations for medical or psychiatric reasons.  Upon examination, she reported having continued "direct conversations with God," and was aware that some people thought this was odd, but did not seem concerned about others perceptions.  She also reported that "deceased people" were talking to her.  

However, she appeared cooperative and maintained good eye contact, she denied any suicidal or homicidal ideation and was oriented to person place and time.  She did not appear to have any gross deficits in memory, her speech was normal, and she did not exhibit any ritualistic or unusual behavior.  

At a VA Examination in June 2008, the Veteran reported an incident where her psychiatric symptoms caused her to sexually molest her daughter many years before.  She also indicated that she had not been employed since her previous VA examination in September 2007.  Upon examination, her communication skills appeared to be within normal limits.  She still claims to have communications with God, and understands that people might think that she is mentally ill, but is content with what she experiences.  She displayed good eye contact, and denied any suicidal or homicidal ideation.  She appeared oriented in all spheres and appeared able to maintain personal hygiene and the basic activities of daily living.  She did not exhibit any obsessive or ritualistic behavior and denied a history of panic attacks.  While she appears to experience bouts of depression, she denied any impaired impulse control.  

When considering the Veteran's observed symptoms in their entirety, most notably at her VA examinations, the evidence does not indicate that the presence of objective PTSD-related symptoms such 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/or memory loss for names of close relatives, own occupation, or own name, or any other similar symptoms to the point where a rating in excess of 70 percent would be warranted.

Next, although the general rating formula provides specific examples of symptoms that may result from various acquired psychiatric disorders, the Board emphasizes that its analysis should not be limited to only these symptoms, but should also consider any other relevant criteria outside of the rating code in order to determine the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436, 444 (2002).  As such, the Board has also considered the extent to which there are other indications of occupational and social impairment, such as difficulty in adapting to stressful circumstances or the inability to establish and maintain effective relationships that may cause deficiencies in most areas, to include social and occupational inadaptability.

In this regard, the Veteran has indicated that she is somewhat distrustful being around unfamiliar people.  However, it does not appear that her symptoms are so severe as to warrant a rating in excess of 70 percent for the period from March 27, 2001 to April 20, 2010.  For example, at her March 2001 evaluation, she indicated that she had a close relationship with her daughter, describing her has "my best friend."  She also lives with her husband, although they do not share a bed.  

At her VA examination in April 2002, she stated that she had "fair" relations with her children, but distant relations with her husband, although this may be as much due to her husband's behavior as her own.  In addition to her family relationships, she reported having one "close girlfriend," with whom she shared a great deal.  While she mentioned some past symptoms of anger, this has not been a problem recently.  

At her VA examination in September 2007, the Veteran indicated that she was medically retired from her employment and had not worked in approximately 10 years.  She maintained fair relationships with her two children, and had become closer with her son.  While she stated that she had no close friends outside of her family, she has been active in Bible study for many years.  

At her VA examination in June 2008, the Veteran again stated that she had not been employed since her previous VA examination and has now not worked for 11 years.  She is still married to her husband, and has been so for the past 33 years, and has been relatively stable.  She also still has a close relationship with her young-adult children.

While her symptoms of isolation and distrust, much of the evidence indicates that the Veteran's symptoms are relatively moderate, especially considering that she has actually been in a stable relationship with her husband and children for decades.  She has also indicated a desire to become more involved in her community and has been able to maintain some friends.  As such, an increased rating is not warranted on this basis.

The Board has also considered the Veteran's Global Assessment of Functioning (GAF) score. The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness.  See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV)). A GAF of 51-60 reflects "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), while a GAF of 41-50 would indicate "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).

In this case, the Board notes that the Veteran's GAF scores have been almost exclusively in the 55-60 range.  Based on the Veteran's level of social functioning and lack of clinically observable symptoms, a GAF score in this range appears consistent with her symptoms.  However, GAF scores such as 55-60 represent symptoms that are much less severe than what is required for a 100 percent rating.  While there is one occasion in March 2001 where her GAF score was 50, this is not a significant deviation from the other scores.  Moreover, the symptoms she displayed at that time are similar to what was observed on the other occasions.  As such, the totality of the evidence indicates that the Veteran's symptoms are best classified in a GAF range of 51-60.  However, the Board does not conclude that symptoms comparable to a GAF of 51-60 are consistent with a rating in excess of 70 percent.

In considering the appropriate disability rating, the Board has also considered the Veteran's statements that her PTSD is worse than the rating she currently receives.  In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).

Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to her through her senses.  Layno, 6 Vet. App. at 470.  She is not, however, competent to identify a specific level of disability of her PTSD according to the appropriate diagnostic codes.

On the other hand, such competent evidence concerning the nature and extent of the Veteran's PTSD has been provided by the medical personnel who have examined her during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated.

The Board also finds that an extraschedular evaluation is not warranted.  When considering this aspect of the claim, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology.  If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization.  Thun v. Peake, 22 Vet. App. 111 (2008).  Only if such related factors are exhibited must a referral be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration.

Here, the evidence does not indicate that Veteran's disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above.  Specifically, relevant diagnostic code and general rating formula addresses both objective symptoms and social and occupational impairment. Moreover, as was established in Mauerhan, 16 Vet. App. at 444, a schedular rating for psychiatric disorders is not necessarily limited to the enumerated symptoms in the general rating formula, and no relevant symptoms have been excluded in the Board's analysis.  See also Mittleider v. West, 11 Vet. App. 181 (1998).  While the applicable diagnostic code allows for higher ratings, the Board has explained why a higher rating was not warranted. Therefore, referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. Thun, 22 Vet. App. at 111; Bagwell, 9 Vet. App. at 337.  

Based on evidence of record, the Board determines that an increased rating for PTSD is not warranted for the relevant period on appeal.  As such, the appeal is denied.


ORDER

Service connection for an intestinal disorder, characterized as colitis, diverticulosis and internal hemorrhoids to include as secondary to an acquired psychiatric disability, is denied.  

An initial rating in excess of 70 percent for an acquired psychiatric disability, diagnosed as PTSD, for the period from March 27, 2001 to April 20, 2010, is denied.  



REMAND

At her VA examination in June 2008, the Veteran stated that she had not been employed for approximately eleven years, and she has at different times asserted that this unemployment is the result of her service-connected disability.  However, she did not submit a claim for TDIU until July 2009.  In a January 2011 rating decision, she was granted TDIU for the period from the day she submitted her claim (July 23, 2009) to the date that she was granted a total disability rating for her PTSD (April 19, 2010).  

Nevertheless, when a veteran submits a claim seeking an increased rating for a service-connected medical disability, it is construed as a claim for the highest rating possible, to include entitlement to TDIU.  See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).  In other words, if the issue of entitlement to TDIU is raised by the evidence of record, it is part of the underlying appeal.  Here, since the period appeal for the Veteran's PTSD rating claim extends to the time she submitted her claim on March 27, 2001, entitlement to TDIU is for consideration back to that point as well.  

As for whether an effective date prior to July 23, 2009 is warranted for DEA benefits, this issue is at least partially dependent upon when the Veteran begins to be in receipt of a total disability rating.  Consequently, the appropriate effective date for DEA benefits cannot be ascertained until the TDIU claim is fully adjudicated.  Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated).

Accordingly, the case is REMANDED for the following action:

1.  Send a letter to the Veteran's last known address informing her of the evidence required to establish entitlement to TDIU under 38 C.F.R. §§ 3.340 and 4.16.

2. If the Veteran has undergone any private treatment related to her service-connected disabilities, and the records of such treatment are not in the claims file, the RO should attempt to obtain them after acquiring the Veteran's authorization.

If the Veteran has undergone any treatment from a VA medical facility, these records should also be acquired.  

3. After the above development is completed, adjudicate the issues of entitlement to TDIU for the period prior to July 23, 2009 as well as whether an earlier effective is warranted for her DEA benefits.  The RO should take any additional development it deems necessary to adequately adjudicate these claims, including additional VA examinations.

If any benefits sought on appeal remain denied, the Veteran and her representative should be provided with a new supplemental statement of the case (SSOC) that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue on appeal.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).


This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).




______________________________________________
L. A. Rein
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs