Citation Nr: 1335005 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 09-24 194 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wichita, Kansas THE ISSUE Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Chris Miller, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1968 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas, which denied a rating in excess of 30 percent for the Veteran's PTSD. As noted below, a higher rating is warranted for part of the claim period: August 28, 2007, to April 10, 2009. Consequently, in the decision below, the Board has addressed the Veteran's claim until April 10, 2009. For reasons expressed in the remand that follows the decision, the question of entitlement to a rating in excess of 30 percent for the period beginning April 10, 2009, is deferred so that additional evidentiary development may be undertaken. FINDINGS OF FACT 1. For the period prior to August 28, 2007, the Veteran's PTSD was manifested by occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks, due to such symptoms as depressed mood, nightmares, suspiciousness, and chronic sleep impairment. 2. For the period from August 28, 2007, to April 10, 2009, the Veteran's PTSD was manifested by ongoing symptoms of depression, flashbacks, intrusive thoughts, obsessive rituals, hypervigilance, social isolation, non-existent or marginal employment, and difficulties in maintaining personal hygiene, all of which likely resulted in total social and occupational impairment. CONCLUSIONS OF LAW 1. For the period prior to August 28, 2007, the criteria for a rating in excess of 30 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code (DC) 9411 (2013). 2. For the period from August 28, 2007, to April 10, 2009, the criteria for a 100 percent schedular rating for PTSD have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not in the 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. Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002). These notice requirements apply to all elements of a claim, including degree of disability and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Proper VCAA notice must be provided to a claimant prior to the initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). Here, the Veteran was notified in December 2005 and April 2008 of the evidence and information necessary to substantiate his claim, the responsibilities of the Veteran and VA in obtaining such evidence, and the evidence and information necessary to establish a disability rating and effective date, in accordance with Dingess/Hartman. Therefore, the Board finds that no further notice is required in this case. VA's duty to assist includes assisting in the procurement of pertinent treatment records and providing an examination when necessary. 38 C.F.R. § 3.159. The Veteran's service treatment records and post-service VA records have been obtained and considered. Further, the Veteran was afforded a VA mental health examination in August 2007. Neither the Veteran nor his representative have argued that this examination is inadequate for rating purposes, and a review of the examination report reveals no inadequacies. For the foregoing reasons, the Board finds that the medical evidence of record is sufficient to decide the Veteran's claim for the period prior to April 10, 2009. In the circumstances of this case, a remand would serve no useful purpose, as it would unnecessarily impose additional burdens on VA with no benefit to the Veteran. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). VA has satisfied its duties to inform and assist the Veteran, at least with regard to the claim period prior to April 10, 2009. II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Staged ratings are appropriate for a rating claim when the factual findings show distinct time periods for which the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). Evaluation of a mental disorder requires consideration of the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. Evaluations will be assigned based on all evidence of record that bears on occupational and social impairment, rather than solely on an examiner's assessment of the level of disability at the moment of the examination. The extent of social impairment shall also be considered, but an evaluation may not be assigned based solely on the basis of social impairment. 38 C.F.R. § 4.126. Under 38 C.F.R. § 4.130, certain mental health disabilities, including PTSD, are rated pursuant to the General Rating Formula for Mental Disorders. The criteria for a 30 percent rating are: Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). The criteria for a 50 percent rating are: 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; difficulty in establishing and maintaining effective work and social relationships. The criteria for a 70 percent rating are: 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); inability to establish and maintain effective relationships. The criteria for a 100 percent rating are: 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; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. The symptoms listed in 38 C.F.R. § 4.130 are not intended to constitute an exhaustive list but, rather, serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating for a mental disorder. In addition to the symptoms listed in the rating schedule, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The DSM-IV provides for a global assessment of functioning (GAF), a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (quoting the DSM-IV). A staged rating is appropriate, as the manifestations of the Veteran's disability have not remained stable. See Hart, 21 Vet. App. at 509. During the period prior to August 28, 2007, the Veteran's PTSD has a current rating of 30 percent. After reviewing the evidence of record, the Board finds that the rating for this period should be kept at 30 percent. A review of the Veteran's VA treatment records indicate a consistent diagnosis of mild chronic PTSD and mild to moderate major depressive order. The Veteran consistently reported nightmares, sleep impairment, detachment, avoidance behavior, and hypervigilance. His mood was consistently reported as "okay," "not too bad," or "good." His affect was generally reported as appropriate, although there were instances where it was described as constricted or guarded. There were no reports of hallucinations or delusions. His insight and judgment were reported as fair or poor. Based on all lay and medical evidence of record, and resolving all reasonable doubt in the Veteran's favor, the Board finds that his 30 percent rating should be maintained for the period prior to August 28, 2007. The record shows diagnoses of mild PTSD and mild to moderate depression. There were no consistent reports of the Veteran having a bad mood. There were no reports of poor judgment. While he reported nightmares, detachment, avoidance behavior, and hypervigilance, there is no indication that those symptoms occurred more than weekly. His records also indicate that generally the Veteran was functioning satisfactorily, with routine behavior, self-care, and normal conversation. There is no indication of difficulty in establishing and maintaining relationships. The Board notes that the evidence reflects some symptoms that are contemplated by a rating in excess of 30 percent of PTSD, such as difficulty with his affect. However, even considering these symptoms, the Board finds that the Veteran's overall disability most nearly approximates the criteria for a 30 percent disability rating. While there were instances where the Veteran had affect that was not appropriate, this was not the majority of the time, and his affect was not described as flat. The Veteran's depression and other symptoms do not appear to have occurred more often than weekly, and he was able to function independently, appropriately, and effectively the majority of the time. In summary, while the evidence reflects some symptoms that are contemplated by the higher ratings for mental disability, the Board finds that the Veteran's overall disability picture most nearly approximated the criteria for a 30 percent rating for PTSD for the period prior to August 28, 2007. See 38 C.F.R. § 4.7. The Board has further considered whether this case should be referred for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1). An extra-schedular rating is warranted if a case presents such an exceptional or unusual disability picture, with such related factors as marked interference with employment or frequent periods of hospitalization, that it would be impracticable to apply the schedular standards. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). Analysis under 38 C.F.R. § 3.321(b)(1) involves a three-step inquiry, and extra-schedular referral is necessary only if analysis under the first two steps reveals that the rating schedule is inadequate to evaluate the claimant's disability picture and that such picture exhibits such related factors as marked interference with employment or frequent periods of hospitalization. Id. In this regard, there are no symptoms of the Veteran's PTSD that are not addressed by the rating schedule, and the rating criteria reasonably describe his disability level and symptomatology. In short, the Veteran has occupational and social impairment due to the symptoms discussed above, which are contemplated by the rating criteria. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. Therefore, it is unnecessary to determine whether there are any related factors such as hospitalization or interference with employment. Finally, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, for the reasons set forth above, the preponderance of the evidence is against the claim for a rating in excess of 30 percent prior to August 28, 2007. 38 C.F.R. § 4.3. With regard to the period from August 28, 2007, to April 10, 2009, the Board finds that the rating for this period should be increased to 100 percent. The Veteran underwent a VA examination on August 28, 2007. The Veteran indicated that he had no social life, no friends, and avoided contact with others. He had been married and divorced four times. He had three sons, and was estranged from two of them. He had not worked since 1993, and spent his time raising dogs since leaving the workforce. He reported homicidal ideation. He had trouble with maintenance of minimal personal hygiene in that he frequently failed to bathe and brush his teeth. He explained this by noting that his dogs, his only companions, do not care about his hygiene. He also noted that playing with his dogs was the only thing he did for enjoyment. He obsessively checked his property 2-3 times per evening. The examiner noted that the Veteran had ongoing and severe panic attacks, depression, flashbacks, and intrusive thoughts. The examiner deemed the Veteran totally disabled. He assigned the Veteran a GAF score of 37, which indicates some impairment in reality testing or communications or major impairment in areas such as work, family relations, judgment, thinking, or mood. See DSM-IV at 46. Based on all lay and medical evidence of record, and resolving reasonable doubt in the Veteran's favor, the Board finds that he is entitled to a rating of 100 percent for the period beginning August 28, 2007, until April 10, 2009. As illustrated above, the examination demonstrated total occupational and social impairment on the part of the Veteran. The Veteran's overall disability picture most nearly approximated a 100 percent rating for PTSD during this period. See 38 C.F.R. § 4.7. ORDER A rating higher than 30 percent for the period prior to August 28, 2007, is denied. A rating of 100 percent for PTSD for the period from August 28, 2007, to April 10, 2009, is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND A review of the Veteran's claims file reveals that further development is necessary on the matter of entitlement to a rating in excess of 30 percent for PTSD for the period beginning April 10, 2009, the date of the Veteran's last VA examination. At the April 2009 examination, a GAF score of 60 was assigned and the examiner described the Veteran's PTSD and depression as mild, which suggests improvement over the August 2007 examination. Four and a half years have passed since this last examination, and the Board believes that a new examination is necessary to determine the Veteran's current level of disability. Allday v. Brown, 7 Vet. App. 517, 526 (1995) (VA must provide a contemporaneous medical examination where the record does not adequately reveal the current state of the claimant's disability, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). Further, the Board also notes some inconsistencies in the Veteran's April 2009 examination. The examiner noted that the Veteran copes with his PTSD via extreme isolation and had only one friend; suffers from nightmares, flashbacks, and sensory responses; avoids panic attacks by not going out in public; and considers his home and land to be his occupation. However, as noted above, the Veteran was assigned a GAF score of 60, which appears to be inconsistent with the described symptoms. The examiner did not explain this inconsistency, which does not allow the Board to determine the current severity of his service-connected PTSD. The probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008). It appears that the Veteran pled guilty in the United States District Court for the District of Kansas to charges of felon in possession of a firearm in December 2008, and was sentenced to a term of incarceration in March 2009. He was in the custody of the United States Bureau of Prisons from 2009 until 2011. The Board finds that the presentence investigation report prepared by that Court's probation office prior to the Veteran's sentencing likely would be helpful to the Board, as would any mental health records of the Veteran that are in the possession of the Bureau of Prisons. Finally, the Board also notes that there may be outstanding VA treatment records. These should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain copies of any outstanding VA mental health treatment records from April 10, 2009, forward, specifically to include any records from the VA Medical Center in Topeka, Kansas. 2. Obtain a copy of the Veteran's presentence investigation report from his 2008 conviction and 2009 sentencing, in the United States District Court for the District of Kansas. 3. Obtain any copies of the Veteran's mental health records from his 2009 to 2011 incarceration, to include records from the United States Bureau of Prisons. 4. All efforts to obtain the above-described records must be documented in the claims file. Such efforts should continue until federal records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. Reasonable efforts are necessary for non-federal records. If any records cannot be obtained after appropriate efforts have been expended, the Veteran should be given proper notice and allowed an opportunity to provide such records. 5. After securing the above records, the Veteran should be scheduled for another VA examination to determine the current severity of his service-connected PTSD, to include psychological testing necessary to determine the extent of genuine disability caused by PTSD. An assessment regarding the effect of service-connected PTSD on occupational and social functioning should be made with specific regard given to the level of the Veteran's isolation. In other words, the examiner's assessment of impairment and assignment of a global assessment of function (GAF) score should specifically account for any tendencies of the Veteran to avoid social contact or limit himself to no or marginal employment. 6. When the development requested has been completed, the case should be reviewed on the basis of the additional evidence. If a benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and afforded an opportunity to respond before the case is returned to the Board for further review. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2013). The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs