Citation Nr: 1336799	
Decision Date: 11/13/13    Archive Date: 11/26/13

DOCKET NO.  11-10 943	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1.  Entitlement to a disability rating in excess of 50 percent for Post-Traumatic Stress Disorder (PTSD) from June 19, 2008 to May 7, 2009. 

2.  Entitlement to a disability rating in excess of 50 percent for Post-Traumatic Stress Disorder (PTSD) from May 7, 2009.  

3. Entitlement to a total disability rating based on individual unemployability (TDIU).

REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

O. Lopez, Associate Counsel



INTRODUCTION

The Veteran served on active duty from August 1966 to August 1968.  The Veteran's service includes one year in Vietnam, where he participated in a battle that killed 50 soldiers.  The Veteran's decorations include the Vietnam Service Medal, the Combat Infantry Badge, the Bronze Star, and the Purple Heart.  

This case comes to the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine on behalf of the RO in Detroit, Michigan.  Jurisdiction of these claims remains with the RO in Detroit, Michigan.  

The Board notes that there are two earlier rating decisions regarding the Veteran's PTSD claim, but the Board finds that the Veteran did not file a Notice of Disagreement (NOD) as to either one.  The Board further finds that the Veteran only submitted an NOD as to the September 2009 decision and did so in December 2009.  The Board finds that the Veteran had ample opportunity to file an NOD as to the two earlier decisions, but did not.  In any event, the Veteran's representative has not characterized any documents submitted by the Veteran before the December 2009 as NOD's. 

The issue of entitlement to a disability rating in excess of 50 percent for PTSD from May 7, 2009 is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  Additionally, as the issue of entitlement to a TDIU is inextricably intertwined with the increased rating claim, the TDIU issue will be held in abeyance pending the completion of the REMAND.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1990) (issues are inextricably intertwined when they are so closely tied together that a final Board decision cannot be rendered unless all are adjudicated).





FINDING OF FACT

From June 19, 2008 to May 7, 2009, the Veteran's service-connected PTSD has been shown to result in occupational and social impairment with deficiencies in most of the following areas:  work, family relations, judgment, thinking, and mood.  


CONCLUSION OF LAW

The criteria for a disability rating of 70 percent for PTSD have been met from June 19, 2008 to May 7, 2009.  38 U.S.C.A. § 1155, 5107(b) (West 2002); 38 C.F.R. § 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.16, 4.21, 4.126, 4.130, Diagnostic Code 9411 (2013). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

  I.  Duties to Notify and to Assist

Upon VA's receipt of a claim for veterans' benefits, the Veterans Claims Assistance of Act of 2000 (VCAA) imposes on VA:  (1) a duty to notify and (2) a duty to assist.  38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012).  As discussed below, VA complied with both these duties. 

The duty to notify requires VA to notify claimants of any information and evidence not of record that:  (1) is necessary to substantiate the claim; (2) the VA will seek to provide; and (3) the claimant is expected to provide.  Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (citing 38 U.S.C.A. § 5103(a)); 38 C.F.R. § 3.159(b)(1).  
VA must also notify a claimant that a disability rating and an effective date for the award for benefits will be assigned if service connection is awarded.  Id.  Notice must be provided before an initial unfavorable decision on a claim by the agency of original jurisdiction.  Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004).  

Here, VA fulfilled its duty to notify by the sending the Veteran a letter, dated in April 2009, before the RO adjudicated his claim, that notified him of the information detailed above.  In any event, the Veteran has not alleged any prejudice regarding VA's duty to notify, and the Board finds none.  See Shinseki v. Sanders, 556 U.S. 396 (2009) (stating that the burden of showing harmful error rests with the party raising the issue).

The duty to assist requires VA to help claimants develop their claims:  (1) by obtaining evidence such as treatment records and other relevant evidence; and (2) by providing a medical examination if warranted based on the factors set forth in McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).

VA associated with the claims file the Veteran's service treatment records (STRs), VA treatment records, and private treatment records.  Moreover, VA provided the Veteran mental health examinations in February 2006, June 2008, and May 2009. The reports of these examinations show that the examiner reviewed the claims file, medical records, and interviewed the Veteran in conjunction with the mental health examination.  Moreover, the Veteran's subjective complaints were recorded in the reports.  The Board, therefore, finds these examinations adequate upon which to base a decision with regard to the Veteran's claim.  See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once the VA undertakes an effort to provide an examination to develop a claim, even if not statutorily obligated to do so, the VA must ensure the examination provided is adequate).

The Veteran does not identify and the record does not indicate any additional pertinent evidence that is necessary to fairly adjudicate the claim.  Therefore, the Board finds that the claim is fully developed and that appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  

II.  Merits of the Claim 

In a March 2006 rating decision, the RO granted the Veteran entitlement to service connection for PTSD with 30 percent rating, effective May 25, 2005.  The Veteran submitted a claim for an increase in his PTSD rating in January 2007.  In a July 2008 rating decision, the RO increased the PTSD rating to 50 percent effective January 29, 2007.  In December 2008, the Veteran submitted another claim for an increase in his PTSD rating and, with it, a claim for total disability rating based on individual unemployability as a result of service-connected disabilities(TDIU).  In a September 2009 rating decision, the RO continued the 50 percent rating and denied the claim for TDIU.  The Veteran now appeals the September 2009 decision to the Board.  He requests a disability rating of 70 percent for PTSD and a total disability rating based on TDIU. 

Disability ratings are determined by applying the criteria found in VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013).  The basis of disability evaluations is the ability of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10. 

Criteria for rating disability due to PTSD are found in the General Rating Formula for Mental Disorders.  38 C.F.R. § 4.130.  According to the applicable rating criteria, when evaluating a mental disorder, such as PTSD, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the individual's capacity for adjustment during periods of remission must be considered.  38 C.F.R. § 4.126(a) (2013).  In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination.  Id.  Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely the basis of social impairment.  38 C.F.R. § 4.126(b) (2012). 

A 50 percent rating requires 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; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships.  Id. 

A 70 percent rating requires 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; intermittently illogical obscure, or irrelevant speech; 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.  Id.

A 100 percent rating requires 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.  Id.

If a disability more closely approximates the criteria for the higher of two ratings, the higher rating is assigned; otherwise, the lower rating is assigned.  38 C.F.R. § 4.7.  It is not expected that all cases will show all findings specified.  However, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances.  38 C.F.R. § 4.21. 

The part of the Schedule that addresses service-connected psychiatric disabilities is based on the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV).  38 C.F.R. § 4.130 (2012).  

The DSM-IV contains a Global Assessment of Functioning (GAF) scale, with scores ranging between zero and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health - illness.  Higher scores correspond to better functioning of the individual.

GAF scores ranging between 61 and 70 are assigned when there are some mild symptoms (e.g., depressed mood and mild insomnia), or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but when the individual is functioning pretty well and has some meaningful interpersonal relationships.  Diagnostic and Statistical Manual of Mental Disorders (4th. ed., 1994).

GAF scores ranging between 51 and 60 are assigned when there are moderate symptoms (like flat affect and circumstantial speech, and occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).  Id. 

GAF scores ranging between 41 and 50 are assigned when there are 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).  Id. 

GAF scores ranging between 31 and 40 are assigned when there is some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family and is unable to work).  Id. 

Recently, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) provided guidance in rating psychiatric disabilities.  See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013).  In Vazquez-Claudio, the Federal Circuit emphasized that the list of symptoms under a given rating is a non-exhaustive list, as indicated by the words "such as" that precede each list of symptoms.  Id. at 115.  The Federal Circuit held that a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage or others of similar severity, frequency, and duration.  Id. at 117.  Other language in the decision indicates that the phrase "others of similar severity, frequency, and duration," can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating.  Id. at 115.
In determining a disability rating, the Board must consider all information and lay and medical evidence of record.  The Board must provide reasons and bases to support its decision.  However, the Board need not discuss in detail every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence).

"[T]he relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period of one year before the claim was filed until VA makes a final decision on the claim." Hart v. Mansfield, 21 Vet. App. 505, 509 (2007).  Nonetheless, VA must assess a disability in relation to its history when making a disability determination.  Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009).  

The Board must also consider if separate findings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings called "staging the ratings."  Hart, 21 Vet. at 509.  ("It is well established that, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found[]"). 

The provisions governing the assignment of the effective date for an increased rating are set forth in 38 C.F.R. § 5110(a) and (b)(2), and 38 C.F.R. § 3.400(o).  The general rule with respect to the effective date of an award of increased compensation is that the effective date of award "shall not be earlier than the date of receipt of the application thereof."  38 U.S.C.A. § 5110(a).  This statutory provision is implemented by regulation that provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1).

An exception to that rule regarding increased ratings applies, however, under circumstances where the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation.  If an increase in disability occurred within one-year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable."  If the increase occurred more than one year prior to the claim, the increase is effective the date of claim.  If the increase occurred after the date of claim, the effective date is the date of increase.  38 U.S.C.A. § 5110(b)(2); Dalton v. Nicholson, 21 Vet. App. at 31-32; Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400 (o)(1)(2); VAOPGCPREC 12-98 (1998).

The Veteran underwent a mental health examination in June 2008.  The examiner observed that the Veteran was depressed and intermittently tearful throughout the interview, bearing with him documents and photographs pertaining to his Vietnam experience.  There was no gross impairment of thought process or communication.  Delusions and hallucinations were denied, although the Veteran noted that there are numerous triggers of flashbacks which occur unexpectedly and overwhelm him emotionally.  He had intermittent suicidal thoughts, but no specific plan or intent.  He was able to maintain minimal personal hygiene and other basic activities of daily living.  He was oriented to person, place, and time.  There was no evidence of memory loss or impairment.  Although he had no frank obsessions, it appeared that he was constantly ruminative concerning his Vietnam experiences which absorbed a large amount of his mental energy.  The Veteran endorsed intermittent panic attacks and described difficulties falling asleep, problems with sleep maintenance, and combat-related nightmares.  The examiner found no impulse control.  In assessing the Veteran's PTSD, the examiner noted that the Veteran continued to meet the DSM-IV criteria for PTSD, which included behavioral, cognitive, social, affective, and somatic symptoms, as well as re-experiencing avoidance, numbing, heightened, physiological arousal, disillusionment, and demoralization.  The GAF score was 55 with moderately severe impairment in social and occupational functioning.  As to the effects the Veteran's PTSD had on his occupational and social function, the examiner opined that the Veteran's signs and symptoms result in deficiencies in most of the following area:  work, family relations, judgment, thinking, and mood.  The examiner noted that the Veteran's symptoms require continuous medication. 

The Veteran underwent another examination in May 2009.  The examiner noted that the Veteran was neatly groomed and appropriately dressed; that his psychomotor activity was unremarkable; that he was cooperative; that his affect was appropriate; that his orientation as to person, time, and place were intact; that his thought process and thought content were unremarkable; that he had no delusions or hallucinations; that he understands that outcome of his behavior; that he understand that the has a problem.  Remote and recent memories were noted to be normal, but immediate memory was mildly impaired.  The Veteran's mood was anxious, and he had a short attention span.  The examiner stated that the Veteran suffered chronic and debilitating depression and re-experienced the traumatic events through recurrent and intrusive distressing recollections, that he had feelings of detachment from others, that he experienced irritability or outbursts of anger, difficulty concentrating, and hypervigilance.   The examiner described the Veteran as socially withdrawn and avoidant.  The examiner further stated that the Veteran's combined effects of depression, guilt feelings, pervasive and chronic feelings of inferiority and passivity converge into a rather unflattering presentation.  The examiner noted that the Veteran scored a 31 on the Beck-Depression Inventory-II (BDI-II), which descriptively classified him in the severe range of self-reported depression.  The Veteran acknowledged suicidal thought/wishes, but denied any intent.  The Veteran described having extreme survivor's guilt, anger, worthlessness, flashbacks, depression, and difficulties with comprehension.  The most extreme symptom endorsements involved punishments feelings, feelings of guilt, self-dislike, irritability, and agitation.  Unlike the previous examiner, this examiner found that the Veteran's PTSD did not meet the criteria for a 70 percent rating, i.e., did not result in occupational and social impairment with deficiencies in the areas of judgment, thinking, family relations, work, mood, or school.  Instead, he found that the Veteran met the criteria for a 50 percent rating, i.e. occupational and social impairment with reduced reliability and productivity.  

In deciding the Veteran's increased rating claim, the Board has reviewed all the evidence of record, including the VA examination reports, VA treatment notes, private treatment reports, the Veteran's own statements.  The Board finds that the most probative evidence relevant to the severity of the Veteran's service-connected PTSD from June 19, 2008 to May 7, 2009 is the report of the June 2008 examination detailed above. 

Resolving all reasonable doubt in the Veteran's favor, the Board finds that from June 19, 2008, to May 7, 2009, the Veteran's PTSD is manifested by occupational and social impairment with deficiencies in most areas.  The medical evidence noted above, especially the results of the June 2008 VA examination, supports such a finding.  Indeed, the June 2008 examiner opined that the Veteran's signs and symptoms result in deficiencies in most of the following areas:  work, family relations, judgment, thinking, and mood.  Accordingly, the Board finds that a 70 percent evaluation is warranted from June 19, 2008 to May 7, 2009.  Although the Veteran filed his increased rating claim in December 2008, the Board finds that under 38 C.F.R. § 3.400 (o)(1)(2), the Veteran is entitled to an effective date of June 19, 2008, date of the June 2008 examination , because that date is within a year of the date of claim and it is "factually ascertainable," as evidence by the June 2008 examination report, that Veteran was entitled to a 70 percent rating at that time. 

The Board has considered whether he is entitled to the next higher rating, i.e., 100 percent from June 19, 2008 to May 7, 2009.  However, the Board finds that the Veteran's disability does not approximate the criteria for 100 percent rating.  The evidence does not show that the Veteran's PTSD is productive of total occupational and social impairment.  None of the symptoms set forth as indicative of such impairment are demonstrated.  The examiner found that the Veteran's thought processes or communication were not impaired, that his speech was unremarkable; that he did not have delusions or hallucinations; that he was not disoriented as to place and time; that the was able to maintain at least a minimal amount of personal hygiene; and that he had no problems with activities of daily living.  Moreover, at no point was grossly inappropriate behavior or memory loss for names of close relatives, own name, or own occupation mentioned.  While the Veteran was noted to have had suicidal and homicidal ideations, he denied any intent or plans to hurt himself or anyone else. 

The Board has also considered whether referral is warranted for a rating outside of the schedule.  The United States Court of Appeals for Veterans Claims (Court) clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted.  Thun v. Peake, 22 Vet. App. 111 (2008).  First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

In this case, there has been no showing that the Veteran's disability picture is not contemplated adequately by the applicable schedular rating criteria discussed above.  The evidence of record does not establish that the schedular criteria are inadequate to evaluate the Veteran's disability.  The criteria provide for a higher rating, but as has been explained herein, the Veteran's PTSD does not meet the criteria for the next higher rating, i.e. 100 percent.  Given that the applicable schedular rating criteria are adequate, the Board need not consider whether the Veteran's PTSD disability picture includes such exceptional factors as periods of hospitalization and interference with employment.  Referral for consideration of the assignment of a disability rating on an extraschedular basis is not warranted.  Thun, 22 Vet. App. at 111.

As was noted in the introduction section, the TDIU issue will be addressed in the REMAND section below.



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ORDER

A disability evaluation of 70 percent from June 19, 2008 to May 7, 2009 for PTSD is granted, subject to the laws and regulations governing monetary awards.


REMAND

Unfortunately, a remand is required for the remaining issues on appeal.  Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide this claim so that he is afforded every possible consideration.  VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2013).   Specifically, a remand is necessary to properly adjudicate the claim of entitlement to an increased rating from May 7, 2009, the time that the Veteran was last examined.

The Veteran was last afforded a VA examination to assess the nature and severity of his service-connected PTSD in May 2009, which indicated a significant improvement in the Veteran's symptoms since the prior June 2008, and did not indicate that a rating in excess of 50 percent would be warranted.  However, we the Board has no further psychiatric records since that time. When available evidence is too old for an adequate evaluation of the Veteran's current condition, VA's duty to assist includes providing a new examination.  Weggenmann v. Brown, 5 Vet. App. 281 (1993).  Here, the Veteran's most recent mental health examination was more than four years ago.  Accordingly, the Board finds that a new examination is necessary to fully and fairly assess the merits of increased rating claim from May 7, 2009.  See 38 U.S.C.A. § 5103A(d) (West 2002).

As the issue of entitlement to TDIU is inextricably intertwined with this increased rating claim, the TDIU issue will be held in abeyance pending the completion of the REMAND.  See Harris v. Derwinski, 1 Vet. App. at 183 (1990).

Accordingly, the case is REMANDED for the following action:

1.  Obtain the Veteran's VA mental health records since May 2009.  

2.  Thereafter, schedule the Veteran for a VA examination to determine the current severity of his PTSD and the current level of social and occupational impairment.  The examiner should review the claims file including relevant medical evidence and should note that review in the examination report. The examiner should provide a full multi-axial diagnosis pursuant to DSM-IV, including the assignment of a GAF score and explanation of the import of that score as it pertains to social and industrial adaptability. 

3.  Then, readjudicate the remaining claims on appeal.  If action remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board.

The Veteran 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).







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This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).


______________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs