Citation Nr: 1339284 Decision Date: 11/29/13 Archive Date: 12/13/13 DOCKET NO. 11-12 580 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for posttraumatic stress disorder (PTSD), prior to April 1, 2011. 2. Entitlement to an initial evaluation in excess of 30 percent for PTSD, since April 1, 2011. 3. Entitlement to finding of total disability based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Veteran and his Spouse ATTORNEY FOR THE BOARD W.H. Donnelly, Counsel INTRODUCTION The Veteran served on active duty with the United States Navy from October 1968 to August 1970, to include a tour of duty in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Muskogee, Oklahoma, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which granted service connection for PTSD and assigned a 10 percent evaluation, effective from January 12, 2009. During the pendency of the appeal, the RO issued a Decision Review Officer (DRO) decision in April 2011 granting an increased 30 percent evaluation from April 1, 2011. The Veteran has indicated that he wishes to continue his appeal, and is seeking a total disability evaluation. Accordingly, the issues are characterized to reflect both evaluation stages on appeal. The Veteran and his wife testified at a June 2012 hearing held before the undersigned Veterans Law Judge via videoconference from the RO; a transcript of the hearing is of record. A claim for increased evaluation includes a claim for TDIU, where there is evidence of record regarding unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran has alleged, and evidence of record shows, that his psychiatric disability plays some role in the Veteran's unemployability. A TDIU claim must be inferred. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in Virtual VA system to ensure consideration of the totality of the evidence. The issues of evaluation of PTSD since April 1, 2011, and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Prior to April 1, 2011, service-connected PSTD was manifested by avoidance behaviors, occasional intrusive thoughts, minimal trouble sleeping, some hypervigilance and heightened startle reflex, and occasional panic attacks; medication controlled most PTSD related problems, and the Veteran generally functioned well overall. Occupational and social impairment with reduced reliability and productivity was not demonstrated. CONCLUSION OF LAW The criteria for an increased initial evaluation of 30 percent for PTSD, but no higher, prior to April 1, 2011, are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). This appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection for PTSD Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). No additional discussion of the duty to notify is therefore required. VA also has a duty to assist the Veteran in the development of the claim, which is not abrogated by the granting of service connection. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment and personnel records, and VA medical treatment records have been obtained. He did not identify any private treatment records pertinent to the appeal; the private records identified related to neurological or musculoskeletal problems. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran's Social Security Administration disability determination, and the records considered in that determination, were obtained. 38 C.F.R. § 3.159(c)(2). A VA examination was conducted in August 2010; the Veteran has not argued, and the record does not reflect, that this examination is inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The examiner made all required findings in describing the Veteran's disability; the examination is adequate. At the Veteran's June 2012 hearing, the undersigned discussed in detail the elements of the claim on appeal, to include identifying the specific types of evidence and information which would be of assistance in substantiating it. The Board notes that although the issue identified at the hearing involved a rating in excess of 30 percent, and did not recognize the presence of stages, the Veteran was not prejudiced, as he discussed the severity of PTSD and its functional impact on him for the entirety of the appeal period. Additionally, the Veteran was offered an opportunity to ask the undersigned questions regarding his claim. The provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to fully explain the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Neither the Veteran nor his representative has asserted that VA has failed to comply with 38 C.F.R. § 3.103(c)(2) (2012), nor have they identified any prejudice in the conducting of the Board hearing. The Board, therefore, concludes that it has fulfilled its duty under Bryant. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Analysis In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as "staged" ratings." Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. PTSD is rated under a General Rating Formula for Mental Disorders, which provides that where a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication, a noncompensable rating is assigned. Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms are controlled by continuous medication, warrants assignment of a 10 percent rating. 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 conversation normal), 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), is rated 30 percent disabling. 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, is rated 50 percent disabling. 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 worklike setting); inability to establish and maintain effective relationships, is rated 70 percent disabling. 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, is rated 100 percent disabling. 38 C.F.R. § 4.130. The rating formula is not intended to constitute an exhaustive list, but rather is intended to provide examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. Instead, VA must consider all symptoms of a Veteran's condition that affect the level of occupational and social impairment, and assign an evaluation based on the overall disability picture presented. The Veteran is additionally diagnosed with depression and an adjustment disorder. If the conditions cannot be sufficiently distinguished, entitlement to the benefit sought is determined based on the overlapping symptoms, which are attributed in whole to the service-connected disability.. 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181 (1998). Private treatment records prior to April 1, 2011, while not focused on the Veteran's mental health, do include records from Mr. FAW, a physician's assistant, noting repeatedly from September 2007 to November 2007 that the Veteran showed no unusual anxiety or depression. In connection with his SSA claim, Dr. CG stated in June 2008 that the Veteran had depression and PTSD, but could function, with the exception of relating to the general public. VA records reflect that in March 2008, the Veteran was referred for a psychiatric evaluation; he stated that he had stopped working in August 2007 due to the onset of pain in his extremities. The social worker felt that a depressive disorder, or an adjustment disorder with depressed mood was present, due to the change in his work situation. PTSD had to be ruled out, however. The Veteran stated that sleep was not a problem, but he lacked energy to do things. A Global Assessment of Functioning (GAF) score of 69 was assigned. A GAF score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). A score of 31-40 indicates "[s]ome 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; child frequently beats up younger children, is defiant at home, and is failing at school)." Id. A score of 41-50 illustrates "[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." A score of 51-60 represents "[m]oderate 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)." Id. A score of 61-70 illustrates "[s]ome 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 generally functioning pretty well, has some meaningful interpersonal relationships." Id. In April 2008, the Veteran had a panic attack while talking with the VA social worker about his Vietnam experiences. He was seen by a VA psychiatrist approximately every three months or so. These sessions reflect a diagnosis of PTSD as well as depression. The doctor was largely able to distinguish between PTSD and depressive symptoms. In April 2008, intrusive memories, flashbacks, nightmares, hypervigilance, a hyperstartle reflex, avoidance, and isolation were related to PTSD. Depressive symptoms included sadness, crying, isolation, irritability, decreased libido, impaired attention and concentration, poor motivation, impaired memory, fatigue, feelings of worthlessness, and anhedonia. A GAF score of 45-50 was assigned. Medication was prescribed for depression. Subsequent appointments show adjustment of medications aimed primarily at depression, which was effective. Other medication for his pain problems served to improve sleep. GAF scores remained at the 45 to 50 range through July 2010. In February 2010, he reported that he was having trouble staying asleep, and experienced vivid dreams. He continued to deny suicidal ideation, and stated in July 2010 that he had "significant benefit" from his psychiatric medications. When he missed medication, he could "readily tell the difference" in his symptoms. Treatment records reflect that the Veteran was in financial difficulty during this period, and was unable to obtain regular refills of his medications. In a March 2011 treatment note, the Veteran's treating psychiatrist noted that he had not taken one medication for several months as a result, and was having exacerbation of PTSD and depressive symptoms. The doctor also opined that a 10 percent evaluation for PTSD "greatly understates his symptoms and severity." The Veteran's wife submitted a statement regarding his status in June 2010. She reported having known the Veteran since shortly after service. She noted he was a heavy drinker, which he attributed to things he had done and seen. The Veteran was very "jumpy," easily startled by loud noises. He could be moody and irritable, and he wanted to be left alone at those times. He had difficulty dealing with Asians, and avoided crowded places like malls and fairs. He talked in his sleep and thrashed a good deal. A VA contract examination was conducted in August 2010. The Veteran reported, and records reflected, the onset of depression following his forced disability retirement in 2007, due to atypical fibromyalgia. Pain, inability to work, and financial problems all contributed to the depression. With regard to PTSD, the Veteran stated that since Vietnam he experienced occasional distressing memories, hypervigilance, and discomfort in large crowds; symptoms were "mild," though they were constant. Functional impact was minimal, according to the Veteran. He stated that he had no sleep problems most of the time, but does have difficulty if he does not take his medicine. Additionally, moderate depressive symptoms, identified as sadness, decreased energy and motivation, and hopelessness, were noted. On interview, no mood, communication, thought process, memory, or concentration problems were noted. There were no panic attacks. The Veteran was "normal." A GAF score of 60 was assigned. The examiner felt that symptoms were controlled by continuous medication, and there was no functional impact due to PTSD. Initially, the Board notes that both examining and treating doctors have indicated that symptoms of PTSD and depression can be separated. Therefore, in assigning the evaluation for the period prior to April 1, 2011, only those manifestations attributed to PTSD are considered. Mittleider v. West, 11 Vet. App. 181 (1998). Those symptoms warrant assignment of a 30 percent evaluation. Although medication was generally effective in ameliorating symptoms, they did not eliminate them totally. The Veteran continued to have dreams and intrusive thought of Vietnam, and avoided discussing such. When pressed to do so, he experienced panic attacks and heightened manifestations. His sleep fluctuated greatly. Finally, the Veteran is consistently described as jumpy and hypervigilant. His occasional panic attacks and recurrent sleep impairments, combined with his heightened startle reflex, contribute to a disability picture that is worse than the criteria for a 10 percent evaluation, and approach those for a rating of 30 percent. The predominant GAF score of 45-50 are also consistent with such a rating. Resolving all doubt in favor of the Veteran, the Board finds that an increased, 30 percent evaluation is warranted for PTSD prior to April 1, 2011. No higher evaluation is possible. There are no signs of impaired memory, judgment, or abstract thinking, and the Veteran is repeatedly noted to be functioning relatively normally. His mood and motivation disturbances, while present, are attributed by doctors to nonservice-connected depression, and not PTSD. He reported having friends, and remains close to his family. He stated that he had no problems relating to people when working. While depression did contribute to irritability and difficulty with people after 2007, as described in SSA records, such is not service connected. ORDER An increased, initial evaluation of 30 percent, but no higher, for PTD prior to April 1, 2011, is granted. REMAND With regard to the evaluation of PTSD since April 1, 2011, and entitlement to TDIU, remand is required for compliance with VA's duty to assist the Veteran in substantiating his claims, and for due process concerns. 38 U.S.C.A. § 5103; 38 C.F.R. §§ 3.159, 20.1304(c). PTSD At the June 2012 hearing, the Veteran reported that his PTSD symptoms had worsened since his most recent, April 2011 examination. He also provided specific examples of such worsening. While there are VA treatment records and a private evaluation of record since April 2011, they do not provide sufficient detail or findings to themselves allow application of the rating schedule/ Remand is therefore required to secure an updated, comprehensive mental disorders examination. Similarly, updated VA treatment records should be obtained. The Board notes that at the June 2012 hearing, the Veteran submitted additional lay statements and a private psychiatric evaluation, along with a waiver of initial RO consideration thereof. However, in March 2013 he also submitted treatment records from the local Vet Center, without a waiver. Normally waiver would be sought, but in light of the other reasons for remand, returning this evidence to the RO for initial consideration is more efficient. 38 C.F.R. § 20.1304(c); Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Efforts to ensure than complete available records from the Vet Center should also be undertaken. TDIU A claim of entitlement to TDIU was denied in a January 2010 rating decision and not appealed, but since that time service connection has been granted for PTSD. The SSA decision and findings indicate this condition plays a role in the Veteran's inability to work, and so entitlement must be reconsidered. Entitlement to TDIU is dependent upon consideration of the impact of service-connected disabilities on a Veteran's ability to secure and follow substantially gainful employment. As there remains an open question regarding the severity of service-connected PTSD, the issue of TDIU is not ripe for adjudication. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered) Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request properly executed, separate VA form 21-4142's, Authorization and Consent to Release Information to the Department of Veterans Affairs, for all private health care providers who have treated his PTSD, in particular the Fayetteville, Arkansas, Vet Center. Upon receipt of such, VA must take appropriate action to contact the providers and request all records related to mental health treatment. The Veteran should be informed that in the alternative he may obtain and submit the records himself. 2. Associate with the claims file complete VA treatment records from the medical center in Fayetteville, and all associated clinics, as well as any other VA facility identified by Veteran or in the record, for the period of January 2012 to the present. 3. Schedule the Veteran for a VA PTSD review examination. The claims folder must be reviewed in conjunction with the examination. The examiner must describe in detail the current signs and symptoms of service-connected PSTD. To the greatest extent possible, the examiner must differentiate between symptoms of PTSD and any other diagnosed mental disorder, to include depression and adjustment disorder. If it is not possible to so differentiate, that must be clearly stated. The examiner must comment on the impact of PTSD, and service-connected left ear hearing loss, on his daily life, and his occupational functioning. A clear and complete rationale is required for all opinions expressed. 4. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal. If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the 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). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs