Citation Nr: 1340902 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 09-45 518 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for an innocently acquired psychiatric disorder other than major depressive disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to an initial rating higher than 30 percent for the service-connected major depressive disorder prior to September 16, 2013 and 50 percent beginning on that date. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) by reason of service-connected disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION This appeal was processed using the Veterans Benefits Management System. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The Veteran served on active duty from December 1965 to December 1967. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in May 2008 and in February 2009 by the RO. In the May 2008 rating decision, the RO denied service connection for PTSD. In the February 2009 rating decision, the RO granted service connection for major depressive disorder and assigned a 30 percent rating. In a rating decision in October 2013, a 50 percent rating was granted effective on September 16, 2013 for a major depressive disorder. Thus the Veteran's claim for an initial higher rating for major depressive disorder is characterized as reflected on the title page. The U.S. Court of Appeals for Veterans Claims has held that a claimant is generally not competent to diagnose his own psychiatric disability. Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (a claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness). Here, although the Veteran's claim was previously characterized as service connection for PTSD, the Board must consider all other psychiatric disorders that have been diagnosed since he filed his claim; therefore, the claim has been recharacterized as reflected on the title page. In January 2012 and June 2013 the Board remanded the issues of service connection for PTSD and a higher initial rating for the service-connected major depressive disorder. The Board observes that a request for a TDIU rating, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather part of the adjudication of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, when claim for a TDIU rating is raised during the appeal of a rating for a disability, as it is in the instant case, it is part of the claim for benefits of the underlying disability. See April 2011 disability determination from the Social Security Administration (SSA), which shows that the Veteran was disabled due to affective/mood disorder. The records in the Virtual VA paperless claims processing system are either duplicative of the evidence of record or are not pertinent to the present appeal. The issues of an increased, initial rating higher than 30 percent for the service-connected major depressive disorder prior to September 16, 2013 and 50 percent beginning on that date and an entitlement to a TDIU rating are being remanded to the RO. FINDING OF FACT The currently demonstrated PTSD with adjustment disorder is shown as likely as not to be due to his period of active duty. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, his disability manifested by PTSD with an adjustment disorder is due to disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) As provided for by VCAA, 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). To the extent that the action taken hereinbelow is favorable to the Veteran, further discussion of VCAA is not required at this time. Analysis Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) . 38 C.F.R. § 4.125(a) requires that diagnoses of mental disorders conform to the Diagnostic and Statistical Manual for Mental Disorders (DSM-IV). The Veteran asserts that he suffers from PTSD as a result of working in graves registration during service, where he had to identify dead soldiers and do skeletal lays outs. See, e.g., February 2008 statement. The Veteran's personnel records shows that he served in the Republic of Vietnam from February 1967 to October 1967 and was a Memorial Activities Specialist. Based on the Veteran's military occupational specialty in service, his statements of an in-service stressors are corroborated. The remaining question is whether the evidence shows a link between any current PTSD and the corroborated in-service stressor. The Board finds that the evidence is at least in relative equipoise in showing that the Veteran suffers for PTSD due to an event or incident of the his period of active service. The evidence in favor of the claim consists of evaluations performed by the Veteran's private psychologist in January 2008, April 2009, February 2012, and August 2013. Dr. W.J.A in January 2008 and in April 2009 specifically explained how the Veteran met the DSM-IV criteria for a PTSD diagnosis based on persistent symptoms of re-experiencing a traumatic event, avoidance, increased arousal and social impairment. In her evaluation in February 2012 and August 2013, the physician continued to provide the PTSD diagnosis. In January 2008 and in April 2009, Dr. W.J.A. related the Veteran's PTSD to his service in Vietnam were he worked in graves registration and was involved in "doing a skeletal, laying out a head, or leg, or arm, or whatever." In her February 2012 and August 2013 evaluations she continued to link the Veteran's PTSD symptoms to his service in Vietnam. The unfavorable evidence consists of a VA examination in May 2008, August 2012, and September 2013. On VA examination in May 2008, the examiner provided a diagnosis of depressive disorder and determined that the Veteran did not meet the DSM-IV criteria for PTSD as he did not endorse the full complex of PTSD symptoms. On VA examination in August 2012, the diagnosis was that of major depressive disorder. The same examiner conducted a VA examination in September 2013 and determined that the Veteran did not meet the full DSM-IV criteria for a diagnosis of PTSD. In light of the roughly equal positive and negative evidence with respect to the PTSD claim, the Board finds that the evidence in this case is in relative equipoise in showing that the Veteran has a diagnosis of PTSD that is related to his military service. Further, the requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran's claim was received in February 2008, and during the current appeal period, the evidence also shows that he had adjustment disorder which was associated with PTSD. See April 2011 mental status examination associated with the SSA determination. As such, service connection for PTSD with adjustment disorder is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In this regard, this decision is considered a full grant of the benefits sought by the Veteran for his acquired psychiatric disorder claim to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In granting service connection for PTSD with adjustment disorder, the RO should assign a disability rating or ratings that encompasses the overlapping symptoms of these disorders as well as the service-connected major depressive disorder. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (2009) (two defined diagnoses constitute the same disability for purposes of 38 C.F.R. § 4.14 if they have overlapping symptomatology, but bipolar disorder and PTSD could have different symptoms and it could therefore be improper in some circumstances for VA to treat these separately diagnosed conditions as producing only the same disability). ORDER Service connection for PTSD with adjustment disorder is granted. REMAND In light of the above disposition granting service connection for PTSD with adjustment disorder, the Veteran should be afforded a VA examination to determine the severity of symptoms associated with the service-connected major depressive disorder and his PTSD with adjustment disorder. Further, the Veteran's representative in the November 2013 noted that, during the most recent VA examination in September 2013 the examiner stated that psychological testing was not performed. All necessary testing should be performed to determine the current level of severity of the major depressive disorder. The examiner must also address whether the Veteran is unemployable due to his service-connected disabilities. Lastly, the Veteran must be provided VCAA notice related to his claim for a TDIU rating. Accordingly, the remaining matters are REMANDED for the following action: 1. The RO should take all indicated action in order to ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103 and 5103A are fully complied with and satisfied with respect to the issue of entitlement to a TDIU rating due to the service-connected disabilities pursuant to 38 C.F.R. § 4.16(a) and (b). The notice should include an explanation as to the information or evidence needed to establish a disability rating and effective date of any increase for the claim on appeal, as outlined by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. The RO then should take appropriate steps to contact the Veteran and his representative a letter and request that he provide sufficient information, and if necessary, authorization to enable VA to obtain any additional evidence pertinent to the claim for a TDIU rating. Specifically, the Veteran should be asked to complete and sign a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Individual Unemployability, and a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, for his past employers. Each executed form should be returned to VA. 3. The RO also should have the Veteran scheduled for a VA psychiatric examination to determine the current severity of his service-connected psychiatric disability. To the extent possible the examination should be conducted by a different examiner from the one who did the September 2013 VA examination. All psychological tests or studies deemed necessary must be conducted, and the results should be reported in detail. The examiner should assign a GAF score as set forth in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), for the service-connected major depressive disorder and indicate the impact of his major depressive disorder on occupational and social functioning. The examiner also is asked to address whether the Veteran's service-connected disorders, which consist of major depressive disorder, PTSD, and diabetes mellitus prevent him from securing and following substantially gainful employment for which his education and occupational experience would otherwise qualify him. A complete rationale for all opinions expressed should be provided. If the examiner is not able to provide an opinion, he or she should explain why. 4. After completing all indicated development, the RO should readjudicate the claims remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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). 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). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs