Citation Nr: 1343530 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 12-20 985 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hammer toes. 2. Entitlement to an initial rating higher than 50 percent for posttraumatic stress disorder. 3. Entitlement to a temporary total rating due to convalescence. 4. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Veteran served on active duty from June 2002 to January 2003 and from January 2003 to July 2003. He had additional service in the Marine Corps Reserves. The claims are before the Board of Veterans' Appeals (Board) on appeal of a rating decision in April 2010 of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2013, the Veteran withdrew his request for a hearing with a Decision Review Officer. This appeal was processed using the paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record in the Virtual VA and VBMS systems. The claim of service connection for bilateral hammer toes and the claim for convalescence, and the claim for a total disability rating for compensation based on individual unemployability are REMANDED to the Department of Veterans Affairs Regional Office. FINDING OF FACT Throughout the appeal period, posttraumatic stress disorder has been manifested by occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for an initial rating higher than 50 percent for posttraumatic stress disorder have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. The claim for increase arises from the Veteran's disagreement with the initial rating following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial and will not be discussed. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service treatment records and VA records, private medical records. In September 2013, the Board remanded the case to obtain additional VA records and to obtain a new VA examination. As the development has been completed, no further action to ensure compliance is needed. Stegall v. West, 11 Vet. App. 268, 270-71 (1998). The Veteran was afforded a VA examination in October 2013. As the report of the examination is based on the Veteran's medical history and describes the disability in sufficient detail so that the Board's decision is a fully informed one, the examination is adequate. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. Increased Ratings-Laws and Regulations Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate ratings for distinct periods of time, based on the facts are for consideration. Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Posttraumatic stress disorder is currently rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under Diagnostic Code 9411, 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; and difficulty in establishing and maintaining effective work and social relationships. The criteria for the next higher rating, 70 percent, 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); and an inability to establish and maintain effective relationships. Under the Global Assessment of Functioning (GAF) rating scale, a GAF score from 41 to 50 is defined as serious symptoms or any serious impairment in social, occupational, or school functioning. A GAF score between 51 and 60 is indicative of 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 coworkers). A GAF score between 61 and 70 is indicative of 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 generally functioning pretty well, has some meaningful interpersonal relationships. Evidence In a rating decision in April 2010, the RO granted service connection for anxiety disorder and assigned an initial rating of 10 percent, effective December 9, 2009. In a rating decision in May 2012, the RO increased the rating to 50 percent and recharacterized the disability as posttraumatic stress disorder (PTSD), effective December 9, 2009. In February 2009, the Veteran presented for neuropsychological evaluation. The Veteran stated that since his return from Iraq he felt depressed, but that his symptoms had subsided significantly. He stated that since his return from Iraq he began to stutter for the first time. The Veteran stated that he worked at a group home and that he had a good relationship with his family. The Veteran was described as appropriately dressed and groomed, alert, attentive, and fully oriented. He was attentive to the tasks presented and his task persistence was excellent. His affect was appropriately labile and his mood was unremarkable. Thought processes were logical and linear with content appropriate. The examiner stated that overall, the results of the examination could be accepted as an accurate estimate of the Veteran's level of neuropsychological functioning. The test results suggested that the Veteran tried to represent himself in a favorable light. It was noted that although the Veteran denied current psychological symptoms, he had experienced significant symptoms in the past and that the Veteran may benefit from counseling. In November 2009, the Veteran complained of a depressed mood with decreased or poor sleep, decreased concentration, interest, energy and appetite, and feelings of hopelessness. He stated that he recently quit his job, because of his symptoms. He described thoughts of self harm and that he cut himself in the abdomen a month before. Because of his symptoms the Veteran was admitted for treatment. On admission, the GAF score was 35 and on discharge the GAF score was 65. In December 2009, the Veteran was admitted again because of depression. The Veteran stated that he was considering cutting himself the night prior. The Veteran had an average rate and volume of speech. Memory was intact. There were no hallucinations or delusions. The Veteran stated that he was not suicidal or homicidal. Insight and judgment were fair. On admission, the GAF score was 45 and on discharge the GAF score was 65. In February 2010, in PTSD group treatment the Veteran actively participated and was socially appropriate. Appearance was appropriate. The Veteran was oriented. His behavior was cooperative. Speech was normal as was the thought process. There were no hallucinations or delusions. The Veteran would not answer questions pertaining to suicidal ideation, but denied homicidal ideation. Insight and judgment were intact. Memory was fair. In March 2010, the Veteran stated that his memory problems and stuttering caused impairment in his academic functioning. The Veteran described passive suicidal ideation, but denied intent and a plan. The Veteran stated that he last cut himself in December 2009 or January 2010. The Veteran was alert and oriented with good grooming and personal hygiene. His mood was dysphoric with congruent affect. His thought processes appeared logical and sequential. The Veteran denied auditory, visual, or tactile hallucinations or delusions. Speech was unremarkable. On VA examination in April 2010, the Veteran described symptoms of a depressed mood. He indicated a positive attachment with his mother and siblings. The Veteran stated that he was dating and he had a friend. He stated that the attempted suicide in 2005, 2006, and 2007. On mental status evaluation, the Veteran was described as clean, neatly groomed, and appropriately dressed. His speech was clear and coherent. There was a mild stutter. It was noted that the Veteran was a poor historian and that he provided information, which was inconsistent with the records. The Veteran's affect was constricted. His mood was dysphoric. He was oriented. Thought process and content were unremarkable. There were no delusions. The Veteran stated he could sleep up to eleven hours with medication. The Veteran stated that he had obsessive or ritualistic behavior in that he checked his doors two to three times. He stated that he had panic attacks. He stated that he had recent passive suicidal thoughts without intent or plan. Impulse control was fair and there were no episodes of violence. The Veteran was able to maintain minimum personal hygiene and had no problems with activities of daily living. Memory was normal. The Veteran did have mild intrusive and distressing memories and mild nightmares and the last nightmare had occurred about a month earlier. The Veteran described no recent flashbacks. The Veteran described mild symptoms of avoidance, such as turning off war movies if the movies were too emotional. The Veteran described difficulty sleeping without medication and some difficulty with concentration, but stated that his grades were better than they were before service. He described some mild hypervigilance and a less frequent exaggerated startle response. The Veteran stated that he was usually employed as a youth ranch counselor but was unemployed as he was in college full time. The VA examiner concluded that the Veteran had signs and symptoms which were transient or mild decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. The GAF score was 65. In July 2010, the Veteran complained of passive suicidal ideation but no active suicidal or homicidal ideation. The GAF score was 60. In August 2010, the GAF score was 55. In October 2010, the Veteran continued to complain of significant symptoms. The Veteran's inconsistent follow up with the PTSD clinic was reviewed with the Veteran, who cited his school schedule, a new girlfriend and work study placements barriers to engaging in treatment. The Veteran denied suicidal and homicidal ideation, intent or plan. The Veteran stated that he had not engaged in self harming behavior or suicide attempts since December 2009 or January 2010. The Veteran was alert and he had good grooming and hygiene. His thought process was logical and sequential. Speech was unremarkable. No attention or concentration deficits were noted. The GAF score was 55. In May 2011, the Veteran was admitted due to a suspected suicide attempt due to an overdose of Benadryl. It was noted that the Veteran's responses to a depression screen were negative. In July 2011, the Veteran related that his relationship with his a fiancé had ended. The Veteran was described as alert and oriented. Grooming and personal hygiene were good. Mood was euthymic with congruent broad affect. Thought processes appeared logical and sequential. There were no hallucinations or delusions. Speech was normal. There were no deficits in attention or concentration. The Veteran denied suicidal and homicidal ideation, intent and plan. Later July 2011, it was noted that the Veteran provided a history of overdosing twelve or more times with sleeping pills, generally in small quantities. He admitted that he wanted to die but once he tried to harm himself the pain and discomfort stopped him. He stated that he had ambivalence about life. He described nightmares and the onset of increased sweating. On VA examination in September 2011, history included anxiety disorder, depressive disorder, and a personality disorder. The VA examiner stated that a personality disorder accounted for the majority of the Veteran's psychological issues, but that the examiner was unable to determine the effects of PTSD due to the Veteran's exaggerated report of symptoms. The VA examiner did note that the latest GAF score was 50, when the Veteran was hospitalized for taking 10 pills of Benadryl and released on the same day. The VA examiner noted that the Veteran insisted that he was admitted for two days and was on constant suicide watch while hospitalized. The VA examiner noted that the psychological testing scores were highly elevated and that testing was invalid due to symptom exaggeration. The Veteran complained of constant intrusive thoughts and of nightmares and of a sense of reliving a traumatic event. The Veteran described hallucinations and dissociative flashbacks on awakening or when intoxicated. He stated that the feelings were "24/7" and made him disabled. The Veteran described intense psychological distress and stated that he was always panicked. He stated that he had severe avoidance symptoms and isolation. He stated that he had diminished interest and participation in significant activities. He described feelings of detachment or estrangement. The Veteran complained of severe irritability, hypervigilance, and an exaggerated startle response. The VA examiner noted that the Veteran's stuttering stopped 10 minutes into the evaluation. The Veteran stated that he was not planning to commit suicide, which he repeated several times. The Veteran stated that he was depressed all the time. The VA examiner noted that the Veteran began breathing heavily during the evaluation. It was noted that the Veteran had a history of cutting behavior and the last incident had occurred two months earlier. The Veteran stated that he lived alone and that he had not dated or been involved with anyone for years. The Veteran stated that he had no friends. The Veteran stated that he was unemployed and tried going to school, but could not concentrate due to PTSD. He stated that he did not want to be around people and he did not go to class in order to avoid people. He stated that he was last employed in August 2009. On mental status examination, the Veteran was clean, neatly groomed, appropriately dressed, and oriented. The Veteran's mood was good, although the VA examiner noted that he was more anxious towards the end of the examination. The Veteran's affect was good. Speech, thought content, tangentiality, circumstantiality, or loose associations and flight of ideas were unremarkable. The Veteran denied suicidal or homicidal ideation. There were no hallucinations or delusions. Memory and attention and concentration were within normal limits. Insight and judgment were good. The Veteran was described as capable of managing his financial affairs. In accordance with the Board's remand, in October 2013, the Veteran was afforded a VA examination. On psychiatric testing the Veteran ended the test, because it caused stress and he could not concentrate. On mental status examination the Veteran was oriented. Personal hygiene and grooming were unremarkable. There was no stuttering. The Veteran stated that he was not sleeping well. He described paranoia when a vehicle followed him and he stated that he was "always double checking things." The Veteran was living in an apartment with a new girlfriend after being homeless for two to three months. He stated that he had contact with some family members. The VA examiner noted that the Veteran had been in vocational rehabilitation and last worked in 2011. It was noted that the Veteran had participated in counseling and that in September 2013 the GAF score was a 55. In June 2013, the GAF score was 56. The VA examiner noted that there were inconsistencies between the Veteran's record and self report, which was concern since Veteran's initial examination in 2010 and again in 2011. The VA examiner stated that, as a result, there was little confidence in the validity of Veteran's self-report. It was noted that the Veteran essentially refused to complete any objective testing to help clarify the state of his symptoms. The VA examiner noted that other treating providers had consistently found moderate functional impairment. The VA examiner stated that there was evidence that Veteran was unemployed as he did drop out of a work therapy program. The VA examiner stated that the ongoing concerns about the reliability of the Veteran's self-reports, the general vagueness of symptoms, and refusal to participate in objective testing, made it difficult to see evidence of a decline in functional impairment due to service-connected disability. The VA examiner concluded that the Veteran's functional impairment was best described as occupational and social impairment with reduced reliability and productivity. The GAF score was 55. Analysis The Veteran is competent to describe his psychiatric symptoms. Competency, however, 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 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). After a review of the record, the Board finds that the Veteran's description of the severity of his symptoms lack credibility, because of the Veteran's own inconsistent statements and inconsistencies with the medical evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (the credibility of a witness can be impeached by showing inconsistent statements). Where, as here, the Veteran is shown on several occasions to exaggerate his symptoms and to be a poor historian overall, the Board must rely on objective findings in order to determine the appropriate rating. For this reason, the Board finds that the objective findings on the VA examinations are of greater probative value than the Veteran's subjective symptoms. Throughout the period of the appeal, while the Veteran is shown to have made suicidal gestures and he has struggled at work and at school, no VA examiner has found more than occupational and social impairment with reduced reliability and productivity, the level of disability encompassed in the current 50 percent rating. As for the GAF scores, the scores range from 35 to 65, but the predominant scores are in the range of 55 to 65, which equates to moderate difficulty in occupational, social, and school functioning due to such symptoms as panic attacks. . Where it is not possible to distinguish the effects of a nonservice-connected personality disorder from the service-connected PTSD, all symptoms are attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181 (1998). In sum, the Board finds that the Veteran's symptoms equate to the criteria for a 50 percent rating and do not more nearly approximate the criteria for the next higher rating. As the preponderance of the evidence is against the claim for increase for PTSD, there is no doubt to be resolved, and a rating higher than 50 percent is not warranted. Extraschedular Consideration Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for a rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned rating is adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Comparing the Veteran's disability level and symptomatology to the Rating Schedule, the rating criteria reasonably describe the Veteran's disability and symptomatology, and the Veteran does not have any symptomatology not already encompassed by the Rating Schedule. For this reason, referral for an extraschedular rating is not warranted under 38 C.F.R. § 3.321(b)(1). ORDER An initial rating higher than 50 percent for posttraumatic stress disorder is denied. REMAND On the claim of service connection for bilateral hammer toes, additional development for records of the Marine Reserve under the duty to assist is needed. A decision on the claim for a temporary total rating due to convalescence and on the claim for a total disability rating is deferred until the claim of service connection for bilateral hammer toes is finally adjudicated. Accordingly, the case is REMANDED for the following action: 1. Make another request for the service treatments records from the Marine Reserve, covering the period from June 2002 to May 2005. 2. If additional evidence is obtained, afford the Veteran a VA examination to determine: Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), or less likely than not (probability less than 50 percent), that the bilateral hammer toes were caused by or aggravated by an injury, disease, or event in service from June 2002 to January 2003 and from January 2003 to July 2003? 3. After the development is completed, adjudicate the claim of service connection for bilateral hammertoes and the claim for a total disability rating under 38 C.F.R. § 4.16(a) or (b), if applicable. If the benefit sought is denied, provide the Veteran and his representative a supplemental statement of the case and return the case to the Board The Veteran has the right to submit additional evidence and argument on the claims the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claims 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. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs