Citation Nr: 1308517 Decision Date: 03/13/13 Archive Date: 03/20/13 DOCKET NO. 99-13 673 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD), exclusive of October 27, 1998, though November 30, 1998, when the appellant was assigned a temporary total rating. 2. Entitlement to an initial rating in excess of 10 percent for a left hip disability. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.M. Seay, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1964 to November 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 1999 and June 1999 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In the March 1999 rating decision, the RO granted service connection for PTSD and assigned a 50 percent initial disability rating, effective July 20, 1998. In the June 1999 rating decision, the RO granted service connection for a left hip disorder and assigned a noncompensable initial rating, also effective from July 20, 1998. During the pendency of the claim, a September 1999 RO hearing officer's decision granted an increased 70 percent initial rating for PTSD, effective July 20, 1998. An August 2009 rating decision granted an increased initial rating of 10 percent for osteoarthritis of the left hip, effective July 20, 1998. The Veteran continued to disagree with the ratings assigned for his service-connected PTSD and left hip disability. The United States Court of Appeals for Veterans Claims (Court) has held that a "decision awarding a higher rating, but less than the maximum available benefit . . . does not . . . abrogate the pending appeal . . . ." AB v. Brown, 6 Vet. App. 35, 38 (1993). In July 2000, a Travel Board hearing was held before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This case was previously before the Board in February 2001 and January 2007, when it was remanded for additional development. In a February 2011 decision, the Board denied the issues of entitlement to an initial rating in excess of 70 percent for PTSD and entitlement to an initial rating in excess of 10 percent for a left hip disability. The Veteran appealed the decision to the Court. In an Order dated in February 2012, the Court vacated the Board's February 2011 decision and remanded the case to the Board for development consistent with a Joint Motion for Remand (JMR). A correspondence letter dated on October 10, 2012 notified the Veteran that he had ninety days to respond or submit argument and evidence. In a January 2013 letter, the Veteran's representative requested that the Board hold the case for the remainder of the 90 day response period. That period has lapsed and the Veteran has not responded or submitted any additional argument or evidence. Therefore, the Board may proceed. The issue of entitlement to an initial rating in excess of 10 percent for a left hip disability 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. FINDING OF FACT For the entire period on appeal, the Veteran's PTSD has been manifested by total occupational and near total social impairment. CONCLUSION OF LAW The criteria for an initial 100 percent rating for PTSD have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Applicable Law Disability evaluations - in general Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or where the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Moreover, an appeal from the initial assignment of a disability rating, such as this case, requires consideration of the entire time period involved, and contemplates staged ratings where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). Specific schedular criteria for rating mental disorders PTSD is rated by applying the criteria in 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). The VA Schedule rating formula for mental disorders reads in pertinent part as follows: 100 percent rating (the maximum schedular rating) - 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. 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); inability to establish and maintain effective relationships. The psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, consideration is given to all symptoms of the Veteran's PTSD that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). 38 C.F.R. § 4.125 (2012). If the evidence shows that the veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Mauerhan v. Principi, 16 Vet. App. at 443. The Court of Appeals for the Federal Circuit has embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). Global Assessment of Functioning (GAF) GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 32 (4th ed. 1994)). According to the pertinent sections of the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (1994) (DSM-IV), a GAF score of 61 to 70 indicates the examinee has some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functions pretty well with some meaningful interpersonal relationships. A GAF score of 51 to 60 indicates the examinee has moderate symptoms or moderate difficulty in social, occupational, or school functioning. A GAF score of 41 to 50 indicates the examinee has serious symptoms or a serious impairment in social, occupational, or school functioning. See Quick Reference to the Diagnostic Criteria from DSM-IV, 46-47 (1994). A GAF score of 31 to 40 indicates 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). Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence for the rating period on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. In the present claim, there are hundreds of pages of clinical records with regard to the Veteran's symptoms. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to his claim. Service connection has been established for PTSD effective from July 20, 1998. During the appeal period, the Veteran's initial rating for PTSD was increased to 70 percent, effective July 20, 1998. Therefore, the issue is whether the Veteran's PTSD is entitled to an initial rating in excess of 70 percent since the grant of service connection. An appeal from the assignment of an initial disability rating, such as this case, requires consideration of the entire time period involved, and contemplate staged ratings where warranted. See Fenderson, supra. In examining the evidence in this case, the Board concludes that although the Veteran is not shown to have all of the psychiatric symptoms listed in the Rating Schedule for the assignment of a 100 percent disability rating, the evidence as a whole supports a determination that he has total social and occupational impairment as a result of service-connected PTSD for the entire period on appeal. Initially, the Board acknowledges that the Veteran had honorable service in the United States Army that involved exposure to combat when serving in Vietnam and he received a Purple Heart. The evidence shows that the Veteran is unemployable due to his service-connected PTSD. A June 1999 private treatment record noted that the Veteran was occupationally dysfunctional due to persistent anger, severe depression and severely impaired relationships. An April 2003 VA examiner indicated that the Veteran was unemployable due to his impairment of memory and concentration and that he was socially handicapped due to poor anger control. In an April 2003 letter, Dr. L.H.H. stated that the Veteran was totally disabled due to his PTSD and assigned a GAF score of 40. Dr. L.H.H. noted that the Veteran would not do well taking direction in a work setting and might pose a safety risk for coworkers in an occupational setting due to his anger and impaired concentration. With respect to social impairment, the Board notes that the Veteran is currently married, after having several divorces. Although several recent VA treatment records noted the presence of friendships, the majority of the medical evidence indicates that the Veteran has severe difficulty with relationships. An August 1998 private medical record noted that the Veteran has anger and severe difficulty with relationships. The June 1999 private medical record shows that the Veteran had severely impaired relationships. During the hearing before the Board, the Veteran stated that he had severe difficulties with his prior job and was planning his supervisor's demise. See hearing transcript, page 12. He also testified that he did not associate with people. In an August 1998 report, it was noted that that throughout his work career, he had been involved in many altercations and fights with coworkers. The April 2003 VA examiner indicated that the Veteran was socially handicapped. The Board acknowledges that the July 2008 VA examiner noted that the Veteran's disability has not manifested in total occupational and social impairment due to his PTSD. However, the examiner explained that the Veteran had no relationships except for his wife and he had a high potential for violence. The Board finds that this evidence is indicative of near total social impairment. The Board recognizes that the Veteran has not demonstrated all of the symptoms in the criteria for a 100 percent disability rating. However, as indicated by the parties in the JMR, in light of repeated suicide attempts, self-destructive behavior, and harmful behavior toward others, the evidence shows that the Veteran has grossly inappropriate behavior and is a persistent danger to himself or others. In this respect, the Board acknowledges the Veteran's repeated suicide attempts. The Veteran has reported prior suicide attempts in 1998, 1999, and 2001. The March 1999 VA treatment record shows that the Veteran was admitted for treatment because he had thoughts of shooting himself. A September 2004 private treatment record shows that the Veteran reported trying to kill himself three weeks ago. The December 2005 VA treatment record reveals that the Veteran was referred for treatment due to his suicidal ideations. In addition, the Veteran has demonstrated grossly inappropriate behavior. The Veteran has called himself the king of road rage and has reported many altercations with others including physical fights. In a March 1999 disability determination report, it was noted that the Veteran engaged in a great deal of destructive behavior and at times became so angry that he punched himself in the face and blackened his eyes. The May 1999 VA examination report showed that the Veteran bodily threw a realtor off his property and that the police were summoned and responded. He reported that he was jailed overnight a few weeks ago due to his poor temper control. In addition, as noted above, the July 2008 VA examiner noted that the Veteran had a high potential for violence. Specifically, the examiner stated that the Veteran has a tendency to be angry and lash out at people and his mood was labile and unpredictable. In addition, the GAF score of 50 assigned, which is indicative of serious symptoms or serious impairment of social or occupational functioning. In recent VA treatment records, although noted as being oriented to person, place, and time, he has been assigned GAF scores of less than 50, again, indicating serious symptoms. While the symptoms set out in the rating criteria for mental disorders are intended as a guide for rating purposes, and not a dispositive list, it is significant to note that the Veteran displayed several of these symptoms during the appeal period. For these reasons, and resolving the benefit of the doubt in favor of the Veteran, the Board finds that the Veteran's PTSD has been productive of total social and occupational impairment. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. at 54-56 (1990). Total Rating Based on Individual Unemployability Due to Service-Connected Disability (TDIU) Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, a TDIU has been granted effective from September 8, 1999. ORDER A 100 percent disability rating for PTSD is granted, subject to the law and regulation governing payment of monetary benefits. REMAND In the JMR granted by the Court in February 2012, the parties concluded that the Board failed to furnish adequate reasons and bases to explain its February 2011 decision. Specifically, the parties questioned the Board's reliance on an August 2008 VA examination in denying the Veteran's claim for an initial rating in excess of 10 percent for a left hip disability. The parties noted that the August 2008 VA examination report included findings of pain throughout the range of motion upon flexion, extension, abduction, adduction, internal rotation, and external rotation. However, the parties agreed that, while the examiner observed that the Veteran experienced pain throughout motion, the examiner did not indicate the additional range of motion lost due to the Veteran's pain. See DeLuca v. Brown, 8 Vet. App. 202 (1995). In reviewing the August 2008 VA examination report, the Board observes that the examiner did indicate that there were no additional limitations of motion on repetitive use. However, the examiner did not discuss whether there was additional functional loss due to pain, fatigue, weakness, lack of endurance, incoordination, or during flare-ups or repeated use. 38 C.F.R. § 4.2 (2012) (noting that if the examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes); see also Deluca, id; Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (finding that when the VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate). In light of the above, the Board concludes that the current evidence of record is insufficient to adjudicate the Veteran's claim and the Veteran must be afforded a new VA examination to determine the current severity and manifestations of his service-connected left hip disability. See Allday v. Brown, 7 Vet. App. 517 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the extent of his service-connected left hip disability. The claims file must be made available to the examiner for review in conjunction with the examination. The examiner should perform all necessary diagnostic tests, and report all clinical manifestations in detail. The examiner must address whether there is additional functional impairment due to any of the DeLuca factors, to include pain, weakness, excess fatigability, and incoordination. The examiner should discuss the degree to which pain could significantly limit functional ability during flare-ups or when the Veteran uses his hip repeatedly over a period of time. To the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. 2. After undertaking any other development deemed appropriate, the RO should readjudicate the issue on appeal. If the benefit sought on appeal is not granted, the RO should issue a supplemental statement of the case and provide the Veteran and his representative with an appropriate opportunity to respond. The case should then be returned to the Board for further appellate consideration as warranted. The appellant 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). ______________________________________________ U.R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs