Citation Nr: 1410199 Decision Date: 03/12/14 Archive Date: 03/20/14 DOCKET NO. 11-24 331 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to an initial rating higher than 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Connecticut Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Taylor, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1967 to April 1970. This case is before the Board of Veterans' Appeals (Board) on appeal from a rating decision in September 2010 by a Regional Office (RO) of the Department of Veterans Affairs (VA). As will be discussed below, the Board is granting entitlement to an initial evaluation of 70 percent for the entire period on appeal and remanding the issue of entitlement to an initial evaluation in excess of 70 percent for the entire period on appeal to the Appeals Management Center (AMC) for further development. In the case of Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans' Claims held, in substance, that every claim for a higher evaluation includes a claim for TDIU where the Veteran claims that his service-connected disabilities prevent him from working. In this case, the record raises a TDIU issue. Accordingly, as will be discussed below, the Board has characterized the issues on appeal so as to include a claim for entitlement to TDIU. Since the issuance of the August 2011 supplemental statement of the case (SSOC), the Veteran has submitted additional evidence in support of his claim along with a waiver of initial RO consideration. Documents on Virtual VA are either duplicative of the evidence of record or are not pertinent to the present appeal. Documents on the Veterans Benefits Management System (VBMS) are duplicative of the evidence of record. The issue of entitlement to an initial disability rating in excess of 70 percent is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC in Washington, DC. VA will notify the Veteran if further action on his part is required. FINDING OF FACT For the entire appeal period, the impairment from the Veteran's PTSD more nearly approximates deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. CONCLUSION OF LAW The criteria for a disability rating of 70 percent for PTSD have been met for the entire appeal period. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION With respect to the Veteran's claim for an increased initial evaluation for his service-connected PTSD, a 70 percent evaluation is being granted for the entire period on appeal and consideration of an evaluation in excess of 70 percent is being remanded, as is discussed in detail below. As such, the Board finds that any error related to the VCAA is moot at this point. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Rating Principles A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 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 their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. The rating criteria provide that a 30 percent evaluation is warranted for 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). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is warranted for 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 effective work and social relationships. Id. A 70 percent rating is warranted for 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. Id. A 100 percent rating is warranted for 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. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation 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. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. The use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as 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). A GAF (Global Assessment of Functioning) score is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994). This is more commonly referred to as DSM-IV. A GAF of 21 to 30 is defined as behavior considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriate, suicidal preoccupation) or an inability to function in almost all areas (e.g., stays in bed all day, no job, home or friends). A GAF of 31 to 40 is indicative of some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or any 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). A GAF of 41 to 50 is indicative of serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF of 51 to 60 is defined as 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 co-workers). The Board notes that an examiner's classification of the level of psychiatric impairment by a GAF score is to be considered, but is not determinative of the percentage rating to be assigned. VAOPGCPREC 10-95. Factual Background and Analysis The Veteran seeks an initial disability rating in excess of 50 percent for his service-connected PTSD. In a VA examination dated in June 2010, the Veteran reported that he worked for the United States (U.S.) Postal Service for 27 years before retiring in 2003. The Veteran indicated that he now spends his time completing chores around the house, chopping wood, exercising, and fishing. He reported difficulties getting along with some co-workers because some of them played "little games." He indicated that he had arguments with co-workers "a few times." The Veteran described two incidents at work that were more aggressive than others. The examiner noted that there was no apparent history of impairments in occupational or marital functioning, and the Veteran has an intact social life, as well as recreational activities that he enjoys. During the examination, the Veteran reported that he does not feel like he can relate to others and he stated that he will often just "get away" from people because "they don't understand where [he is] coming from." The Veteran indicated that he does not have contact with many people and he has no interest in talking to others. He endorsed a sense of a foreshortened future, and noted that he often does not want to get out of bed and does not feel motivated to live. He reported that his sleep is "terrible." He indicated that he has "a lot of road rage" because he is uptight while driving and hypervigilant about what others might do. The Veteran denied acting out his anger physically, and stated that he is scared of what would happen if he did. The Veteran reported that he feels depressed most mornings and frequently thinks about death. He stated that sometimes, "I want to take my own life." When asked whether he had any intent to harm himself, the Veteran emphatically denied wanting to hurt or kill himself, because of his family. He also denied a history of attempts to harm himself. There was no evidence of homicidal ideation. The examiner diagnosed the Veteran with chronic, mild PTSD and assigned the Veteran a GAF score of 61. In Vet Center treatment records dated from April 2010 to July 2010, it is noted that irritability and nightmares were two of the Veteran's major PTSD symptoms. The Veteran reported that he is unable to sleep more than two hours unless he is very tired. He indicated that he no longer flies. He also reported that he feels uncomfortable around groups of people and generally prefers being alone. In a March 2011 decision review officer hearing, the Veteran reported that he stays to himself because he has problems with socialization. The Veteran explained that when he worked with the U.S. Postal Service, he tried to be congenial with his co-workers, but later found that a lot of them were backstabbers. The Veteran reported that he is trying his best to get along with society, but he has moments of rage and road rage that he does not like. VA treatment records dated from October 2010 to March 2011 showed that the Veteran was seen regularly for his PTSD. The Veteran reported significant mood and sleep disturbances, as well as frequent nightmares and flashbacks. He reported passive suicidal ideation. In March 2011, the Veteran entered a six-week PTSD inpatient treatment program at a VA Medical Center. The Veteran participated in groups and was willing to discuss personal struggles with avoidance, isolation and interpersonal relationships. At discharge, the Veteran appeared more aware of his anxiety-based patterns of behavior and how they influence his life and relationships. He was alert and fully oriented with no evidence of psychotic symptoms or suicidal or homicidal ideations. On discharge, the Veteran's GAF was 41. VA treatment records dated from May 2011 to July 2011 showed that the Veteran was seen regularly for his PTSD. He reported that his sleep was adequate, with the occasional night sweat. He reported some nightmares involving combat situations. He reported that he was coping well with his anxiety, but still found crowded situations to be difficult. He indicated that his mood and temper had improved with medication In a three-week follow-up inpatient admission for the PTSD program in January 2012, the Veteran's GAF was 40. The Veteran described his current emotional condition as "ok." The Veteran reported that his wife has an issue with alcohol and attends meetings daily. He indicated that he has trouble getting close to people, and has suicidal thoughts when he wakes up. He reported frequent sad mood, anxiety, pan-insomnia, irritability, fatigability, problems with memory and concentration, restlessness, decreased libido, social withdrawal, and essential anhedonia. He also reported recurrent thoughts/dreams of the traumatic combat experiences; flashbacks; emotional and physiologic reactivity to cues that remind him of these events; amnesia for parts of the relevant events; avoidant behavior; emotional numbing and distancing; a sense of a foreshortened future; hypervigilance; and exaggerated startle responses. He indicated that he still has "bad dreams" and sometimes he does not want to be alive. He indicated that he is not socializing. In a Board Hearing dated in December 2011, the Veteran reported constant irritability and road rage. He reported arguments with his wife and his fear it will ruin his marriage. The Veteran indicated that his medication is not helping as much as it did. He indicated that his nightmares and sweats are returning. He explained that he is isolated and does not leave his house. He also reported suicidal thoughts and a recent hallucination in which he saw a person walking up his stairs. In a VA three-week inpatient admission (In Vivo Exposure Therapy) dated in October 2012, the Veteran described his current emotional condition as "ok." He reported frequent anxiety, irritability, some problems with memory and concentration, restlessness, and social withdrawal. He also reported recurrent thoughts/dreams of the traumatic combat experiences; flashbacks; emotional and physiologic reactivity to cues that remind him of these events; avoidant behavior; emotional numbing and distancing; hypervigilance; and exaggerated startle responses. The Veteran reported that he spends his time mostly on the yard, chopping firewood and exercising. His GAF was 38. He was diagnosed with chronic PTSD with depressive features and probable bipolar spectrum illness. In December 2013, the Veteran received 21 days of inpatient treatment as part of his PTSD treatment program (Phase III). The clinical course during this admission was relatively uneventful for adverse events. The Veteran reported frequent sad mood, anxiety, pan-insomnia, irritability, fatigability, problems with memory and concentration, restlessness, decreased libido, social withdrawal, and essential anhedonia. He also reported recurrent thoughts/dreams of the traumatic combat experiences, flashbacks, emotional and physiologic reactivity to cues that remind him of these events, amnesia for parts of the relevant events, avoidant behavior, emotional numbing and distancing, a sense of a foreshortened future, hypervigilance, and exaggerated startle responses. He described his current emotional condition as follows: "I have more anger and startle easily. I still have nightmares, but it is better with [K]lonopin at night." There were no hallucinations or suicidal or homicidal ideations. The Veteran expressed challenges in dealing with his wife's alcoholism. His GAF was 40. Analysis Upon careful review of the evidence of record, the Board finds that the objective medical evidence, and the Veteran's statements regarding his symptomatology for the entire timeframe on appeal, more nearly approximates symptoms associated with a 70 percent disability rating. In other words, resolving doubt in favor of the Veteran, the Board finds that the evidence supports a 70 percent rating for the entire appeal period. 38 U.S.C.A. § 5107; Gilbert, supra; Mauerhan, supra. The Board has considered the VA outpatient and inpatient treatment records, including the June 2010 VA examination report, as well as the Veteran's competent statements regarding the impact of his PTSD on his occupational and social impairment. The Veteran has competently and consistently reported significant symptoms related to his PTSD. Although the evidence shows that there have been some instances during the rating period when the Veteran's PTSD was not quite as severe as noted during his more recent hospitalizations, there has been consistent treatment for his symptoms with little or no improvement. The Board notes at this juncture that VA will handle cases affected by change in medical findings or diagnosis so as to produce the greatest degree of stability of disability evaluations consistent with the laws and regulations governing disability compensation and pension. See 38 C.F.R. § 3.344(a). As such, the Board finds that the 70 percent rating for PTSD pursuant to Diagnostic Code 9411 is warranted for the entire timeframe on appeal. As discussed in detail below, the Veteran's claim for an initial evaluation in excess of 70 percent is being remanded for further development. As such, any discussion of entitlement to an evaluation in excess of 70 percent, including consideration of an extraschedular evaluation, is premature at this time and adjudication is deferred until the below ordered development is completed. For all the foregoing reasons, the Board finds that an initial rating of 70 percent under Diagnostic Code 9411 for the Veteran's service-connected PTSD is appropriate for the entire period of the appeal. In reaching this conclusion, the Board has applied the benefit-of-the-doubt doctrine. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2013); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER A 70 percent evaluation for PTSD is granted for the entire period on appeal, subject to the criteria applicable to the payment of monetary benefits. REMAND Although an increased initial rating of 70 percent was warranted, the Board finds that further evidentiary development is necessary prior to the adjudication of the claim for an initial rating in excess of 70 percent. The Board observes that the Veteran was last afforded a VA examination in June 2010. Since that examination, evidence has been received suggesting that the Veteran's PTSD symptomatology is more severe than it appeared in the June 2010 examination. In particular, many of the Veteran's GAF scores (38, 40, 41) are much lower than they were in the VA examination (61). Given the disparity between his description of his symptoms, the VA treatment records, and the results of his VA examination, the Board finds that an additional examination is warranted to clarify the severity of his service-connected PTSD. The evidence also indicates that the Veteran retired from his job with the U.S. Postal Service in 2003. In a treatment note dated in October 2012, the Veteran indicated that he has not worked since 2003 due to his symptoms. The Board finds that this is sufficient evidence to raise the issue of TDIU. The Board observes that a request for TDIU, whether expressly raised by a 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 TDIU is raised during the appeal of a rating for a disability, it is part of the claim for benefits of the underlying disability. Id. at 454. The Board also finds that the requirements of VA's duty to notify and assist the Veteran regarding TDIU have not been met. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Prior to arranging the VA examination requested above, the Veteran's assistance should be obtained to ensure that copies of any outstanding records of pertinent medical treatment are identified and added to the claims file. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. Provide the Veteran with a formal application for a claim of entitlement to a total disability rating based on individual unemployability. Provide the Veteran with notice of the information and evidence needed to substantiate and complete this claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. Undertake any additional development in response to a completed formal application. 3. After the above development has been completed to the extent possible, the Veteran should then be afforded a VA examination, with an appropriate examiner, to determine the current nature and severity of his service-connected PTSD and to obtain an opinion as to the impact of the PTSD on the Veteran's ability to work. The claims folder must be made available to the examiner, and the examiner must review the entire claims file in conjunction with the examination. All relevant tests and studies should be undertaken. The examiner should describe the Veteran's symptoms and offer an opinion as to the severity of the Veteran's PTSD, specifically the level of occupational and social impairment the Veteran's PTSD creates, including whether this disability renders the Veteran unemployable. If possible, the examiner should also offer a GAF score. A rationale should accompany any opinion provided. 4. Thereafter, adjudicate the issues of entitlement to an initial rating higher than 70 percent for PTSD and entitlement to TDIU. If either of the issues are denied, a supplemental statement of the case should be provided to the Veteran and his representative after according the requisite time period to respond. The matter should then be returned to the Board for appropriate appellate review, if otherwise in order. 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. 2013). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs