Citation Nr: 1415533 Decision Date: 04/09/14 Archive Date: 04/15/14 DOCKET NO. 10-01 748 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus and/or PTSD. ATTORNEY FOR THE BOARD Cheryl E. Handy, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from June 1966 to June 1970, including service in the Republic of Vietnam for which he earned the Combat Infantry Badge and the Bronze Star. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions issued in March 2009 and January 2011 of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which, respectively, continued a 70 percent disability rating for PTSD and denied service connection for hypertension. The issue of entitlement to service connection for hypertension is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's PTSD is manifested by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; total occupational and social impairment due to such symptoms as gross impairment of thought processes or communication, persistent delusion or hallucinations, grossly inappropriate behavior, posing a persistent danger of harming himself or others, inability to attend to the activities of daily living or maintain personal hygiene, disorientation to time or place, and severe memory loss to include his own name have not been shown. CONCLUSION OF LAW The criteria for a disability rating higher than 70 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5103(a), 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 4.7, 4.130, Diagnostic Code 9431 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the 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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Duty to Notify Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Here, the Veteran was sent a letter in February 2009 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him 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 was afforded a VA examination in February 2009 to determine the nature and severity of his PTSD. The Board notes that the VA examination reports contain sufficiently specific clinical findings and informed discussion of the pertinent history and features of the disability on appeal to provide probative medical evidence adequate for rating purposes. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Assigning Disability Ratings 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. 38 U.S.C.A. § 1155. 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." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Here there is no basis for assigning staged ratings. The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides the following ratings for psychiatric disabilities: 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, a 70 percent 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, a 100 percent rating. 38 C.F.R. § 4.130. Global Assessment of Functioning (GAF) scores are 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 the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM IV), page 32). A GAF score of 31 to 40 indicates 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). A GAF score of 41 to 50 indicates serious 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 GAF score of 51 to 60 indicates the examiner's assessment of moderate symptoms (e.g., a 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). A GAF score of 61 to 70 denotes mild symptoms or some difficulty in social and occupational functioning. While the Rating Schedule does indicate that the rating agency must be familiar with the DSM IV, it does not assign disability percentages based solely on GAF scores. See 38 C.F.R. § 4.130. Rather, GAF scores are but one factor to be considered in conjunction with all the other evidence of record. Facts and Analysis Preliminarily, the Board notes that an April 2008 Board decision addressed the matter of the proper rating for PTSD. Specifically, it denied entitlement to an initial evaluation higher than 30 percent prior to October 21, 2002 and higher than 70 percent thereafter. The Veteran did not appeal this denial to the United States Court of Appeals for Veterans Claims (Court) and it is therefore final. See 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. In June 2008 the Veteran filed a claim for a 100 percent schedular rating for PTSD and included a May 2008 report by his private mental health provider. The provider noted diagnoses of PTSD and Major Depressive Disorder, with an associated GAF score of 35. He noted that the Veteran had been married to his second wife for 31 years and had been unemployed since January 2000. His symptoms included nightmares three or four times per month, with resulting panic and sweats lasting up to an hour, flashbacks two or three times per day, and panic attacks three or four times per week for up to an hour. He also complained of intrusive thoughts, hyperstartle response, hypervigilance, severely impaired recent memory which often resulted in him getting lost, and completely impaired working memory. He rarely socialized and often had spontaneous and unexplained feelings of anger, sadness, and fear, which the provider said were indicative of a prefrontal cortex dysfunction. He had auditory hallucinations about once a week and visual hallucinations of shadows two to five times per week. He was depressed at least 25 percent of the time and had no energy and little interest in activities. He became angry and agitated easily and tended to feel helpless. The provider concluded by stating that the Veteran was moderately compromised in his ability to sustain social relationships and unable to sustain work relationships. He considered the Veteran permanently and total disabled and unemployable. A VA examination in February 2009 noted the same symptoms as the private provider. In addition, the Veteran reported being anxious and short tempered, having a hard time getting along with people, and generally not trusting people. His ability to handle being in crowds varied, he didn't do much around the house, and only went to church on occasion when his wife took him. His relationship with his children was strained, he had no friends, and he reported that he mostly wandered around his yard during the day. The examiner noted that the Veteran was dressed appropriately and oriented to time, place, and person. His memory, insight, and judgment all appeared adequate and he did not exhibit any loose ideas or bizarre motor movements. The examiner assigned a GAF score of 53 for PTSD and noted the existence of moderate and persistent symptoms with no remissions resulting in moderate impairment in employment and social functioning. The Veteran submitted a statement in May 2009 asserting that his disability warranted a 100 percent schedular rating. He stated that he was totally occupationally and socially impaired and was intermittently unable to perform the basic activities of daily living. The evidence set forth above does not demonstrate entitlement to a disability rating higher than the currently assigned 70 percent rating. The Veteran's private mental health provider and the VA examiner both described symptoms consistent with the criteria for a 70 percent rating, including near-continuous panic or depression affecting the ability to function, impaired impulse control and unprovoked irritability, spatial disorientation, and an inability to establish and maintain effective relationships. However, total occupational and social impairment has not been demonstrated. The Veteran maintains a relationship with his wife of over 30 years, occasionally attends church, and is only "moderately compromised" in his ability to sustain social relationships. While the Veteran has described auditory and visual hallucinations of a voice calling his name, footsteps in the house, a car in the driveway, and shadows, these occur only a few times per week and are not at a persistent level which interferes with his ability to function. The Veteran's statement that he occasionally is unable to perform the activities of daily living is also consistent with the 70 percent disability criteria of neglect of personal appearance and hygiene. In addition, the GAF score of 35 assigned by the Veteran's personal mental health provider is described in the DSM-IV as denoting impairment in several areas, such as work or school, family relations, judgment, thinking, or mood, with specific examples of a depressed man who avoids friends, neglects family, and is unable to work. This definition is both a clear reflection of the Veteran's symptoms as described in the record and is mirrored in the language of the 70 percent disability rating, i.e., "deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood." Therefore, the GAF score assigned by the Veteran's treating mental health provider does not demonstrate entitlement to a higher rating. In short, while the Veteran's disability picture relative to his PTSD is one of severe impairment, it is not one of total impairment. The symptoms described by both his personal mental health provider and the VA examiner are congruent with the currently assigned 70 percent disability rating. The symptoms encompassed by a 100 percent disability rating are not shown here and the claim must be denied. Extraschedular Rating Although the Board is precluded by regulation from assigning extraschedular ratings 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. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for a service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology resulting from PTSD, and provide for higher ratings for more severe symptoms. The Veteran's specific major symptoms of depression, panic attacks, nightmares, flashbacks, impaired memory, increased irritability and anger, avoidance of social situations, and hypervigilance are all considered in the rating criteria for mental health disabilities; the Veteran has not identified any unusual symptoms specific to his disability picture. As the disability pictures are contemplated by the Rating Schedule, the assigned schedular ratings are, therefore, adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). ORDER Entitlement to a disability rating greater than 70 percent for PTSD is denied. REMAND The Veteran also seeks service connection for hypertension, to include as secondary to his service-connected diabetes mellitus and/or PTSD. While an opinion was provided regarding whether hypertension was caused or aggravated by diabetes mellitus, the opinion did not address the question of causation or aggravation by PTSD. In addition, the Board notes that the Veteran was seen on multiple occasions in service for chest pains, and the question of direct service connection has not been addressed by an examiner. As a result, an additional medical opinion is necessary on remand. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran an appropriate VA evaluation and opinion to determine whether it is at least as likely as not (probability 50 percent or greater) that his current hypertension is related to the episodes of chest pain in service. The evaluator should address the significance, if any, of the discussion in the service treatment records of anxiety as related to the chest pain complaints. IF the evaluator determines that the Veteran's hypertension is not related to the symptoms in service, he or she should then address whether hypertension was at least as likely as not (probability 50 percent or greater) caused by the Veteran's long-term chronic PTSD. Any medical studies pertinent to the opinion should be clearly identified. IF the evaluator determines that the Veteran's hypertension was not caused by PTSD, he or she should then address whether it is at least as likely as not (probability 50 percent or greater) that it has been aggravated (permanently worsened) by PTSD. In the event that the evaluator finds hypertension was aggravated by PTSD, a baseline evaluation of the hypertension prior to such aggravation should be provided. Finally, the examiner is asked to address whether it is at least as likely as not (probability 50 percent or greater) that the Veteran's hypertension could have been caused by the Veteran's exposure to herbicides such as Agent Orange in Vietnam. In rendering this opinion, the evaluator is asked to address the significance, if any, of studies of this issue performed on behalf of the Secretary and of the length of time between exposure and onset of hypertension. The evaluator should provide the rationale for any opinions rendered. A copy of the claims file should be provided to the evaluator for review. 2. On completion of the foregoing, the claim should be adjudicated. If the decision remains adverse to the Veteran, then provide him and his representative a supplemental statement of the case and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs