Citation Nr: 1429231 Decision Date: 06/27/14 Archive Date: 07/03/14 DOCKET NO. 08-30 018A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to an initial disability rating in excess of 50 percent for post-traumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD S. Sorathia, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1966 to July 1969, with service in the Republic of Vietnam from September 1968 to July 1969. His decorations include the Combat Infantryman Badge and the Purple Heart. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico, which granted service connection for PTSD and assigned a 30 percent rating effective August 28, 2007. In August 2008 the RO increased the evaluation to 50 percent for PTSD, effective August 28, 2007. The Board remanded the case in December 2011 to obtain outstanding treatment records, a contemporaneous VA examination and determination of whether referral for consideration of an extraschedular rating is warranted. There was substantial compliance with the remand directives. Outstanding records of VA treatment were associated with the claims file and the Veteran was afforded a January 2012 VA examination. In an August 2012 supplemental statement of the case, to RO determined that referral for an extraschedular rating was not warranted. The Board can address the merits of the appeal. Stegall v. West, 11 Vet. App. 268 (1998). The issue of entitlement to a TDIU was not certified for appeal. However, when evidence of unemployability is submitted, a claim for a TDIU will be considered part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). As the evidence suggests that the Veteran may be unemployable due to symptoms of his service-connected PTSD, the issue of entitlement to a TDIU has been raised and is within the jurisdiction of the Board. In this decision, the Board grants entitlement to a 70 percent rating and remands the issue of entitlement to an evaluation in excess of 70 percent for the disability. Therefore, the issue of entitlement to an evaluation in excess of 70 percent for service-connected PTSD, as well as the issue of entitlement to a TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Throughout the appeal, the Veteran's PTSD has been manifested by at least occupational and social impairment with deficiencies in most areas, due to such symptoms as suicidal thoughts, impaired impulse control, difficultly concentrating, sleep problems, memory loss, mood swings, startling easily, nightmares, and hypervigilance. CONCLUSION OF LAW The criteria for a rating of at least 70 percent for PTSD have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. § 3.102, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSIONS Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. Separate diagnostic codes (DCs) identify various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.130 (2013). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7 (2013). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2013). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Hart v. Mansfield, 21 Vet. App. 505 (2007). PTSD is evaluated under a general rating formula for mental disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (2013). A 50 percent rating is warranted where there is an 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 and maintaining effective work and social relationships. A 70 percent rating is warranted where there is an 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 100 percent disability rating contemplates 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. The Global Assessment of Functioning (GAF) is a scale reflecting 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). A GAF score of 41 to 50 is defined as denoting 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 score of 51 to 60 is defined as indicating 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). A score of 61 to 70 is defined as indicating some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning but generally functioning pretty well, and has some meaningful interpersonal relationships. See Carpenter v. Brown, 8 Vet. App. 240, 242-244 (1995). When determining the appropriate disability evaluation to assign for psychiatric disabilities, the Board's "primary consideration" is the Veteran's symptoms. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). The Veteran's PTSD is currently rated 50 percent disabling. He contends that his PTSD has been more severe than the currently assigned rating and that he is entitled to a rating in excess of 50 percent. The Board finds that during the appeal period the Veteran's PTSD has been manifested by occupational and social impairment with deficiencies in most areas, due to such symptoms as suicidal thoughts, impaired impulse control, difficultly concentrating, sleep problems, mood swings, startling easily, disruptions in memory and concentration, and hypervigilance. The Veteran was afforded VA examinations in January 2008, January 2012, and March 2014. The January 2008 VA examiner noted that the Veteran does not engage in interpersonal relationships, has a diminished interest in significant activities, and prefers solitary activities. The Veteran was described as having hesitant speech, flat affect, depressed mood, sleep impairment, mildly impaired recent memory, hypervigilance, exaggerated startle response, severe hyperarousal, and severe avoidance behavior. The examiner stated that the Veteran had recurrent and intrusive distressing recollections of traumatic events that occurred in Vietnam and had intense psychological distress at exposure to cues of the traumatic events. The January 2012 VA examiner stated that the Veteran endorsed PTSD signs and symptoms that ranged from moderate to severe and that his PTSD symptoms "severely impair his quality of life, his social functioning, and his occupational functioning." The Veteran stated that he did not have contact with his family except for his wife, a brother, and limited contact with his son. It was noted that he had repeated disturbing memories, difficulty falling or staying asleep, outburst of anger, difficulty concentrating, depressed mood, anxiety, panic attacks, impaired impulse control and avoidance. He had a restricted and flattened affect with a sense of a foreshortened future. It was also noted that he had feelings of detachment and difficulty establishing and maintaining effective work and social relationships. The March 2014 VA examiner noted that the Veteran had moderate to severe PTSD symptoms and that he had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. His PTSD symptoms included vivid memories, avoidance, hypervigilance, exaggerated startle response, marked disruptions in memory and concentration, suicidal thoughts, sleep disturbances, panic attacks, disturbances of mood, near continuous panic or depression, and a constricted affect. He continued to have difficultly establishing and maintaining effective work and social relationships. The Veteran's VA treatment records reveal that the Veteran has not received continuous mental health treatment through the VA. A February 2009 VA treatment record noted that the Veteran had "severe" PTSD symptoms and he was prescribed medication for his PTSD. Additional VA treatment records indicate that the Veteran was alert and oriented with clear speech. See October 2011, December 2012, and January 2013 VA treatment records. The Veteran's Vet Center records indicate that the Veteran experiences nightmares, sleep problems, and impaired memory function. The Vet Center treatment records also indicate a history of suicidal thoughts. See 2007 Vet Center treatment records. A private mental health provider stated that the Veteran has severe PTSD that has a "grave negative impact" on his occupational and social functioning. It was noted that the Veteran reported suicidal thoughts, difficultly concentrating, hypervigilance, exaggerated startle response, restricted range of affect, panic attacks, mild memory loss, impaired judgment, and impaired impulse control. See September 2013 report from Dr. F.B. A private counselor also noted that the Veteran experiences anxiety and depression as symptoms of his PTSD. See September 2013 letter from K.T. The Veteran has described his PTSD symptoms to include such symptoms as suicidal feelings, danger of hurting self or others, panic attacks, memory loss, flashbacks, delusions and chronic sleep problems. See August 2013 Mental Health Symptoms form. The Board finds that the Veteran's PTSD symptoms, to include suicidal thoughts and impaired impulse control, are characteristic of at least a 70 percent rating. The Board notes that the evidence of record shows that the Veteran has additional symptomatology that is not enumerated in the rating criteria for a 70 percent rating, including nightmares, panic attacks, startling easily, and hypervigilance. The Board finds that the Veteran's disability picture, taken as a whole and in combination with the objective medical examinations of record, have more nearly approximated the criteria for at least a 70 percent rating throughout the appeal. To this extent, the appeal is granted. ORDER A 70 percent rating for PTSD is granted, subject to the applicable criteria governing the payment of monetary benefits. REMAND As noted above, a review of the claims file reveals that the Veteran may be unemployable due to his service-connected disabilities, to include his PTSD. The March 2014 VA examination report indicates that the Veteran is currently employed on a part-time basis and Dr. F.B., in a September 2013 report, stated that the Veteran lost previous jobs due to his PTSD symptoms. A May 2009 VA examiner stated that the Veteran may also have difficulty using a keyboard on a computer due to his service-connected left wrist shrapnel wound. Thus, in light of Rice, a VA examination is warranted to determine whether the Veteran is unemployable due to his service-connected disabilities. Upon remand, the RO shall associated with the claims file outstanding relevant records of VA treatment generated after February 2014 and pertinent Vet Center records dated since 2007. The RO shall also take appropriate steps to associate pertinent outstanding private treatment records with the claims file, to include records from Dr. F.B. and counselor K.T. Then the RO shall determine whether a rating in excess of 70 percent is warranted for the Veteran's PTSD. The RO shall consider all evidence in the claims file, to specifically include VA treatment records, private treatment records, and the March 2014 VA examination report associated with the claims file since the issuance of the August 2012 supplemental statement of the case. Accordingly, the case is REMANDED for the following action: 1. Issue the Veteran and his representative a notice letter that complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159, concerning the information of evidence needed to establish entitlement to TDIU benefits. 2. Gather pertinent outstanding records of VA treatment dated after February 2014 and Vet Center records dated after 2007. Associate the records with the claims file. 3. Afford the Veteran an additional opportunity to submit any other information that is not evidenced by the current record. Provide the Veteran with the necessary authorizations for the release of any private treatment records not currently on file, to include records from Dr. F.B. and counselor K.T., and associate any available records with the claims file. Make at least two (2) attempts to obtain records from any identified source. If any records are unavailable, document the unavailability within the claims file and advise the Veteran so he can submit any copies in his possession. 4. Invite the Veteran to submit medical and hospitalization records, medical statements, and any other lay or medical evidence from himself and from other individuals who have first-hand knowledge of the severity of his PTSD symptoms and the impact of the Veteran's service-connected disabilities on his ability to secure or follow substantially gainful occupation. Such information may include his pay stubs, wage information, and amount of hours worked per week. He should be provided an appropriate amount of time to submit this evidence. 5. Have the Veteran undergo an appropriate VA examination, to be conducted, if possible, by a VA vocational specialist, if available, to determine the impact of his service-connected disabilities on his ability to work. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. After reviewing the record and conducting any necessary tests, the examiner should opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that his service-connected disabilities, in the aggregate, render him unable to secure or follow a substantially gainful occupation. 6. Then readjudicate the Veteran's claim for a rating higher than 70 percent for his PTSD and entitlement to a TDIU. If the benefits sought remain denied, the Veteran and his representative must be furnished a Supplemental Statement of the Case. The SSOC must consider all evidence associated with the claims file since the August 2012 SSOC, to include VA treatment records, private treatment records, and the March 2014 VA examination report. The Veteran and his representative must be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs