Citation Nr: 1432012 Decision Date: 07/16/14 Archive Date: 07/22/14 DOCKET NO. 08-34 113 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased initial rating for posttraumatic stress disorder (PTSD), higher than 50 percent prior to October 17, 2011, and higher than 70 percent thereafter. 2. Entitlement to an increased initial rating for traumatic brain injury (TBI), higher than 10 percent. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. J. Drucker, Counsel INTRODUCTION The Veteran had active military service from July 1966 to June 1968. His awards and decorations include a Purple Heart with one gold star and the Navy Cross. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that granted service connection for PTSD and assigned an initial 50 percent disability evaluation, effective from April 23, 2007. A September 2010 rating decision granted service connection for TBI, and assigned an initial 10 percent disability evaluation, effective from March 10, 2008. The Veteran submitted a timely notice of disagreement with that disability rating and a statement of the case was issued in April 2012. He perfected his appeal in May 2012. Thus, the issue of an increased initial rating for TBI is properly before the Board. An August 2011 rating decision granted a total rating based upon individual unemployability due to service-connected disabilities, effective from March 1, 2008. A November 2011 rating decision granted a 70 percent rating for PTSD, effective October 17, 2011. In a May 2012 VA outpatient record, the Veteran's treating psychiatrist stated that the Veteran should be evaluated for a 100 percent permanent and total rating as "he will never be able to function socially and or occupationally due to his TBI and his PTSD." The Board construes the VA record as an informal claim for a permanent and total rating. See 38 C.F.R. § 3.155(a) (2013). The matter is referred to the Agency of Original Jurisdiction (AOJ) for appropriate development and adjudication. In June 2012 and February 2014, the Board remanded the Veteran's claim for an increased initial rating for PTSD to the AOJ for further development. The issue of an increased initial rating for TBI is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDING OF FACT Resolving doubt in the Veteran's favor, since April 23, 2007, PTSD has effectively resulted in total social and occupational impairment. CONCLUSION OF LAW Resolving all reasonable doubt in the appellant's favor, since April 23, 2007, the schedular criteria for a rating of 100 percent for his service-connected PTSD have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 4.125, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act (VCAA) substantially amended the provisions of Chapter 51 of Title 38 of the United States Code, concerning the notice and assistance to be afforded to claimants in substantiating their claims. VCAA § 3(a), 114 Stat. 2096, 2096-97 (2000) (now codified as amended at 38 U.S.C.A. § 5103 (West 2002 & Supp. 2013)). The Veteran's increased rating claim arises from his disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). In view of the favorable disposition of this appeal, discussed below, the Board finds that VA has satisfied its duty to notify and assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertaining to his claim for an increased rating for PTSD under the VCAA. As set forth herein, no additional notice or development is indicated in the Veteran's claim for an increased rating. Rating Criteria Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2013). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2013). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). In Fenderson v. West, 12 Vet. App. 119, 126 (1999), the United States Court of Appeals for Veterans Claims (court) noted that, where the question for consideration is propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required. Id. Where there is a question as to which of two evaluations is to 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 (2013). In determining whether an increased rating is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The General Rating Formula for Mental Disorders, including Diagnostic Code 9411, that evaluates PTSD, at 38 C.F.R. § 4.130, provides the ratings for psychiatric disabilities. A 50 percent rating is warranted if the disability is productive of 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent evaluation requires 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 adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent 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 ability 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. Analysis From June 2009 to February 2014, the Veteran's treating VA psychiatrist noted his combat-related sleep difficulty, poor impulse control and irritability, depression, hypervigilance and hyperarousal, combat-related nightmares and intrusive memories, and social isolation. That VA examiner assigned scores on the Global Assessment of Functioning (GAF) scale ranging from 39 to 55, denoting some impairment in reality testing or communication or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood, to moderate symptoms. Although the January 2008, March 2010, and October 2011 VA examiners assigned GAF scores of 48 to 50 commensurate with only serious symptoms, the psychologist-examiners had a more limited opportunity to observe the Veteran. The evidence is at least in relative equipoise as to the level of psychiatric disability, and as to whether it is reasonable to conclude that the disability picture is comparable to a 100 percent evaluation. Overall, the current level of disability arguably, but not clearly, approximates the criteria for a 100 percent evaluation. Thus, the Board concludes, with favorable resolution of reasonable doubt, that a 100 percent rating under Diagnostic Code 9411 is warranted, under the regulations currently in effect. 38 C.F.R. § 4.7. The record shows that, for many years, the Veteran managed his PTSD symptoms through participation in veterans groups and organizations with good benefit and denied having any prior formal mental health treatment. See April and June 2009 VA outpatient mental health records. He was originally told he had shell shock and taught to hold in his emotions but had nightmares that caused him to awake in a sweat and panicked. See Veteran's June 2007 written statement. His wife was a clinical psychologist specially trained in trauma who helped him. See Veteran's October 2007 and March 2008 written statements. On June 1, 2009, a VA clinic psychiatrist noted the Veteran's report that his symptoms intensified severely during the past two years, due to psychosocial stressors that included care-taking responsibilities for his son who had amyotrophic lateral sclerosis (ALS). The Veteran's symptoms included broken sleep, foggy thought process, erratic energy levels, flashbacks, illusory experiences of seeing Vietnam-related objects in shadows and contextual contours to a greater extent than previously, but he denied frankly hallucinatory or dissociative experiences, and a heightening of hypervigilance. He resisted taking prescribed medication due to his care-taking functions. Records show that the Veteran's son died in June 2009. In September 2009, the VA psychiatrist reported that the Veteran's symptoms worsened since last seen in June and he requested prescribed medication. He had the jitters, poor concentration, intrusive memories, nightmares, and flashbacks of combat-related events, irritability, and frustration tolerance. Subsequent VA medical records show that the Veteran's psychiatric disability was treated with prescribed medication and individual and group outpatient psychotherapy. In May 2012, the VA clinic psychiatrist noted that the Veteran "has only gotten worse despite compliance with treatment." The psychiatrist stated that the Veteran "will never be able to function socially and or occupationally due to his TBI and his PTSD." In August 2012, the VA clinic psychiatrist observed that the Veteran's wife was a psychologist who was able to stay with him despite all the usual symptoms that often drove away spouses. Noting the death of their son, the VA psychiatrist commented that it was a "tribute to [the Veteran] and his wife's psychological knowledge that he is here today and not a danger to himself or others." The Veteran was unable to forget his time in service and "has never been able to function occupationally or socially" because of it. Further, according to the VA psychiatrist, "those who have evaluated this case have not completely grasped the entire picture that this Board Certified Psychiatrist-who has worked with veterans since...1999 and with [the Veteran] since his son's death in 2009 [sees] that he is totally and permanently disabled from his PTSD and depression." The psychiatrist noted that the Veteran was in treatment for over 40 years, that included individual and group psychotherapy and taking prescribed medication. He experienced combat-related nightmares, flashbacks, intrusive memories, social isolation, emotional numbness, and poor concentration. In December 2012, the VA clinic psychiatrist particularly noted the Veteran's daily PTSD symptoms that included disturbed sleep, and combat-related nightmares, flashbacks that were disoriented and disturbing. His emotional numbness persisted and he struggled with issues of trust that impaired his socialization. He experienced additional losses including the death of his son from ALS in June 2009 and preferred to be alone or with very close family. The VA psychiatrist observed that, despite compliance with medications and psychotherapy, the Veteran's symptoms persisted and he coped better than without treatment. He forced himself to attend group therapy and get out of the house to cope with his illness. Having a therapy dog helped particularly with symptoms of hypervigilance. Psychotherapy helped in that the Veteran did not look for confrontation but, if provoked, he would likely first try to isolate although, if that failed, he would be unable to control the anger that persisted due to PTSD. In the VA clinic psychiatrist's opinion, it was "more likely than not" that the Veteran "suffered complete and permanent social and occupational dysfunction from the traumas endured while in" active service. The psychiatrist stated that the Veteran "is and has been 100% disabled." The January 2008 VA examiner noted the Veteran's rambling thought process with circumstantiality and that the Veteran did not understand the outcome of his behavior, was unable to maintain minimum personal hygiene, and had problems with his activities of daily life described as anger but considered the Veteran's disability as only moderately severe. The March 2010 VA examiner reported that the Veteran had good impulse control, with no panic attacks, obsessional or inappropriate behavior, and had no problems with activities of daily living or maintaining his personal hygiene. The October 2011 and March 2014 VA examiners said that it was impossible to separate the symptoms of the Veteran's service-connected TBI and PTSD. The October 2011 examiner also noted the Veteran's depressed mood, anxiety, flashbacks, panic attacks, and report of seeing things that were really there that the examiner attributed to hypervigilance, and the March 2014 VA examiner noted the Veteran's irritability and angry outburst, hypervigilance, concentration and sleep problems, anxiety, suspiciousness, panic attacks weekly and disturbances of mood and motivation. But the VA clinic psychiatrist's record shows that the Veteran had extreme difficulties in interpersonal relationships as well as difficulty in concentration, suspiciousness, and irritability that have effectively rendered him unable to function. The clinic psychiatrist's findings are more probative than those of the VA examiners, given the psychiatrist's repeated encounters with the Veteran over the course of many years, from 2009 to 2014. In these circumstances, therefore, the Board finds that a 100 percent evaluation is warranted for the service-connected PTSD. See 38 C.F.R. § 4.21 (2013) (not all cases will show all findings specified in the rating criteria, but the rating must in all cases be coordinated with actual functional impairment). In view of the above, the Board finds that the application of the benefit-of-the-doubt doctrine contemplated by 38 U.S.C.A. § 5107(b) is appropriate in this case. As stated, the level of disability, when the benefit of the doubt is given to the Veteran, is approximately commensurate with the 100 percent rating under Diagnostic Code 9411 under current rating criteria. 38 U.S.C.A. §§1155, 5107; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. As the Board has granted the Veteran a 100 percent schedular evaluation herein, it is not necessary to consider whether he is entitled an extra-schedular rating under 38 C.F.R. § 3.321 (2013). ORDER A 100 percent initial evaluation for PTSD is granted from April 23, 2007, subject to the laws and regulations governing the award of monetary benefits. REMAND There appear to be differing medical opinions regarding the symptoms attributable to the Veteran's service-connected TBI. In March 2008 correspondence, he reported having symptoms of headaches, dizziness, sharp pain through his right ear to his neck, dizziness, and memory loss due to his TBI. July and September VA 2008 outpatient neurological consultation records show that the Veteran complained of right ear pain and right retroauricular occipital pain. A clinic neurologist thought the pain was related to auricular pathology in the ear or posterior retroauricular area of the scalp or ear. A January 2009 rating decision denied service connection for right ear pain. The July 2010 VA examiner noted the Veteran's report of severe headaches with radiating pain to his neck 2 to 3 times a week that lasted 5 to 6 hours and dizziness 5 days a week that lasted 1 to 3 hours, caused by the TBI. According to a March 2012 VA outpatient neurology record, the Veteran was last seen by the neurologist in 2008. He had headaches that were fluctuating but consistent. Physical findings were unchanged since 2008. Dizziness was thought likely related to a middle ear disorder or polypharmacology. Medication adjustments were advised. The Veteran was last examined by VA for TBI in July 2010 - four years ago. Although the March 2012 VA neurology record suggests that the Veteran's symptoms were unchanged, this is not entirely clear. Nor is it clear what symptoms are attributable to the service-connected TBI. Thus, in the interest of due process and fairness, the Board is of the opinion that he should be afforded a new VA examination to determine the current severity and all manifestations of his service-connected TBI. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994) (determining that the Board should have ordered a contemporaneous examination of the Veteran because a 23-month-old examination was too remote in time to adequately support the decision in an appeal for an increased rating); VAOPGCPREC 11-95 (1995); but see Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (the passage of time alone, without an allegation of worsening, does not warrant a new examination). Recent VA medical records regarding the Veteran's treatment, dated since February 2014, should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain all VA medical records regarding the Veteran's treatment dated since February 2014. If any requested records cannot be obtained, the appellant must be notified of the attempts made and of what additional actions will be taken with regard to his claim. 2. After completing the development requested above, schedule the Veteran for an appropriate VA examination to determine the nature and extent of any current manifestations of his service-connected TBI. All indicated evaluations, studies, and tests deemed necessary should be accomplished and all findings reported in detail. The claims file and a copy of this remand should be made available for review in connection with the examination. a. The examiner should address the severity of the Veteran's service-connected disability consistent with the criteria for evaluating residuals of TBI under Diagnostic Code 8045. b. The examiner should discuss the level of severity of all currently-identified manifestations of the Veteran's service-connected TBI. In making the assessment, the examiner should identify all comorbid physical, neurological, or mental disorder(s) and state whether each is shown to be caused by the Veteran's TBI (or service-connected PTSD). If any condition is not found to be caused by TBI, then the examiner should attempt to distinguish any symptoms and impairment attributable to such disability from identified residuals of TBI. If the manifestations cannot clearly be distinguished, the examiner should clearly so state. c. As concerning the symptoms and/or residuals of dizziness, headaches, and neck pain reported by the VA examiner in 2010, the examiner should address the following: i. Is the dizziness experienced by the Veteran manifested by occasional dizziness, or by dizziness with occasional staggering? If so, objective findings supportive of a finding of such symptoms are requested to be provided. See Diagnostic Code 6204, 38 C.F.R. § 4.87. ii. Are the symptoms related to the Veteran's headaches shown to be in the form of less frequent attacks, characteristic prostrating attacks averaging one in 2 months over the last several months, characteristic prostrating attacks occurring on an average once a month over the last several months, or with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability? See Diagnostic Code 8100, 38 C.F.R. § 4.124a. iii. The examiner should specifically describe any additionally-documented symptoms and/or residuals (other than the two discussed above), found to be manifested in the course of the examination. d. Reasons for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Review and readjudicate the claim for a higher initial evaluation in excess of 10 percent for the Veteran's TBI. If any benefit sought on appeal is not granted, the AOJ should issue a supplemental statement of the case and afford the Veteran and his representative an opportunity to respond thereto. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs