Citation Nr: 1510213 Decision Date: 03/11/15 Archive Date: 03/24/15 DOCKET NO. 11-08 571 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial disability rating higher than 30 percent for posttraumatic stress disorder (PTSD) with panic disorder and depressive disorder prior to February 24, 2014. 2. Entitlement to an initial rating higher than 50 percent for PTSD with panic disorder and depressive disorder. 3. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Paul M. Goodson, Attorney at Law ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The Veteran served on active duty August 1999 to January 2000, February 2003 to April 2004, and January 2007 to July 2008. This case comes before the Board of Veterans' Appeals (Board) on appeal of a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office in Columbia, South Carolina, which granted service connection for PTSD/anxiety, assigning a 10 percent, effective September 8, 2009. On his substantive appeal, the Veteran indicated that he wished to present testimony before the Board. As such, a hearing was scheduled before the undersigned Veterans Law Judge (VLJ) for March 14, 2012. Prior to that hearing however, the Veteran's private attorney informed the Board that the Veteran withdrew his request for a hearing before the Board. In a February 2011 rating decision, the RO increased the rating for PTSD/anxiety to 30 percent, effective September 8, 2009. In April 2012, the Board remanded for further development the increased rating claim for PTSD/anxiety, and inferred an additional issue of entitlement to a TDIU, in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). Although the RO indicated that the issues on appeal would not be addressed in a September 2014 rating decision, the RO denied entitlement to a TDIU, which is in appellate status. Thereafter, in an October 2014 rating decision, the disability rating for PTSD was increased from 30 to 50 percent, effective February 24, 2014. As this represents only a partial grant, the increased rating claim is still on appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (It is presumed he is seeking the highest possible ratings for these disabilities absent express indication to the contrary). A November 2014 supplemental statement of the case (SSOC) readjudicated the PTSD claim, but not the TDIU. In this decision, the Board awards the 50 percent rating for PTSD back to the date of claim on appeal. The issue of entitlement to an initial rating higher than 50 percent, as well as the TDIU issue, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT With resolution of all doubt in the Veteran's favor, for the entire rating period on appeal, the Veteran's PTSD with panic disorder and depressive disorder has been productive of occupational and social impairment with reduced reliability and productivity due to symptoms such as a blunted affect; panic attacks: intrusive thoughts; occasional visual hallucinations; memory impairment; sleep difficulty; extreme anger; and difficulty in establishing and maintaining effective work and social relationships. . CONCLUSION OF LAW For the entire rating period on appeal prior to February 24, 2014, the criteria for the 50 percent rating for PTSD with panic disorder and depressive disorder have been approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION I. Introductory Matters In this decision, the Board will discuss the relevant law that it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. II. VA's Duties to Notify and Assist As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). The Veteran's psychiatric claim arose from his disagreement with the initial rating assigned following the grant of service connection. 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 addition, all necessary development has been accomplished to the extent possible and, therefore, appellate review of this claim may proceed without unduly prejudicing the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's VA and private medical evidence, as well as lay statements in support of the claim. He has undergone VA examinations to assess the severity of his service-connected psychiatric disability. He declined a personal hearing. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim adjudicated herein. Therefore, in view of the foregoing, the Board will proceed with appellate review. III. Claim for a Higher Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155 (West 2002). Evaluation of a service-connected disorder requires a review of the Veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2 (2014); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. See 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the Veteran's disability, 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 (2014). Evidence to be considered in the appeal of an initial assignment of a disability rating is not limited to that reflecting the current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In Fenderson, the Court also discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it is possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The criteria for rating psychiatric disabilities, other than eating disorders, are set forth in a general rating formula. See 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. In this case, the RO rated the Veteran's PTSD with panic disorder and depressive disorder pursuant to DC 9411 under the General Rating Formula for Mental Disorders. Under such code, a 10 percent rating is warranted when there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. 38 C.F.R. § 4.130 (2014). A 30 percent rating is warranted when there is 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). Id. A 50 percent rating is assigned 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 and maintaining effective work and social relationships. Id. A 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 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); and inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions; 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; and memory loss for names of closes relatives, own occupation, or own name. Id. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). However, a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that such symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). In evaluating psychiatric disorders, the VA has adopted and employs the nomenclature in the rating schedule based on the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). See 38 C.F.R. § 4.130. As such, the diagnosis of a mental disorder should conform to DSM-IV. See 38 C.F.R. § 4.125(a). Diagnoses many times will include an Axis V diagnosis, or a Global Assessment of Functioning (GAF) score. A Global Assessment of Functioning (GAF) rating is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing Diagnostic and Statistical Manual of Mental Disorders, 4th ed. 1994). The Board notes that an examiner's classification of the level of psychiatric impairment, by words or by a GAF score, is to be considered, but is not determinative in and of itself, of the percentage rating to be assigned. VAOPGCPREC 10-95. Turning now to the relevant evidence in this case, in October 2009 VA mental health notes, the Veteran stated that he had discontinued one of his prescribed medications. He experienced an increase in nightmares, and slept walked for the first time. He retrieved his gun from its holster. A GAF score of 50 was assigned. In October 2009, the Veteran underwent a VA mental health examination. He reported anger attacks and increased nightmares. When he experiences military-based nightmares, he often wakes up alert and vigilant. He sees shadows and has intrusive thoughts several times a week. Noise startles him. He avoids the news. On evaluation, he was alert and oriented to personal information. Temporal orientation was normal. The examiner stated that the Veteran provided an accurate history and his insight was adequate. His affect was blunted. Response latencies were normal. He demonstrated adequate attention. He was not distractible. Spontaneous speech was fluent and proper. Immediate, recent, and remote memory was within normal limits. During the interview, the Veteran was noted to be logical and goal-directed. He reported a moderate dysphoria. He denied suicidal ideation or plan. He denied homicidal ideation or plan. There was no evidence of disorder in thought process or content. He made good eye contact. There was no pressured speech, grandiosity, irritability, or restlessness. Diagnosis was moderate, chronic PTSD. A GAF score of 50 was assigned. According to November 2009 VA treatment records, the Veteran reported how bad his month had been and noted that he argued with his spouse all month. Also, he threw his prescriptions away. A GAF score of 48 was assigned. In January 2010, the Veteran had a VA mental health evaluation with a licensed social worker at the VA Community-Based Outpatient Clinic (CBOC) at Rock Hill. During the evaluation, he spoke in a rapid and agitated manner. His face was red. He reported having problems with people at work, and people in general. He was often irritable and easily angered. He admitted that he felt like choking some people at work although he denied that he would become violent, knowing the consequences. He also reported continued sleep impairment. When he wakes up because of a nightmare, he sees the shadows of figures. During the evaluation, he was unable to focus. It was noted that he was having major problems with adjusting to civilian life. The examiner summarized that the Veteran was anxious and agitated; he had poor sleep and intrusive thoughts/images of military experiences. His interpersonal skills were sorely lacking. It was noted that his demeanor had changed and had trouble controlling his emotions. His last GAF score was 45. On the same day in January 2010, the Veteran was also seen by a VA medical doctor. He reiterated his symptoms that he relayed to the social worker. On mental status examination, the doctor noted that the Veteran was tearful, anxious, and depressed. His affect was restricted in range, and his mood was congruent and appropriate. His speech was normal as to volume, rate and tone. His thought process was organized. He had no suicidal or homicidal ideation. He had no auditory or visual hallucinations. Delusions were not elicited. His insight and judgment were fair. Diagnoses of chronic PTSD and moderate, recurrent major depressive disorder, and panic disorder were continued. A GAF score of 47 was assigned. During a May 2010 VA individual psychotherapy session with a licensed social worker, the Veteran was tearful, anxious and depressed. He reported "crying a lot, busting out crying, at least once a week." His nephew had been recently deployed and the Veteran was re-experiencing much of what he went through. In late May 2010, the Veteran was seen for treatment of his psychiatric disorders by a medical doctor. His affect was restricted in range, and his mood was congruent and appropriate. His speech and thought process/ content were normal. There were no suicidal ideations, homicidal ideations, auditory hallucinations, or visual hallucinations. His insight and judgment were fair. Diagnoses of chronic PTSD, with moderate major depressive disorder, and panic disorder without agoraphobia were continued. A GAF score of 47 was assigned. In July 2010, he presented for VA psychotherapy with a licensed social worker. He indicated that he wanted to enter a PTSD unit. He stated that the "symptoms overall were just not going away, some getting worse." He struggled with driving on a daily basis. He quit working with the youth group at church because he could not handle the noise and kids. On mental status examination, he was described as well-groomed and had good eye contact. He had an anxious mood and affect. His speech was normal in volume, tone, and rate. He endorsed nightmares olfactory hallucinations in the form of smelling gunpowder all of the time He isolated himself except for a few persons. He worried about losing control and getting really angry. He feels depressed a lot. His thought process and content was appropriate. He denied suicidal or homicidal ideations. He also denied auditory or visual hallucinations. No delusions were elicited. It was noted that the Veteran had improved in some areas and gotten worse in other areas because of his work schedule. He was unable to attend groups at the VA clinic and wanted to enter a PTSD unit and take short-term disability leave. In July 2010, the Veteran had a psychological evaluation conducted by Charlotte Psychological Services. The psychologist noted that the Veteran was very flat emotionally and lacked in spontaneity. He seemed to get rather aggravated with prolonged testing and it was hard for him to concentrate on cognitive tasks. His sleep was poor and his appetite was excessive. Testing was conducted. On the Wechsler Adult Intellectual Scale IV, his memory was low and his motor speed was strong. On the Wechsler Memory Scale, he had some impaired functioning in the area of delayed functioning and test performance which warranted the diagnosis of a cognitive disorder, NOS. He also had deficits in attention and concentration. He was very withdrawn and shy. He was dependent upon his spouse. He had a problem accepting authority figures, especially those that are bossy. He tended to be hypervigilant. He had stress reactions and then panics. His insight was fair and intelligence was average. Diagnosis was PTSD with major depressive features. A GAF score of 55 was assigned. The private psychologist summarized that the Veteran suffered from PTSD with panic features after serving two tours of duty in Afghanistan with IED explosions and falling on his back from a Humvee which left him with chronic back problems depression and anxiety. It was noted that he was trying to work but that he had been doing so poorly and was in danger of emotional outbursts and losing emotional control. He was afraid that he would "go violent." His interaction with peers and coworkers was very meager and restricted. He was basically reclusive in his contact. He had difficulty with bossy people and was afraid this might trigger an overreaction. His ability to maintain concentration and pace was very poor because of his difficulty with concentration and memory. He was not capable of managing his own benefits. In August 2010, the Veteran called the VA mental health clinic at Rock Hill CBOC. The case worker manager stated that the Veteran was in crisis mode because his job duties with the county would be changing to include driving, which was one of his PTSD triggers. The Veteran was concerned that he would have to file a medical disability claim with his job. In late August 2010, he had another VA mental health session for treatment of his psychiatric disorders. He reiterated that his new job duty triggered panic attacks and intrusive thoughts. He had been "freaking out" and worried that something will happen to him. He has difficulty working with customers. His psychiatric diagnoses were continued, and a GAF score of 45 was assigned. In October 2010, he presented for an evaluation for treatment of his psychiatric disorders. He reported that he had experienced less panic attacks with the prescribed medication, but still had depression. He had a decreased interest in activities and low energy. He began to isolate himself more and had become more withdrawn. There were no suicidal or homicidal ideations. Diagnoses were continued and a GAF score of 48 was assigned. In December 2010, he presented for an evaluation for treatment of his psychiatric disorders. He stated that his overall mood had improved, but he still felt tense in certain situations. A GAF score of 50 was assigned. In February 2011, he presented for a VA evaluation for treatment of his psychiatric disorders. His overall mood had been anxious. He was coping better with work-related stress. Assessment was gradual improvement in mood and overall functioning. GAF score of 58 was assigned. An April 2011 VA treatment note shows a GAF score of 59. According to a June 2012 VA treatment note, the Veteran stated that he was not taking any psychiatric medication at the time. He had problems with primary support group, as well as work-related and financial stress. Medication and therapy were recommended. He declined medication. June 2012 treatment notes also reflect that the Veteran requested an extension on short term disability because he felt he was unable to return to work. As indicated, the RO increased the Veteran's rating for PTSD to 50 percent, effective February 24, 2014 based in large part on a March 2014 Medical Report for Disability Eligibility Review. However, on review of all evidence, both lay and medical, the Board finds that the criteria for the 50 percent rating have been met or more nearly approximated since the beginning of the rating period on appeal. In this regard, beginning in October 2009, the medical evidence shows that he had experienced intrusive thoughts, saw shadows a couple times per week, had attacks of anger; and experienced increased nightmares. In 2010, a VA licensed social worker noted that the Veteran had major problems adjusting to civilian life and that his interpersonal skills were sorely lacking. It was noted that the Veteran felt like choking a co-worker. In mid-July 2010, the Veteran expressed his desire to enter a PTSD unit and take short-term disability leave. He felt he was in danger of losing emotional control. There was concentration and memory impairment. He became unable to manage his benefits. His GAF scores ranged from 45 -50 which reflects serious symptoms or serious impairment in social, occupational or school functioning. Thereafter, he appeared to experience a brief episode of improvement in late 2010 and early 2011 but still felt extremely tense and anxious. In 2012, he discontinued his prescribed medications again and appeared to relapse. He felt that he was unable to work due to his psychiatric disability. Thus, in consideration of the above, the Board finds that, since the beginning of the appeal period, the Veteran's psychiatric disability has been productive of occupational and social impairment with reduced reliability and productivity due to symptoms such as a blunted affect; panic attacks: intrusive thoughts; occasional visual hallucinations; memory impairment; sleep difficulty; extreme anger; and difficulty in establishing and maintaining effective work and social relationships. Accordingly, the criteria for a 50 percent rating under DC 9411 have been approximated for the entire appeal period. The issue of entitlement to an even higher rating is discussed in the remand portion of this decision. ORDER For the entire rating period on appeal prior to February 24, 2014, a rating of 50 percent for PTSD with panic disorder and depressive disorder is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND Further development is necessary prior to analyzing the issue of entitlement to an initial rating higher than 50 percent for PTSD with panic disorder and depressive disorder and a TDIU. In January 2015 written argument, the Veteran's attorney indicated that the RO failed to consider the Veteran's disability file from the Social Security Administration (SSA) and the records contained therein. Although the record contains October 2014 correspondence from his attorney indicating that he sent a copy of the Veteran's SSA records on a compact disc (CD), the Board is unfortunately unable to locate any such records in the Veteran's VA claims file at the Board. The Board also observes that the RO has not cited to any SSA records in its adjudication of the claims. At any rate, VA has a duty to attempt to obtain SSA records when it has notice of their existence. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). These records must be obtained and associated with the claims file. Pursuant to the 2012 Board remand, the RO sent the Veteran an updated VCAA notice letter in December 2012 that included the information and evidence necessary to substantiate a TDIU claim. In that letter, the RO enclosed VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) to be completed by the Veteran and returned to the RO. However, the Veteran did not submit the VA Form 21-8940 nor did he otherwise submit any employment information. See September 2014 rating decision. The Board recognizes that the Veteran submitted a March 2014 Medical Report for Disability Eligibility Review, on which a VA psychiatrist indicated that the Veteran became disabled on February 24, 2014 due to his psychiatric diagnoses and is not able to work due to his PTSD. However, the record is still unclear as to whether the Veteran is in fact unemployed at the present time. As noted in the 2012 remand, the record suggests that since January 2010, he has been performing duties for the United States Army Reserves. The claims file contains documents that suggest that the Veteran had 64 training days in the U.S. Army Reserves in 2010 and that he had additional training days in 2011 and 2012. The RO therefore must clarify whether the Veteran is currently working and, if not, the date he last worked. To this end, the RO should send him another TDIU application (VA Form 21-8940) and ask that he complete and return it providing this necessary information. Clarification is also needed as to whether he is still in the Reserves. Accordingly, the case is REMANDED for the following action: 1. Contact the SSA, request and obtain the Veteran's complete Social Security records, including all decisions and any medical records relied upon in making those decisions. The Veteran's attorney is invited to provide an additional copy of the Veteran's SSA file, if available. 2. Provide the Veteran with another VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, for him to complete, with instructions to return the form to the RO. Also afford him the opportunity to identify or submit any additional pertinent evidence in support of his TDIU claim. 3. Clarify the Veteran's current employment status. a). *Is he currently working? b). *Is he still serving in the Reserves? If not, obtain confirmation of his end date. 4. Then readjudicate the claim of entitlement to an initial rating higher than 50 percent for PTSD with panic disorder and depressive disorder, and the derivative TDIU claim, in light of all additional evidence and to include any available SSA records. If these claims are not granted to the Veteran's satisfaction, send him and his attorney another SSOC and give him time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. 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 2014). ______________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs