Citation Nr: 1511426 Decision Date: 03/18/15 Archive Date: 03/27/15 DOCKET NO. 13-03 505A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for short-term memory loss. 3. Entitlement to an initial rating in excess of 30 percent for coronary artery disease. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Nancy Lavranchuck, Agent ATTORNEY FOR THE BOARD Cheryl E. Handy, Counsel INTRODUCTION The Veteran served on active duty from April 1968 to February 1970, to include service in the Republic of Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions in June 2010, September 2011 and February 2012 of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The issues of entitlement to service connection for short-term memory loss, entitlement to an increased disability rating for coronary artery disease, and entitlement to TDIU are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Throughout the appeals period, the Veteran's PTSD has been manifested by occupational and social impairment with reduced reliability and productivity; the evidence fails to show deficiencies in most areas and fails to show an inability to establish and maintain effective relationships CONCLUSION OF LAW The criteria for a disability rating greater than 50 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. § 4.1, 4.7, 4.10, 4.21, 4.125, 4.126, 4.130, Diagnostic Code 9411 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). In January 2010 and February 2011, the RO sent the Veteran letters, prior to adjudication of his claims, providing notice, which satisfied the requirements of the VCAA. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). No additional notice is required. Next, VA has a duty to assist the Veteran in the development of claims. This duty includes assisting him in the procurement of pertinent treatment records and providing an examination when necessary. 38 C.F.R. § 3.159. All pertinent, identified medical records have been obtained and considered. The Veteran was afforded VA examinations in February 2010 and January 2011. There is no argument or indication that the examinations or opinions are inadequate. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). As VA satisfied its duties to notify and assist the Veteran, no further notice or assistance is required. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §3.159. 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." Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). 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 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, merits a 50 percent rating. 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 work like setting); inability to establish and maintain effective relationships, is assigned 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, warrants 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 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, 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 The Veteran has been assigned a 50 percent disability rating for his PTSD. He has asserted entitlement to at least a 70 percent disability rating based on the VA examinations and the other medical evidence of record. The record shows that the Veteran experienced episodic amnesia in 2006 and again in October 2009. During the 2009 incident he woke up, went to work, and was noted to be confused by his boss, who took him to the ER. He was alert and oriented but had no memory of any events in that morning and could not remember who his parents were. His memory loss persisted for around three or four hours total and then resolved. He felt fatigued for several days had trouble recalling anything that happened the day of the incident prior to being driven home after his hospital treatment. He reported other incidents of global amnesia lasting around 30 minutes each. An October 2009 neurology consultation was unable to draw any conclusions as to the cause of the incidents; the Veteran was treated with cardiovascular medications and sent for testing. A February 2010 VA examination noted the Veteran's diagnoses of PTSD, alcohol dependence in remission, and drug abuse in remission, as well as prior GAF scores ranging from 65 to 68. He told the examiner that he was not taking any medications for mental health but was involved in psychotherapy. He reported symptoms of nightmares, flashbacks, insomnia, decreased interest in pleasurable activities, irritability and anger problems, and poor concentration. He avoided crowds, traffic, and cramped spaces. He had hypervigilance and an increased startle reaction. Most of the time his mood was dysphoric, with low energy and decreased appetite as well as feelings of hopelessness and worthlessness. He denied any suicidal ideation. He did not have any close friends, but did get along somewhat with his children from his first marriage. His work history included a number of jobs where he worked alone and other jobs where his employer isolated him in work assignments because of his irritability. He had threatened others on occasion and stated that he had been on medical disability since his October 2009 "blackout." The examiner diagnosed both PTSD and depression secondary to PTSD, and assigned a GAF score of 45. A statement by the Veteran's VA treating mental health provider in February 2010 noted that he had been actively involved in treatment following his episode of transient global amnesia. He was undergoing testing to determine the cause of the problem, but was advised not to return to work for at least another two or three months because he was "psychiatrically unstable." A March 2010 neuropsychological evaluation at the VA hospital assessed neurological and cognitive functioning based on a history of both PTSD and episodes of transient global amnesia. At the evaluation the Veteran demonstrated good hygiene, clear though content, mild depressive symptomatology, and no obvious problems following direction. Testing showed that he had mild symptoms of depression and significant distress and anxiety in his personality profile. His cognitive functioning was found to be within normal limits or better. A January 2011 VA examination noted the findings of the earlier examination and the fact that the Veteran had been off work for some time. His daily activities included fishing on the Columbia River and attending church and Bible study, as well as doing yard work, watching television, and taking a nap every day. The examiner inquired about employability and the Veteran reported that he had not been released to return to work after his episode of global amnesia and was getting older. In addition, he had applied for Social Security Disability. The examiner diagnosed moderate chronic PTSD and mild chronic major depressive disorder, with symptoms of hypervigilance, irritability, insomnia, and memory problems. There were frequent intrusive thoughts, an exaggerated startle response and a decreased interest in pleasurable activities. The examiner assigned a GAF score of 55 and noted that no etiology had yet been determined for his global amnesia spells, although they did not appear to be consistent with PTSD. In light of all of the evidence set forth above, the Board finds that entitlement to a disability rating higher than 50 percent for PTSD has not been shown. Even considering the Veteran's episodes of global amnesia, as required by Mittleider v. West, 11 Vet. App. 181 (1998), the Veteran's symptoms as described are those consistent with the criteria for a 50 percent rating. Specifically, the Veteran has reported generalized feelings of mild depression, impairment of concentration, loss of memory, impaired judgment such as fighting with his boss, and difficulty dealing with other people. The Veteran's representative has argued that the Board should consider the disinclination to continue working described by the January 2011 VA examiner as disturbance of motivation and mood, which is itself a symptom listed under the 50 percent criteria. In short, his disability picture is one of reduced reliability and productivity. The Veteran has not demonstrated deficiencies in most areas such as work, family relations, judgment, thinking, or mood, due to his PTSD symptoms. Prior to concerns about the cause of his global amnesia episode, he had held a job for a number of years. The January 2011 VA examiner indicated that he was still employable, although he was initially advised to take some time off work in 2009. He maintains a relationship with his elderly parents, serving as their caretaker, and has described having an okay relationship with his children despite their substance abuse problems. He retains some interest in his hobby of fishing, does his yard work, and attends church services regularly. In addition, he has not demonstrated any suicidal ideation, obsessional rituals, illogical speech, panic, spatial disorientation, or lack of personal hygiene. The Veteran's disability picture relative to his PTSD does not rise to the level of a 70 percent disability rating. The Board notes that the Veteran has been assigned GAF scores primarily in the 61 to 70 range by his treatment providers prior to the February 2010 VA examination and after the February 2010 examination. Such scores are consistent with mild symptoms or mild impairment in social and occupational functioning. The January 2011 VA examiner assigned a score of 55, which reflects moderate impairment with symptoms similar to those described in the 50 percent rating criteria. The February 2010 VA examiner assigned a GAF score of only 45, reflective of serious symptoms and impairment in social and occupational functioning. However, the symptoms described by the Veteran were largely the same as those described throughout the course of the claim: i.e, nightmares, insomnia, irritability, poor concentration, a dysphoric mood, feelings of hopelessness, and some trouble getting along with others. Apart from the fact that he was on temporary medical leave from work, he did not describe any deficiencies in his social or occupational functioning and his judgment and thinking were intact. Given the consistency of the Veteran's symptoms throughout the appeals period, the Board does not find the low GAF score assigned by the February 2010 VA examiner to be dispositive, or even particularly instructive. In sum, the preponderance of the evidence is against the Veteran's claim for increased disability rating. 38 C.F.R. § 4.130. Rather, his disability picture is most nearly approximated by the currently assigned 50 percent evaluation throughout the rating period on appeal. 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 as related to his PTSD, to include showing the occupational and social impairment associated with his symptoms. His disability picture is accounted for by the rating criteria, even in consideration of his brief episodes of global amnesia. The rating criteria do provide for higher ratings for more severe symptoms. 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 50 percent for PTSD is denied. REMAND The Veteran seeks service connection for short-term memory loss, which he argues may be due to transient ischemic attacks, and thus related to his service-connected coronary artery disease. While he has been afforded a VA examination related to his claim for an increased rating for coronary artery disease, it did not include any discussion of transient ischemic attacks. In light of the possible relationship and the need for additional evidence, a VA examination to specifically address the cause of the Veteran's short-term memory loss is warranted. Inasmuch as the memory loss may be due to a coronary cause rather than an unrelated pathology, an additional VA examination for cardiac issues may be warranted. The Veteran also seeks TDIU, based on his early retirement from his job. The evidence links the Veteran's retirement at least in part to his episodes of memory loss. As such, the question of entitlement to TDIU is inextricably intertwined with the claims of service connection for memory loss and of increased rating for coronary artery disease. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran an appropriate VA examination to determine the nature and etiology of his short-term memory loss, to specifically include whether any demonstrated memory loss is related to his 2006 and 2009 episodes of global amnesia. The VA examiner should thoroughly review the medical evidence of record, discuss the memory loss symptoms with the Veteran, and administer any diagnostic testing which may be appropriate. The examiner should offer an opinion as to whether the Veteran's memory loss, to include the episodes of global amnesia, constitute a symptom of coronary artery disease or PTSD, whether they represent transient ischemic attacks, or whether they are due to separate causes or conditions. The examiner should offer an opinion as to whether it is at least as likely as not (probability 50 percent or greater) that the memory loss and/or episodes of global amnesia (a) are related to the Veteran's military service, (b) were caused by an service-connected disability to include PTSD and coronary artery disease, (c) have been aggravated beyond their natural progression by any service-connected disability (if so, please state the baseline level of disability prior to aggravation) (d) are more appropriately considered a symptom of any service-connected disability, (e) or are due to an unknown cause or a cause unrelated to service. The examiner is asked to provide a statement of the reasoning or rationale for the opinion(s) provided. 2. If the above examination finds the memory loss episodes to be a symptom of coronary artery disease, or otherwise to have been caused or aggravated by coronary artery disease, then the RO/AMC should obtain an opinion with respect to the severity of such coronary artery disease. Such opinion should address any transient ischemic attacks that may have occurred, the effects thereof, and any memory loss which is shown in any way to be related to coronary artery disease. A complete copy of the claims file should be provided to the examiner. The examiner is asked to provide a statement of the reasoning or rationale for the opinion provided. 3. On completion of the foregoing, the claim should be adjudicated, with particular attention paid to the question of entitlement to TDIU, to include consideration of the effects of memory loss on the ability to work if it is found to be related to service. If necessary, a medical opinion should be obtained regarding the Veteran's ability to obtain and maintain reasonably gainful employment in light of his service-connected disabilities and his education and experience. 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 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 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). ______________________________________________ Eric S. Leboff Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs