Citation Nr: 1512340	
Decision Date: 03/24/15    Archive Date: 04/01/15

DOCKET NO.  10-28 194	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of service connection for skin disability.

2.  Entitlement to service connection for heart disability.

3.  Entitlement to service connection for right knee disability.

4.  Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD).

5.  Entitlement to an initial compensable rating for bilateral hearing loss.

6.  Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU).

WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

David S. Nelson, Counsel


INTRODUCTION

The Veteran had active service from January 1963 to December 1966.

These matters come before the Board of Veterans' Appeals (BVA or Board) from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.

In January 2015 the Veteran testified during a Board hearing before the undersigned at the RO.  A transcript of that hearing is of record.

The reopened claim of entitlement to service connection for a skin disability, as well as the issues of service connection for heart disability, service connection for right knee disability, entitlement to an initial compensable rating for bilateral hearing loss, and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  A June 1994 rating decision denied service connection for skin disability.

2.  Evidence received subsequent to the June 1994 rating decision does, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the Veteran's claim of entitlement to service connection for skin disability.

3.  Throughout the rating period on appeal, the Veteran's PTSD was manifested by occupational and social impairment, with deficiencies in most areas, such as work, family relations, and mood, due to such symptoms as obsessional rituals, near-continuous panic, difficulty in adapting to stressful circumstances, suicidal ideation, and an inability to establish and maintain effective relationships.


CONCLUSIONS OF LAW

1.  The June 1994 RO decision that denied the Veteran's claim of entitlement to service connection for skin disability is final.  38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 20.1103 (2014).

2.  Evidence received since the June 1994 RO decision is new and material, and the Veteran's claim of entitlement to service connection for skin disability is reopened.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2014).

3.  The criteria for an initial rating of 70 percent, but no higher, for PTSD, throughout the appeal period, have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In light of the favorable decision to reopen the Veteran's claim of service connection for skin disability, any deficiency as to VA's duties to notify and assist, as to that issue, is rendered moot.

In general, rating decisions that are not timely appealed are final.  38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103.  A claimant may reopen a finally adjudicated claim by submitting new and material evidence.  Material evidence means existing evidence that, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, although not its weight, is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court of Appeals for Veterans Claims (Court) indicated that new and material evidence could be found where the new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger VA's duty to assist by providing a medical opinion.

A January 1995 rating decision denied service connection for skin disability.  The Veteran did not appeal the January 1995 rating decision, and the January 1995 rating decision thereby became final.

The evidence submitted since January 1995 rating decision includes the Veteran's January 2015 Board hearing testimony which was essentially an assertion of a continuity of symptomatology of skin disability since service.  As the Veteran is competent to make such an assertion, the Board finds that the Veteran's  testimony concerning his skin disability triggers VA's duty to assist the Veteran by providing him with a medical opinion as to this issue.  As such, the Board finds that new and material evidence has been received to reopen the skin disability service connection claim.

PTSD

The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The VCAA applies in the instant case.

Duty to Notify

As the May 2010 rating decision granted service connection for PTSD, that claim is now substantiated.  As such, the filing of a notice of disagreement as to the disability ratings assigned does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a).  38 C.F.R. § 3.159(b)(3).  As a consequence, VA is only required to advise the Veteran of what is necessary to obtain the maximum benefits allowed by the evidence and the law.  The Board observes that as for rating the Veteran's PTSD, the relevant criteria have been provided to the Veteran, including in the March 2014 statement of the case.  The Veteran has received notice regarding the assignment of a disability rating and/or effective date in the event of an award of VA benefits.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

Duty to Assist

The Veteran's service treatment records are associated with the claims file, as are VA records.  The Veteran has undergone VA examinations that addressed the matters presented by this appeal.  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the examinations obtained in this case are adequate, as they considered the pertinent evidence of record, and included an examination of the Veteran and elicited his subjective complaints.  The examinations described the Veteran's PTSD in sufficient detail so that the Board is able to fully evaluate the claimed disability.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination with respect to the initial rating issue on appeal has been met.

During the January 2015 Board hearing, in order to assist the Veteran, the undersigned asked the Veteran questions to determine the nature of the Veteran's treatment and whether there was any recent evidence not associated with claims file.  The undersigned also asked questions to help direct the Veteran's testimony concerning the frequency and severity of his PTSD symptoms.  These actions fulfilled the duties in Bryant v. Shinseki, 23 Vet. App. 488 (2010), and the Veteran has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conduct of the hearing.  As such, the Board finds that, consistent with Bryant, the Board complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claims based on the current record.

Legal Criteria

Disability evaluations are determined by comparing a veteran's present symptoms with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Because the instant appeal is from the initial ratings assigned with the grant of service connection, the possibility of "staged" ratings for separate periods during the appeal period, based on the facts found, must be considered.  See Fenderson v. West, 12 Vet. App. 119 (1999).

When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3.

Diagnostic Code 9411 addresses PTSD.  Under that code, a 50 percent rating for PTSD is appropriate when there is 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 rating for PTSD is provided for 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 rating for PTSD is provided for 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.  38 C.F.R. §§ 4.125-4.130.

Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness."  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), p. 32].  Scores from 51 to 60 are indicative of 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).  GAF scores from 41 to 50 reflect 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).  Scores from 31 to 40 indicate impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or 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).

The Board observes that to adequately evaluate and assign the appropriate disability rating to the Veteran's service-connected psychiatric disability, the Board must analyze the evidence as a whole, including the Veteran's GAF scores and the enumerated factors listed in 38 C.F.R. § 4.130, Diagnostic Code 9411.  Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002) (holding that "the rating specialist is to consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV [Diagnostic and Statistical Manual of Mental Disorders, 4th ed.].

Before undertaking analysis, it is notable that the Veteran is service-connected for PTSD, but not for disorders such as depressive disorder and alcohol abuse, which have also been diagnosed.  The Board is precluded from differentiating between symptomatology attributed to a non-service-connected disability and a service-connected disability in the absence of medical evidence which does so.  Mittleider v. West, 11 Vet. App. 181 (1998).  As such, the Board shall consider all psychiatric symptomatology to be attributable to the Veteran's PTSD.  Doing so results in no prejudice to the Veteran since it means that the evidence in its entirety will be reviewed.

A May 2010 rating decision granted the Veteran's claim for service connection for PTSD and assigned a 30 percent initial evaluation, effective July 25, 2007.

At his January 2015 Board hearing, the Veteran indicated that he had always had nightmares and sleep problems.  He stated that he was trying to mend things with his children and stated that his wives had been nice people.  The Veteran indicated that his medications had helped him, including in reducing his drinking.  He noted that most of his friends had died and he also didn't want any of his current friends to come over to his house.  He had some suicidal thoughts.  He was able to do the regular part of his work routine but would have "personal problems" on the job.  He also stated that his security clearance had been suspended.

Relevant evidence for the time period on appeal includes, in addition to the Veteran's January 2015 Board hearing testimony and various written statements, an October 2009 VA psychiatric examination and VA treatment records, including the Veteran's participation in VA's Trauma Recovery Program (TRP) and his records of group and individual therapy for PTSD.

After reviewing the pertinent evidence of record, the Board finds that the evidence warrants a rating of 70 percent for PTSD for the entire appeal period.

The evidence through the claims period on appeal clearly reflects, among other things, that the Veteran has more than just occupational and social impairment with reduced reliability and productivity due to his PTSD symptoms.  While acknowledging that not all the symptoms listed for a 70 percent rating have been met, as such criteria as obsessional rituals (constantly checking his home for "security" purposes, near-continuous panic, and difficulty in adapting to stressful circumstances (including work or a worklike setting) are shown, the Board finds that a rating of 70 percent is warranted.  The October 2009 VA examiner has specifically indicated that the Veteran's near-continuous panic attacks have affected his ability to function independently.  Further, the October 2009 VA examiner also noted that the Veteran had high levels of suspiciousness, including the fact that he would not eat food if he could not personally see it being prepared.  Both the Veteran and his health care providers have noted suicidal ideation, and VA records dated in 2011-2013 indicate that the Veteran has triggered VA suicide high risk outreach notes and follow-up.  

The October 2009 VA psychiatric examination, the most comprehensive of record, indicated that the Veteran's GAF was just 45.  The Board observes that a GAF of 45 represents serious symptoms of PTSD.  As for adapting to stressful circumstances, including work, the Veteran has indicated that his psychiatric disability has played a big role in his employment difficulties.  The Veteran has also blamed, at least in part, his PTSD for the cause of his marital problems, which has resulted in three divorces.  A March 2014 VA treatment record indicates that the Veteran still remains extremely "self-isolative" and has reported episodes of anger.  There are no indications from the evidence of record that the Veteran has any ability to establish and maintain effective relationships.

In finding that the Veteran is entitled to a rating of 70 percent for his PTSD, the question now becomes whether the Veteran is entitled to a rating in excess of 70 percent for his service-connected PTSD.

The Board observes that the evidence does not indicate that the Veteran has symptoms due to PTSD such as gross impairment in thought processes or communication.  No formal speech or cognitive disorder related to PTSD has been suggested by any of the examiners.  The Veteran has not indicated that he has had delusions or hallucinations.  Acts of violence to others have not been noted, and there has been nothing resembling a pattern of grossly inappropriate behavior.  Further, disorientation to time or place, or memory loss for names of close relatives due to PTSD, or just minimal hygiene, has not been shown.  Further, while a GAF of 45 does represent serious PTSD symptoms, such a score does not equate to total occupational and social impairment.  The October 2009 VA examiner specifically indicated that the Veteran did not have difficulty performing activities of daily living.  In this regard, the Board notes that in a May 2014 letter the Veteran's VA psychiatrist noted that the Veteran has been compliant with his medications and treatment.  The Veteran's judgment and insight have always been noted to be at least fair or adequate.

Based on the foregoing, a rating in excess of 70 percent for PTSD is not warranted at any time during the appeal.

In adjudicating the claims the Board must assess the competence and credibility of the Veteran.  See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005).  The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences concerning his PTSD.  See Layno v. Brown, 6 Vet. App. 465 (1994).  The Board in this case has relied, in part, on the Veteran's own credible testimony in assign an increased rating in this case.  The Veteran is not, however, competent to identify a specific level of disability of his PTSD according to the appropriate diagnostic code.  Such competent evidence concerning the nature and extent of the Veteran's PTSD has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations.  The medical findings directly address the criteria under which the Veteran's PTSD is evaluated.  As such, the Board finds these records to be the most probative evidence with regard to whether an increased rating is warranted.

In conclusion, the evidence supports a 70 percent initial evaluation, but no higher, for PTSD.  The Board has been mindful of the "benefit-of-the-doubt" rule, but, in this case, there is not such an approximate balance of the positive evidence and the negative evidence to permit a more favorable determination.


ORDER

New and material evidence has been submitted in order to reopen the claim of entitlement to service connection for skin disability, and that claim is reopened.

Entitlement to an initial rating of 70 percent, but no higher, for PTSD is granted throughout the time period on appeal, subject to the applicable law governing the award of monetary benefits.


REMAND

While new and material evidence has been received to reopen the skin disability claim, whether the Veteran has such disability that is related to service is a medical question and requires medical expertise.  The Board finds that the Veteran should be afforded a VA examination to address the medical matters presented by that issue.

As for the issues of service connection for a heart disability and a right knee condition, the Board finds that the competent medical evidence of record is not sufficient to decide those claims.  The Veteran should be afforded a VA examination to address the medical matters presented by those issues.

As for the issue of entitlement to an initial compensable rating for bilateral hearing loss, the Board notes that there is little in the way of current findings regarding that disability, and the last VA examination for this disability was conducted in October 2009.  A VA examination is required so that the current severity of the Veteran's service-connected hearing loss disability may be determined.

A claim for entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) is part of an increased rating issue when such claim is raised by the record.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  As the Veteran has indicated that he is unemployable due to PTSD, the issue of entitlement to a TDIU is raised by the record and is properly before the Board but must first be adjudicated by the AOJ prior to consideration by the Board.

Accordingly, the case is REMANDED for the following action:

1.  The AOJ should request all VA medical records pertaining to treatment of the Veteran dated since March 21, 2014, and associate them with the record.

2.  The Veteran should be scheduled for the appropriate VA examinations regarding the claims of entitlement to service connection for skin disability, heart disability, and right knee disability.  The examiners must be provided the Veteran's claims file for review, and any indicated studies must be completed.  

Following examination of the Veteran and review of the claims file, the examiner(s) should identify whether the Veteran the Veteran currently has or has had during the pendency of the appeal a skin disability, a heart disability, and a right knee disability.  For each disability identified by the examiner(s), the examiner(s) should provide an opinion as to whether it is at least as likely as not (50 percent or greater) that that the identified skin, heart, and/or right knee disability had its onset in service or within one year of service discharge, or is etiologically related to his active service. 

The Veteran's lay statements about the onset and symptomatology of his conditions should be considered by the examiner(s)  in rendering any opinions.

A rationale for all requested opinions shall be provided.  If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so.

3.  Schedule the Veteran for the appropriate VA examination to determine the current severity of his service-connected hearing loss disability.  The claims file must be made available to the examiner.  Any indicated diagnostic tests and studies must be accomplished.

4. Provide the Veteran with an appropriate VA examination with respect to his TDIU claim.  The examiner must 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 render him unable to secure or follow a substantially gainful occupation.  In offering this impression, the examiner must acknowledge and take into account the Veteran's education, training, and work history.  All findings and conclusions should be set forth in a legible report, accompanied by a rationale.

5.  The AOJ should then, based on all the evidence of record, adjudicate the issues on appeal.  If any of the benefits sought are not granted, a supplemental statement of the case should be issued, the appellant and his representative should be afforded the appropriate period to respond, and the case should thereafter be returned to the Board, as appropriate.

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 2014).




______________________________________________
GAYLE E. STROMMEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs