Citation Nr: 1550935 Decision Date: 12/04/15 Archive Date: 12/16/15 DOCKET NO. 14-16 717 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to an initial rating in excess of 50 percent for PTSD. ATTORNEY FOR THE BOARD J. Rothstein, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1967 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board notes that the procedural history of the Veteran's underlying claim of service connection for PTSD, which was filed on December 30, 2004, was a lengthy one, involving multiple actions by the Board and an appeal to and remand from the United States Court of Appeals for Veterans Claims (Court). Ultimately, service connection was granted by the Board in July 2012. The RO effectuated that grant via the August 2012 rating decision and assigned a rating of 10 percent, effective from December 30, 2004. The Veteran disagreed with the assigned disability rating, and the Board is now tasked with determining the appropriate rating(s) for the Veteran's PTSD from December 2004 forward. As will be discussed in further detail below, the Board finds that the evidence currently of record is sufficient to award the Veteran an initial rating of 50 percent. However, the question of whether a rating is excess of 50 percent is warranted at any point requires further development. In this regard, the Board points that by the Veteran's own admission, he underwent no PTSD-related treatment from May 2005 to December 2011. Beginning in December 2011, the Veteran began regular treatment with a private clinician and the evidence of record suggests the existence of outstanding records that may be relevant to the question of whether a rating in excess of 50 percent is warranted. In light of this evidence, the Board finds it appropriate to herein award an initial disability rating of 50 percent and remand the issue of entitlement to a rating in excess of 50 percent for further development. The matter has been bifurcated accordingly. See Locklear v. Shinseki, 24 Vet. App. 311 (2011) (bifurcation of a claim generally is within VA's discretion). The issue of entitlement to an initial rating in excess of 50 percent for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT When reasonable doubt is resolved in favor of the Veteran, the evidence shows that the Veteran's PTSD is manifested by symptomatology resulting in a moderate level of overall social and occupational impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for an initial 50 percent rating for PTSD are met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159, impose obligations on VA to provide claimants with notice and assistance. In light of the fact that the Board is granting an initial rating of 50 percent for PTSD and is remanding the issue of entitlement to an initial rating in excess of 50 percent, the Board finds that further notification and development actions under the VCAA would not result in a more favorable outcome or be of assistance to the instant discussion. II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. See 38 C.F.R. Part 4. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The veteran's entire history is reviewed when making disability evaluations. See generally Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); 38 C.F.R. § 4.1. If two evaluations are potentially applicable, 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. The Veteran's PTSD is currently evaluated as 10 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. Under DC 9411, a 10 percent rating is warranted where the disorder is manifested by 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, DC 9411. A 30 percent rating is warranted where the disorder is manifested by 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 warranted where the disorder is manifested by 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. When evaluating a mental disorder, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). Also, the rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. Moreover, 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. See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). Accordingly, VA must consider all symptoms of a veteran's condition that affect the level of occupational and social impairment. See id. Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score. The GAF score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994) (DSM-IV). GAF scores ranging from 31 to 40 reflect some 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 adult avoids friends, neglects family, and is unable to work). Id. GAF scores ranging 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). Id. GAF scores ranging from 51 to 60 reflect 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). Id. The GAF score assigned, however, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue. Rather, the GAF score must be considered in light of the actual symptoms of the veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations that define the term "psychosis" to remove outdated references to the Diagnostic and Statistical Manual of Mental Disorders (DSM) and replace them with references to the recently updated Fifth Edition (DSM-5). The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the AOJ on or after August 4, 2014. As the RO certified the Veteran's appeal to the Board in January 2015, the DSM-5 applies. However, the Board will still consider previously assigned GAF scores in addressing the instant appeal. A review of the medical evidence of record demonstrates that the Veteran was first treated for and diagnosed with PTSD in April 2005 by Dr. H., at which time he presented with complaints of the following: nightmares at least one to two times per month, flashbacks at least once a month, averaging four to five hours of sleep per night, waking four times a night, and night sweats two to three times per month. In addition, the Veteran reported the following: having intrusive thoughts; startling easily; being hypervigilant; not being able to tolerate anyone behind him; feeling depressed 35 percent of the time with low energy and little interest in things; feeling like crying many times per week; having crying spells one to two times per week; hearing his name called once per month; hearing noises in the house once per month; and seeing shadows moving out of the corners of his eyes once per week. Moreover, he stated that he socializes infrequently and with family only. He also reported that his recent memory is severely impaired, so much so that he cannot remember what he reads and gets lost when traveling. Furthermore, he endorsed having sadness out of the blue, anger out of the blue, fear out of the blue, mood swings, worry, racing thoughts, and jumping thoughts, as well as feeling agitated and angry. Feelings of hopelessness and helplessness as well as suicidal ideation were denied. Dr. H. opined that the Veteran was "moderately compromised in his ability to sustain social relationships and also mildy compromised in his ability to sustain work relationships" as a result of his PTSD. A GAF score of 50 was assigned. In May 2005, the Veteran presented for a follow-up appointment with Dr. H., at which time he reported the following: having nightmares three times per month; waking in a panic for thirty seconds; having flashbacks once a month; having panic attacks once a month lasting 30 seconds at a time; averaging three to four hours of sleep per night; waking three times a night; having night sweats once a week; startling easily; being hypervigilant; having intrusive thoughts; and not being able to tolerate anyone behind him. He endorsed feeling anger out of the blue, sadness out of the blue, fear out of the blue, depression with low energy and little interest in things, agitation, anger, helplessness, hopelessness, and worry. He also endorsed having mood swings, racing thoughts, jumping thoughts, crying spells, impaired memory, socializing only with family, and auditory and visual hallucinations. He denied suicidal ideation. Following the May 2005 appointment with Dr. H., the Veteran was not treated again for his PTSD until December 2011, at which time he returned to Dr. H. for treatment. The Veteran reported the following: having nightmares one to times per week with accompanying night sweats; having flashbacks often; having panic attacks two to three times per week; averaging four to five hours of sleep per night; waking two to three times a night; having intrusive thoughts; startling easily; being hypervigilant; not being able to tolerate anyone behind him; feeling depressed 80 percent of the time with low energy and little interest in things; having crying spells 25 percent of the time; feeling angered and agitated easily; feeling helpless and suicidal at times; having anger, sadness, and fear come upon him without his understanding why 60 percent of the time; having difficulty concentrating, making decisions, learning new information, and processing emotions in context; not socializing at all; having auditory hallucinations two to three times per week; and having visual hallucinations several times a week. Additionally, the Veteran stated that his recent memory is severely impaired, so he cannot remember what he reads and he gets lost traveling, and that his working memory is 100 percent impaired. He also endorsed having mood swings, worry, as well as racing and jumping thoughts. Dr. H. opined that because of the Veteran's PTSD "[he] is severely compromised in his ability to sustain social relationships and he is severely compromised in his ability to sustain work relationships." A GAF score of 40 was assigned. The Veteran was afforded a VA PTSD examination in January 2012. However, due to symptom validity self-report problems, the results of the examination were indeterminate. As a result, no diagnosis or GAF score was provided. The Veteran returned to Dr. H. in February 2012 for treatment. At that time, he reported that with the aid of the medication currently prescribed to him, he was experiencing only occasional nightmares and few panic attacks and was averaging six to seven hours of sleep per night. He still reported having flashbacks and auditory and visual hallucinations one to two times per week. He reported no changes regarding socializing, memory, energy level, depression, and mood swings. He continued to endorse the following: feeling sadness, fear, and anger out of the blue; feeling agitated/anger and worry; and having racing and jumping thoughts. Also, he endorsed, mildly, having crying spells and suicidal thoughts. Dr. H. assigned the Veteran a GAF score of 40. The Veteran was treated again by Dr. H. in April 2012, at which time he reported the following: having nightmares sporadically; having flashbacks often with reminders; having panic attacks occasionally; averaging six to seven hours of sleep per night with medication; having intrusive thoughts; startling easily; being hypervigilant; not being able to tolerate anyone behind him; socializing not at all; having anger, sadness, and fear come upon him without his understanding why 60 percent of the time; having difficulty concentrating, making decisions, learning new information, and processing emotions in context; feeling depressed 50 percent of the time with low energy and little interest in things; having crying spells 25 percent of the time; feeling angered and agitated easily; and feeling helpless and suicidal at times. In addition, the Veteran stated that his recent memory is severely impaired, so he cannot remember what he reads and he gets lost traveling, and that his working memory is 100 percent impaired. He also endorsed having mood swings, worry, racing and jumping thoughts, and occasional auditory and visual hallucinations. Dr. H. concluded that due to the Veteran's PTSD "[he] is severely compromised in his ability to sustain social relationships and he is severely compromised in his ability to sustain work relationships." Also, he assigned the Veteran a GAF score of 45. The Veteran was again treated by Dr. H. in July 2012. No changes were noted. The record indicates that the Veteran continued to receive treatment from Dr. H. In October 2013, the Veteran was afforded another VA PTSD examination, the report of which is contained within his virtual VA file. The examiner noted that the Veteran presented with the following psychiatric symptoms: social avoidance and "emotionally distancing" himself from friends and family, frequent nightmares (reportedly all involving military content/trauma), hypervigilance with presence of visual illusion perception in periphery, heightened startle reaction, avoidance of situations/cues that prompt thoughts of military service/trauma, attention/concentration problems, and depressed mood and heightened general anxiety. The Veteran also indicated difficulty falling or staying asleep as well as irritability or outbursts of anger. While the Veteran denied any active suicidal ideation and/or intent, he endorsed passive suicidal ideation. He denied any visual and/or auditory hallucinations. The examiner concluded that the Veteran's "symptom complaints and behavioral presentation were supportive of the presence of psychiatric symptoms consistent with a diagnosis of PTSD with moderate symptom severity and mild occupational/social functional impact (e.g., veteran is fully employed with longterm, stable work history with same company since 1984; veteran has stable marital relationship x 40 years)." Although the examiner noted that the Veteran continues to be married to his first and only wife, with whom he has been married for 40 plus years, the examiner noted that the Veteran admitted to a "growing 'emotional distance' between the two that has negatively affected the couple's level of intimacy." In so admitting, the Veteran also stated that he continues to self-isolate from others, including his wife and other family members. In addition, the examiner summarized the Veteran's level of occupational and social impairment as "occupational and social impairment with reduced reliability and productivity." The examiner assigned the Veteran a GAF score of 55. While the Board notes that the examiner also provided an additional diagnosis of cognitive disorder, not otherwise specified (NOS) in connection with the Veteran's complaints of gradual worsening in general memory and executive abilities, the examiner stated that all symptoms reported by the Veteran "with the exception of mild memory impairment and mild impairment language fluency and complex attention are reasonably and solely attributable to the [V]eteran's service-connected PTSD condition." The examiner also added that "[s]imple attention/concentration issues are shared between the PTSD and Cognitive Disorder, NOS (not reasonably attributable to PTSD) conditions and cannot be distangled without resorting to speculation." Concerning the examiner's summary of the Veteran's level of occupational and social impairment, the Board notes that this assessment was based on all mental diagnoses, i.e., PTSD and Cognitive Disorder. In this regard, the examiner stated that the Veteran's "PTSD symptom severity is moderate and the interpersonal/social and occupational impact is reasonably mild and separate from what is more likely greater functional disabilities in social/occupational domains secondary to his Cognitive Disorder, NOS condition (e.g., getting lost on work-related trucking routes)." However, the examiner also conceded that "[w]hile a greater weight of problems can be reasonably attributed to the Cognitive Disorder, NOS condition relative to his PTSD condition, firm percentages of attribution between conditions to social/occupational functioning are not possible without resorting to mere speculation." In September 2014, the Veteran was seen by Dr. C., presenting with complaints of nightmares, difficulty sleeping though the night, and difficulty concentrating. The Veteran reported that he has developed a fear of sleeping in the same bed as his wife stemming from his concern that he may hurt her during one of his nightmares. In diagnosing the Veteran with PTSD and Depressive Disorder with symptoms associated with his military service, Dr. C. noted that the Veteran "shows symptoms of isolation, hypervigilance, and periods of being emotionally explosive" and "shows occupational and social impairment, with deficiencies in areas, such as work, family relations, and judgment due to depression . . . affecting his ability to function independently, appropriately and effectively." Dr. C. further stated that the Veteran "shows difficulty in adapting to stressful circumstances, and an inability to establish and maintain effective relationships." A GAF score of 48 was assigned. In this case, the Veteran seeks a disability rating in excess of the currently assigned 10 percent for his service-connected PTSD. Given the evidence contained in the Veteran's private treatment records, private medical opinions, and the 2013 VA PTSD examination report, and in consideration of the benefit-of-the-doubt doctrine, the Board finds that the Veteran's PTSD more nearly approximates the criteria required for at least a 50 percent rating. In this regard, the Board points out that in evaluating the severity of the Veteran's PTSD, "it is not the symptoms, but their effects, that determine the level of impairment." Mauerhan, 16 Vet. App. at 443. Indeed, the evidence of record shows that the Veteran consistently experienced symptoms suggestive of the 50 percent rating criteria such as flattened affect, impairment of short- and long-term memory, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The Veteran also consistently endorsed having nightmares, flashbacks, difficulty staying asleep, depression, crying spells, mood swings, worry, agitation, anger, sadness out of the blue, anger out of the blue, fear out of the blue, and racing and jumping thoughts. Notably, in consideration of the Veteran's reported symptoms, the Veteran was assigned GAF scores ranging from 40 to 55 during the relevant time period. The Board finds highly probative the fact that the Veteran's private physicians and the 2013 VA examiner assigned to the Veteran GAF scores that reflected their determination that the Veteran's PTSD symptoms were at least moderate in degree. Accordingly, the Board finds that at least an initial 50 percent rating for PTSD is warranted. Hence, the appeal is granted to this extent at this time. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.130, DC 9411. ORDER Entitlement to an initial disability rating of 50 percent for PTSD is granted. REMAND As discussed in the introduction, the Board finds that further development is required prior to the adjudication of whether an initial rating in excess of 50 percent for PTSD is warranted. VA's duty to assist claimants in obtaining evidence necessary to substantiate their claims also includes making reasonable efforts to obtain relevant records (including private records), as long as the claimant adequately identifies those records and authorizes VA to obtain them. 38 U.S.C.A. § 5103A(b)(1); Loving v. Nicholson, 19 Vet. App. 96, 101-02 (2005). In September 2012, the Veteran indicated ongoing private medical treatment from Dr. H. and requested the RO to obtain records of treatment in connection with his PTSD claim. See Veteran's September 2012 NOD. The record indicates that these records were not sought, and the private medical records from Dr. H. stop after May 2012. Moreover, in the October 2013 VA PTSD examination, the examiner noted that the Veteran "does not receive psychiatric care through the VA system" and that "[h]e is being followed on an outpatient basis for psychiatric care by [Dr. H.] in Goldsboro, NC." In addition, in September 2014, the Veteran submitted a medical opinion from Dr. C., demonstrating that the Veteran has received further treatment for his PTSD from another private physician and that additional relevant medical records pertaining to his claim exist. Accordingly, because there exists records that may contain evidence to support the assignment of a rating in excess of 50 percent, a remand to attempt to obtain these records is necessary. See Golz v. Shinseki, 590 F.3d 1317, 1323 (2010). Also, a veteran must be afforded a thorough and contemporaneous examination when the record does not sufficiently reveal the current state of his disability. Hart v. Mansfield, 21 Vet. App. 505, 508 (2007). The record will be considered inadequate and a contemporaneous examination is needed when there is evidence of a possible increase in disability since the last examination. See id. Here, a review of the medical evidence of record and the indication of ongoing medical treatment for the Veteran's PTSD suggests that there may be a worsening of the Veteran's PTSD, such that a new examination is warranted. In particular, Dr. C. assigned the Veteran a GAF score of 48 in September 2014, whereas a VA examiner in October 2013 assigned the Veteran a GAF score of 55 suggesting that the Veteran's service-connected PTSD may have worsened since his most recent VA examination. Therefore, on remand, the Veteran should be afforded a new VA examination to assess the current severity of his disability. Accordingly, the case is REMANDED to the AOJ for the following action: 1. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for PTSD since service. Attempt to obtain copies of pertinent treatment records identified by the Veteran that have not been previously secured. Specifically request that the Veteran complete authorizations for VA to obtain all records of his treatment for PTSD from Dr. H. and Dr. C., and any other sufficiently identified private treatment provider from whom records have not already been obtained. If records are unavailable from any sources, a negative reply must be requested. All responses received should be associated with the claims file. If any records sought are determined to be unavailable, or a negative response is received, the AOJ should make a formal finding of unavailability, and the Veteran must be notified of that fact pursuant to 38 C.F.R. § 3.159(e). 2. Then, schedule the Veteran for a VA examination in connection with his claim for an initial rating in excess of 50 percent for his service-connected PTSD. The claims folder, and a copy of this remand, must be provided to and reviewed by the examiner as part of the examination. The examiner should make all findings necessary to apply the rating criteria, paying particular attention to assessing the severity of any PTSD symptoms and providing comment on the Veteran's level of occupational and social impairment caused by any PTSD symptoms. The examiner should review any VA and private treatment records, the January 2012 and October 2013 VA examination reports, the April 2005, December 2011, and May 2012 private medical opinions from Dr. H., the September 2014 medical opinion from Dr. C., and the lay evidence of record regarding the severity of the Veteran's PTSD and provide an assessment of how the Veteran's PTSD symptoms have affected his occupational and social functioning. To the extent possible, the examiner should provide an assessment of the severity of the Veteran's PTSD without regard to the ameliorative effects of medication. The evidence also reflects diagnoses of Cognitive Disorder, NOS and Depressive Disorder. The examiner should consider whether any diagnosed psychiatric disorder other than PTSD is either related to the Veteran's military service or to his PTSD and, to the extent possible, delineate what symptoms are attributable to each diagnosed psychiatric disability. If the examiner is unable to distinguish the symptoms attributable to each diagnosed psychiatric disability, the examiner should so state. Likewise, should the examiner indicate a level of occupational and social impairment of the Veteran with regard to all psychiatric diagnoses, the examiner should, to the extent possible, differentiate what portion of the occupational and social impairment indicated is caused by each psychiatric disorder. If the examiner is unable to make such a differentiation, the examiner should so state. 3. After undertaking any other development deemed appropriate, re-adjudicate the issue on appeal, to include entitlement to a total disability rating based on individual unemployability (if raised by the record), and furnish a Supplemental Statement of the Case, as appropriate. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs