Citation Nr: 1554400	
Decision Date: 12/31/15    Archive Date: 01/07/16

DOCKET NO.  13-03 665A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUES

1. Entitlement to a disability rating in excess of 40 percent for peripheral vascular disease, left leg, status-post femoral bypass surgery.

2. Entitlement to a disability rating in excess of 70 percent for posttraumatic stress disorder with depressive disorder not otherwise specified.

3. Entitlement to a disability rating in excess of 20 percent for type II diabetes mellitus with erectile dysfunction, diabetic retinopathy, diabetic nephropathy, and hypertension.

4. Entitlement to a disability rating in excess of 10 percent for peripheral neuropathy, right lower extremity.

5. Entitlement to a disability rating in excess of 20 percent for peripheral neuropathy, left lower extremity.

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

REPRESENTATION

Appellant represented by:	Christopher Loiacono, Agent


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

A. Dean, Associate Counsel


INTRODUCTION

The Veteran had active military service from July 1967 to July 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon.

The Veteran testified before the undersigned at a June 2015 Travel Board hearing. The undersigned noted the issues on appeal and engaged in a colloquy with the Veteran toward substantiation of the claims. See Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A transcript of the hearing is in the claims file.

This appeal was processed electronically using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Any future review of this Veteran's case should consider the existence of this electronic record.

The issues of higher disability ratings for left leg peripheral vascular disease, diabetes mellitus, and peripheral neuropathy of the bilateral lower extremities are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. The Veteran's PTSD with depressive disorder has been manifest by total occupational and social impairment.

2. The claim for TDIU is moot.


CONCLUSIONS OF LAW

1. The criteria for a disability rating of 100 percent for PTSD with depressive disorder are met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.130, Diagnostic Codes (DCs) 9411, 9434, 9435 (2015).

2. The claim for TDIU is moot. 38 U.S.C.A. §§ 1155(West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA has satisfied its duties under the Veteran's Claims Assistance Act of 2000 to notify and assist. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2015).

A September 2010 letter notified the Veteran that he needed to provide, or request VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of his PTSD. Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 97-103 (2010); Vazquez-Flores v. Peake, 22 Vet. App. 37, 43 (2008), overruled in part sub. nom. Vazquez-Flores/Wilson v. Shinseki, 580 F.3d 1270, 1280-81 (Fed. Cir. 2009). The letter also notified the Veteran of his and VA's respective responsibilities for obtaining relevant records and other evidence in support of his claim and how VA rates a disability and determines an effective date. Thus, the duty to notify is satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).

VA's duty to assist under the VCAA includes helping claimants to obtain service treatment records (STRs) and other pertinent records. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's STRs, VA medical records (VAMRs), and private medical records (PMRs). The duty to obtain relevant records is satisfied. See 38 C.F.R. § 3.159(c).

VA's duty to assist also includes providing a medical examination and/or obtaining a medical opinion when necessary to make a decision on the claim, as defined by law. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The VA examination and/or opinion must be adequate to decide the claim. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Monzingo v Shinseki, 26 Vet. App. 97, 107 (2012). 

The October 2010 and June 2012 VA examiners reviewed the Veteran's claims file, interviewed the Veteran, and described his mental health history in sufficient detail to enable the Board to make a fully informed decision. See Monzingo, 26 Vet. App. at 107 (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion"). The VA examinations are adequate to decide the Veteran's claim.

VA has satisfied its duties to notify and assist and the Board may proceed with appellate review.


Merits of the Claim

VA has adopted a Schedule for Rating Disabilities (Schedule) to evaluate service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R., Part IV. Disability evaluations assess the ability of the body as a whole, the psyche, or a body system or organ to function under the ordinary conditions of daily life, to include employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Id.

The Schedule assigns DCs to individual disabilities. DCs provide rating criteria specific to a particular disability. If two DCs are applicable to the same disability, the DC that allows for the higher disability rating applies. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the claimant. 38 C.F.R. § 4.3. The Schedule recognizes that a single disability may result from more than one distinct injury or disease; however, rating the same disability or its manifestation(s) under different DCs - a practice known as pyramiding - is prohibited. Id.; see 38 C.F.R. § 4.14.

The Veteran's PTSD with depressive disorder has been evaluated as 70 percent disabling under the General Rating Formula for Mental Disorders, which assigns ratings based on particular symptoms and the resulting functional impairment(s). See 38 C.F.R § 4.130, DC 9411, 9434. The General Rating Formula is as follows:

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 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.

A 70 percent rating is assigned 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 work like setting); inability to establish and maintain effective relationships.

The symptoms associated with each rating in 38 C.F.R. § 4.130 are not intended to constitute an exhaustive list; rather, they serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Thus, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the DC. See id. VA must consider all symptoms of a claimant's disorder that affect his or her occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 443. If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the DC, the appropriate, equivalent rating will be assigned. Id. In this regard, VA shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126. Although VA considers the level of social impairment, it does not assign an evaluation based solely on social impairment. Id.

The Veteran's records include evaluations based on the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV), which includes Global Assessment Functioning (GAF) scores. These are based on a scale set forth in the DSM-IV 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); DSM-IV. According to DSM-IV, a score of 61-70 indicates "[s]ome mild symptoms (e.g., depressed mood and mild insomnia OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships." A score of 51-60 indicates "[m]oderate 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. A score of 41-50 indicates "[s]erious 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. A score of 31-40 indicates "[s]ome 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)." Id. The Court has found that certain scores may demonstrate a specific level of impairment. See Richard, 8 Vet. App. at 267 and Bowling v. Principi, 15 Vet. App. 1, 14-15 (2001) (observing that a GAF score of 50 indicates serious impairment).

Although an examiner's classification of the level of psychiatric impairment reflected in the assigned GAF score is probative evidence of the degree of disability, such a score is not determinative of the rating assigned by VA in evaluating a psychiatric disorder under the rating criteria. See 38 C.F.R. §§ 4.2, 4.126 (2014); VAOPGCPREC 10-95 (March 31, 1995). Rather, VA must take into account all of the claimant's symptoms and resulting functional impairment as shown by the evidence of record in assigning the appropriate rating, and will not rely solely on the examiner's assessment of the level of disability at the moment of examination. See 38 C.F.R. § 4.126.

In October 2010, a VA examiner noted the Veteran complained of daily intrusive recollections and occasional nightmares of Vietnam, hypervigilance, exaggerated startle response, anger control problems, chronic sleep disturbance, and lack of interest in pleasurable activities. The Veteran stated he managed his anger by isolating himself at home. He further reported that he had a medical marijuana card for chronic pain symptoms and smoked marijuana three times a day, and that he drank two or three beers a week. He said he kept busy by caring for his nine cats and sitting and looking at the river. While he reported having two friends, he said he did not go out to see them. He stated he had a good relationship with his wife and children, but also reported conflict with his daughter. The examiner noted he met the criteria for moderate-to-severe PTSD with secondary symptoms of depression, which caused moderate-to-severe social and emotional impairment and minimal occupational impairment. A GAF score of 50-55 was assigned.

In June 2012, the Veteran told a VA examiner he had periodic nightmares and intrusive thoughts of combat, and he avoided talking about and being reminded of combat. He reported disrupted sleep, hypervigilance, irritability, and feeling distant from others. He stated his marriage was good, and noted a history of getting into fights, most recently seven or eight years prior. He reported drinking several times a week and using medical marijuana two or three times per day. The examiner noted he had occupational and social impairment with deficiencies in most areas due to symptoms of anxiety, suspiciousness, chronic sleep impairment, impaired judgment, difficulty in establishing and maintaining effective work and social relationships, and impaired impulse control. A GAF score of 58 was assigned.

In August 2013, a private psychologist noted that while the Veteran described his marriage as positive, he was concerned with episodes of anger that sometimes targeted his wife. He further noted he had limited contact and poor relationships with the children from his first marriage. The psychologist noted that the Veteran had significant symptoms of PTSD and a severe anxiety disorder, evident in symptoms of hypervigilance, perception of threat and intense emotional reactivity in a range of normal situations, with recurrent physical altercations with others. The psychologist reported that the Veteran responded to intense emotions by self-medicating, and he had continuous symptoms of trauma, including heightened startle responses, occasional flashbacks, constant vigilance, and persistent nightmares. The psychologist noted he was recently involved in a fistfight with his daughter's boyfriend, and he had a history of depression with one suicide attempt. Diagnoses were PTSD, severe recurrent major depressive disorder, and provisional intermittent explosive disorder, and a GAF score of 42 was assigned.

In February 2014, the Veteran reported to the emergency department with an episode of anxiety. He described shortness of breath, feeling very depressed, and having fleeting thoughts of shooting himself. February 2014 PMRs.

During his June 2015 hearing, the Veteran testified that he had symptoms of rage, including road rage and some physical and verbal altercations, and feelings of constant vigilance and depression with suicidal thoughts.

Although most of the Veteran's symptoms do not approximate particulars for a rating in excess of 70 percent, he has reported significant problems with anger and depression, as well as some problems with impulse control.

Consequently, taking into consideration all of his mental health symptoms, the Veteran's PTSD with depressive disorder warrants a disability rating of 100 percent for the entire appellate period. 

Extraschedular Consideration and Entitlement to TDIU

The Board has also considered whether the evaluation of the Veteran's service-connected PTSD with depressive disorder should be referred for extraschedular consideration. See 38 C.F.R. § 3.321(b) (2015); Thun v. Peake, 22 Vet. App. 111, 114 (2008). Because the Veteran's claim have been granted in full, the question of referral for an extraschedular rating is moot.

The Veteran contends he is entitled to TDIU; however, the Board has granted a 100 percent schedular rating for his PTSD, therefore further consideration of a TDIU is not warranted. Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding request for TDIU moot where 100 percent schedular rating was awarded for the same period).


ORDER

A disability rating of 100 percent for PTSD with depressive disorder is granted.

Entitlement to TDIU is moot.


REMAND

New examinations are warranted to assess the severity of the Veteran's service-connected left leg peripheral vascular disease, diabetes mellitus, and peripheral neuropathy of the bilateral lower extremities.

Accordingly, the case is REMANDED for the following action:

1. Request that the Veteran identify all relevant private medical records (PMRs) and other evidence that is not in the claims file which he wishes to submit. Obtain all records referred to by the Veteran.

2. Obtain any outstanding VA medical treatment records (VAMRs) from April 2009 forward and associate them with the claims file.

3. After the passage of a reasonable amount of time or upon the Veteran's response, return the claims file to the examiner who performed the October 2009 VA examination for a new medical examination of the Veteran's peripheral vascular disease, left leg, status-post femoral bypass surgery. If the examiner is not available, a different examiner may conduct the examination. The entire claims file, to include a copy of this REMAND, must be made available to the VA examiner, who must note its review. The following considerations must govern the examination:

a. The VA examiner must conduct a complete examination and provide a comprehensive assessment of the severity of the symptoms associated with the Veteran's peripheral vascular disease, left leg, status-post femoral bypass surgery.

b. The examiner has an independent responsibility to review the entire record for pertinent evidence, INCLUDING ANY PERTINENT EVIDENCE ADDED TO THE RECORD AS A RESULT OF THIS REMAND. The examiner's attention is called to:

October 2008 Private Medical Narrative Report.

November 2008 Veteran's Statement, that his left foot is in "constant severe pain with a loss of feeling in most of [the] foot."

March 2009 VA Examination Report.

April 2009 VA medical records.

October 2009 VA Examination Report.

November 2009 Private Lower Extremity Arterial Duplex Scan.

April 2011 Private Medical Narrative Report.

June 2015 Hearing Transcript.

4. Then return the claims file to the VA examiner who performed the June 2012 diabetes examination for a new examination with opinion as to the severity of the Veteran's diabetes mellitus with erectile dysfunction, diabetic retinopathy, diabetic nephropathy, hypertension, and bilateral lower extremity peripheral neuropathy. If the examiner is not available, a different examiner may conduct the examination. The entire claims file, to include a copy of this REMAND, must be made available to the VA examiner, who must note its review. The following considerations must govern the examination:

a. The VA examiner must provide a comprehensive assessment of the severity of the symptoms associated with the Veteran's service-connected diabetes mellitus with erectile dysfunction, diabetic retinopathy, diabetic nephropathy, and hypertension.

b. The examiner should specify whether the Veteran requires insulin (and if so, how frequently), restricted diet, oral hypoglycemics, and/or regulation of activities. The examiner should also note whether the Veteran has had ketoacidosis or hypoglycemic reactions requiring hospitalization or visits to a diabetic care provider, and if so, the frequency of the hospitalizations or visits; as well as any progressive loss of weight and strength.

c. The examiner should identify the nature, frequency, and severity of the symptoms associated with the Veteran's bilateral lower extremity peripheral neuropathy. Specifically, the examiner must determine whether the Veteran's peripheral neuropathy results in complete or incomplete paralysis of the right and/or left low extremity. If the examiner finds that the paralysis is incomplete, he or she must opine as to whether the Veteran's symptoms are mild, moderate, moderately severe, or severe with marked muscular atrophy.

d. The examiner has an independent responsibility to review the entire record for pertinent evidence. IN ADDITION TO ANY RECORDS THAT ARE GENERATED AS A RESULT OF THIS REMAND, the examiner's attention is called to:

January 2009 VA Peripheral Nerves Examination Report.

September 2010 VA Diabetes Mellitus Examination Report.

June 2012 VA Diabetes Mellitus Examination Report.
June 2012 VA Eye Conditions Examination Report.

June 2015 Hearing Transcript.

4. Then, review the medical examination reports to ensure that they adequately respond to the above instructions, including providing adequate explanations in support of the requested opinions. If any report is deficient in this regard, return the case to the appropriate VA examiner for further review and discussion.

5. After the above development, and any other development that may be warranted based on additional information or evidence received, is completed, readjudicate the issues of entitlement to higher disability ratings for left leg peripheral vascular disease, diabetes mellitus, and peripheral neuropathy of the bilateral lower extremities. If the benefits sought are not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded a reasonable opportunity to respond to the SSOC before the record is returned to the Board for further review.

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).



______________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs