Citation Nr: 1637610 Decision Date: 09/26/16 Archive Date: 10/07/16 DOCKET NO. 12-27 035 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to an initial evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD) prior to March 1, 2015, and to a rating in excess of 30 percent thereafter. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. McCabe, Associate Counsel INTRODUCTION The Veteran had active service in the United States Marine Corps from September 2004 to September 2008. 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 Louisville, Kentucky. A description of the procedural history is necessary to clarify the issue on appeal and the actions taken herein. In this regard, a July 2010 rating decision initially granted service connection for PTSD and assigned a 50 percent rating, effective October 22, 2009, the date of receipt of the Veteran's claim for service connection for a psychiatric disability. In November 2010, the Veteran requested reconsideration of the RO's July 2010 decision, asserting that his PTSD was more severe than reflected in the initial rating assigned. See November 2010 Statement in Support of Claim (VA Form 21-4138). In January 2011, the RO granted an increased 70 percent evaluation for the Veteran's PTSD, effective from October 22, 2009. See January 2011 Rating Decision. That same month, the Veteran filed an application for a TDIU, which the RO treated as also including a claim for an increase for his service-connected PTSD. See January 2011 Veterans Application for Increased Compensation Based on Unemployability (VA 21-8940); February 2011 Notification Letter. In May 2011, the RO denied a rating in excess of 70 percent for the PTSD and denied the Veteran's application for a TDIU. See May 2011 Rating Decision. The Veteran disagreed with the RO's May 2011 determination. See June 2011 Notice of Disagreement. See also 38 C.F.R. §§ 20.200, 20.201, 20.302 (2016) (setting forth requirements and timeframe for initiating an appeal). A September 2012 statement of the case (SOC) continued to deny a rating in excess of 70 percent for the service-connected PTSD and a TDIU, and the Veteran perfected his appeal the following month. See October 2012 Substantive Appeal (VA Form 9). See also 38 C.F.R. §§ 20.200, 20.202, 20.302 (2016) (setting forth requirements and time limits for perfecting an appeal). Accordingly, based on the foregoing, the Board finds that the Veteran has been actively pursuing his claim for higher ratings for his psychiatric disorder since the RO's initial grant of service connection in July 2010. In this regard, the Board notes that a claim becomes final only after the period for appeal has run. See 38 C.F.R. § 20.302 (2016). As such, the Veteran's interim submissions before finality attached for the rating decisions issued in July 2010 and January 2011 must be considered by VA as part of the Veteran's underlying claim. See 38 C.F.R. § 3.156(b) (2016); Charles v. Shinseki, 587 F.3d 1318, 1323 (Fed. Cir. 2009); Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007); see also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). The issue before the Board has therefore been characterized as entitlement to a higher initial rating, as reflected on the title page. Additionally, the Board notes that during the pendency of the appeal, the RO reduced the Veteran's rating for his service-connected psychiatric disability from 70 percent to 30 percent, effective from March 1, 2015, forward. See December 2013 Rating Decision and Notification Letter (proposing to reduce the Veteran's rating for his PTSD from 70 percent disabling to 10 percent); February 2015 Rating Decision (effectuating the proposed rating reduction and assigning a 30 percent rating effective from March 1, 2015, forward for "unspecified anxiety disorder"). At the time of the February 2015 rating decision, the Veteran had already perfected his appeal as to the assigned rating for his psychiatric disability. Accordingly, the issue currently before the Board has also been characterized to reflect the Veteran's current staged rating. This appeal was processed using the Veterans Benefits Management System (VBMS) electronic claims processing system. Moreover, a review of the Virtual VA paperless claims processing system reveals additional records pertinent to the present appeal. Accordingly, any future consideration of this case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Unfortunately, a remand is required in this case. While the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claims so that the Veteran is afforded every possible consideration. 38 U.S.C.A. § 5103A (a) (West 2014); 38 C.F.R. § 3.159 (c), (d) (2016). Initially, the Board notes that the Veteran has undergone multiple VA psychological evaluations throughout the appellate period, including in February 2010, March 2011, April 2011, August 2011, and December 2013. The February 2010 VA examiner diagnosed PTSD. See February 2010 VA Compensation and Pension (C & P) Mental Disorders Examination Report (noting the Veteran's treatment for anxiety throughout his active service and providing a diagnosis of PTSD based upon his military experiences). Subsequent examinations in March 2011, April 2011, and August 2011 determined that the Veteran was purposefully exaggerating the existence and/or extent of his psychiatric symptoms and thus found him to be malingering. See March 2011 VA C & P Review Evaluation for PTSD (noting that the examiner was "[u]nable to assess any true psychiatric disorder or functional impairment (including work-related functioning) at this time due to gross over reporting"; but stating that the Veteran's "[c]urrent malingering does not preclude the possibility of a lesser degree of legitimate impairment"); April 2011 VA C & P Mental Disorders Examination Report (reporting an inability to confirm any psychiatric diagnosis or functional impairment due to the Veteran's "gross over-reporting of psychological symptoms and functional impairment"); August 2011 VA PTSD Disability Benefits Questionnaire (DBQ) ("Based on results of this examination it is assessed that [the Veteran] is malingering psychiatric symptoms and functional impairment. This is the third C&P examination in six months that has resulted in a conclusion of malingering. Malingering is defined as the intentional production of false or grossly exaggerated physical or psychological symptoms motivated by external incentives such as avoiding military duty, avoiding work, obtaining financial compensation, etc."). On VA mental health examination in December 2013, the examining VA psychologist noted that the Veteran's previous diagnoses of malingering were based upon "grossly over reported psychological test data" on the Minnesota Multiphasic Personality Inventory test (MMPI2), as well as "inconsistencies in self-reported history and symptoms." See December 2013 VA PTSD DBQ. However, the December 2013 examiner further found that "none of the previous C&P examiners included objective, psychometric assessment of the Veteran's reading levels prior to administering the MMPI-2, or other psychometric instruments on which those conclusions were based." See id. Accordingly, given that the Veteran "disclosed to his therapist that he has experienced reading problems along with memory and concentration deficits," the December 2013 VA examiner performed Wide Range Achievement Test - IV (WRAT-IV) Word Reading and Sentence Comprehension Subtests in order to determine the Veteran's basic reading level. Id. The Veteran's scores on the test reflected that he was "reading below the minimum level required for taking the MMPI2, which precludes use of that instrument in any further assessments pending outcome of a full psychological assessment battery." Id. The December 2013 VA examiner thus indicated that the prior March 2011, April 2011, and August 2011 VA psychological examination reports were not adequate to support an assessment of malingering, and instead diagnosed alcohol use disorder (dependence). The examining psychologist was "not able to confirm or disconfirm any mental disorder due to active alcohol dependence, which is known to present depressive, cognitive, and anxiety symptoms that are often masked as mood or anxiety disorders." Accordingly, the examiner "strongly recommend[ed] that the Veteran attain at least six months sobriety then be reevaluated using reading level appropriate instruments." See id. In an attempt to reconcile the apparently disparate VA examination reports of record, a "Board of Two" VA psychologists performed a review of the evidence and provided an addendum opinion in August 2014. See August 2014 VA C & P Mental Health Addendum. Specifically, the medical board relied upon psychological assessments performed in December 2013 and January 2014 at the Huntington, West Virginia VA Medical Center (VAMC) Huntington VAMC, which "used certain instruments specifically designed to assess for malingering which did not rely on the veteran's ability to read," including the "Miller Forensic Assessment of Symptoms Test (M-FAST) and the Test of Memory Malingering (TOMM)." See August 2014 VA C & P Mental Health Addendum; February 2014 VA Psychological Evaluation Addendum. Based on the results of this testing, the examining VA psychologists found that there was "substantial evidence" of malingering. See August 2014 VA C & P Mental Health Addendum. Nevertheless, the medical board diagnosed the Veteran with "Unspecified Anxiety Disorder" that was likely related to his active service. See id. Despite the conclusions concerning the Veteran's mental health disorder put forth in the August 2014 VA addendum opinion, the Veteran has not, as yet, been afforded the reevaluation following "six months [of] sobriety" that was "strongly recommended" by the December 2013 VA examiner. See December 2013 VA PTSD DBQ. Importantly, the February 2014 report upon which the Board of Two relied was based on mental health evaluation performed when the Veteran "ha[d] been sober for only a few weeks." See February 2014 VA Psychological Evaluation Addendum (noting that "the Veteran reported he has been sober for only a few weeks"; and emphasizing that, "[b]efore further testing is administered, the Veteran should attain at least six months of sobriety, due to the neurobiological impacts of substances on mood and cognitive functioning"). See also August 2014 VA Mental Health Case Manager Note (reflecting that the "Veteran reports he has not used alcohol since December 2013"); Accordingly, in light of the medical evidence indicating that the Veteran's most recent medical evaluations do not provide an accurate disability picture, and because nearly three years have passed since the Veteran was last afforded a VA psychiatric examination, the Board finds that reevaluation is warranted to determine the current nature and severity of his service-connected psychiatric disability. See 38 C.F.R. § 3.327 (a) (2016) (providing that reexaminations will be requested whenever VA needs to determine the current severity of a disability); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). See also Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007), citing Caluza v. Brown, 7 Vet. App. 498, 505-06 (1998) ("Where the record does not adequately reveal the current state of the claimant's disability . . . the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination."); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (wherein the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating). See, too, Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). Additionally, the most recent VA treatment records that have been associated with the claims folder are dated in December 2014. However, the Veteran's representative submitted a statement in July 2016 indicating that the Veteran "continues to seek treatment for his anxiety disorder at Huntington VA Medical Center." See July 2016 Informal Hearing Presentation (in lieu of VA Form 646). See also 38 C.F.R. §§ 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Thus, as the case is being remanded, the Veteran's updated VA treatment records must be obtained. Finally, the Veteran's claim for entitlement to a TDIU is inextricably intertwined with the claim for a higher initial rating for his psychiatric disability, inasmuch as both concern his occupational impairment due to the service-connected psychiatric disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered); Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996) (claims are inextricably intertwined when they have common parameters, such as when the outcome of one may affect the outcome of the other. And to avoid piecemeal adjudication of these types of claims, they should be considered together). Therefore, after the RO has conducted the development on appeal, the issue of TDIU should be readjudicated in light of the additional evidence; and if the claim is not granted, the matter should be returned to the Board. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's outstanding VA treatment records, including those from the Huntington, West Virginia VAMC, dated since December 2014. 2. Thereafter, schedule the Veteran for an appropriate VA examination to determine the nature and current severity of his service-connected psychiatric disability, variously diagnosed as PTSD, alcohol use disorder, and/or Unspecified Anxiety Disorder. The Veteran's claims file, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must reflect that such a review was undertaken. The examination should include any necessary diagnostic testing or evaluation, including a detailed mental status examination and appropriate diagnostic testing of memory impairment. After reviewing the claims file, obtaining a complete history from the Veteran, and conducting any necessary testing and evaluation, the examiner is asked to identify and provide a clear diagnosis of all psychiatric disorders affecting the Veteran, i.e. PTSD, alcohol used disorder, unspecified anxiety disorder, etc. As stated in 38 C.F.R. § 4.13 (2016), the goal of the requested reconciliation of the various diagnoses is to identify and maintain, or, in other words, continue, the diagnosis or etiology upon which service connection for the Veteran's psychiatric disability was initially granted. The examiner should provide additional diagnoses or make a change to a diagnosis where medically justified, with an explanation of the justification. Then, the examiner must identify and describe the symptoms and functional impairment attributable to the diagnoses provided, and must discuss the degree of occupational and social impairment caused by his symptoms, in accordance with the rating criteria specified in VA's General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130 (2016). The examiner should render specific findings with respect to the existence and extent (or frequency, as appropriate) of: memory loss; depressed mood; anxiety; suspiciousness; panic attacks; sleep impairment; impaired judgment, speech, impulse control and/or thought processes; neglect of personal hygiene and appearance; suicidal ideation; and delusions and/or hallucinations. In short, all clinical manifestations of the Veteran's service-connected psychiatric disability should be reported in detail. Preferably, the appropriate Disability Benefits Questionnaire (DBQ) should be used for this purpose. The psychiatrist or psychologist should specifically indicate whether the record reflects any change(s) in the severity of the Veteran's psychiatric disability at any point(s) during the pendency of this appeal (i.e., since October 2009, when the Veteran filed his claim for service connection). If so, the psychiatrist or psychologist is asked to note the approximate date(s) of any such change(s), as well as provide an assessment of the severity of the Veteran's psychiatric disability at each date. In diagnosing and evaluating the Veteran's mental disorder, the examining VA psychiatrist or psychologist must specifically consider and address the following: * The February 2010 VA Compensation and Pension Mental Disorders Examination Report noting the Veteran's treatment for anxiety throughout his active service and providing a diagnosis of PTSD based upon his military experiences; * The March 2011 VA Compensation and Pension Review Evaluation for PTSD noting that the examiner was "[u]nable to assess any true psychiatric disorder or functional impairment (including work-related functioning) at this time due to gross over reporting" but stating that the Veteran's "[c]urrent malingering does not preclude the possibility of a lesser degree of legitimate impairment"; * The April 2011 VA Compensation and Pension Mental Disorders Examination Report reflecting the examiner's inability to confirm any psychiatric diagnosis or functional impairment due to the Veteran's "gross over-reporting of psychological symptoms and functional impairment"; * The August 2011 VA PTSD Disability Benefits Questionnaire noting the Veteran's "intentional production of false or grossly exaggerated physical or psychological symptoms motivated by external incentives such as avoiding military duty, avoiding work, obtaining financial compensation, etc."; * The April 2012 Statement from the Veteran's VA Treatment Provider (On VA Form 21-4138) finding that the Veteran's "Extreme PTSD" has remained consistently severe throughout the entirety of his VA treatment, so since May 2009; * The December 2013 VA PTSD Disability Benefits Questionnaire finding that the prior March 2011, April 2011, and August 2011 VA psychological examination reports were not adequate to support an assessment of malingering, and instead diagnosing "alcohol use disorder (dependence)"; * The February 2014 VA Psychological Evaluation Addendum discussing the results of testing performed in December 2013 and January 2014, including the Miller Forensic Assessment of Symptoms Test (M-FAST) and the Test of Memory Malingering (TOMM), indicating that the Veteran "is likely malingering" but determining that further testing was warranted after "at least six months of sobriety"; and * The August 2014 VA Compensation and Pension Mental Health Addendum finding that the Veteran's medical records presented "substantial evidence of malingering" but nevertheless diagnosing "Unspecified Anxiety Disorder" that was likely related to his active service. If the examiner determines the Veteran is over-reporting, exaggerating, and/or feigning his psychiatric symptoms, then the examiner should note any additional actions or testing that would allow for an accurate depiction of the Veteran's psychiatric symptoms. Additionally, every attempt should be made to provide an opinion concerning the actual severity of the Veteran's psychiatric disabilities. The examination report must include a complete rationale for all opinions and conclusions reached. If the examiner is unable to answer any question without a resort to speculation, then he or she should so indicate and provide a rationale for why an answer could not be provided. 3. Determine whether a VA examination is necessary concerning the claim for a TDIU, and if so, schedule the Veteran for an appropriate VA examination. 4. Next, review the claims file to ensure that the foregoing requested development has been completed. In particular, review the VA examination reports to ensure that they are responsive to and in compliance with the directives of this remand, and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 5. Finally, after completing the above actions and any other development that may be warranted, readjudicate the claims on appeal based on the additional evidence of record. If any of the benefits remain denied, the Veteran and his representative must be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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). _________________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).