Citation Nr: 1642059 Decision Date: 11/01/16 Archive Date: 11/18/16 DOCKET NO. 15-29 028 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUES 1. Entitlement to a disability rating higher than 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Penelope E. Gronbeck, Attorney at Law WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran served on active duty from September 1969 to September 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which continued a 50 percent rating for the Veteran's service-connected PTSD. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2). Additionally, the Veteran has raised the issue of TDIU in conjunction with his appeal for a higher initial rating for his service-connected PTSD; so this issue will also be considered by the Board. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In October 2015, the Veteran testified before the undersigned Veterans Law Judge in a videoconference Board hearing. During the hearing the Veteran's attorney requested, and was granted, an additional 60 days within which to submit more evidence. In January 2016, the Veteran's attorney submitted a psychiatric consultative report from a private psychiatrist, along with a waiver of review by the agency of original jurisdiction. The Board notes that during his October 2015 hearing the Veteran's attorney elicited testimony regarding the issue of service connection for traumatic brain injury (TBI); however, that issue is not on appeal and so will not be addressed in this decision. While it was thought the issue may be procedurally on appeal, the claim was not addressed recently, but rather back in December 2011. All of the Veteran's appeal documents, including those submitted by the attorney representative, concern only the PTSD rating (including the TDIU aspect) and do not reference TBI. The Board will not take jurisdiction over this issue that has not been appealed despite the hearing testimony that was erroneously taken. Cf. Percy v. Shinseki, 23 Vet. App. 37 (2009). Should the Veteran wish to reopen this claim, he should submit a new claim on the proper standard VA form. The decision below awards a minimum rating of 70 percent for the Veteran's PTSD throughout the appeal period. The issues of entitlement to TDIU and a rating higher than 70 percent for PTSD are addressed in the remand section following the decision and are REMANDED to the agency of original jurisdiction (AOJ). VA will notify the appellant if further action is required. FINDING OF FACT The Veteran's PTSD has been productive of disorientation/altered reality, constant intrusive thoughts of Vietnam, memory and concentration impairment, anger, inability to deal appropriately with family members and others, hypervigilance, depressed mood, and frequent suicidal ideation, resulting in at least occupational and social impairment with deficiencies in most areas throughout the appeal period. CONCLUSION OF LAW The criteria for a disability rating of at least 70 percent for PTSD have been met throughout the appeal period. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Background and Legal Criteria By way of background, in a rating decision dated in May 1987 the RO granted service connection for PTSD with a rating of 10 percent. More recently, in October 2010, the Veteran filed for an increased rating, and in a December 2011 rating decision the RO increased the rating for his service-connected PTSD from 10 percent to 50 percent effective October 19, 2010. The Veteran did not appeal the rating, but in September 2012 he requested an earlier effective date, which was denied by the RO in a January 2013 rating decision. The Veteran did not appeal the January 2013 rating decision. In June 2014, the RO became aware that the Veteran had received inpatient PTSD care for 8 days at a VA facility; from June 10th through June 18th. Upon learning of this development, the RO undertook to reassess the propriety of the assigned rating for the Veteran's service-connected PTSD and, in a rating decision dated in June 2014, the RO continued the assigned 50 percent rating. The Veteran filed a notice of disagreement to that decision, which he subsequently perfected. He also requested a Board hearing, which was held in October 2015. During his October 2015 Board hearing, he testified that he had anger issues, and that his PTSD was causing him to hallucinate. Transcript, pp. 8-10. Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C.A. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran's PTSD has been evaluated under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9411, throughout the appeal period. Under that Diagnostic Code, a 50 percent rating is warranted 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 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. A 70 percent rating is warranted where there is occupational and social impairment with deficiencies in most areas, including work, school, family relationships, judgment, thinking or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting 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); and inability to establish and maintain effective relationships. The highest rating of 100 percent is warranted where there is 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. Id. Ratings for mental disorders are assigned according to the manifestations of particular symptoms. The use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after the phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). See also Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (explaining that the symptoms that could give rise to a given rating are those in like kind, i.e., of similar duration, severity, and frequency, to those provided in the non-exhaustive lists). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment. Global assessment of functioning (GAF) scores were historically used to reflect the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health, and were also useful indicators of the severity of a mental disorder. See DSM-IV. GAF scores between 51 to 60 were 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 between 41 to 50 reflected serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). Scores between 31 to 40 indicated 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). Analysis VA inpatient and outpatient PTSD treatment records reflect that the Veteran's PTSD has been productive of severe impairment, including disorientation/altered reality, constant intrusive thoughts of Vietnam, memory and concentration impairment, anger, inability to deal appropriately with family members and others, hypervigilance, depressed mood, and frequent suicidal ideation throughout the appeal period. According to a July 2015 VA examiner, the Veteran's symptoms are "mild or transient," but at the time of his June 2014 admission for PTSD inpatient care his GAF was 38, which is reflective of altered reality and serious (not mild) impairment. See also January 2016 report from private psychiatrist, who concluded, after assessment in November 2015, that there was "total occupational and social impairment, due to such symptoms as: gross impairment in thought processes and communication, plus persistent hallucinations, plus grossly inappropriate behavior, and a persistent danger of hurting self or others, plus an intermittent inability to perform activities of daily living (including maintenance of personal hygiene), plus disorientation to time, and memory loss," commensurate with a GAF of 40. This, too, is reflective of altered reality and serious, not mild, impairment. In consideration of the medical and lay evidence of record, the Board finds that the Veteran's PTSD has comported with a schedular rating of at least 70 percent throughout the appeal period. See 38 C.F.R. § 4.130, Diagnostic Code 9411. This intermediary grant of benefits will not prejudice the Veteran. The issues of a rating higher than 70 percent PTSD, and entitlement to TDIU, are addressed in the remand section, below. ORDER A disability rating of at least 70 percent for PTSD is granted throughout the appeal period; subject to the laws and regulations governing the payment of monetary awards. REMAND As stated before, during his October 2015 Board hearing, the Veteran testified that he had anger issues and his PTSD was causing him to hallucinate. Transcript, pp. 8-10. He also testified that he was unable to work due to his service-connected PTSD; stating that he "took early retirement." Transcript, pp. 3, 9. See also VA mental health records dated in February 2014, noting that the Veteran "worked last for a boat builder for a short period in 2012 but he had to stop due to him also collecting social security and not realizing he could not do both;" the report of a July 2015 VA PTSD examination, during which the Veteran reported that he "stopped working at age 61;" and the report of a January 2016 private psychiatric consult, during which the Veteran averred that he had not worked since his age of 62. During his July 2015 VA PTSD examination the Veteran reiterated that he was not working and was on Social Security Administration (SSA) and VA disability; and, according to the January 2016 private psychiatric, the Veteran "is unemployable due to his PTSD." In view of the just-awarded rating of 70 percent for the Veteran's PTSD, he now meets the percentages criteria for a grant of TDIU. However, as described above, there is conflicting information regarding whether and when the Veteran's has had substantially gainful employment, which might be resolved by SSA records. These records may also contain information relevant to the issue of a rating higher than 70 percent for PTSD. A request must therefore be made for the Veteran's SSA records. 38 C.F.R. § 3.159(c)(2). In addition, updated VA treatment records dated after June 18, 2014, should be obtained and the Veteran should also be afforded a new VA examination. While on remand, the RO should also provide the Veteran an opportunity to identify any outstanding private medical records referable to his PTSD and request such records. Accordingly, these issues are REMANDED for the following actions: 1. Request the Veteran's SSA records and associate them with the claims file. 2. Update the record to include all of the Veteran's VA medical records dated after June 18, 2014. 3. Send a letter to the Veteran asking him to identify the source/location of any outstanding private treatment records referable to his PTSD, and then take steps to obtain those records. Associate any located records with the claims file. 4. Thereafter, schedule the Veteran for a new PTSD examination. The claims file should be reviewed by the examiner. The examiner should also discuss the Veteran's current complaints and symptoms with the Veteran, and document said in the examination report. Examination findings, including the nature, frequency and severity of the Veteran's PTSD symptoms, must be set forth in the examination report. The examiner must also a. opine as to the level of impairment of the Veteran's service-connected PTSD on his occupational and social functioning; and b. opine, based on the lay and medical evidence of record, as to the date that the current level of impairment began. A complete rationale should be provided for all opinions reached. 5. After completion of the above and any other development deemed necessary, adjudicate the issues of entitlement to TDIU and a rating higher than 70 percent for PTSD. If either claim remains denied, issue a supplemental statement of the case and return the case to the Board. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. ______________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs