Citation Nr: 1747653 Decision Date: 10/25/17 Archive Date: 11/01/17 DOCKET NO. 10-17 426 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent disabling for adjustment disorder prior to April 7, 2010, entitlement to an evaluation in excess of 30 percent disabling for posttraumatic stress disorder with an adjustment disorder from April 7, 2010 to November 10, 2011, and in excess of 50 percent thereafter. 2. Entitlement to an initial compensable evaluation for a right wrist strain. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Wysokinski, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1995 to October 1998 and from September 1999 to March 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. Jurisdiction of the case has since been transferred to the RO in Denver, Colorado. While the issue of entitlement to total disability rating based on individual unemployability due to service connected disabilities (TDIU) may arise as part and parcel of a claim for a higher rating, the record indicates that the Veteran is presently employed therefore the Board will not address the matter of TDIU at this time. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board notes that the Veteran initially requested a hearing; however, the Veteran withdrew this request by way of a September 2011 correspondence. Also, the Board notes that the Veteran has sought service connection for other conditions, however those issues are not before the Board and do not presently require any action. The issue of entitlement to an initial compensable evaluation for a right wrist strain is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Throughout the appeal period the Veteran's PTSD with an adjustment disorder has manifested by occupational and social impairment with deficiencies in most areas due to symptoms such as depressed mood, chronic sleep impairment, hypervigilance, impaired impulse control (such as unprovoked irritability with periods of violence), suicidal ideation, increasingly isolative behavior and inability to establish and maintain effective relationships, difficulty in adapting to stressful circumstances. CONCLUSION OF LAW The criteria for a disability rating of 70 percent, but no higher, for PTSD with an adjustment disorder have been met throughout the appeal period. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R §§ 4.1-4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). MERITS OF THE CLAIMS The Board grants entitlement to an increased rating of 70 percent and no greater for the entire period on appeal as the most probative evidence of record indicates that the Veteran's condition is manifested by occupational and social impairment with deficiencies in most areas due to symptoms such as depressed mood, chronic sleep impairment, hypervigilance, impaired impulse control (such as unprovoked irritability with periods of violence), suicidal ideation, increasingly isolative behavior and inability to establish and maintain effective relationships, difficulty in adapting to stressful circumstances. Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran's claim is to be considered. In initial rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "stage" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. 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. See 38 C.F.R. § 4.7. Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14; see Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). The Veteran's PTSD with adjustment disorder has been evaluated at 10 and 30 percent disabling and is currently evaluated at 50 percent. This rating is prescribed when there is evidence of occupational and social impairment with reduced reliability and productivity due to symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks occurring 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 or forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is prescribed when there is evidence of 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); and inability to establish and maintain effective relationships. Id. A 100 percent rating is prescribed when there is evidence of 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 as to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. 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. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). However, a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that such symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). Regarding occupational impairment, the medical evidence of record has included conclusions that the Veteran experiences moderate occupational impairment for at least the entire period on appeal. See February 2009 Pre-Discharge Examination Report The Veteran's examinations and VA records during the period on appeal shows that occupational stress and job instability has significantly impacted the Veteran's mood and depression and that the Veteran's symptoms worsened once discharged. Also, the Veteran has consistently indicated sleep problems which leave him tired during the day. All VA medical and examination records show that the Veteran is frequently on edge and experiences anxiety that makes him avoid contact with individuals. Additionally, the Veteran and his spouse have both endorsed symptoms like irritability and outbursts, particularly in stressful situations. In spite of these symptoms, the Veteran has been successfully working as a truck driver, indicating that there is no total occupational impairment despite these difficulties. With respect to social impairment, the Veteran and his spouse have indicated slightly varying degrees of impairment. The November 2010 VA Medical Examination Report indicated that it was the physician's opinion that the Veteran has underreported his impairment and that the Veteran's spouse seemed more willing to discuss the difficulties the Veteran experiences. In regard to specific symptoms, the Veteran has been shown to be fairly isolated from individuals since separating from service and avoids groups or crowds. The Veteran is largely estranged from his family members. While the Veteran has frequently himself denied suicidal ideation, his wife has indicated that the Veteran has expressed thoughts that things might be better if "he were not around." See January 2013 VA Medical Record. Both the Veteran and his spouse have noted that the Veteran can be irritable and has outbursts of anger, including physical outbursts like when Veteran punched a door, necessitating surgery. See Id. Thus, the medical evidence, combined with the Veteran's and his wife's subjective reports of his symptoms, indicated that his PTSD with adjustment disorder has caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Board finds the Veteran's symptoms warrant a 70 percent disability evaluation, but no greater for the entire period on appeal. 38 C.F.R. § 4.130, Diagnostic Code 9411. In this regard, the Board notes that the Veteran has a depressed mood, chronic sleep impairment, suicidal ideation, hypervigilance, anger control issues, increasingly isolative behavior, and difficulty in adapting to stressful circumstances. The next higher, 100 percent rating, is, however, not demonstrated by the evidence of record, as the Veteran's disorder is not manifested by total occupational and social impairment, due to such symptoms as: gross impairment of 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; and, memory loss for names of close relatives, own occupation, or own name. Id. In the Board's judgment, considering all the lay and medical evidence as outlined above, and including a review of the Veteran's medical records, the Veteran's retains functioning beyond what can be considered complete impairment in both social and occupational functioning nor does it more nearly approximate this level of disability. See 38 C.F.R. §§ 4.3, 4.7. The evidence above indicates that during this period of time the Veteran had significant impairment, but the evidence shows that he retained ability to complete social and occupational tasks beyond that contemplated by a 100 percent schedular rating. The Board also considers the Veteran's Global Assessment of Function (GAF) scores assigned during the course of the appeal. The GAF is a scale indicating the psychological, social, and occupational functioning in 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) (citing the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), p. 32). Scores ranging from 51 to 60 reflect more 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). 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). Here, the Veteran's GAF score was found to be in the 50 - 60 range throughout the course of his VA examinations and medical treatment, further supporting the assigned rating. Based on the foregoing, the Board finds that the evidence is at least in equipoise as to the assignment of an initial 70 percent rating, but weighs against the assignment of a disability rating higher than 70 percent during that time period. As such, the Veteran's claim has been granted in part and denied in part, with the benefit of the doubt rule being applied accordingly. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER An initial rating, of 70 percent, but no greater, for PTSD with adjustment disorder is granted. REMAND Although the Board sincerely regrets the additional delay that will result from remanding this claim, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The Veteran's claim for entitlement to a compensable rating for a right wrist disability must be remanded to afford a new examination as the Veteran underwent surgery for his wrist since his most recent VA examination. The Veteran underwent a VA examination for his wrist in November 2011. The Veteran's VA medical records indicate that approximately in January 2013, the Veteran underwent surgery for his wrist. The Board is without specific records from this surgery as it was performed outside the VA system. This surgical intervention indicates that the Veteran's condition may have worsened and therefore requires a remand for a new examination. Snuffer v. Gober, 10 Vet. App. 400 (1997) (holding that the Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination). As this matter is being remanded, all outstanding VA medical records should be obtained. Sullivan v. McDonald, 815 F.3d 786 (2016). Moreover, the Veteran should be given an opportunity to identify any private medical records he would like considered in connection with his appeal. 38 C.F.R. § 3.159(c). Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA medical records. 2. Ask the Veteran to identify any private medical care providers who treated him for his wrist disability. After securing any necessary authorization, obtain records from any identified providers. 3. Schedule the Veteran for appropriate VA examinations to determine the current nature, severity, and occupational impact of the wrist disability. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The appropriate examiners should identify all wrist pathologies found to be present. The examiners should conduct all indicated tests and studies, to include range of motion studies. Full range of motion testing must be performed where possible. The joint(s) involved should be tested in both active and passive motion, in weight-bearing and non weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). The examiner should note that the VA CLINICIAN'S GUIDE requires the examiner to estimate the range of motion "per [the] Veteran." See VA CLINICIAN'S GUIDE at Ch. 11. 4. After completing the above development, including any additional development that may be warranted, readjudicate the appeal. 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). ______________________________________________ Cynthia M. Bruce Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs