Citation Nr: 1751174 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 12-02 585A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an increased initial rating in excess of 50 for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for peripheral neuropathy of the upper extremities. 3. Entitlement to service connection for peripheral neuropathy of the lower extremities. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J. Smith-Jennings, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1969 to October 1970. These matters come to the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The June 2010 rating decision denied service connection for PTSD and peripheral neuropathy of both the lower and upper extremities. Subsequently, the RO granted service connection for PTSD with an evaluation of 10 percent effective February 9, 2010 in a January 2012 rating decision. The RO increased the rating to 50 percent in rating decisions dated June 2015 and November 2016. The Board remanded the claims for additional development in February 2015 and March 2016. The case now returns to the Board for appellate review. In a written statement received in December 2015, the Veteran appears to have raised the issues of entitlement to service connection for hypertension secondary to PTSD and entitlement to service connection for Type II diabetes mellitus. The Veteran is advised that his statements do not meet the standards of a complete claim under 38 C.F.R. § 3.150(a). On remand, the AOJ should notify the Veteran as to the procedures required under 38 C.F.R. § 3.155 for filing a claim for VA benefits. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.S. § 7107(a)(2) (LexisNexis 2017). The issues of entitlement to service connection for peripheral neuropathy of the upper extremities, entitlement to service connection for peripheral neuropathy of the lower extremities, and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. For the period prior to September 6, 2011, the Veteran's PTSD was productive of no more than occupational and social impairment with reduced reliability and productivity. 2. Since September 6, 2011, the Veteran's PTSD has been productive of occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. For the period prior to September 6, 2011, the criteria for an initial rating in excess of 50 percent for PTSD have not been met. 38 U.S.C.S. §§ 1155, 5107(b) (LexisNexis 2017); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.21, 4.126, 4.130, Diagnostic Code 9411 (2017). 2. For the period since September 6, 2011, the criteria for an initial rating of 70 percent for PTSD have been met. 38 U.S.C.S. §§ 1155, 5107(b) (LexisNexis 2017); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.21, 4.126, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that his service-connected PTSD warrants an initial disability rating higher than the 50 percent currently assigned under 38 C.F.R. § 4.130, Diagnostic Code 9411. Disability ratings are determined by applying the rating criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) and represent the average impairment of earning capacity. 38 U.S.C.S. § 1155 (LexisNexis 2017); 38 C.F.R. § 4.1 (2017). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10 (2017). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation as well as the whole recorded history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2 (2017); see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7 (2016). Otherwise, the lower rating is assigned. Id. Additionally, while it is not expected that all cases will show all the findings specified, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2017). The Board has considered whether separate ratings for different periods of time are warranted based on the facts, which is a practice of assigning ratings that is referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the individual's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126 (a) (2017). In addition, the evaluation must be 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. The General Rating Formula for Mental Disorders, which is set forth in 38 C.F.R. § 4.130, provides in pertinent part: A 50 percent evaluation is warranted where 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 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. A 70 percent evaluation is warranted where there is 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. A 100 percent evaluation 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. This rating schedule is based on the Diagnostic and Statistical Manual of Mental Disorders (DSM-5). The Board notes that the Veteran's claims file also includes evaluations based on the DSM-IV, which contains a global assessment of functioning (GAF) scale with scores ranging between zero and one hundred percent. The scores represent the psychological, social, and occupational functioning of an individual with regard to their mental health with higher functioning persons scoring higher on the scale. A GAF score of 21 to 30 indicates that behavior is considerably influenced by delusions or hallucinations, or serious impairment in communication or judgment (e.g., sometimes incoherent, acting grossly inappropriately, suicidal preoccupation), or an inability to function in almost all areas (e.g., stays in bed all day; no job, home, or friends). A GAF score of 31 to 40 indicates some impairment in reality testing or communication (e.g., speech at times illogical, obscure, or irrelevant), or where there is 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). A GAF score of 41 and 50 is assigned when there are 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). A GAF score of 51 and 60 is assigned when there are 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. A GAF score of 61 to 70 some 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. Id. American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed., 1994). VA regulations require that when the symptoms and/or degree of impairment due to a Veteran's service-connected psychiatric disability cannot be distinguished from any other diagnosed psychiatric disorders, VA must consider all psychiatric symptoms in the adjudication of the claim. See Mittleider v. West, 11 Vet. App. 181 (1998). Beginning with the period prior to September 6, 2011, following a review of the record, the Board finds that the Veteran's PTSD symptoms approximate no more than occupational and social impairment with reduced reliability and productivity, entitling him to an initial disability rating of no more than 50 percent for that period. In this regard, the evidence of record includes November 2009 and January 2010 VA medical records which document that the Veteran reported the effects of PTSD symptoms included sleep problems, hypervigilance, irritability, marital problems, flashbacks, withdrawal from family and friends, and paranoid thinking. The Veteran participated in group psychotherapy and received individual therapy. The clinicians documented GAF scores ranging from 60 to 65. As previously stated, a GAF score of 51 and 60 is assigned when there are 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. A GAF score of 61 to 70 some 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. Id. American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed., 1994). There is no other relevant evidence during this time period. Therefore, it is after careful review of the relevant evidence that the Board finds that the preponderance of evidence demonstrates that prior to September 6, 2011; the Veteran's PTSD has approximated the schedular criteria for a disability rating of no more than 50 percent. In so finding, the Board looked to the frequency, severity, and duration of the Veteran's impairment, and not transient symptoms, to assess his disability picture. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Turning to the period from September 6, 2011, following a review of the record, the Board finds that since September 6, 2011, the Veteran's PTSD symptoms have most closely approximated occupational and social impairment with deficiencies in most areas, entitling him to an initial 70 percent disability rating, but no higher. In this regard, the evidence of record includes December 2011 and June 2016 VA examination reports and a September 2011 Social Security Mental Health Examination which document that the Veteran reported that the effects of his PTSD symptoms included detachment from others, auditory hallucinations, depression, social isolation, irritability, anger problems, exaggerated startle response, hypervigilance, and restricted affect. The examiners noted that the Veteran was oriented to person, place, date, and situation. However, the examiners also noted the Veteran's suicidal thoughts to be without plan or intent. See Bankhead v. Shulkin, 2017 U.S. App. Vet. Claims LEXIS 435, *19 (Mar. 27, 2017) (holding that suicidal ideation need not be active in nature to warrant the assignment of a 70 percent rating; rather, the appropriate inquiry is whether either passive or active suicidal ideation, in the absence of other symptoms similar to those listed as examples in the criteria for a 70 percent rating, results in social and occupational impairment with deficiencies in most areas). As the aforementioned symptoms cause deficiencies in the areas of mood, thinking, judgment, and family relations, the Board finds that the preponderance of evidence demonstrates that from September 6, 2011 the disability due to the Veteran's PTSD most nearly approximated the schedular criteria for an initial increased disability rating of 70 percent. In so finding, the Board looked to the frequency, severity, and duration of the Veteran's impairment, and not transient symptoms, to assess his disability picture. See Vazquez-Claudio, 713 F.3d at 117 (Fed. Cir. 2013). The evidence of record does not, however, support a rating of 100 percent (the only higher disability evaluation available). While occasional auditory hallucinations were reported, the Veteran has not reported persistent hallucinations, gross impairment in thought processes or communication, inappropriate behavior, an inability to perform the activities of daily living, or any of the other markers of total occupational and social impairment due to PTSD. In finding that a 70 percent rating is warranted from September 6, 2011, the Board notes that the Veteran's PTSD has been productive of or characterized by social isolation, irritability, anger problems, exaggerated startle response, restricted affect, detachment from others, depressed mood, hypervigilance, and suicidal ideation. This combination of symptoms indicates that from September 6, 2011 the Veteran's disability approximates the criteria for a rating that represents occupational and social impairment with deficiencies in most areas. ORDER An increased initial rating in excess of 50 percent prior to September 6, 2011 for PTSD is denied. An increased initial rating in excess of 50 percent from September 6, 2011 for PTSD is granted. REMAND Although the Board regrets the additional delay, further development is necessary prior to the adjudication of the issues on appeal. In a May 2016 addendum opinion, the examiner opined that it is less likely than not that the Veteran has peripheral neuropathy of the upper or lower extremities. The examiner reasoned that the Veteran did not have any evidence of a peripheral neuropathy upon neurological examination in February 2013. However, in its March 2016 remand the Board specifically requested that the examiner discuss the Veteran's VA rheumatology records which document "unspecified idiopathic peripheral neuropathy." The May 2016 VA examiner did not discuss these records in rendering his opinion. Therefore, the Board finds that the March 2016 remand directives were not followed, and an additional addendum opinion is necessary. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall, 11 Vet. App. at 268 (a remand by the Board confers on the Veteran, as a matter of law, the right to substantial compliance with the remand). Turning to the Veteran's claim of entitlement to a TDIU, the Board finds that the Veteran's TDIU claim is inextricably intertwined with his claims of entitlement to service connection for peripheral neuropathy of the upper and lower extremities. See Harris v. Derwinski, 1 Vet App 180, 183 (1991). Specifically, during a May 2015 VA examination the Veteran reported that his peripheral neuropathy impacts his ability to work in that constant pain and tingling will make it difficult for him to stand for sustained periods and will make it difficult to concentrate and focus in the work place. Therefore, adjudication of the Veteran's TDIU claim must be deferred pending the additional development directed herein. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Request that the Veteran provide or authorize VA to obtain records of his relevant treatment that have not yet been associated with the claims file, and associate with the claims file any outstanding VA treatment records. 2. Schedule the Veteran, if necessary, for a peripheral nerves examination to determine whether he has peripheral neuropathy. The claims file should be made available to the examiner and review of the file should be noted in the requested report. The examiner should record the full history of the identified disability, including the Veteran's competent account of his symptoms. Following review of the claims file and examination of the Veteran, the examiner should respond to the following: (a) Is it at least as likely as not (50 percent probability or greater) that the Veteran has a neuropathy diagnosis/disability that had its onset during active service or within one year of the Veteran's separation from service, or is otherwise related to service, to include exposure to Agent Orange. The examiner should specifically discuss the VA rheumatology records which document "unspecified idiopathic peripheral neuropathy." All findings and conclusions should be supported with a complete rationale and set forth in a legible report, which should reflect the examiner's consideration and analysis of both the medical and lay evidence of record. If it is not possible to provide an opinion without resort to speculation, the reason that is so should explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. 3. Readjudicate the claims on appeal. If the benefits requested on appeal are not granted in full, the Veteran and his representative should be furnished a supplemental statement of the case and provided an opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. 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). 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.S. §§ 5109B, 7112 (LexisNexis 2017). ______________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs