Citation Nr: 1751943 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 13-06 525A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to an initial disability rating in excess of 70 percent for service-connected PTSD. 3. Entitlement to service connection for hypertension, to include as secondary to PTSD. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: North Carolina Division of Veterans Affairs WITNESSES AT HEARING ON APPEAL Veteran, DC, and KM ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran served on active duty from September 1967 to June 1969. These matters come before the Board of Veterans' Appeals on appeal from a March 2011 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Winston-Salem, North Carolina. By that rating action, the RO, in part, granted service connection for PTSD; an initial 30 percent rating was assigned, effective August 19, 2010--the date VA received the Veteran's initial claim for compensation for this disability. The RO also denied service connection for hypertension. The Veteran appealed the RO's assignment of an initial 30 percent disability rating assigned to the service-connected PTSD and denial of service connection for hypertension to the Board. In July 2016, the Veteran testified before the undersigned at a video conferencing hearing conducted at the RO. A copy of the hearing transcript is of record. The issue of entitlement to a TDIU rating has also been raised as part and parcel of the Veteran's appeal of the initial rating claim for PTSD. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Specifically, a February 2011 VA PTSD examination report reflects that the Veteran reported that he was unable to secure employment secondary to his mental disorder. (See February 2011 VA examination report at page (pg.) 9)). Thus, the Board has appellate jurisdiction of the TDIU issue by virtue of the Veteran's appeal of the initial rating of his service-connected PTSD. Id. During the hearing before the undersigned, the Veteran testified that his PSTD had "contributed" to his hypertension. (Transcript (T.) at pg. 4)). In view of the Veteran's assertion, the Board has expanded the claim for service connection for hypertension, to include as secondary to the service-connected PTSD. The Board notes that all possible theories of entitlement raised by the record must be considered. See Robinson v. Mansfield, 21 Vet. App. 545, 559 (2008), aff'd Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009). In the decision below, the Board will grant an initial 70 percent disability rating to the service-connected PTSD (excluding a period of a temporary total rating from February 2, 2012 to April 1, 2012). The issues of entitlement to an initial evaluation in excess of 70 percent for PTSD; entitlement to service connection for hypertension, to include as secondary to PTSD and entitlement to a TDIU rating are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT For the entire appeal period, the evidence reflects that the Veteran's PTSD has been productive of occupational and social impairment with deficiencies in most areas and an inability to establish and maintain effective relationships but without evidence of total occupational and social impairment. CONCLUSION OF LAW For the entire period on appeal, the criteria for an initial 70 percent rating for PTSD have been met (excluding a period of a temporary total rating from February 2, 2012 to April 1, 2012). 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 4.3, 4.126, 4.130, Diagnostic Codes 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Preliminarily, there is no basis for the Board to further address the Veterans Claims Assistance Act of 2000 (VCAA), as the limited action taken below is fully favorable and will result in no prejudice to the Veteran. In addition, and as noted in the Introduction, the Veteran also offered testimony before the undersigned Veterans Law Judge at a Board hearing in July 2016. The Board finds that all requirements for hearing officers have been met. 38 C.F.R. § 3.103 (c)(2) (2017); Bryant v. Shinseki, 23 Vet. App. 488 (2010). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 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 for that rating. 38 C.F.R. § 4.7 (2017). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2017). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where a veteran appeals the initial rating assigned for a disability when a claim for service connection for that disability has been granted, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence used to decide whether a rating on appeal was erroneous. Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time based on facts found. Id.; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that the VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending). In this case, the Veteran is currently assigned a 30 percent evaluation for PTSD pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. The Veteran was granted a temporary evaluation of 100 percent for the period from February 2, 2012 to April 1, 2012 due to a hospitalization for his service-connected PTSD. Accordingly, evidence for that time period is not relevant to the initial rating of 70 percent assigned herein. The Veteran's PTSD is evaluated as 30 percent disabling pursuant to the General Rating Formula for Mental Disorders as outlined in 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Rating Formula, a rating of 30 percent is warranted if there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent disability rating reflects PTSD manifested by 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; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability rating is warranted when 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 worklike setting); and inability to establish and maintain effective relationships. A 100 percent rating is assigned for PTSD manifested by 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. The symptoms listed in 38 C.F.R. § 4.130 are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. The use of the phrase such symptoms as, followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. Mauerhan, 16 Vet. App. at 442. "[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." Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Section 4.130 "requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas. Vazquez-Claudio, 713 F.3d 112. When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126 (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. 38 C.F.R. § 4.126. Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score. The Board notes that the newer American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (5th Ed.) (DSM-V) has now been officially released, and 38 C.F.R. § 4.130 has been revised to refer to the DSM-V. The DSM-V does not contain information regarding GAF scores. However, since much of the relevant evidence was obtained during the time period that the DSM-IV was in effect, the Board will still consider this information as relevant to this appeal. Furthermore, there is no indication that the Veteran's diagnosis would be different under the DSM-V. According to the DSM-IV, GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." There is no question that the GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a) (2017). The Board is precluded from differentiating between symptomatology attributed to a non service-connected disability and a service-connected disability in the absence of medical evidence which does so. See Mittleider v. West, 11 Vet. App. 181, 182 (1998), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). The Board notes that the Veteran has been diagnosed with major depression in addition to PTSD. While a February 2011 examiner concluded that the Veteran's major depression had not been caused by the service-connected PTSD, he explained that the two psychiatric disabilities had mutually aggravated one other and that it was impossible to separate out the independent contribution of each disability without restoring to speculation. Thus, because the February 2011 VA examiner was unable to separate the independent contribution of the PTSD and major depression symptomatology without restoring to speculation, the Board will attribute all psychiatric symptoms in the analysis below to the service-connected PTSD. The Board finds that in affording the Veteran all reasonable doubt in his favor, an initial 70 percent disability rating is warranted for the service-connected PTSD for the entire appeal period (excluding a period of a temporary total rating from February 2, 2012 to April 1, 2012). In reaching the foregoing determination, the Board notes that throughout the appeal period, the Veteran exhibited suicidal ideation, near-continuous panic or depression, daily panic attacks, inappropriate behavior, fair impulse control, and difficulty maintaining full-time employment--criteria that are commensurate with a 70 percent rating under the schedular criteria. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Concerning social isolation, a February 2011 VA examiner noted that the Veteran had a good relationship with his long-term partner of 18 years. During the Board hearing, the Veteran testified that he and his long-term girlfriend did not socialize, but stayed at home most of the time. T. at pg. 13. The Veteran testified that he had one close friend--a fellow service mate--who also provided testimony at the hearing in support of the Veteran. T. at pg. 12. In addition, the February 2011 VA examiner opined that the Veteran's major depression had caused severe problems in occupational and social functioning, and the PTSD had waxed and waned and caused intermittent difficulties with his occupational and social functioning. Thus, in view of these findings, the Board finds that in resolving all reasonable doubt in his favor the Veteran's PTSD has caused social impairment and inability to establish and maintain effective relationships throughout the appeal period. Regarding the Veteran's suicidal ideation, a February 3, 2011 VA PTSD examination report, as well as an October 2010 VA treatment report, reflects that the Veteran reported having suicidal thoughts. Conversely, when seen in a VA clinic on February 8, 2011, he denied having had suicidal ideation. During his July 2016 hearing before the undersigned, the Veteran testified that he had daily suicidal ideation. T. at pg. 10. Regarding occupational impairment, the February 2011 VA examination report shows that the Veteran was most recently laid off from his previous employment with an environmental air system. Prior to that time, he owned a restaurant and tree farm for 20 years. He maintained that he would have been able to secure another job but for his depression. Overall, the Veteran's service-connected PTSD has clearly had significant adverse effects on his social relationships and employment, as specifically noted by the VA examiners throughout the appeal. Therefore, the Board finds that in affording the Veteran all reasonable doubt in his favor, an initial 70 percent disability rating is warranted for the service-connected PTSD for the entire appeal period (excluding a period of a temporary total rating from February 2, 2012 to April 1, 2012),. As to whether an initial disability rating in excess of 70 percent for PTSD is warranted, this matter will be addressed in the REMAND section of the decision. ORDER An initial disability rating of 70 percent for PTSD is granted (excluding a period of a temporary total rating from February 2, 2012 to April 1, 2012), subject to the laws and regulations governing the payment of monetary benefits. REMAND Regarding each of the claims on appeal, remand is required to obtain VA records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, military records, VA medical records, records from facilities with which the VA has contracted, and records from Federal agencies such as the Social Security Administration. 38 C.F.R. § 3.159(c)(2). Here, the most recent VA treatment records are dated in 2013. Accordingly, more recent records should be obtained. Regarding the claim for an increased initial disability rating in excess of 70 percent for PTSD, remand is required for an examination. Remand may be required if record before the Board contains insufficient medical information for evaluation purposes. Littke v. Derwinski, 1 Vet. App. 90, 93 (1990). During a February 2011 examination, the Veteran described having persistent auditory hallucinations. Conversely, when seen at a VA clinic a few days later, on February 3rd, he denied having these same hallucinations. These contrasting findings, as well as the fact that the February 2011 VA PSTD examination report is over six years old, suggests that the examination findings are insufficiently contemporaneous to support a final determination of the Veteran's disability picture. Regarding the claim for entitlement to service connection for hypertension, remand is required for an examination. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). VA's duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The RO did not provide the Veteran with an examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Here, hypertension is noted as a diagnosis in multiple VA treatment records. The Veteran is service-connected for PTSD. At the Board hearing, the Veteran reported that his blood pressure was related to his panic attacks from his PTSD. Accordingly, an examination is warranted. The claim of entitlement to a TDIU rating must be remanded for development and as it is intertwined with the issues remanded herein. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other). Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a corrective VCAA notice that addresses the requirements for a claim of entitlement to service connection for hypertension on a secondary basis in accordance with 38 C.F.R. § 3.310, and addresses the claim of TDIU. This notice must also inform the Veteran of which information and evidence, if any, that he is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on his behalf. 2. Develop and adjudicate a claim for TDIU under the provisions of 38 C.F.R. § 4.16, in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). 3. Contact the appropriate VA Medical Center and obtain and associate with the electronic record all outstanding records of treatment since 2012. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the electronic record. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 4. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 5. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the severity of the service-connected PTSD. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must utilize the appropriate Disability Benefits Questionnaire. 6. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the nature and etiology of his hypertension. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished. All clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion, in light of the examination findings and the service and post-service medical evidence of record, whether the Veteran's hypertension at least as likely as not (50 percent or greater probability) had onset in, or is otherwise caused by, active service. The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected PTSD caused or aggravated the hypertension. 7. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 8. Ensure compliance with the directives of this remand. If a report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 9. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, readjudicate the issues of entitlement to an initial evaluation in excess of 70 percent for PTSD (excluding a period of a temporary total rating from February 2, 2012 to April 1, 2012) and entitlement to service connection for hypertension, to include as secondary to PTSD, and adjudicate the claim of entitlement to a TDIU rating. If the determination of any claim remains unfavorable, the Veteran and his representative must be furnished with a Supplemental Statement of the Case and given an opportunity to respond before the case is returned 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 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). ______________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs