Citation Nr: 1752587 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 13-26 797 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for an acquired psychiatric disorder, characterized as posttraumatic-stress disorder (PTSD). 2. Entitlement to service connection for a back disorder. 3. Entitlement to service connection for a left knee disorder. 4. Entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD J. Meyer, Associate Counsel INTRODUCTION The Veteran had active duty service from June 1970 to February 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision by the VA Regional Office (RO) in Denver, Colorado. In August 2017, the Veteran and his spouse testified before the undersigned Veterans Law Judge at a Travel Board Hearing at the RO, and a transcript of the hearing is of record. The issue of entitlement to service connection for TDIU is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. FINDINGS OF FACT 1. During the period on appeal, the Veteran's psychiatric symptoms have been characterized by such symptoms as irritability, anxiety, depression, sleep impairments, nightmares, and hypervigilance, and occasional panic attacks. During this period, the disability picture has been manifested by no more than occupational and social impairment with occasional decrease in work efficiency. 2. It is at least as likely as not that the Veteran's back disorder is related to active duty service. 3. It is at least as likely as not that the Veteran's left knee disorder is related to active duty service. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 30 percent for an acquired psychiatric disorder, diagnosed as PTSD, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.130, Diagnostic Code (DC) 9411 (2017). 2. The criteria for entitlement to service connection for a back disorder have been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2017). 2. The criteria for entitlement to service connection for left knee disorder have been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Ratings The Veteran is seeking an increased rating for his service-connected psychiatric disorder, diagnosed as PTSD. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 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. See 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities. While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7 (2017). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). In the case of an initial rating, the entire evidentiary record from the time of a veteran's claim for service connection to the present is of importance in determining the proper evaluation of disability. Fenderson v. West, 12 Vet. App. 119 (1999). Further, the Board must consider whether the disability has undergone varying and distinct levels of severity while the claim has been pending and provide staged ratings during those periods. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Throughout the period on appeal, the Veteran has been assigned a 30 percent rating for an acquired psychiatric disorder under 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017) (addressing PTSD). For the next-higher 50 percent rating, the evidence must show occupational and social impairment with reduced reliability and productivity due to symptoms such 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 or impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing effective work and social relationships. Based on the evidence of record, a rating in excess of 30 percent is not warranted for the period on appeal. First, the Veteran does not exhibit objectively observable symptoms such as impaired judgment or impaired abstract thinking, stereotyped speech, difficulty in understanding complex tasks, or impairment of memory to a level that a 50 percent rating would be warranted. Specifically, at a VA examination in March 2013, he appeared casually dressed and neatly groomed with normal speech and logical goal-directed thoughts. While he did display symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur less than once a week, chronic sleep impairment, flattened affect, disturbances of mood and motivation, difficulty in adapting to stressful circumstances, obsessional rituals which interferes with routine activities, he did not display any episodes of violence, delusions, hallucinations, homicidal or suicidal ideation. As such, the examiner determined that his PTSD symptoms caused only occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Similarly, the Veteran's treatment records indicate that he experienced symptoms such as irritability, depression, trouble sleeping, nightmares, flashbacks, anxiety, and hypervigilance. In February 2012, while the Veteran was noted to have had impaired insight and judgment, the records indicate that he had logical goal directed thoughts with clear speech. Moreover, there were no indications of a thought disorder, hallucinations, or evidence of a psychosis. In an October 2012 treatment evaluation, the Veteran presented with a stable affect and congruent mood. He had clear speech, linear thoughts, and good judgment. No evidence of a thought disorder or suicidal ideations was observed. In fact, his symptoms appeared to improve as the medical provider stated that "there is no evidence to suggest that the patient is experiencing any active PTSD symptoms." In September 2013, the Veteran's appearance was neat and his speech was normal and appropriate. His judgment was noted to be good with no hallucinations, delusions, or thought disorder. He presented with symptoms of sleep impairment, nightmares, depression, and irritability. In April 2015, the Veteran was noted to be pleasant, well groomed, alert and oriented in all spheres, and in no acute distress. In a May 2017 VA examination, the Veteran appeared casually dressed with average grooming and hygiene. His thoughts were noted to be logical and goal-directed, without any evidence of hallucinations, delusions, or homicidal ideations. The Veteran had symptoms of depressed mood, anxiety, irritability, and chronic sleep impairments. There was no evidence of any obsessive thoughts, compulsive behaviors, or psychosis. As a result, the examiner opined that the Veteran's psychiatric symptoms cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. In view of these clinical evaluations, the Board finds that the Veteran does not exhibit objective symptomatology that would be sufficient to warrant a rating in excess of 30 percent. Specifically, the Board finds that while the Veteran stated at his hearing that he has "at times" thoughts of suicide, the medical evidence indicates that the Veteran had only sporadic and fleeting reports of passive suicidal ideations. In fact, the Veteran reported at his most recent May 2017 VA examination that he only has suicidal ideations when "it was just one of those days," but that he is able to nevertheless go "through a normal day, normal routine, and play golf." As such, there is not sufficient evidence that the Veteran's suicidal ideations are of the severity and frequency to cause the level of occupational and social impairment associated with a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). Moreover, the Board also notes that while the Veteran exhibited symptoms of a higher rating, including suicidal ideations, irritability, and occasional panics, VA must nevertheless engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the veteran's service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment. See Vazquez-Claudio, 713 F.3d at 115-17. In this case, the Board determines that these symptoms alone are insufficient to warrant an increased rating given the otherwise relatively mild array of symptoms and impact on the Veteran - especially in light of the fact that the Veteran displayed clear, logical, and goal oriented speech and thought processes without any signs of a psychosis, thought disorder, or impaired judgment. Indeed, many of the examples listed in the diagnostic code for a higher rating have not been shown at all. Although the general rating formula provides specific examples of symptoms that may result from various acquired psychiatric disorders, the Board emphasizes that its analysis should not be limited to only these symptoms, but should also consider any other relevant criteria outside of the rating code in order to determine the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436, 444 (2002). As such, the Board has also considered the extent to which there are other indications of occupational and social impairment, such as difficulty in adapting to stressful circumstances or the inability to establish and maintain effective relationships that may cause social impairment with reduced reliability and productivity. In this regard, it is clear that the Veteran's disorder reflects some impact on his social and occupational functioning. Nevertheless, the evidence does not indicate that a rating in excess of 30 percent is warranted. Specifically, the Veteran has maintained a stable and "good" relationship with his wife, children, and grandchildren. Moreover, at his VA examination in May 2017, the examiner noted that the Veteran and his wife bought a camper and frequently traveled, to include visiting their children. He also indicated that he is "an avid golfer" and will fish and golf with his wife or in "leagues" with other individuals. The Board has also considered the Veteran's Global Assessment of Functioning (GAF) score. The GAF is a scale reflecting the psychological, social, and occupational functioning on 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 Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV)). Throughout the course on appeal, the Veteran had a GAF scores between 50 and 78. A GAF score of 41-50 contemplates 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 of 51-60 reflects "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). A GAF score of 61-70 indicates 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, and has some meaningful interpersonal relationships. On the other hand, a GAF of 71 to 80 denotes transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g. temporarily falling behind in schoolwork). Here, the Board finds that a GAF score between 51 and 60 is representative of the symptoms that were observed by the VA examiners in March 2012 and May 2017 - especially in light of the fact that the Veteran did not have evidence of "serious" symptoms related to thought disorders, active suicidal ideation, psychosis, or serious social/occupation impairments. Moreover, the Board finds that the symptoms associated with such a GAF score are too mild to warrant a rating in excess of 30 percent. Therefore, a rating in excess of 30 percent is not warranted for the period on appeal. In considering the appropriate disability rating, the Board has also considered the statements from the Veteran and his wife that his acquired psychiatric disability is worse than the ratings he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran and his wife are competent to report symptoms because this requires only personal knowledge as it comes to them through their senses, they are not competent to identify a specific level of disability of his acquired psychiatric disability according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). On the other hand, such competent evidence concerning the nature and extent of the Veteran's acquired psychiatric disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. Thus, based on evidence of record, the Board determines that a 30 percent rating is warranted for the Veteran's acquired psychiatric disorder. The Board also finds that consideration for an extraschedular evaluation, a component of a claim for an increased rating, is not warranted. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). In considering whether an extraschedular rating may be warranted, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. See Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the evidence does not indicate that Veteran's disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, the Board has reviewed all of his relevant symptoms related to the issues on appeal, and concludes that there are no symptoms that were not able to be addressed by the applicable diagnostic codes. See Mittleider v. West, 11 Vet. App. 181 (1998). Moreover, as was established in Mauerhan, 16 Vet. App. at 444, a schedular rating for psychiatric disorders is not necessarily limited to the enumerated symptoms in the general rating formula, and no relevant symptoms have been excluded in the Board's analysis. As such, the Veteran's symptoms are not which are so unusual that they are outside the schedular criteria. Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran's disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Service Connection The Veteran is claiming entitlement to service connection for a back and left knee disability. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). In this case, the Board determines that service connection should be granted for the Veteran's back and left knee disorders. The Veteran's service treatment records reflect that he suffered a fall from a helicopter during service which resulted in pain to his left knee. Additionally, the Veteran's personnel records indicate that he had labor intensive job duties as an aviation a helicopter repairman, which was asserted by the Veteran, included repetitive trauma to his back and knees. Next, the service treatment records report that the Veteran continued to suffer pain in his left knee during service. Specifically, his December 1972 separation examination and report of medical history document left knee pain and painful joints at separation. Further, the post-service medical evidence, in conjunction with the credible testimony from the Veteran and his spouse, indicates that the Veteran had problems consistent with back and left knee disorder after service. While the evidence includes negative opinions by a March 2012 VA examiner - specifically, the Veteran's left knee disorder was not related to service because there was no documentation of an in-service injury or continuing treatment after service - these opinions failed to address or discuss the credible statements from the Veteran and his wife regarding the asserted in-service injury and continued complaints since service. As such, the opinions from the examiner are less probative. Therefore, the weight of the evidence supports service connection, or at the very least, the evidence is in equipoise. As such, service connection should be granted. VA Duty to Notify and Assist The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA), which includes an enhanced duty on the part of VA to notify a veteran of the information and evidence necessary to substantiate claims for VA benefits. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). The VCAA also redefines the obligations of VA with respect to its statutory duty to assist veterans in the development of their claims. 38 U.S.C.A. §§ 5103, 5103A. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C. § 5103(a) (2012); 38 C.F.R. § 3.159(b) (2017); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided notice letters informing him of both his and VA's obligations. Moreover, there is no indication of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Therefore, additional notice is not required and any defect in notice is not prejudicial. With respect to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C. § 5103A(c)(2). All records pertaining to the conditions at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)). The Board finds that all necessary assistance has been provided to the Veteran. Indeed, all VA treatment records and relevant private treatment records have been obtained. The Veteran has also been provided with VA examinations. The Board acknowledges that the Veteran asserts that his May 2017 examination was inadequate because it was performed via video-telehealth. Nevertheless, upon review of the examination report, the Board observes that the Veteran's examination lasted over two hours and the examiner reviewed the Veteran's past medical history, recorded his current complaints and history, conducted appropriate evaluations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. Therefore, the Board finds that the VA examination report to be adequate for the purpose of rendering a decision on appeal. 38 C.F.R. § 4.2 (2017); Barr v. Nicholson, 21 Vet. App. 303 (2007). Overall, no further notice or assistance is required to fulfill VA's duty to assist in the development of the above-cited claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER An initial rating in excess of 30 percent for an acquired psychiatric disorder, characterized as PTSD, is denied. Service connection for a back disorder is granted. Service connection for a left knee disorder is granted. REMAND The Board notes that the Veteran has asserted in numerous statements on the record, including at his August 2017 hearing, that he is unable to maintain gainful employment due in part to his service-connected psychiatric disorder. When a veteran submits a claim for an increased rating for a service-connected disability, it is a claim for the highest rating available, to include entitlement to TDIU, if raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Therefore, on remand, this issue must be developed and adjudicated. Accordingly, the case is REMANDED for the following action: 1. Obtain all treatment records from the VA medical center in Grand Junction, Colorado, or any VA facility from which the Veteran has received treatment, since May 2017. If the Veteran has received additional private treatment, he should be afforded an appropriate opportunity to submit them. 2. The RO should undertake any other development deemed necessary in order to adjudicate the TDIU claim, including obtaining any VA examinations or opinions that are necessary to adjudicate the claim. 3. After the above action is completed, if the TDIU claim is not fully granted, a supplemental statement of the case should be issued on the aforementioned issue, and the claims file should be returned to the Board for further appellate consideration. 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. §§ 5109B, 7112 (2012). ______________________________________________ B.T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs