Citation Nr: 1801212	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  14-09 047	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD). 

2.  Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability.


ATTORNEY FOR THE BOARD

P. Daugherty, Associate Counsel


INTRODUCTION

The Veteran served in the United States Army with active duty from August 1967 to March 1970, to include service in the Republic of Vietnam. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision, which granted the Veteran's claim for entitlement to service connection for PTSD and assigned an initial evaluation of 30 percent, and from a February 2014 rating decision, which denied the Veteran's claim for entitlement to a TDIU, both from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The issue of entitlement to a rating in excess of 50 percent for PTSD and TDIU are addressed in the Remand portion of this decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

1.  The Veteran's PTSD is manifested by symptoms such as recurrent, involuntary and distressing memories of the traumatic event, difficulty sleeping, social isolation, hypervigilance, disturbances of mood, and difficulty with memory and concentration. 


CONCLUSION OF LAW

1.  The criteria for an initial rating of 50 percent for PTSD have been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2017).






REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist 

VA has a duty to notify and assist claims in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103(A) (2012); 38 C.F.R. § 3.159 (2017).  However, as the Board is granting the Veteran's claim for a rating in excess of 30 percent for PTSD to 50 percent and remanding for a rating in excess of 50 percent and for the Veteran's claim for entitlement to a TDIU, no further discussion of the statutory duty to notify the Veteran and to assist him in the development of this claim is necessary.

II.  Increased Ratings

Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  See 38 U.S.C.. § 1155; 38 C.F.R. Part 4.  The percentage ratings in VA's Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations.  See 38 C.F.R. § 4.1.

Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. 

Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994).  However, "staged" ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007).  Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).

The Board observes that the words "slight," "moderate," and "severe" are not defined in the Rating Schedule.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2016).  It should also be noted that use of descriptive terminology such as "mild" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C.A. § 7104 (a) (West 2014);  38 C.F.R. §§ 4.2, 4.6.

Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C.A. § 7104 (a) (West 2014). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Veteran is service-connected for PTSD which is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. 

Under 38 C.F.R. § 4.130, Diagnostic Code 9411, a 30 percent rating is warranted for when there is occupational and social impairment with an 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, mild memory loss (such as forgetting names, directions, recent events).  

A 50 percent evaluation 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 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; the Veteran's difficulty in establishing and maintaining effective work and social relationships.  Id.  

The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating.  The use of such terminology permits consideration of items listed and other symptoms and contemplates the effect of those symptoms on the Veteran's social and work situation.  See Mauerhan v. Principi, 16 Vet. App. 436 (2002).  The Board acknowledges that symptoms recited in the criteria in the rating schedule for evaluating mental disorders 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."  Id., at 442.  In adjudicating a claim for a higher rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment.  Id., at 443.  

A Global Assessment of Functioning (GAF) scale, with scores ranging between zero and 100 percent, represents the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. GAF scores included in the record are a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness.  Carpenter v. Brown, 8 Vet. App. 240, 242 (1995).  

In this regard, the Board acknowledges that effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM-IV, AMERICAN PSYCHIATRIC ASSOCIATION:  DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th Edition (1994).  The amendments replace those references with references to the recently updated DSM-5, and examinations conducted pursuant to the DSM-5 do not include GAF scores.  As the Veteran's increased ratings claims were certified to the Board after August 4, 2014, DSM-V applies.  However, even though relevant examination relied on DSM-IV, the Board may still address the claim on the merits to the extent the Board is assigning a higher rating of 50 percent.  

The Veteran asserts that he is entitled to an initial rating in excess of 30 percent for his PTSD.

The Veteran was first evaluated for his PTSD symptoms by a private physician in February 2013.  During that examination, the Veteran was diagnosed with PTSD under the DSM-IV criteria.  The Veteran reported symptoms such as difficulty sleeping, intrusive thoughts, nightmares, hypervigilance, and problems with memory and concentration.  The Veteran specifically noted having a hard time focusing long enough to finish tasks.  The Veteran's GAF score was reported as 45, which indicates serious symptoms.  Overall, the private physician noted that the Veteran's PTSD symptoms "have caused clinically significant impairment in his occupational, social, and personal life.... Because of his hypervigilance, hyperirritability, and isolating behaviors, he is severely compromised in his ability to initiate or sustain work or social relationships."  See, February 2013 private treatment record.

The Veteran was afforded with a VA examination in connection with his claim in April 2013.  The VA examiner confirmed the Veteran's diagnosis of PTSD.  During that examination, the Veteran endorsed similar symptoms as he did during his February 2013 evaluation.  Specifically, the Veteran reported social isolation, recurrent thoughts of the distressing event, markedly diminished interest or participation in significant activities, feeling of detachment from others, restricted range of affect, difficulty sleeping, difficulty concentrating, irritability, and hypervigilance.  The Veteran also endorsed mild memory loss and panic attacks that occurred weekly or less often.  At this examination, the Veteran's GAF score was reported as 55, which indicates moderate symptoms.  Overall, the VA examiner opined that the Veteran's overall disability picture resulted in "occupation and social impairment with occasional decrease in work efficiency and intermittent periods of the inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation."  See, April 2013 VA examination. 

While the Board notes that the April 2013 VA examiners opinion of the Veteran's overall disability picture is more in line with a 30 percent disability rating, the Board finds that the Veteran's PTSD symptomatology most nearly approximates the criteria for a 50 percent rating disability.  Accordingly, Board finds that the Veteran is entitled to an initial rating of 50 percent for his PTSD.  38 U.S.C. § 5107 (2012).  


ORDER

Entitlement to an initial rating of 50 percent for PTSD is granted, subject to the laws and regulations governing the payment of monetary benefits. 


REMAND

While the Board sincerely regrets further delay, additional development is required before the Veteran's claims for an entitlement to a rating in excess of 50 percent PTSD and his claim for an entitlement to a TDIU may be adjudicated on the merits. 

With respect to the Veteran's claim for an initial rating in excess of 50 percent, the Board notes that the Veteran's last VA examination in April 2013 evaluated the Veteran's symptoms under the DSM -IV criteria.  However, as the Veteran's appeal was certified to the Board after August 4, 2014, when the regulations regarding the evaluation of mental disorders were changed to reflect the updated DSM-5 criteria, a new examination is warranted to determine the current severity of the Veteran's PTSD under the DSM-V criteria.  

With respect to the Veteran's claim for entitlement to a TDIU, the Board notes that this claim is inextricably intertwined with his increased rating claim which remains appeal.  Accordingly, the Board will therefore defer any action with respect to this claim until the completion of the development noted above. 

Accordingly, the case is REMANDED for the following action:

1.  Obtain and outstanding VA and private treatment records and associate them with the Veteran's claims file. 

2.  After the development has been completed, scheduled the Veteran for a VA examination with the appropriate medical personnel to determine the current severity of the Veteran's PTSD and its impact on the Veteran's ability to secure or follow a substantially gainful employment.  The Veteran's claims file, to include a copy of this remand, should be made available to the examiner.  Following a complete review of the record, the examiner is asked to provide: 

a.  A determination of the current severity of the Veteran's PTSD under the DSM-V criteria, to include all indicated testing that should be completed in this regard. 

b.  A functional assessment of the Veteran's service-connected PTSD on the Veteran's ability to secure or follow a substantially gainful employment consistent with his education and occupational experience, and without consideration of his age or any nonservice-connected disabilities. 

A complete rationale must be provided for all opinions rendered.  If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicated this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation.

3.  Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal.  If any benefits sought on appeal remain denied, in whole or in part, the Veteran should be provided with a Supplemental Statement of the Case, afforded a reasonable opportunity to respond, and the case should then be returned to the Board for further appellate review, if otherwise in order.

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).




____________________________________________
Michael J. Skaltsounis
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs