Citation Nr: 1804273	
Decision Date: 01/22/18    Archive Date: 01/31/18

DOCKET NO.  09-03 158	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to an initial increased rating for posttraumatic stress disorder (PTSD), currently evaluated as 10 percent prior to November 30, 2012, 50 percent from November 30, 2015 to June 27, 2017, and 70 percent since June 28, 2017. 

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


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

C. Samuelson, Counsel


INTRODUCTION

The Veteran served on active duty in the Marine Corps from October 1965 to October 1969.  Service in the Republic of Vietnam is shown by the record.  He is the recipient of the Combat Action Ribbon.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

In September 2012, the Board remanded the increased rating claim for additional development.  In June 2015 and September 2016, the Board remanded the increased rating claim and entitlement to TDIU for additional development.

The issues of entitlement to an initial rating in excess of 70 percent for PTSD and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

Effective October 19, 2006, the Veteran's PTSD was manifested by at least occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.


CONCLUSION OF LAW

Effective October 19, 2006, the criteria for at least a 70 percent rating for PTSD are met.  38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411 (2017).



REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran's PTSD is rated 10 percent prior to November 30, 2012, 50 percent from November 30, 2015 to June 27, 2017, and 70 percent since June 28, 2017.  He contends that his PTSD is more severe than the currently assigned ratings and that he is entitled to higher ratings.  Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  

Disability evaluations are determined by the application of the VA's 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 disorders in civil occupations.  See 38 U.S.C.A. § 1155 (2016); 38 C.F.R. §§ 3.321(a), 4.1 (2016).
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 (2016).  Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate.  See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Veteran's PTSD is currently rated under the General Rating Formula for Mental Disorders.  38 C.F.R. § 4.130, DC 9400 (2017).  Under the General Rating Formula for Mental Disorders, a 50 percent rating is warranted for 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 rating is warranted for 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 that 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); inability to establish and maintain effective relationships.

A 100 percent rating is warranted for 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. 38 C.F.R. § 4.130, DC 9411 (2017).

The symptoms listed in General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002).  In addition, in Mittleider v. West, 11 Vet. App. 181 (1998), the Court held that 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.

The Global Assessment of Functioning (GAF) is a scale reflecting psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness.  See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994).  A GAF score between 31 and 40 indicates some impairment in reality testing or communication or major impairment in several areas.  A GAF score of 41 to 50 is defined as denoting serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).  A score of 51 to 60 is defined as indicating 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 score of 61 to 70 is defined as indicating some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning but generally functioning pretty well, and has some meaningful interpersonal relationships.  See Carpenter v. Brown, 8 Vet. App. 240, 242-244 (1995).

At the Veteran's January 2006 VA examination, he reported thoughts of hurting others when angry.  In a September 2006 statement, he expressed prior homicidal ideation.  In a March 2007 private treatment record, Dr. Hoeper determined the Veteran's GAF score was 40 and his working memory was 100 percent impaired as he was unable to remember what he read and was lost while traveling.  The private treatment record also shows the Veteran reported visual and auditory hallucinations two to five times per week.  Further, the evidence shows suicidal ideation since January 2008.  See January 2008, March 2009 private treatment records from Goldsboro Psychiatric Clinic, April 2009 and February 2013 VA treatment records; Bankhead v. Shulkin, 29 Vet. App. 10 (2017) (stating the language of 38 C.F.R. § 4.130  "indicates that the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment in most areas").

Following a review of the relevant evidence of record, the Board finds that the criteria for a rating of at least 70 percent have been met prior to June 28, 2017.


ORDER

Effective October 19, 2006, a rating of at least 70 percent for PTSD is granted, subject to the law and regulations governing payment of monetary benefits.

REMAND

The issue of entitlement to an initial rating in excess of 70 percent for PTSD must be remanded for additional development.  The June 2015 and September 2016 Board remand directives specifically directed the AOJ to obtain outstanding treatment records from the Vet Center in Charlotte, North Carolina from November 2005 to the present.  These records have not been obtained.  Because records generated by VA facilities, including Vet Centers, that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file, see Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992), the AOJ must obtain these records.  As such, the Board has no discretion and must remand this claim to obtain the Vet Center records identified above following the current procedures prescribed in 38 C.F.R. § 3.159 (c) with regard to requests for records from Federal facilities.  

Further, as noted in the September 2016 Board remand, December 2015 correspondence from Goldsboro Psychiatric Clinic, Dr. E.W. Hoeper, shows that he recently provided the Veteran with a psychiatric examination in November 2015.  Also, a February 2016 VA treatment record noted that the Veteran was treated by an outside psychiatrist, Dr. E.W. Hoeper, every six months; however, the last dated treatment record associated with the claims file is from February 2013.  These private treatment records have not been requested.  These treatment records, along with any additional, pertinent VA or private treatment records should be obtained and associated with the claims file. The RO should also ask the Veteran to submit any additional, pertinent lay statements relating to his claim.

The Veteran's TDIU claim remains intertwined with the increased rating claim that is the subject of the present appeal and remand.  Accordingly, adjudication of the TDIU claim must await development and readjudication of this claim.  The Court has held that a claim that is inextricably intertwined with another claim that remains undecided and pending before VA must be adjudicated prior to a final order on the pending claim, so as to avoid piecemeal adjudication.  Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).

Accordingly, the case is REMANDED for the following action:

1.  Obtain VA treatment records from the Vet Center in Charlotte, North Carolina from November 2005 to the present.  All reasonable attempts should be made to obtain such records.  If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made, why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A  (b)(2) and 38 C.F.R. § 3.159(e).

2.  After obtaining any necessary authorization, request treatment records Dr. E.W. Hoeper/ Goldsboro Psychiatric Clinic, PA from February 2013 to the present.  Any negative response should be in writing and associated with the claims file.

3.  Request that the Veteran identify any additional outstanding VA or private treatment records pertaining to his claims.  Take appropriate measures to obtain copies of any outstanding records of pertinent VA or private medical treatment the Veteran identifies. 

4.  Provide the Veteran with another opportunity to complete an Application for Increased Compensation based on Unemployability (VA Form 21-8940).  The Veteran should be notified that under 38 C.F.R. § 3.158(a) (2017) his claim for a TDIU will be considered abandoned if he fails to cooperate by providing the completed VA Form 21-8940.

5.  Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of the nature, extent and severity of his PTSD symptomatology and the impact of his service-connected conditions on his ability to work.  The Veteran should be provided an appropriate amount of time to submit this lay evidence.

6.  Then readjudicate the appeal.  If the benefit sought on appeal remains denied, furnish the Veteran and his representative with a Supplemental Statement of the Case and afford them the opportunity to respond before the file is returned to the Board for further 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).



______________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs