Citation Nr: 1804329 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 12-17 824 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an initial evaluation in excess of 50 percent disabling for service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to an initial evaluation for service-connected coronary artery disease (CAD) in excess of 10 percent disabling from November 21, 2012 to November 1, 2015, and in excess of 60 percent thereafter. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION The Veteran represented by: John P. Dorrity, Director of OCVSB WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Galante, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1966 to January 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from September 2010 and March 2013 rating decisions issued by the United States Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The issue of TDIU was raised by the Board in its August 2015 decision and remains on appeal. In May 2015, the Veteran provided testimony before the undersigned Veterans Law Judge via videoconference. A transcript of the hearing has been associated with the electronic claims file. These matters were previously before the Board in August 2015, at which time they were remanded for further evidentiary development. Having reviewed the electronic claims file, the RO has substantially complied with the Board's previous remand directives. Stegall v. West, 11 Vet. App. 268 (1998). This will be discussed further below in the remand portion of this decision. Relevant evidence has been submitted since the RO issued its last adjudication in the May 2017 Supplemental Statement of the Case. By correspondence received in November 2017, the Veteran has waived initial RO review of this evidence. See 38 C.F.R § 20.1304 (2017). Accordingly, appellate review may proceed. The issues of entitlement to an increased rating for CAD and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Throughout the period on appeal, the Veteran's PTSD symptoms most closely approximate occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 50 percent for PTSD have not been met during the appeals period. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.21, 4.126, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable the Veteran to understand the precise basis for the Board's decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims (Court). 38 U.S.C. § 7104(d)(1) (2012); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist in regards to his claim for an increased rating for PTSD. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. Further, neither the Veteran nor his representative has alleged any deficiency with the conduct of his Board hearing as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In this regard, the Federal Circuit ruled in Dickens, 814 F.3d at 1361, that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott, 789 F.3d at 1381. Thus, the Board need not discuss any potential Bryant problem because the Veteran has not raised that issue before the Board. The regulations pertinent to this decision have been previously provided to the Veteran in the May 2012 Statement of the Case, as well as the May 2017 Supplemental Statement of the Case. Since the Veteran has had adequate notice of the pertinent laws governing this appeal, they will not be repeated here, unless deemed appropriate to do so by the Board. The Veteran argues that his service-connected PTSD is more severe than his current rating reflects. Specifically, the Veteran stated in his October 2010 notice of disagreement that his service-connected PTSD warrants a 70 percent disability rating. Having reviewed the electronic claims file, the Board concludes the Veteran's PTSD symptoms most closely approximate occupational and social impairment with reduced reliability and productivity, consistent with his current 50 percent disability rating for the entire appeals period. 38 C.F.R. § 4.130 (2017). The Veteran was afforded a VA examination in August 2010 to assess the nature and severity of his PTSD. During mental status examination, the Veteran was alert; cooperative; dressed and groomed somewhat casually and noted as somewhat inattentive to grooming and hygiene; motor activity was calm; mood and affect were relatively blunted; speech was normal; there was no evidence of perceptual impairment or thought disorder; thought content was appropriate; he denied suicidal and homicidal ideation; he was oriented to time, place, and person; and his memory, concentration, abstract reasoning, judgment, impulse control, and insight were all intact. The Veteran did not exhibit any of the psychological symptoms considered under the 70 percent rating. 38 C.F.R. § 4.130 (2017). A private psychological examination dated from August 2010 also failed to show levels of psychiatric symptomatology reaching the 70 percent criteria considered in the rating schedule. During mental status examination, the Veteran was noted as being soft-spoken with logical, coherent, relevant, goal-oriented thoughts. He denied hallucinations, delusions, thought disorder, or suicidal/homicidal intent. He was oriented to person, place, and time. While long-term memory was intact, he demonstrated a compromised short-term memory. His affect was severely constricted and his mood was tense, irritable, sad, and anxious. Judgment and impulse control were noted as compromised and the Veteran reported chronic intrusive thoughts of his Vietnam experiences. He reported only sleeping 3 to 4 hours per night. Nearly identical mental status examination results were documented in July 2016 and April 2017 by the same examining psychologist. The only symptom from these examinations that match any of those considered in the 70 percent criteria are intrusive thoughts (liberally construed as "obsessive rituals which interfere with routine activities") and impaired impulse control, whereas the majority of the documented symptoms fall within the criteria considered for a 50 percent evaluation (e.g., impairment of short- and long-term memory, impaired judgment, impaired abstract thinking, disturbances in mood and motivation) or a 30 percent evaluation (e.g., depressed mood, anxiety, chronic sleep impairment, and mild memory loss). The "presenting symptoms" portion of each examination report, which appear to be carbon-copies, indicate that the Veteran exhibited violence due to startle response immediately upon his return from Vietnam, but had no recent episodes of unprovoked irritability or violence at any time within the appeals period. With these considerations in mind, it cannot be said that the Veteran's objective psychiatric symptoms from these three private examinations, covering the entirety of the appeals period, more closely approximate the 70 percent criteria. VA treatment notes from February 2014 describe the Veteran's subjective reports of PTSD symptoms, but fail to contain any meaningful objective medical evidence that can be considered in conjunction with the rating schedule. See 38 C.F.R. § 4.126 (2017). In April 2014, the Veteran was seen by a VA mental health provider regarding his PTSD symptoms. The Veteran did not report suicidal/homicidal ideations. While he reported his mood being "down at times" he reported his sleep, energy, and motivation as "fair" and his appetite as "good." The provider charted that the Veteran was oriented to all spheres; cooperative; and with normal speech, thought processes, and thought content. These findings do not fit within a rating higher than the currently assessed 50 percent evaluation. In September 2016, the Veteran again presented to his VA mental health provider with complaints of increased anxiety. The Veteran's spouse reported concerns regarding the Veteran's concentration, irritability, memory, and insomnia. On mental status examination, the Veteran's behavior was noted as appropriate; he was appropriately dressed/groomed; was fully cooperative; he was alert and oriented to all spheres; his mood was down with appropriate affect; his speech rhythms, patterns, and content were normal, coherent, and goal-directed; and he exhibited no psychotic symptoms, including hallucinations or paranoia. His judgment and insight were adequate, and there was no evidence of tangentiality or loose associations. These reported symptoms fit squarely within the criteria considered for a 50 percent rating. 38 C.F.R. § 4.130 (2017). The Veteran was afforded a second VA examination in October 2016 to assess the severity of his service-connected PTSD. After a review of the electronic claims file and an in-person evaluation of the Veteran, the VA examiner listed the Veteran's current PTSD symptoms as: depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. These symptoms are primarily encompassed by the 30 and 50 percent ratings under Diagnostic Code 9411. See 38 C.F.R. § 4.130 (2017). At no time during the appeals period has the Veteran exhibited suicidal ideations; illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; spatial disorientation; neglect in personal appearance or hygiene; difficulty adapting to stressful circumstances; or an inability to maintain effective relationships-all of which are contemplated by a 70 percent schedular rating. On the contrary, the Veteran's mental health treatment notes have consistently shown no suicidal ideations; logical, relevant, goal-oriented thought processes and speech patterns; only mild depression/anxiety; and adequate grooming and hygiene. The Veteran seems to have adjusted well to ending his employment as a Corrections Officer and transitioning into retirement. Likewise, he has maintained a happy marriage and good relationship with his spouse of more than 50 years. Based on the above, the evidence simply does not support a finding that the Veteran's PTSD symptoms are of the severity and frequency associated with a 70 percent rating. The Board has also considered whether an assignment of a 100 percent schedular rating is appropriate. However, the Veteran has never exhibited gross impairment in thought processes or communication; persistent delusions; 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; and memory loss for names of close relatives, own occupation, or own name. His symptoms do not produce total occupational and social impairment rising to the level of a 100 percent rating. At the Veteran's May 2015 Board hearing, the Veteran's representative argued that the global assessment of functioning (GAF) scores of record are "more than moderate...severe" and warrant an increased rating to 70 percent. The Board has reviewed the Veteran's GAF scores in this determination, and finds them to be relevant insofar as they relate to the Veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. See Massey v. Brown, 7 Vet. App. 204, 207 (1994). However, the Board also points out that the clinical findings are nevertheless more probative in making this important determination, as these findings more accurately portray the relevant symptoms of the Veteran's service-connected PTSD. See 38 C.F.R. §§ 4.2, 4.6 (2017). The GAF score is only one data point amidst the medical evidence and does not directly correlate to the rating assigned. Consequently, GAF scores alone are not as probative as the Veteran's representative argues, especially when viewed in light of the more persuasive, objective clinical psychiatric findings of record. The Board has also reviewed and considered the Veteran's sworn hearing testimony, as well as the lay statement submitted by the Veteran's spouse in May 2015 describing her personal observations of the Veteran's personality changes following his return from Vietnam. The Board finds these statements to be credible and competent to the extent that the relay the professing witness' own experiences and personal observations. Layno v. Brown, 6 Vet. App. 465 (1994). However, since determining the degree of the Veteran's impairment hinges on evaluation of the clinically significant symptoms and objectively measurable criteria under the rating schedule, the Board affords greater evidentiary weight to the contemporaneous medical records and objective examinations by medical professionals over the subjective lay statements offered by the Veteran and his spouse. For these reasons, the Board finds that the evidence is not in equipoise and, instead, the weight of the evidence establishes that the Veteran's PTSD most closely approximates the 50 percent criteria for the entire appeal period. As the preponderance of the evidence is against the assignment of a higher rating, the benefit-of-the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.3 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an initial disability rating in excess of 50 percent for service-connected PTSD is denied for the entire appeals period. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim of an increased evaluation for CAD and entitlement to a TDIU. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). In August 2015, the Board remanded these matters to the AOJ with the specific instructions to expressly request authorization from the Veteran to obtain treatment records from "the private treating physician following him for CAD and the hospital where he was treated for chest pain in approximately 2013." In May 2016, the AOJ sent correspondence to the Veteran requesting that he complete the necessary authorizations to allow VA to obtain records from the "private providers that have treated [him] for CAD." The Veteran responded with completed authorizations allowing VA to obtain medical records from his identified cardiologist and primary care physician. The Veteran did not identify or provide authorization to allow VA to obtain relevant medical records from the hospital he described at his Board hearing. Thereafter, the AOJ promptly requested medical records from the identified providers, and associated the records with the electronic claims file. The cardiologist only provided selective medical records dated from 2015 and 2016. Thus, the AOJ substantially complied with the Board's previous remand directives. See Stegall, 11 Vet. App. at 271; D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required). Nevertheless, after a complete review of the electronic claims file, it has become apparent that outstanding cardiology records exist that are pertinent to the claim on appeal, and it would be unjust for the Board to proceed with a merits decision without a second opportunity for the AOJ to obtain this relevant evidence. See 38 C.F.R. § 3.159(c)(1) (2017). For instance, in the October 2012 disability benefits questionnaire completed by the Veteran's cardiologist, it is clear that the Veteran has undergone prior diagnostic testing and treatment from the cardiologist prior to the date of the form, yet the electronic claims file does not contain any of these treatment records. Similarly, in the March 2013 VA examination report, the VA examiner indicated he reviewed private cardiology treatment records, citing various dates of previous diagnostic testing; however, there is no indication in the electronic claims file, or the March 2013 rating decision's summary of evidence section, that these historical cardiology records had been obtained for adjudication purposes. Additionally, outpatient VA treatment records from November 2012 to present clearly state that the Veteran has treated with the same cardiologist on a routine basis; yet comprehensive cardiovascular treatment records for the entirety of the appeals period have not been obtained from this provider. This is supported by the Veteran's May 2015 Board testimony that he has treated with his private cardiologist for five to six years. A complete copy of the Veteran's cardiology records are necessary to justly adjudicate this appeal and determine the degree of evidentiary weight to be afforded to the disability benefit questionnaire completed by the Veteran's treating cardiologist. Consequently, the Board remands the Veteran's claim of entitlement to an increased evaluation for CAD to the AOJ for a final attempt to get complete records from the Veteran's treating cardiologist, to include the 2013 hospital records the Veteran described at his Board hearing. The Veteran is advised that these private cardiology records are necessary to consider his claim properly. While VA can request the records from the doctor, it remains the Veteran's responsibility to ensure all relevant records are submitted for consideration. It is in his best interests to do so, since the Board is giving him another opportunity, or his claim will be adjudicated based on incomplete evidence. Finally, the AOJ's determinations regarding the Veteran's claim for an increased evaluation for CAD may affect the outcome of the Veteran's claim for a TDIU. Accordingly, the issues are inextricably intertwined, and the Veteran's TDIU claim cannot be decided until his increased evaluation claim for CAD has been considered. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the electronic claims file all of the Veteran's outstanding VA treatment records from the VA New Jersey Health Care System, to include the James J. Howard Community-Based Outpatient Clinic, from September 2016 to present. 2. Contact the Veteran and specifically request that he identify the hospital where he was treated for chest pains in approximately 2013, and provide new authorizations allowing VA to obtain his medical records from this facility, as well as his treating cardiologist, Dr. S.J. Once the authorizations are received, request all medical records from these facilities, from November 2012 to present. If these records are unavailable, advise the Veteran and his representative of this fact, and provide them an opportunity to obtain the records on their own. 3. THEREAFTER, readjudicate the claims on appeal. If any benefit sought on appeal remains denied, issue a Supplemental Statement of the Case to the Veteran and his representative, and give them an appropriate time to respond before returning the matter(s) to the Board. [Continued on Next Page] The Veteran 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs