Citation Nr: 1805877	
Decision Date: 01/30/18    Archive Date: 02/07/18

DOCKET NO.  12-11 652A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUES

1.  Entitlement to service connection for residuals of frostbite, left hand.

2.  Entitlement to an initial rating in excess of 30 percent for the Veteran's Post-Traumatic Stress Disorder (PTSD). 


ATTORNEY FOR THE BOARD

R. Brunot, Associate Counsel


INTRODUCTION

The Veteran had active service in the Unites States Army from February 1964 to September 1969.  The Veteran had additional service from September 1969 to January 1975, which has been characterized as other than honorable for VA purposes.  The Veteran also served in the United States Army Reserves on ACDUTRA from March 1963 to September 1963.  

This matter comes before the Board of Veterans' Appeals (Board) from December 2011 and May 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana.  

This case was remanded to the Agency of Original Jurisdiction (AOJ) in November 2012 to obtain additional VA treatment records and issue a Statement of the Case (SOC) regarding the Veteran's claim for service connection for residuals of frostbite, left hand.  VA has a duty to substantially comply with the Board's remand directives.  Stegall v. West, 11 Vet. App. 268 (1998).  VA attempted to obtain the Veteran's outstanding VA treatment records and received a memorandum from the VA offices in Louisiana indicating there were no records to provide.  Id.  

The Veteran died in March 2016.  The appellant is his surviving spouse.  In August 2016, the RO determined that the appellant was a valid substitute for the Veteran.  


FINDINGS OF FACT

1.  The Veteran's bipolar disorder and PTSD manifested as occupational and social impairment and included suicidal ideation.

2.  The preponderance of evidence reflects that the Veteran's residuals of frostbite, left hand disability was caused by his active duty service. 


CONCLUSIONS OF LAW

1.  The criteria for an initial disability rating of 70 percent for PTSD have been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.125, 4.130, Diagnostic Codes 9411, 9432 (2017).     

2.  The criteria for service connection for residuals of frostbite, left hand disability have been met.  38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Increased Rating 

Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity.  Individual disabilities are assigned separate Diagnostic Codes.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.20 (2017).  When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2017).  Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection in August 2007.  Fenderson v. West, 12 Vet. App. 119 (1999).  

Under the General Rating Formula for Mental Disorders, a 30 percent rating is assigned when there is occupational and social impairment with occasional decreased 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 rating is assigned 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; and difficulty in establishing and maintaining effective work and social relationships. 

A 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 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 work-like setting); and inability to establish and maintain effective relationships. 

A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability 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.  38 C.F.R. § 4.130 (2017). 

Symptoms listed in the General Rating Formula for 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.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).  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, 117 (Fed. Cir. 2013). Additionally, while symptomatology should be the primary focus when deciding entitlement to a given disability rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused the requisite occupational and social impairment.  Id.  

The Board acknowledges the Veteran's PTSD was diagnosed under the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV).  Presently, PTSD evaluations are considered under Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-IV).  One factor for consideration used in the DSM-IV was the Global Assessment of Functioning (GAF) score, which was a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness."  Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)).  However, the American Psychiatric Association has determined that the GAF score has limited usefulness in the assessment of the level of disability.  "Noted problems include lack of conceptual clarity and doubtful value of GAF psychometrics in clinical practice."  79 Fed. Reg. 45,093, 45,097 (Aug. 4, 2014).  Moreover, the Veteran's treatment records are largely devoid of GAF scores. Due to the change in medical practice and the absence of GAF scores in the record, the Board finds that the use of GAF scores is not useful in this case.

In a December 2011 VA treatment noted the Veteran was positive for depression and PTSD, but denied suicidal or homicidal ideation.  It was documented that he had nightmares, attempted to avoid thinking about his stressors, was hypervigilant, and had feelings of numbness or detachment.  The Veteran also reported problems with falling asleep, feeling depressed or hopeless, and poor appetite.  The Veteran also noted that several days he thought that he would be better off dead or thought about hurting himself.

In April 2012, the Veteran received a VA examination.  The Veteran was noted as having PTSD with mild social impairment.  The VA examiner noted the Veteran's PTSD caused occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress or symptoms controlled by medication.  The Veteran noted that his irritability and anger problems caused problems in his marriage but also noted he worked for 21 years before retiring due to open heart surgery.  The VA examiner documented that the Veteran had depressed mood, anxiety, chronic sleep impairment, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and suicidal ideations.  The Veteran reported suicidal and homicidal ideations in the past without intention. 

The most recent medical note of the Veteran's mental health was in a July 2015 VA record where it was noted the Veteran denied suicidal ideation and thoughts of hurting others. 

The Board finds based on the evidence of record a 70 percent rating is warranted.  The Board notes the Veteran had suicidal thoughts since December 2011 and these thoughts persisted.  Under the rating criteria, the Board finds the Veteran's persistent suicidal thoughts placed the Veteran at a 70 percent rating.  In the December 2011 VA record the Veteran noted that he had thoughts of self-harm for several days, and his April 2012 VA examination similarly noted he had suicidal ideations.  Nevertheless, the Board finds a rating higher than 70 percent is not warranted.  As noted by the April 2012 VA examiner, the Veteran experienced decreased work efficiency and occupational impairment only during periods of significant stress.  Moreover, though the Veteran was noted as having difficulty maintaining relationships the record failed to indicate he was unable to establish or maintain relationships.  Furthermore, the evidence of record failed to establish the Veteran had both total occupational and social impairment.  Accordingly, the Board finds the 70 percent rating criteria best captures the Veteran's disability.  See 38 C.F.R. § 4.130 (2017).

II.  Service Connection 

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017).  To establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability.  See 38 C.F.R. § 3.303 (2017); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

The Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  Second, the Board must determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007).  Third, the Board must weigh the probative value of the evidence in light of the entirety of the record. 

A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 C.F.R. § 3.102 (2017).  When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 4 (1990).  The preponderance of the evidence must be against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).

The Board notes the Veteran's Service Treatment Records (STRs) document the Veteran's treatment for frostbite on his right hand.  At the Veteran's April 2008 VA examination, the Veteran told the examiner his left hand was also injured.  The VA examiner documented the Veteran's account that his left hand was placed in a whirlpool and he was given medication.  The Veteran stated he had pain in his hand at all times and moderate, decreased sensation in his left hand.  The VA examiner diagnosed the Veteran with residuals of frostbite causing chronic left hand strain and stiffness.  The Board notes the VA examiner did not provide an etiological opinion.

The evidence of record also contains a private opinion from September 2010 which noted the Veteran had frostbite in both hands from his time in the Army.  The Board finds that service connection is warranted.  The Veteran's STRs document that he suffered frostbite while in service.  The Board finds the Veteran's lay statements credible and competent that he was treated for both hands.  The Board also considers the lack of an etiological opinion from the VA examiner contrasted to the private opinion indicating that the Veteran had frostbite in both hands while in the Army.  Accordingly, the Board finds the evidence in relative equipoise, and as such the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 4 (1990).  Therefore, the Board awards service connection for left hand residuals of frostbite. 


ORDER

Entitlement to an initial rating of 70 percent for PTSD is granted.

Entitlement to service connection for residuals of frostbite of the left hand is granted. 



____________________________________________
D. Martz Ames 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs