Citation Nr: 1806901 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 14-08 012 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to an increased rating in excess of 50 percent prior to February 21, 2014 for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a heart disability, to include as due to herbicide exposure. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. Mine, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1969 to September 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from December 2011 and November 2012 rating decisions issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). The issues of entitlement to service connection for a heart disability and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Prior to February 21, 2014, the Veteran's PTSD symptomatology more nearly approximated occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW Prior to February 21, 2014, the criteria for a disability rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130 Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA's duty to notify was satisfied by a letter dated in December 2011. VA's duty to notify and assist regarding the Veteran's claim for an increased rating for PTSD and his claim for TDIU was satisfied by a letter dated in December 2011. See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In a letter received in August 2011, the Veteran contested the findings contained in the May 2011 VA examination report, asserting that he never reported being in a good mood, feeling better about things, that was sleeping well, or looking forward to going back to work. However, even assuming that the May 2011 VA examiner's characterization of the Veteran's mood, outlook, and sleep were inaccurate, the Veteran did not dispute the remainder, or even the majority, of the examiner's description of the Veteran's symptoms. Moreover, the Board has carefully reviewed the other VA examinations and medical evidence of record and finds that the examinations, along with the other evidence of record, are adequate for rating purposes. Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. 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 duty to assist argument). Accordingly, the Board will address the merits of the claim. II. Increased Rating for PTSD Legal Criteria A disability rating is determined by the application of 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 conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent evaluation 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 which 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. Id. A 100 percent evaluation 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. Id. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. The use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase 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 GAF (Global Assessment of Functioning) score is a scale reflecting the 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). This is more commonly referred to as DSM-IV. A GAF of 21 to 30 is defined as behavior considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriate, suicidal preoccupation) or an inability to function in almost all areas (e.g., stays in bed all day, no job, home or friends). A GAF of 31 to 40 is indicative of some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or any major impairment in several areas, such as work or school, family relations, judgment, thinking or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). A GAF of 41 to 50 is indicative of 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 GAF of 51 to 60 is defined as 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 of 61 to 70 is indicative of 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, has some meaningful interpersonal relationships. A GAF of 71 to 80 indicates that if symptoms are present, they are 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). The Board notes that an examiner's classification of the level of psychiatric impairment by a GAF score is to be considered, but is not determinative of the percentage rating to be assigned. VAOPGCPREC 10-95. Facts and Analysis Initially, the Board notes that in July 2010, the Veteran filed a VA Form 9 appealing a July 2010 rating decision to the Board. However, in August 2010 the Veteran reported that he was satisfied with his rating, thus withdrawing his appeal. In April 2011, the Veteran again filed a claim for an increased rating for his service-connected PTSD. The Board is nevertheless obligated to review evidence dated one year prior to the date of claim, despite the fact that the Veteran's prior appeal was withdrawn, and has done so. In a May 2010 psychiatry resident note, the Veteran reported that his anxiety was getting worse and he was experiencing panic attacks at least once a week. He reported nightmares and stated that some nights he could sleep well and others he did not. He indicated that his relationship with his wife was good most of the time. He described his mood as good, but reported that at other times he had been more irritable. The examiner reported that the Veteran was well dressed and groomed. He was friendly and cooperative, with good eye contact. He had no psychomotor agitation or retardation. His speech was normal, mood good, and affect euthymic. The Veteran's thought process was linear, logical, and goal directed. He denied any suicidal or homicidal ideation, plan or intent, and denied any illusions, delusions, or hallucinations. His judgment, insight, memory, attention, and concentration were all good. The examiner assessed a GAF of 60. In a separate May 2010 VA treatment record, the Veteran reported that he was having panic attacks at least once per week. In a May 2010 letter, the Veteran's VA psychiatrist reported that she had been treating the Veteran for two years, during which time she had observed symptoms such as poor sleep resulting from nightmares; intrusive, upsetting memories; flashbacks; irritability; outbursts of anger; feeling jumpy; being easily startled; and hypervigilance. The psychiatrist stated that his anxiety and panic attacks had worsened. Finally, she reported that his symptoms were severe. The Veteran was afforded a VA examination in May 2010. The examiner reported that at the time of the examination the Veteran was working as a bulldozer operator and was doing his job adequately. The Veteran had been married to the same person for 25 years and he reported that they got along well without any significant marital difficulties. He got along well with his brother, but reported significant difficulties with his sister-in-law, though not due to PTSD. The Veteran indicated that he had a number of friends with whom he visited. He reported that when running errands with his wife, he would often stay in the car if the store was crowded. He denied any violent or assaultive behavior and denied any suicide attempts. On examination, the Veteran's affect was within normal limits and his mood was euthymic, though he appeared rather anxious. His thought process was normal and he denied any delusions or hallucinations. His eye contact and behavior were appropriate. He denied any suicidal or homicidal thinking. His personal hygiene was adequate. He was fully oriented, his memory was intact, and his speech was within normal limits. The examiner noted that in prior treatment records the Veteran had described panic attacks once a week, and during the examination the Veteran described episodes in which he felt short of breath lasting about five minutes, with a frequency ranging from four to five times per week to not experiencing any for a couple of weeks at a time. Outside of those incidents, the Veteran reported that he did not typically feel nervous, scared, or fearful. He denied depression. His impulse control was adequate, with no severe anger outbursts. The examiner assessed a GAF of 60. In a July 2010 letter the Veteran asserted that his PTSD had worsened, stating that he had panic attacks every day, did not get along with his co-workers, and was unable to sleep due to nightmares. The Veteran was afforded a VA examination in May 2011. The examiner noted that the Veteran's treatment records indicated that he may have improved since his prior VA examination. The Veteran reported that he and his wife of 26 years got along well. He also reported getting along with his brother. The Veteran also noted being estranged from his sister, though not due to his PTSD. He reported having some friendships. He indicated that he did not have many hobbies, but attributed that to his work schedule. He stated that he ran some errands with his wife, but did not like to be around crowds and stayed in the car if a particular place was too crowded. He denied any violent or assaultive behavior or suicide attempts. On examination, the Veteran's mood appeared euthymic. There was no impairment of thought process or communication. He had no delusions or hallucinations. Eye contact and behavior were appropriate. His personal hygiene was adequate, as well as his ability to do the activities of daily living. He was oriented and his memory was intact. The Veteran reported occasional anxiety. The Veteran denied depressed mood, saying his mood was generally fair. His impulse control was good. The examiner reported that the Veteran's sleep appeared quite good. The Veteran complained of nightmares and intrusive thoughts once every week or two. He displayed avoidance behavior, but denied any excessive anger or irritability. His concentration was adequate. The Veteran reported some startle response and hypervigilance. Finally, the examiner opined that the Veteran's PTSD appeared quite stable and not of a nature that would inhibit any gainful employment. In an August 2011 letter, a VA physician reported that the Veteran's PTSD resulted in symptoms including persistence of nightmares, flashbacks, and numbness/detachment. The physician reported that the Veteran preferred to be alone and did not like to go into large places. The physician stated that the Veteran did not endorse irritability or difficulty concentrating. He had endorsed some hypervigilance, but did not report an exaggerated startle response. In September 2011 SSA records, the Veteran stated that he did no shopping because he not want to be around anyone. He indicated that he could no longer deal with his bills or handle money because he became overwhelmed. He reported that he spent all of his time with his wife. The Veteran indicated that he did not have any problems getting along with family, friends, neighbors, or others. He reported that he had no problem paying attention, but needed his wife to remind him to take his medication. In a November 2011 SSA Mental Residual Functional Capacity Assessment performed by R.J.M., Ph.D., the Veteran was moderately limited in the following areas: his ability to maintain attention and concentration for extended periods; ability to work in coordination or in proximity to others without being distracted; and ability to interact appropriately with the general public. Otherwise, the Veteran was not significantly limited. The examiner opined that the Veteran was able to meet the basic mental demands of competitive work on a regular, ongoing basis despite the limitations arising from his impairment. In a statement received in November 2012, the Veteran's wife reported that he woke three to four times during the night. She stated that sometimes he sleepwalked. She reported that the Veteran had gotten angrier over time. In a statement received in November 2012, the Veteran reported that he was experiencing nightmares, confusion, memory lapses, and sleep walking as a result of his PTSD. In VA mental health notes dated from March 2011 through December 2013, mental status examinations indicated that the Veteran was calm and cooperative and maintained periodic eye contact. His mood was good, though his affect was somewhat restricted. His judgment was fair to good, and his insight was fair. His cognition was without deficit. He had no suicidal or homicidal ideation. He had no delusions, paranoia, obsessions, or repetitive behavior. He was oriented to person, place, and time. His thought process was linear and logical, without any derailment of thoughts, circumstantiality, tangentially, or thought blocking. He denied any thought projection or insertion of thought. No bizarre dissociations were present. No psychiatric ambivalence or looseness in his associations was noted. His perceptions were devoid any active hallucinations. His speech was fluent, organized, and unpressured. The examiners consistently assessed a GAF of 60. Upon careful review of the evidence of record the Board finds that prior to February 21, 2014, the preponderance of the evidence is against a rating in excess of 50 percent, as the weight of the evidence is against a finding that the Veteran's PTSD resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. See 38 C.F.R. § 4.130, Diagnostic Code 9411. The evidence of record does not show that the Veteran's psychiatric disability was manifested by symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; 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; or an inability to establish and maintain effective relationships. Id. The Veteran has consistently asserted that he experiences panic attacks. In May 2010 VA treatment records the Veteran reported panic attacks occurring at least once per week. Later the same month, during the May 2010 VA examination, the Veteran reported that he was experiencing panic attacks minutes with a frequency ranging from four to five times per week to not experiencing any for a couple of weeks at a time. He stated that these attacks lasted approximately five minutes. However, outside of those incidents, the Veteran reported that he did not typically feel nervous, scared, or fearful. Subsequently, in July 2010, the Veteran reported that he was experiencing panic attacks daily. Thus while the evidence establishes that the Veteran has experienced frequent panic attacks, they were, according to his own reports, of limited duration, and when he was not experiencing an acute attack, he did not typically feel nervous, scared, or fearful. Therefore, the evidence does not show that the Veteran experienced near-continuous panic or depression affecting his ability to function independently, appropriately, and effectively. In May 2010 the Veteran indicated that he had a number of friends with whom he visited. In May 2011 the Veteran reported that he had some friendships. Additionally, the Veteran has remained married to his spouse for many years and has reported that he and his wife got along well. Thus, there is no evidence that the Veteran's disability resulted in an inability to establish and maintain effective relationships during the relevant period on appeal. In summary, the evidence of record shows that a disability rating of 50 percent, but no higher, is warranted for the Veteran's PTSD. A 50 percent disability rating during this period contemplates the severity, frequency, and duration of the Veteran's PTSD symptoms and is based on all of the evidence of record. See 38 C.F.R. § 4.126(a). However, while the Board acknowledges that the Veteran has exhibited factors such as anxiety and panic, the symptomatology is not of sufficient severity, frequency, and duration to result in a higher rating. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The Veteran's symptoms appear consistent with no more than occupational and social impairment with reduced reliability and productivity. Thus, the criteria for a finding of a 70 percent evaluation or higher are not met during this period, and the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to an initial rating in excess of 50 percent prior to February 21, 2014, for acquired psychiatric disorder is denied. REMAND I. Service Connection for a Heart Disability July 2011 VA treatment records indicated that a cardiac catheterization showed normal coronaries and an echocardiogram performed indicated moderately impaired left ventricular systolic function. The Veteran was given a diagnosis of arterial fibrillation and systolic heart failure in August 2011. See August 2011 VA treatment record. The Veteran was afforded a VA examination for his claimed heart condition in November 2011. The examiner found that the Veteran did not have a diagnosis of ischemic heart disease or congestive heart failure; however, the examiner failed to address the Veteran's diagnosed systolic heart failure or atrial fibrillation. Further, subsequent to the VA examination, an October 2012 VA treatment record indicate that the Veteran had a "likely etiology ischemic 2/2 CAD." Thus the Board finds that the Veteran's claim must be remanded for an additional VA examination. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran's DD Form 214 confirms that the Veteran was stationed in the Republic of Vietnam from March 1970 to February 1971 and therefore exposure to herbicide agents is presumed. II. TDIU The Veteran's claim for entitlement to service connection remains pending. As the Veteran has asserted he is no longer able to work due to his heart disability, the issue of entitlement to a TDIU is inextricably intertwined with the pending service connection claim. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from private or VA health care providers. 2. After the above development has been completed to the extent possible, schedule the Veteran for a VA cardiovascular examination to determine the nature and etiology of his claimed heart condition. All necessary tests and studies should be accomplished and all complaints and clinical manifestations should be reported in detail. The entire claims file, including a copy of this remand, should be reviewed in conjunction with the above evaluation. After reviewing the claims file and examining the Veteran, the examiner should address the following inquiries: a) Clarify whether the Veteran has a diagnosis of ischemic heart disease, which includes but is not limited to acute, subacute, and old myocardial infarction, atherosclerotic cardiovascular disease, including coronary artery disease (including coronary spasm) and coronary bypass surgery, and which excludes hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. 38 C.F.R. § 3.309(e). b) As to any diagnosed heart condition that does not qualify within the generally accepted medical definition of ischemic heart disease, the examiner should opine whether each such condition is at least as likely as not (50 percent or greater probability) directly related to any event, injury, or illness during the Veteran's service, to include his presumed exposure to herbicides while stationed in Vietnam. A complete rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. 3. Thereafter, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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). These claims 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). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs