Citation Nr: 19115352 Decision Date: 03/01/19 Archive Date: 03/01/19 DOCKET NO. 17-04 819 DATE: March 1, 2019 ORDER Entitlement to an initial rating in excess of 30 percent from September 29, 2008 to December 19, 2010; entitlement to an initial rating in excess of 50 percent from December 20, 2010 to February 10, 2014; entitlement to an initial rating of 70 percent from February 11, 2014 to December 31, 2018; and entitlement to a compensable rating from January 1, 2019 for service-connected posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. For the period from September 29, 2008 to December 19, 2010, the Veteran’s service-connected PTSD manifested in symptoms of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, but has not caused occupational and social impairment with reduced reliability and productivity. 2. For the period from December 20, 2010 to February 10, 2014, the Veteran’s service-connected PTSD manifested in symptoms of occupational and social impairment with reduced reliability and productivity, but has not caused occupational and social impairment, with deficiencies in most areas. 3. For the period from February 11, 2014 to December 31, 2018, the Veteran’s service-connected PTSD manifested in symptoms of occupational and social impairment with deficiencies in most areas, but has not caused total social and occupational impairment. 4. From January 1, 2019, the Veteran has not been entitled to a compensable rating for PTSD. CONCLUSIONS OF LAW 1. For the period from September 29, 2008 to December 19, 2010, the criteria for entitlement to a rating in excess of 30 percent for service-connected PTSD have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.1-4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9411. 2. For the period from December 20, 2010 to February 10, 2014 the criteria for entitlement to a rating in excess of 50 percent for service-connected PTSD have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.1-4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9411. 3. For the period from February 11, 2014 to December 31, 2018, the criteria for entitlement to a rating in excess of 70 percent for service-connected PTSD have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.1-4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9411. 4. From January 1, 2019, the criteria for a compensable rating for service-connected PTSD have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.1-4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2002 to August 2002 and from May 2003 to December 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision of the Indianapolis, Indiana Department of Veterans Affairs (VA) Regional Office (RO), which granted entitlement to service connection for PTSD. The Veteran has perfected various staged ratings throughout the relevant period on appeal. A complete and thorough review of the claims folder indicates that the Veteran perfected a timely appeal with respect to the ratings initially assigned to his service-connected PTSD. Thereafter, and following an award of 70 percent for this disability, from February 11, 2014, the Veteran filed a notice of disagreement with respect to the effective date assigned to the 70 percent evaluation. Significantly, however, the fact remains that the Veteran has perfected a timely appeal with respect to the ratings initially assigned to his service-connected PTSD. In other words, throughout each of the stages of this appeal, the Board is considering whether a higher evaluation for the Veteran’s service-connected PTSD is warranted. Such consideration encompasses the Veteran’s assertions that the 70 percent rating assigned to this disability from February 11, 2014 should have been granted earlier than that date. Accordingly, no prejudice to the Veteran has resulted from the Board’s characterization of the issue on appeal. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The record reflects that VA’s duty to notify was satisfied by various correspondences. There is no indication in this record of a failure to notify. See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). With regard to the duty to assist, all relevant, identified, and available evidence has been obtained. The Veteran was provided VA examinations, the reports of which are adequate for the purpose of evaluating the proper disability rating. The Veteran has not referred to any additional, relevant, available evidence. Thus, the Board finds that VA has satisfied the duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. 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 required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. When rating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant’s capacity for adjustment during periods of remission. VA shall assign a rating 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. 38 C.F.R. § 4.126(a). When rating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). A 30 percent requires a mental disability resulting in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactory, 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, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130. A 50 percent evaluation is warranted if the evidence establishes 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 or social relationships. Id. 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 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 rating requires 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. The criteria set forth in the rating formula for mental disorders do not constitute an exhaustive list of symptoms, but rather are 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). Nevertheless, the Veteran must demonstrate the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM-IV. The amendments replace those references with references to the recently updated “DSM-5.” As the Veteran’s claim was certified to the Board after August 4, 2014, the DSM-5 is applicable to this case. According to the DSM-5, clinicians do not typically assess Global Assessment Functioning (GAF) scores. The DSM-5 introduction states that it was recommended that the GAF be dropped from DSM-5 for several reasons, including its conceptual lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice. In Golden v. Shulkin, 29 Vet. App. 221 (2018), the Court further addressed the value of GAF scores. The United States Court of Appeals for Veterans Claims (Court) noted that, although GAF scores were designed to help quantify and summarize the severity of symptoms associated with metal disorders, the DSM-5 eliminated GAF scores because of their “conceptual lack of clarity” and “questionable psychometrics in routine practice.” DSM-5 at 16. The Court further explained that although it is true that examiners no longer use these scores, an adjudicator is not permitted to rely on evidence that the American Psychiatric Association itself finds lacking in clarity and usefulness. Any reliance on evidence that expert consensus has determined to be unreliable would be impossible to justify with an adequate statement of reasons or bases. 1. Entitlement to an initial rating in excess of 30 percent from September 29, 2008 to December 19, 2010. On September 29, 2008, the Veteran applied for entitlement to service connection for PTSD. He submitted VA medical records showing a diagnosis of PTSD from May 2008. These records documented symptoms of experiencing flashbacks, panic symptoms, anxiety, insomnia, nightmares, difficulty concentrating, mild memory loss, irritability, social avoidance, and mild startle response. The Veteran reported at this time that he had been told when he was young that he had “mild ADD.” The records also document that he was in a romantic relationship that began in November 2007. A May 2009 treatment note indicates that the Veteran recently experienced the loss of a friend, and that his girlfriend and mother were going to accompany him to the funeral. The Veteran reported feelings of upset mood, anxiety, and sadness. He denied suicidal ideation. A July 2009 treatment note indicates that the Veteran struggled with anxiety regarding an upcoming surgery on his back. He also expressed difficulty concentrating, but exhibited no other discernible PTSD symptoms, with his affect being described as mildly constricted, stable, and appropriate. The treatment notes are marked with repeated references to his mother and girlfriend. A September 2009 treatment note indicates that the Veteran still experienced anxiety regarding the back surgery, which had been postponed. However, his focus had improved, and his insomnia had been reduced. The medications were noted to be effective and well-tolerated. The examiner noted that “positive feedback has been provided by girlfriend and family.” An April 2010 treatment note indicates that the Veteran’s PTSD symptoms were minimal, with rare nightmares, no avoidance symptoms, and some hypervigilance. The Veteran reported that he had been taking medication, which helped with his sleep and concentration. The Veteran also stated that he had a girlfriend that he gets along with well. The medical and lay evidence supports the finding that the Veteran’s symptoms of experiencing flashbacks, panic symptoms, anxiety, insomnia, nightmares, difficulty concentrating, mild memory loss, irritability, social avoidance, hypervigilance, and mild startle response resulted occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactory, with routine behavior, self-care, and conversation normal). After a review of the evidence, the Board finds the Veteran’s psychiatric symptoms more nearly approximate the symptoms considered by a 30 percent initial rating from September 29, 2008 to December 19, 2010. 38 C.F.R. § 4.130, Diagnostic Code 9411. Accordingly, entitlement to any rating in excess of 30 percent for this period is denied. Id. The Board has considered whether a higher rating of 50 percent rating is warranted, and finds that it is not shown that the Veteran had occupational and social impairment, with reduced reliability and productivity. The Veteran’s lay and medical evidence did not show 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 or social relationships. Accordingly, the Board finds that for this initial period at issue, the Veteran’s service-connected PTSD has resulted in no worse than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. As such, a rating higher than the current 30 percent evaluation for this portion of the appeal period is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 2. Entitlement to an initial rating in excess of 50 percent from December 20, 2010 to February 10, 2014 for the service-connected PTSD. On December 2010 VA examination, the examiner found that the Veteran experienced symptoms of panic, anxiety, restlessness, hypervigilance, irritability, nightmares, and difficulty with sleep. Further, the record notes that the Veteran did not have impairment of thought process or communication and noted that the Veteran maintained eye contact, interacted appropriately, maintained personal hygiene, and was oriented to person, place, and time. The Veteran denied delusions or hallucinations and suicidal or homicidal thoughts. The examiner stated that the Veteran did not have trouble with memory, but noted that he did experience trouble concentrating. The Veteran did not engage in ritualistic behavior. With regards to the effects of the Veteran’s PTSD on occupational and social functioning, the examiner noted that the Veteran experienced difficulty keeping a job due to irritability and problems with authority, but that medication was starting to help the Veteran keep his irritability under control. The examiner found that the Veteran was able to be around others, socialize, and generally “keep busy.” The Veteran reported living with his father at the time. The examiner concluded that the Veteran would have some reduced reliability and productivity due to PTSD signs and symptoms. A January 2011 treatment note indicates that the Veteran reportedly stated, “I am doing much better now,” and that his mood was described as even and stable. Medicines helped with stabilizing his mood and with reducing his insomnia. The notes indicate that the Veteran was casually but cleanly dressed, and maintained adequate eye contact. The Veteran also denied suicidal or homicidal ideation. The treatment notes indicate that the Veteran’s thought process was linear and logical; no psychosis was apparent; his insight appeared to be “fair to good;” and his judgment was deemed “adequate.” An October 2011 treatment note indicates that the Veteran was in distress because his medications were interrupted due to being incarcerated. The notes indicate that the Veteran was not cooperative, that his speech was fast and loud, and that he reported mood swings during the day. A subsequent October 2011 treatment note indicates that the Veteran’s mother and fiancé accompanied him to his appointment, and the primary PTSD symptom discussed at this appointment was insomnia. In numerous treatment notes throughout April 2012 and May 2012, the Veteran consistently denied suicidal ideation or homicidal ideation. At times he reported irritability and nightmares. A June 2012 treatment note indicates that the Veteran’s PTSD symptoms did not appear to be prominent at that time. An October 2012 treatment note indicates that the Veteran was released from jail, and in a good mood. The Veteran reported taking his medications as ordered. He denied insomnia, suicidal ideation, homicidal ideation, or hallucinations. He stated that he was moving in with his girlfriend. A November 2012 treatment note indicates that the Veteran reported irritability and difficulty with sleep. The Veteran indicated that he was living with his mother and his girlfriend at this time, and that they were supportive of him. A December 2012 treatment note indicates that the Veteran reports sleeping better, with no nightmares. The Veteran denied irritability, depression, suicidal ideation, or homicidal ideation. He admitted to experiencing anxiety, but that he was able to manage it “okay.” The Veteran reported that he was living with his girlfriend at this time. A February 2013 treatment note indicates that the Veteran reported nightmares “related to the military.” He also reported that he had been “moody,” irritable, depressed, and anxious. The examiner noted that the Veteran was living with his mother at this time, and that the mother was supportive of him. A May 2013 treatment note indicates that the Veteran again reported nightmares, but that medication helped with mood swings, anxiety, irritability, and difficulty sleeping. The Veteran also reported ending his relationship with his girlfriend, and that he had recently been incarcerated. A September 2013 treatment note indicates that the Veteran was neatly dressed and had good hygiene. The Veteran’s speech was clear, logical, and goal oriented. The examiner found that the Veteran’s memory, cognition, attention, and concentration were grossly intact. The Veteran denied suicidal ideation and homicidal ideation. No evidence of thought disorder was found. The Veteran reported no hallucinations, delusions, or paranoid ideations. The examiner found that the Veteran’s insight and judgment was fair. The Veteran was reportedly living with his father. An October 2013 treatment note indicates that the Veteran was experiencing sleep difficulties, but the Veteran denied having nightmares. The Veteran further denied any significant depression or anxiety; however, he did report engaging in social avoidance. A November 2013 treatment note indicates that the Veteran was “doing okay” with mood, anxiety, and irritability symptoms. The examiner noted that the Veteran exhibited difficulty with sleep, only getting around 4 to 5 hours a night. The Veteran reported thoughts, flashbacks, and nightmares relating to his time in the military. Also, his familial relationships demonstrated improvement, as he reported that he still lived with his father but that his mother and siblings trusted him again. A February 2014 social work treatment note indicated further improvement with his relationship with his mother, siblings, and their children. In September 2013, the Veteran was awarded entitlement to service connection for PTSD with an evaluation of 30 percent, effective September 29, 2008, and an evaluation of 50 percent, assigned from December 2010. After a review of the evidence, the Board finds that the Veteran’s psychiatric symptoms more nearly approximate the symptoms considered by a 50 percent disability rating. 38 C.F.R. § 4.130, Diagnostic Code 9411. Specifically, due to the Veteran’s symptoms of panic, anxiety, restlessness, hypervigilance, irritability, nightmares, and difficulty with sleep, the Board finds that the Veteran’s symptoms result in occupational and social impairment with reduced reliability and productivity. Id. The Board has considered whether a higher rating of 70 percent is warranted between December 20, 2010 and February 10, 2014 and finds that such is not warranted—as it is not shown that the Veteran has occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood during this time period. The Veteran’s lay and medical evidence for the relevant period did not show 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); or an inability to establish and maintain effective relationships. Accordingly, and resolving all reasonable doubt in the Veteran’s favor, the Board finds that from December 20, 2010 to February 10, 2014, his PTSD has resulted in no worse than occupational and social impairment, with reduced reliability and productivity. As such, a rating greater than the currently-assigned 50 percent evaluation during this time period for the service-connected PTSD is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 3. Entitlement to an initial rating in excess of 70 percent from February 11, 2014 to December 31, 2018 for service-connected PTSD. The Veteran appealed in March 2014, contending he was entitled to a higher rating from September 29, 2008, the original date of his claim. To support his contention, the Veteran submitted medical evidence from a private medical examiner, dated February 11, 2014, who claimed that the Veteran’s symptoms manifested in occupational and social impairment with deficiencies in most areas since the original date of filing. The February 2014 examination indicates that the Veteran exhibited many PTSD symptoms, including anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The record further indicates that the Veteran’s attention was normal and that his concentration was variable. Increased trouble with short and long-term memory was noted, and the examiner noted that the Veteran struggled with remembering basic information. The Veteran’s thought content was deemed appropriate for the circumstances, and the organization of thought was goal-directed. Importantly, the examiner stated that “there is report of overt hallucinations.” The record indicates that the Veteran’s fund of knowledge and intellectual abilities appear slightly below average, and his capacity for abstraction appeared variable. The examiner further found that the Veteran’s judgment was poor. The record notes that the Veteran’s mood was anxious and nervous, and his affect was restricted. The Veteran reported that “he does feel anxious and depressed.” The examiner found that the Veteran endorsed symptomology of PTSD during the examination, as he was vague with response, suspicious, and seemed “rather vigilant when speaking with this examiner.” The examiner also submitted a separate report, where more of the Veteran’s symptoms were described, including social isolation, auditory hallucinations, hypervigilance, and avoidance of thoughts, feelings or conversations about his trauma. The report indicates that the Veteran was not married nor in a significant relationship; furthermore, he expressed difficulty in meeting a significant other due to his relationship issues, and stated that he was at a “dead end.” However, a January 2014 social work note indicates that the Veteran recently resumed his prior relationship with his girlfriend and reported hoping that she would move in with him soon. Social work notes from February 2014 and April 2014 indicate that he further reported a positive relationship with his girlfriend. An April 2015 treatment note indicates that the Veteran tested positive in a PTSD screening, but denied suicidal ideation. A May 2015 treatment note indicates that the Veteran endorsed intermittent sleep disturbance, approximately twice a week, but averaging about 6 hours of uninterrupted sleep per night. Also, he reported experiencing 4 nightmares within the month leading up to the examination. The record indicates that the Veteran reported regular contact with his father at this time. A June 2015 treatment note indicates that the Veteran experienced better sleep, but still experienced anxiety. The Veteran referenced caring for his girlfriend’s nieces helped him stay active, which helped him with anxiety. Numerous subsequent notes from the Veterans Justice Outreach (VJO) program are found in the record, including notes from September 2015 and December 2016, the latter of which indicates that the VJO case manager met with the Veteran at the Vanderburgh County Jail. The September 2015 note indicates that the Veteran presented with irritability and frustration. The December 2016 record indicates that he presented with good mood and congruent affect. Both records indicate he was alert, oriented, and maintained good eye contact; exhibited appropriate speech and logical thought processes; and insight and judgment appeared intact. The record notes that the Veteran presented with good hygiene and was appropriately dressed for the weather in both instances. Furthermore, the record indicates that the Veteran actively engaged with the case manager in both instances, and the Veteran denied suicidal and homicidal ideation in both instances as well. In January 2017, the Veteran was awarded an increased rating of 70 percent for his PTSD, effective February 11, 2014, the date of his medical examination with the aforementioned private medical examiner. The Veteran continued to disagree with his ratings assigned to this service-connected disability. He contended that he is entitled to higher ratings throughout the entirety of the appeal period. While the evidence demonstrates an isolating and debilitating disability picture, it is not shown that the Veteran has total occupational and social impairment from his PTSD during this portion of the appeal period. The February 2014 examination indicates that the Veteran lived with his mother at the time, and that she was his “rock” and greatest support system. The examiner specifically noted that the Veteran and his mother would go shopping for food together. The May 2015 treatment notes indicate that though he cut off contact with his mother and brother for about one and a half months, he reported he was having regular contact with his father. Numerous notes throughout the record indicate that the Veteran was in at least one significant romantic relationship. Such evidence supports a finding that the Veteran is unable to establish and maintain effective relationships, but does not show that he had total social impairment. The record is devoid of evidence establishing that the Veteran suffered from 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, or other symptoms comparable to total occupational and social impairment. Accordingly, the Board finds that for the relevant period at issue (February 11, 2014 to December 31, 2018) the Veteran’s PTSD has resulted in occupational and social impairment with deficiencies in most areas but not total occupational and social impairment. As such, he is not entitled to a rating higher than the currently-assigned 70 percent evaluation for his PTSD for this portion of the appeal period. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 4. Entitlement to a compensable rating for PTSD from January 1, 2019. The Veteran was scheduled for a routine VA examination on August 15, 2018, in order to determine the current severity of his service-connected PTSD. However, the Veteran failed to report for this examination without good cause. 38 C.F.R. § 3.665(c)(2). On August 23, 2018, the 70 percent rating for the Veteran’s PTSD was proposed to be reduced to zero. On November 14, 2018, the Veteran’s evaluation of PTSD was decreased to 0 percent effective January 1, 2019. According to the Department of Veterans Affairs Office of Inspector General Fugitive Felon Program, a warrant was issued for the Veteran’s arrest on November 29, 2016. An outstanding warrant for the Veteran’s arrest was issued on February 7, 2018. A veteran who is otherwise eligible for service-connected compensation may not paid or otherwise provided such benefit for any period during which such Veteran is a fugitive felon. 38 U.S.C. § 5313B; 38 C.F.R. § 3.665(n). The term “fugitive felon” includes a person who is a fugitive by reason of (i) fleeing to avoid prosecution, or custody or confinement after conviction for an offense, or an attempt to commit an offense, which is a felony under the laws of the place from which the person flees; or (ii) violating a condition of probation or parole imposed for commission of a felony under Federal or State law. 38 C.F.R. § 3.665(n). Additionally, the term felony includes a high misdemeanor under the laws of the State which characterizes as high misdemeanor offenses that would be felony offenses under Federal law. 38 C.F.R. § 3.665(n)(3). VA’s duty to assist provisions of 38 U.S.C. § 5103A and 38 C.F.R. § 3.159 apply equally to incarcerated Veterans and non-incarcerated Veterans, and VA has established special procedures for handling the scheduling of VA examinations for incarcerated veterans. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (providing that the duty to assist incarcerated Veterans requires VA to tailor its assistance to meet the peculiar circumstances of confinement; as such individuals are entitled to the same care and consideration given to their fellow non-incarcerated veterans). VA’s duty to assist an incarcerated Veteran includes: (1) attempting to arrange transportation of the claimant to a VA facility for examination; (2) contacting the correctional facility and having their medical personnel conduct an examination according to VA examination work sheets; or (3) sending a VA or fee-basis examiner to the correctional facility to conduct the examination. Bolton v. Brown, 8 Vet. App. 185, 191 (1995). As noted above, VA has a duty to assist incarcerated Veterans, as incarcerated individuals are entitled to the same care and consideration given to their fellow non-incarcerated veterans. However, according to documents obtained from the Vanderburgh Circuit Court, the Veteran has a current outstanding warrant issued on his behalf. The Veteran is fleeing to avoid prosecution for an offense which is a felony under the laws of the State of Indiana. Therefore, the Veteran is now considered a fugitive felon, and VA is unable to comply with provisions regarding the duty to assist incarcerated veterans. As the Veteran missed his routine scheduled examination without demonstrating good cause and is a fugitive felon, the 70 percent evaluation for his service-connected PTSD was properly reduced to zero, and he is not entitled to a compensable rating for this period. See also 38 C.F.R. § 3.655(c)(2) (which stipulates that, when a claimant fails to report for a reexamination of a disability where the issue is continuing entitlement and where the Veteran fails to respond within 60 days as to his willingness to report for a reexamination or to present evidence that payment for the disability for which the reexamination was (CONTINUED ON NEXT PAGE) scheduled should not be discontinued or reduced, payment for such disability will be discontinued). Here, the Board finds that the agency of original jurisdiction properly reduced the evaluation for the Veteran’s service-connected PTSD to zero, effective from January 1, 2019. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Griffin, Associate Counsel