Citation Nr: 21023554 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 11-14 728 DATE: April 21, 2021 REMANDED Entitlement to an evaluation in excess of 30 percent disabling for service-connected posttraumatic stress disorder (PTSD) prior to January 18, 2013 and in excess of 70 percent disabling, thereafter is remanded. REASONS FOR REMAND The Veteran had honorable active duty service with the United States Army from November 1987 to May 1988, and from December 1990 to July 1991. In January 2020, the Board of Veterans’ Appeals (BVA or Board) issued a decision that denied the Veteran’s claim of entitlement an evaluation in excess of 30 percent disabling for his service-connected post-traumatic stress disorder (PTSD) prior to January 18, 2013, and in excess of 70 percent disabling, thereafter. That decision also denied the Veteran’s claim of entitlement to a total disability rating based on individual unemployability (TDIU) due to his service-connected disabilities prior to December 26, 2018. In December 2020, the Court of Appeals for Veterans Claims (CAVC) vacated and remanded the Board’s decision to the extent that it denied the Appellant’s claim of entitlement an evaluation in excess of 30 percent disabling for his service-connected PTSD prior to January 18, 2013, and in excess of 70 percent disabling, thereafter. In a Joint Motion for Partial Remand, the parties agreed to remand the matter for further development and re-adjudication in compliance with the instructions set forth in the December 2020 CAVC Decision. As to the portion of the Board’s decision which denied the Veteran’s claim of entitlement to service connection for acid reflux and entitlement to a TDIU prior to December 26, 2018, the parties agree to dismiss those claims. The Board’s favorable award of entitlement to a TDIU from December 26, 2018 forward and entitlement to an evaluation of 70 percent disabling for PTSD from January 18, 2013 remains undisturbed. Breeden v. Principi, 17 Vet. App. 475, 477-78 (2004). 1. Entitlement to an evaluation in excess of 30 percent disabling for service-connected posttraumatic stress disorder (PTSD) prior to January 18, 2013 and in excess of 70 percent disabling, thereafter is remanded. In December 2020, CAVC evaluated the Board’s January 2020 decision and determined that the Board erred in failing to provide an adequate statement of reasons or bases in support of its findings and conclusions. 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet. App. 517, 527 (1995). As a preliminary matter, the Court noted that the Board failed to discuss a private medical opinion, dated February 2018, which indicated that the Veteran’s PTSD symptoms caused “neglect of his personal appearance and hygiene” and other limitations dating back to July 2011. As that opinion is suggestive of the Veteran’s PTSD related symptoms from July 2011 forward, the Board must consider and discuss the probative value of the private medical opinion. The Court also concluded that inadequate consideration was given to the April 2016 medical opinion. Therein, the Veteran’s treating physician opined that his current symptoms included a persistent danger of hurting himself or others, an intermittent inability to perform activities of daily living, to include neglect of his personal appearance and hygiene. It was also suggested that the noted symptomology had its onset in 1991. While the Board’s decision acknowledged these findings, it nevertheless concluded that the absence of medical evidence of any prior attempt to injure himself or others, indicated that the Veteran “was not in persistent danger of hurting himself or others.” On review of the record, the Court found this conclusion inadequate as it appeared to dismiss the April 2016 opinion and further suggests that the rating criteria for an evaluation of 100 percent disabling specifically requires an “attempt” to injury rather than evidence that a claimant is in “persistent danger of hurting self or others.” Similarly, the Court indicated that the Board’s discussion of April 2016 medical opinion failed to analyze its findings as reflective of the nature and severity of the Veteran’s symptoms in 1991. On remand, the Board must reconsider the probative value of both the February 2018 and April 2016 medical opinions. In addition, the Board’s decision failed to fully address the relevance of the Global Assessment of Functioning (GAF) scores identified in the record. Review of the record indicates that the Veteran’s claim was certified to the Board in March 2014. Accordingly, the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) 32 (4th Ed. 1994), applies. Golden v. Shulkin, 29 Vet. App. 221, 224 (2018) (the DSM-5 applies only to claims certified to the Board after August 4, 2014). In December 2009, a medical opinion listed the Veteran’s GAF score as 56. This finding was deemed consistent with the Veteran’s “moderate and persistent symptoms of PTSD without significant remission.” According to the DSM-IV, a GAF score range of 51 to 60 represents 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)”). On remand, the Board must discuss the probative value of the GAF score documented in December 2009 and its relevance to the Veteran’s assigned disability evaluation. Lastly, the Court concluded that the Board failed to discuss the lay assertions noted in the Veteran’s July 2010 Notice of Disagreement. Specifically, the Veteran reported the experience of panic attacks two to four times per week. This evidence is relevant for purposes of determining whether the Veteran is entitled to a higher evaluation prior to January 2013. An explanation was also deemed necessary regarding the appropriate date assigned for the staged rating period. While the Court notes that the Veteran was evaluated in the emergency room (ER) for complaints of a depressed mood, suicidal thoughts, and insomnia on January 2013, an onset of symptoms was suggested two months earlier than his ER visit. However, the Board finds that the Veteran last underwent a VA examination to assess the nature and severity of his PTSD in April 2019, more than three years ago. The Board recognizes that, generally, the mere passage of time is not a sufficient basis for a new examination. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). However, when available evidence is too old for an adequate evaluation of the current condition, VA’s duty to assist includes providing a more current examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993). The Board finds that not only is the last examination remote, but the examination no longer indicates the current level of disability due to his PTSD. Consequently, after all outstanding medical records are associated with the claims file, a more contemporaneous examination is needed to rate the claim for increased ratings for PTSD. Allday v. Brown, 7 Vet. App. 517 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). Accordingly, this matter is REMANDED for additional development in accordance with the CVAC directives as discussed in more detail below: 1. Schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected PTSD. The entire claims file and a copy of this remand should be made available to the examiner for review, and such review should be noted in the examination report. All necessary tests and studies should be conducted. The examiner must also discuss the functional effects of the Veteran’s service-connected PTSD, and any related residual conditions. The examiner’s attention is specifically requested to review and analyze the February 2018 medical opinion with related reports of symptoms; the April 2016 medical opinion with related reports of risk of self-harm; the documented GAF score of 56 noted in December 2009, lay assertions regarding the frequency of panic attacks in the Veteran’s July 2010 notice of disagreement, and ER evaluation in January 2013, with complaints of an onset of symptoms two months earlier. As a part of the examination and/or opinion, the examiner must consider all medical evidence to include the Veteran’s lay statements. Any opinion offered must be accompanied by a complete rationale, to include consideration of all medical evidence and lay statements. If any requested opinion cannot be offered without resorting to speculation, the examiner should indicate such in the examination report and explain why a non-speculative opinion cannot be offered. The examiner should also identify what, if any, additional information, or evidence would allow for a more definitive opinion. Zi-Heng Zhu Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Whitaker, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.