Citation Nr: 1007452 Decision Date: 03/01/10 Archive Date: 03/11/10 DOCKET NO. 08-32 991 ) DATE ) ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disability (TDIU). 2. Entitlement to an evaluation in excess of 70 percent for the service-connected posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD A. Nigam, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1980 to December 1983. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision issued by the RO. FINDINGS OF FACT 1. All relevant evidence necessary for the equitable disposition of the issue addressed in this decision was obtained. 2. During the period of the appeal, the service-connected PTSD is not shown to have been productive of a disability picture that was manifested by total occupational and social impairment. 3. The service-connected PTSD is shown to preclude the Veteran from securing and following substantially gainful employment consistent with his education and occupational background. CONCLUSIONS OF LAW 1. The criteria for the assignment of a rating in excess of 70 percent for the service-connected PTSD have not been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.130 including Diagnostic Code (DC) 9411 (2009). 2. The criteria for the assignment of a TDIU rating are met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act (2000) The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2009)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). To the extent that the action taken hereinbelow is substantially favorable to the Veteran, the Board finds that all notification and development action needed to fairly adjudicate these claims has been accomplished. Legal Criteria Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in this decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Board notes that the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as the Veteran's relevant medical history, his current diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). PTSD 100% 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 or minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name; 70% 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 work-like setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, DC 9411, 9440 (2009). Global Assessment of Functioning (GAF) GAF scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) [citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), p. 32]. GAF scores ranging between 61 to 70 reflect some 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, and has some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect more 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). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or 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 other children, is defiant at home, and is failing at school). A score from 21 to 30 is indicative of behavior which is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or inability to function in almost all areas. A score of 11 to 20 denotes some danger of hurting one's self or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement) or occasionally fails to maintain minimal personal hygiene (e.g., smears feces) or gross impairment in communication (e.g., largely incoherent or mute). A GAF score of 1 to 10 is assigned when the person is in persistent danger of severely hurting self or others (recurrent violence) or there is persistent inability to maintain minimal personal hygiene or serious suicidal acts with clear expectation of death. See 38 C.F.R. § 4.130 [incorporating by reference the VA's adoption of the DSM-IV, for rating purposes] (2009). TDIU TDIU may be assigned when a schedular rating is less than total if, when there is only one disability ratable at 60 percent or more, and the disabled person is unable to secure or follow a substantially gainful occupation. For the above purpose of one 60 percent disability, the following will be considered as one disability: (1) disabilities of one or both lower extremities, including the bilateral factor, (2) disabilities resulting from common etiology, or (3) disabilities affecting a single body system, e.g., orthopedic. See 38 C.F.R. § 4.16(a) (2009). A TDIU rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). In determining whether the Veteran is entitled to a TDIU, neither his nonservice-connected disabilities nor his advanced age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). A claim for a TDIU is, in essence, a claim for an increased rating. Norris v. West, 12 Vet. App. 413, 420 (1999). A TDIU claim is an alternate way to obtain a total disability rating without recourse to a 100 percent evaluation under the rating schedule. See, e.g., Parker v. Brown, 7 Vet. App. 116, 118 (1994). For a veteran to prevail on a total rating claim, the record must reflect some factor which takes his or her case outside of the norm. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1996); 38 C.F.R. §§ 4.1, 4.15 (2009). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See Van Hoose, supra, at 363; 38 C.F.R. § 4.16(a). The fact that a veteran is unemployed is generally insufficient to demonstrate that he is "unemployable" within the meaning of pertinent VA laws and regulations. Instead, a longitudinal review of all the evidence is necessary in order to obtain a full understanding of the case. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Standard of Review 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis PTSD The Veteran contends that he is entitled to a higher initial evaluation for his PTSD. He essentially claims that this disability is more severe than is contemplated by a 70 percent rating due to chronic moderately severe to severely depressed and anxious symptoms that render him totally unemployable and socially isolated, and cause him to abuse alcohol and marijuana as a form of self-medication. As will be described, the Board finds that, throughout the appeal period, the Veteran is not shown to have met the criteria for a 100 percent disability rating under DC 9411. Private treatment records, dated from February 2008 to March 2009, reflect reports of symptoms that include panic attacks, 2 to 3 times per week, suicidal ideation, racing thoughts, jumping thoughts, intrusive thoughts, and chronic hallucinations, and show GAF scores ranging from 45 to 50. VA treatment records, dated from December 2007 to July 2009, indicate treatment for PTSD with depressive symptoms, and in December 2007, shows a GAF score assigned of 65. The Board notes that the Veteran is being treated at a private facility for his psychiatric disorders. In conjunction with the current appeal, the Veteran underwent a VA psychiatric examination in June 2009. Here, the Veteran admitted to suicidal thoughts without plan, and described panic attacks about 1 or 2 times per week. Despite stating that overall he might be doing a bit better with his current medication, the Veteran complained of continued difficulty with anxiety, depression, nightmares, flashbacks, anger and irritability issues, decreased energy, and occasional crying spells. Further, the Veteran admitted to abusing drugs and alcohol on a daily basis, to include approximately one-half pint of hard liquor per day and occasionally smoking marijuana. The Veteran indicated that he does not socialize outside of his house because he has no friends or close relatives, and is not currently employed due to increased difficulty with maladjustment at work. The Veteran reported being single since 1994 after being married for 8 years, and stated that his irritability and self-isolation contributed to the breakup of his marriage. He had a girlfriend for 4 years, but broke up with her for similar reasons. The Veteran indicated that he receives his psychiatry treatment at a private facility. In a summary of current psychosocial level of function, the examiner opined that the Veteran appears to have major impairment in social, occupational, recreational, and familial adjustment. The Veteran was diagnosed with PTSD, and with alcohol dependence, continuous, and was assigned a GAF score of 40. The examiner concluded that the Veteran has 2 Axis I diagnoses which mutually exacerbate each other, and that it is as likely as not that his alcohol dependence is secondary to his PTSD in an attempt to self-medicate. An addendum report to the June 2009 VA PTSD examination, dated in September 2009, provides the mental status evaluation component of the examination. The examiner indicated that the Veteran was still having significant symptoms of PTSD, and that he had an increase in his overall level of symptomatology, and was smoking marijuana as well as drinking alcohol at a heavier rate than he was before in an attempt to self-medicate. Mental status examination revealed a somber and tense demeanor; however, there was no gross sign of a thought disorder, looseness of association, flight of ideas, delusions or obsessions. The Veteran did have compulsions of checking the perimeter of his house during the night, and reported some hallucinations such as hearing his name called or thinking that he hears a car pulling up in his driveway on a regular basis. Moreover, the Veteran has sleep disturbance, anger and irritability issues, decreased energy, crying spells about 4 to 5 times per week, suicidal thoughts, panic attacks 2 to 3 times per week, and abuses hard liquor and marijuana on a regular basis because of his persisting symptoms. The examiner observed that the Veteran continued to have flashbacks and nightmares anywhere from 2 to 5 times per week, has an increased startle response, hypervigilance, interpersonal guardedness, exaggerated response to trauma related triggers, decreased interest in hobbies and social activities, feelings of detachment and estrangement from others, and emotional numbing. The Veteran's insight and judgment appeared limited, especially regarding substance abuse as a method of coping with his PTSD and associated symptoms. The Veteran's intellectual capacity appeared grossly intact although he complained of difficulty with focusing, attention, and concentration. Finally, the examiner noted that the GAF score should be reduced to 38 from 40 to reflect his current status, and the Axis I diagnosis from the previous examination should be modified to add a current diagnosis of marijuana abuse, which as likely as not is secondary to PTSD in an attempt to self- medicate, and which exacerbates the PTSD and alcohol abuse. After careful review of the record, the Board finds that his PTSD is not shown to be productive total social and industrial inadaptability as required for the assignment of a 100 percent rating under the provisions of Diagnostic Code 9411. 38 C.F.R. § 4.130. In this regard, throughout the course of the Veteran's appeal, the private and VA treatment records and examination reports show severe symptoms including some suicidal and homicidal ideation, but no gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, or intermittent inability to perform activities of daily living is demonstrated. TDIU In this case, the service-connected PTSD with alcohol dependence and marijuana abuse is rated as 70 percent disabling. See 38 C.F.R. § 4.16(a). This evaluation meets the initial criteria for schedular consideration for the grant of TDIU under 38 C.F.R. § 4.16(a), and the question thus becomes whether this disability, in and of itself, precludes the Veteran from securing or following a substantially gainful occupation. In this regard, the Board has considered the Veteran's educational and employment background. Specifically, the Veteran's VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, received in February 2007, reveals that he completed one year of high school before dropping out. The Veteran asserts that, due to an increase in the severity of his PTSD, he is no longer employable as a spinning operator. A VA Form 4192, Request for Employment Information in Connection with Claim for Benefits, dated in March 2007, shows that the Veteran was last employed as a machine operator and process improvement operator from March 16, 1987 to January 25, 2007, when he left his position due to "reduction in force." As noted, the record includes several VA PTSD examination reports, dated in June 2006, April 2007, June 2009, and September 2009, which assessed the impact that the Veteran's service-connected PTSD has upon his activities of daily living and on his employability. The June 2006 examiner noted that the Veteran was employed full time and was socially isolated. He had been written up at work for temper outbursts, experienced concentration problems at work, and suffered from moderate impairment in social and occupational functioning. The Veteran was diagnosed with PTSD. The April 2007 examiner noted that the Veteran had been unemployed for the previous two months, did his own cooking and cleaning, and had no close friends and limited recreational and leisure pursuits. The Veteran was diagnosed with PTSD, and the examiner observed that the PTSD resulted in deficiencies in most areas, including social interactions, dysphoria and employability. The examiner noted that the Veteran was no longer employed, did not have any close friends, continued to have a sleep disturbance and anxiety, and was not able to work because of current symptoms. The June 2009 examiner noted that the Veteran was unemployed after being laid off in January 2007. The Veteran reported increased difficulty with maladjustment at work, especially regarding controlling his anger and increasing absenteeism because of his psychiatric symptoms. The Veteran indicated that he was advised to retire or be laid off at that time rather than continuing to work because his employer stated that if he had one more adverse notation on his record he would be fired. The examiner noted that the Veteran appeared to be having moderate to severe impairment in occupational reliability and productivity; however, went on to opine that, since the Veteran was working at a very stressful job with mandatory overtime and swing shifts, it was not clear that the Veteran would have been totally unemployable at a less stressful position. Further, the examiner noted that the extent to which the Veteran's alcohol abuse contributed to his difficulties with job performance could not be ascertained with any medical certainty. The Veteran was diagnosed with PTSD and continuous alcohol dependence, and the examiner concluded that the Veteran had major impairment in social and occupational functioning dependent upon his taking psychotropic medication. In considering the overall findings of the June 2006 and June 2009 VA examination, the Board finds that this evidence serves to support the Veteran's claim. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470- 471 (1993). The evidence in this regard supports the Veteran's assertions that his service-connected PTSD with secondary substance abuse is productive of a disability picture of such severity that he is precluded from his participating in substantially gainful employment that would be consistent with his educational and work background. Accordingly, on this record, the Board finds that a total rating based on individual unemployability due to service- connected disability is warranted. ORDER An increased rating in excess of 70 percent for the service- connected PTSD is denied. A TDIU rating is granted, subject to the criteria governing the payment of monetary benefits. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs