Citation Nr: 1131027 Decision Date: 08/22/11 Archive Date: 09/07/11 DOCKET NO. 06-37 294A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a total rating for compensation purposes based on individual unemployability. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Veteran had active service from February 1943 to January 1946. In July 2005, the Board of Veterans' Appeals (Board) increased the evaluation for the Veteran's PTSD from 50 to 70 percent. This matter came before the Board on appeal from a January 2006 rating decision of the Montgomery, Alabama, Regional Office (RO) which denied a total rating for compensation purposes based on individual unemployability (TDIU). In December 2009, the Vice Chairman of the Board advanced the Veteran's appeal on the docket on his own motion. In January 2010, the Board remanded the Veteran's claim to the RO for additional action. The Board notes that the RO also denied the issue of entitlement to service connection for hearing loss in a September 2006 rating decision and that the Veteran filed a notice of disagreement with respect to that decision. The RO then issued a statement of the case in December 2006, however, the only substantive appeal received was one which perfected an appeal concerning the separately issued statement of the case concerning the TDIU issue. Generally, the Board must consider all the issues listed in the statement of the case when the Veteran checks the box indicating that he wishes to appeal all issues listed in the statement of the case. See Evans v. Shinseki, 24 Vet. App. 292 (2011). In this case, while the Veteran indicated that he wished to appeal all of the issues listed in the statement of the case, he responded only to the SOC concerning the TDIU issue. Moreover, in presenting argument to the Board in October 2009, the Veteran's accredited representative indicated that the sole issue on appeal was TDIU. In addition, there is no indication that VA considered the hearing loss issue to be on appeal, after the SOC was issued, as no documents, including the supplemental statement of the case, referenced the issue. See Percy v. Shinseki, 23 Vet. App. 37 (2009). There is otherwise no document following his notice of disagreement that could be construed as identifying an error for the Board to address with respect to the hearing loss claim. See Ortiz v. Shinseki, 23 Vet. App. 353 (2010). Accordingly, the sole issue before the Board at this time is TDIU. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Service connection is currently in effect solely for PTSD evaluated as 70 percent disabling. The Veteran has been determined to be incompetent for Department of Veterans Affairs purposes. 2. The Veteran's service-connected PTSD alone is of such severity as to preclude him from securing and following substantially gainful employment consistent with his education and work experience. CONCLUSION OF LAW A TDIU is warranted. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.326(a), 3.340, 3.341, 4.16 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board grants a TDIU which is a complete grant of the benefit sought on appeal. Thus, no discussion of the Department of Veterans Affairs' (VA) duty to notify and to assist is necessary. Total ratings for compensation purposes may be assigned where the combined schedular rating for the Veteran's service-connected disability or disabilities is less than 100 percent when it is found that the service-connected disabilities are sufficient to render the Veteran unemployable without regard to either his advancing age or the presence of any nonservice-connected disorders. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341 (2010). The provisions of 38 C.F.R. § 4.16(a) (2010), provide, in pertinent part, that: Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided That, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular- renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the Veteran unemployable. Marginal employment shall not be considered substantially gainful employment. Service connection is currently in effect solely for PTSD evaluated as 70 percent disabling. In his October 2009 Veterans Application for Increased Compensation Based on Unemployability (VA Form 21-8940), the Veteran reported that he had occupational experience as a foundry worker; was last employed on a full time basis in 1973; and had completed the ninth grade. The Veteran asserts that his chronic PTSD renders him unable to secure and follow any form of substantially gainful employment. Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a) (2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board observes that the Veteran meets the schedular criteria for a total rating for compensation purposes based on individual unemployability under the provisions of 38 C.F.R. § 4.16(a) (2010). Therefore, it is necessary to determine whether the Veteran is unemployable as a result of his service-connected PTSD without regard to his nonservice-connected disabilities or previous unemployability status. An October 2004 VA mental health clinic treatment record states that the Veteran complained of progressively worsening military-related intrusive thoughts and nightmares; increased anxiety and irritability; and a low frustration tolerance. An impression of PTSD and a Global Assessment of Functioning (GAF) score of 40 were advanced. VA clinical documentation dated in April 2005 and October 2005 relate that the Veteran complained of service-related intrusive thoughts, flashbacks, and nightmares; tearfulness; and low frustration tolerance. Impressions of PTSD and GAF scores of 40 were again advanced. In a November 2005 written statement, the Veteran indicated that he was 78 years old. He clarified that he was unable to work "because of my age and the PTSD." At a November 2005 VA examination for compensation purposes, the Veteran complained of World War II-related nightmares and intrusive thoughts; depression due to his intrusive thoughts; hypervigilance; and an exaggerated startle response. The Veteran reported that he had last worked in 1973. He clarified that he ceased working after an industrial accident in which he sustained left arm and left leg fractures. The Veteran's claims file was noted to be unavailable for review. On mental status examination, the Veteran exhibited an anxious mood; an affect congruent with his mood; a coherent thought process; adequate insight and judgment; and no flight of ideas, looseness of association, overt psychosis, or suicidal or homicidal ideation. The Veteran was diagnosed with PTSD with a depressed mood. A GAF score of 52 was advanced. The examiner commented that: This patient has PTSD with depressed mood. This is all one condition. The Veteran is independent in his activities of daily living and can manage his finances. Capacity for remission is poor. Capacity for adjustment is fair. The PTSD, in and of itself, does not preclude occupational activity. Again, the Veteran stopped working around 1973 after [a] work-related injury. A January 2006 VA mental health clinic treatment record notes that the Veteran complained of frequent World War II-related intrusive thoughts and associated impaired sleep. An impression of PTSD and a GAF score of 40 were advanced. In a February 2006 written statement, the Veteran advanced that his PTSD and associated depression and anxiety "hindered him from seeking gainful employment." VA mental health clinical documentation dated in July 2006 states that the Veteran complained of anxiety, periods of increased irritability, a low frustration tolerance, and impaired sleep. He denied any current "harmful ideation, plan, or intent." Impressions of PTSD and GAF scores of 40 were again advanced. In his December 2006 Appeal to the Board (VA Form 9), the Veteran clarified that "the symptoms of my PTSD, when combined with the effects of the medication I am required to take for my PTSD, is the direct cause of my unemployability." A September 2007 VA mental health evaluation notes that the Veteran complained of anger, irritability, frustration, and depression. The Veteran's granddaughter reported that the Veteran experienced nightmares and impaired memory and neglected his personal hygiene. On mental status examination, the Veteran exhibited a dysphoric mood, a constricted affect, poor memory, clear, coherent, and monosyllabic speech, good eye contact, and no hallucinations or overt lethal ideation, paranoia or delusions. An impression of PTSD and a GAF of 40 were advanced. A November 2007 VA Aid and Attendance evaluation indicates that the Veteran complained of sleep disturbance, mood lability, and difficulty with social relationships. He was diagnosed with PTSD and a depressive disorder. The VA physician noted that the Veteran's prognosis was poor. A January 2008 VA mental health clinic treatment record states that the Veteran reported an improvement in his PTSD symptoms and worsening memory and speech impairment. The Veteran was noted to be "cognitively intact." On mental status examination, the Veteran exhibited a "less depressed" mood; a full range and congruent affect; clear, coherent, appropriate, and goal-oriented speech; and no hallucinations, overt lethal ideation, paranoia, or delusions. An impression of PTSD and GAF score of 40. A January 2009 VA mental health clinic treatment record states that the Veteran's wife reported that the Veteran was more depressed and withdrawn and less talkative. He was noted to have had a July 2008 stroke. The treating physician advanced impressions of PTSD and depression and a GAF score of 40. A January 2010 VA mental health clinic treatment record states that the Veteran exhibited greater confusion, worsening short term memory; and apparently had "his days and nights mixed up." An impression of "PTSD and memory decline suggestive of dementia" and a GAF of 25 were advanced. A March 2010 VA mental health clinic treatment record states that the Veteran complained of World War II-related bad dreams and a poor appetite. He exhibited a dysphoric mood and a restricted affect. An assessment of PTSD was advanced. At an April 2010 VA examination for compensation purposes, the Veteran complained of World War II-related intrusive thoughts and nightmares; "intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event;" irritability; hypervigilance; diminished interest in participating in significant events; and impaired sleep. He reported that he had occupational experience as a steel plant furnace tender and had retired in 1973 due to an occupational injury. The Veteran was noted to have suffered two strokes; to exhibit an associated not otherwise specified cognitive disorder with significant memory impairment, expressive aphasia, and intermittent confusion; and to be unable to manage his family finances due to his post-stroke cognitive impairments. He was observed to be confused at times; to be oriented to person and place but not time; and to be neatly dressed and groomed. On mental status examination, the Veteran exhibited a blunted affect; a dysphoric mood; easy distractibility; a short attention span; fair judgment and insight; clear, coherent, and non-spontaneous speech with "probable speech aphasia;"impaired sleep; "impaired" activities of daily living due to stroke residuals; moderately impaired recent memory and mildly impaired remote memory. He was unable to do serial 7's. The Veteran was diagnosed with chronic PTSD, a not otherwise specified cognitive disorder, and cerebrovascular accident residuals. A GAF score of 41 was advanced. The examiner commented that: The Veteran is seriously impaired in his psychosocial functioning from the symptoms of PTSD and cognitive disorder [not otherwise specified]. While it is not possible to exactly state the impairment due to service-connected PTSD alone, an estimated GAF for PTSD only would be in the 55-60 range of moderate impairment. ... The Veteran's psychosocial functioning is significantly more impaired than at the 2005 review examination. However, that increased impairment is from the impact of 2 strokes rather than PTSD *** The Veteran stopped work in 1973 due to an injury at work. At this time, the Veteran is clearly unemployable because of his cognitive impairments resulting from 2 strokes. It is also not possible to describe how the symptoms of PTSD alone would affect the Veteran's industrial capacity. It is possible to opine that those symptoms would not preclude obtaining and maintaining gainful employment based upon the most recent examination in 2005. Generally speaking, it is the avoidant and hyperarousal symptoms that create the most occupational impairment for Veterans with PTSD. Those symptoms limit employment settings in which they might function effectively and create impairments in work relationships. The Board has reviewed the probative evidence of record including the Veteran's written statements on appeal. The clinical record is in apparent conflict as to the degree of disability associated with the Veteran's service-connected PTSD and whether the disorder renders him unable to secure and follow any form of substantially gainful employment. While the report of the November 2005 VA examination for compensation purposes conveys that a GAF of 52 was advanced and the Veteran's "PTSD, in and of itself, does not preclude occupational activity," VA mental health clinical documentation dated between August 2004 and January 2009 reflects that the Veteran's treating VA psychiatric care providers consistently advanced impressions of PTSD alone and GAF scores of 40. The report of the April 2010 VA examination for compensation purposes reflects that: the Veteran was diagnosed with chronic PTSD, cerebrovascular accident residuals, and a not otherwise specified cognitive disorder; a GAF score of 41 was advanced; and it was "not be possible to describe how the symptoms of PTSD alone would affect the Veteran's industrial capacity." The Board observes that the GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 32 (4th ed. 1994). A GAF score of between 31 to 40 indicates 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). A GAF score of between 41 and 50 denotes 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. A score of between 51 to 60 reflects moderate difficulty in social, occupational, or school functioning. Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); Richard v. Brown, 9 Vet. App. 266, 267 (1996). The Board finds that the VA clinical documentation dated between 2004 and 2009 and the April 2010 VA examination report to be more probative and persuasive as to the occupational impairment associated with the Veteran's PTSD than the November 2005 VA examination report as those findings were based upon repeated evaluation of the Veteran. At the April 2010 VA evaluation, the Veteran was found to be unemployable due to his psychiatric impairment. While noting that the Veteran's cerebrovascular accident residuals rendered him unemployable, the VA examiner was unable to delineate how the Veteran's PTSD "alone would affect the Veteran's industrial capacity." Given such a conclusion, the Board is required to attribute the entirety of his unemployability to his PTSD. Mittleider v. West, 11 Vet. App. 181 (1998). The Veteran's PTSD was clearly productive of severe occupational impairment prior to his cerebrovascular accidents. In addition, the Veteran has a ninth grade education, experience as a foundry worker, and no additional vocational training or education. The evidence shows that he has intrusive thoughts, sleep disturbance, anxiety, irritability, flashbacks, nightmares, low frustration, depression, hypervigilance, exaggerated startle response, poor memory, and fair insight and judgment. The predominant GAF score assigned to his disability is 40. The examiners who assigned the GAF scores of 40 did not indicate that he had impairment in reality testing or communication therefore the scores reflect a severity of the disability such that the Veteran has major psychiatric impairment including an inability to work. Accordingly, upon resolution of all reasonable doubt in the Veteran's favor, the Board concludes that a TDIU is now warranted. ORDER A TDIU is granted subject to the law and regulations governing the award of monetary benefits. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs