Citation Nr: 1303733 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 10-14 227 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to restoration of a 70 percent evaluation for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Christopher Loiacono, Attorney-at-Law ATTORNEY FOR THE BOARD S. Coyle, Counsel INTRODUCTION The Veteran served on active duty from September 1990 to June 1991, with additional periods of active service in the National Guard. These matters are before the Board of Veterans' Appeals (Board) on appeal of March 2009 and June 2009 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2012, the Veteran's representative raised a claim of entitlement to an increased rating for service-connected PTSD. The matter is referred to the agency of original jurisdiction for appropriate action. In September 2012, the Veteran's representative stated that the Veteran wished to file a notice of disagreement with an August 2012 rating decision denying entitlement to TDIU. Such a decision is not of record, and, at any rate, the issue of entitlement to TDIU is already on appeal. Thus, no further action on this notice of disagreement is required. FINDINGS OF FACT 1. The 70 percent evaluation previously assigned to the Veteran's PTSD was in effect for less than five years. 2. The medical evidence of record at the time of the June 2009 decision to reduce the Veteran's disability evaluation did not persuasively demonstrate a sustained improvement in his service-connected PTSD. 3. The Veteran is unable to obtain or retain substantially gainful employment due to his service-connected PTSD. CONCLUSIONS OF LAW 1. The criteria for restoration of a 70 percent evaluation for PTSD are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.105, 3.321, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012). 2. The criteria for a TDIU are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. The Board is granting in full the benefits sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. A detailed analysis of the RO's compliance with the due process provisions of 38 C.F.R. § 3.105 in reducing the Veteran's disability evaluation for PTSD is also not required. Restoration of a 70 Percent Rating for PTSD In a June 2009 decision, the RO reduced the disability evaluation assigned to the Veteran's PTSD from 70 percent to 50 percent, effective September 1, 2009. The Veteran perfected a timely appeal. A claim stemming from a rating reduction action is a claim as to whether the reduction was proper, not whether the Veteran is entitled to an increased rating. See Dofflemyer v. Derwinski, 2 Vet.App. 277, 279-80 (1992). Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Evaluation of a service-connected disorder requires a review of the Veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The 70 percent rating was in effect for less than five years prior to the rating reduction. Thus, various provisions of 38 C.F.R. § 3.344, pertaining to stabilization of disability ratings, do not apply. Nevertheless, there are several regulations that apply to all rating reductions, regardless of the length of time that a particular rating has been assigned. Brown v. Brown, 5 Vet.App. 413, 420-421. 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history. 38 C.F.R. § 4.13 provides that the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. Additionally, in any rating reduction case, it must be determined that an improvement in a disability has actually occurred, and that such improvement reflects improvement in ability to function under ordinary conditions of life and work. Brown, 5 Vet.App. at 420-21; see also 38 C.F.R. §§ 4.2, 4.10. A claim as to whether a rating reduction was proper must be resolved in the veteran's favor unless the Board concludes that a fair preponderance of evidence weighs against the claim. Brown, 5 Vet.App. at 421. The Veteran's PTSD is rated under Diagnostic Code 9411. 38 C.F.R. § 4.130. Under this Diagnostic Code, a 70 percent evaluation is assigned 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); and an inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent evaluation is to be assigned for 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 and social relationships. Id. When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). In addition, the evaluation must be 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. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). A Global Assessment of Functioning (GAF) rating is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) (4th ed. 1994). A GAF score 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), and there is no more than slight impairment in social, occupational, or school functioning (e.g., temporary falling behind in schoolwork). A GAF score of 61 to 70 is reflective of 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 with some meaningful interpersonal relationships. A GAF score of 51 to 60 is illustrative of 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 score of 41 to 50 is reflective of 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). Although the GAF score does not fit neatly into the rating criteria, the Board is under an obligation to review all the evidence of record. The fact that evidence is not neat does not absolve the Board of this duty. See Carpenter v. Brown, 8 Vet. App. 240 (1995). The Veteran's psychiatric symptoms began during his period of active service during Operation Desert Storm, and have continued without abating since that time. In March 1994, the Veteran attempted suicide by shooting himself in the chest. He admitted to chronic alcohol abuse and intrusive thoughts of his wartime service. In 1995, as reported in an October 2002 clinical note, he had a dissociative event during which he traveled to Texas in his car with no memory of doing so. A February 1997 service record from the National Guard shows that the Veteran lacked commitment, refused to take tests, was unmotivated, showed no concern for his fellow soldiers, did not set a good example, was not mission focused, showed no regard for safety procedures, lacked responsibility, had a poor attitude towards the military, and that his "attitude and outlook on life in general deteriorated following Operation Desert Storm." During a VA examination in October 1997, the Veteran reported that he became irritable easily and continued to abuse alcohol. Excessive drinking caused him to become extremely violent. He had a history of alcohol-related legal difficulties. He did not have any current suicidal ideation. He had little activity other than his carpet installing job, which he enjoyed. A mental status examination was essentially normal. A GAF score of 55 was assigned. The Social Security Administration (SSA) awarded disability benefits to the Veteran, in part due to his PTSD symptoms, effective July 2002, although the records supporting that finding were not provided. Additionally, the Veteran's National Guard unit was activated in 2002, but the Veteran was unfit for duty in part because training for deployment exacerbated his PTSD symptoms. He was discharged from the Army National Guard in September 2002. An October 2002 clinical note shows that the Veteran's symptoms had been increasing in severity since the events of September 11, 2001. He reported frequent and severe nightmares, chronic depression, and suicidal ideation without plan or intent. He had gained 14 pounds in the past 6 months. He experienced audiovisual hallucinations. He woke frequently at night, and each time felt compelled to check on the safety of his property. He was unemployed. These symptoms were essentially unchanged on evaluation in December 2002. A GAF of 41 was assigned. During a VA evaluation in May 2003, the Veteran stated that he was currently unemployed, although he had been self-employed for a number of years as a carpet installer. He had a history of violent outbursts, alcohol abuse, and suicide attempts. His current symptoms included frequent and terrifying nightmares, recurrent flashbacks, intrusive thoughts, hypervigilance, and obsessive rituals, but no suicidal ideation. The examiner described the Veteran's symptoms as "severe" and "chronic." A GAF score of 44 was assigned. A June 2004 clinical note reflects reports of chronic depression and irritability. He had no suicidal ideation or hallucinations, but did report paranoia and panic attacks. He did not like to be in public. He had separated from his wife 4 times in the past 10 years. The relationship was reportedly volatile. During an August 2004 VA mental health evaluation, the Veteran reported that he was receiving mental health treatment at a VA facility and that his symptoms had somewhat improved with medication. His appointments were intermittent and consisted only of medication management, not psychotherapy. His family life was "a shambles," as the Veteran and his wife continued to argue. The Veteran's PTSD, anxiety and depression were exacerbated by this discord. He continued to experience frequent, severe nightmares and night waking, as well as flashbacks, daily intrusive thoughts, hyperstartle response, hypervigilance, increased intolerance of other people or closeness to others, distrust of others and obsessive rituals. He gave the impression of an individual who "could explode almost at anytime with another person goading or putting him under pressure." The Veteran stated that he was not actively suicidal and that he kept his weapons locked up. A GAF score of 43 was assigned. In September 2005, additional increase in severity of the Veteran's symptoms was noted as result of the death of some of his fellow servicemembers in combat. The Veteran was employed again on a part-time basis, but reported "interpersonal difficulties with customers." He had nightmares about the funerals of his friends. He no longer attended his VA psychiatric appointments after a "severe personality conflict with the psychiatrist there." During work he isolated himself in his van and did not engage with clients. He also took long, solitary walks. His volatile marriage continued to be a significant source of stress. He kept his distance from his wife in order to prevent himself from "losing control and hurting her." Flashbacks and recurrent intrusive thoughts occurred daily. He was even more hypervigilant and had a greater startle response than before. When alone at night, even slight noises would result in symptoms of acute anxiety. His symptoms "verge[d] upon ...paranoia." He was continuously depressed, particularly since he was no longer taking antidepressant medication. He was not actively suicidal. A GAF score of 42 was assigned. In November 2005, the Veteran reported that he had recently pulled a gun and threatened to shoot an individual who was approaching his home in a threatening manner. He had also pulled the gun on police who later came to his home. He admitted that he may be paranoid, and expressed that his wife was concerned about his mental state. He refused to attend VA psychotherapy sessions as a result of a conflict with his VA psychiatrist. He had "gotten out of the carpet business" because customers reportedly refused to pay him. His relationship with his wife was somewhat better because she had taken a job that kept them apart. The examiner noted that the Veteran was a "very troubled man." His nightmares continued to be frequent and severe, resulting in his picking at his face. He had flashbacks and intrusive thoughts. His hypervigilance bordered on paranoia, as he patrolled his property each night with a revolver. He was "extremely avoidant of crowds." He got along with military personnel but no others. His depression was becoming more severe, and the Veteran recognized that he needed medication. A GAF score of 42 was assigned. The Veteran underwent an SSA evaluation in January 2007. He was "heavily medicated" but not drunk. He was erratic secondary to anxiety, and seemed shy and anxious. Symptoms similar to those reported on VA evaluation were recorded. He used a racial epithet to describe VA psychiatrists. He could not work as a result of stress, and had not attempted to return to work. On mental status examination, the Veteran appeared anxious and depressed. His affect was "intense." His intelligence was low-average and he was emotionally labile. He accompanied his wife to the grocery store on "non-stressful" days. On bad days, he stayed in bed all day. His social skills were "adequate," but he "became labile when stressed by environmental variables he relates to Desert Storm." A GAF score of 50-55 was assigned. The examiner found that the Veteran needed regular mental health treatment and interaction in a PTSD support group, and that his "attendance in a workplace probably would not be adequate" as a result of his PTSD symptoms. VA clinical notes dated in February 2007 reflect continued depression, nightmares and flashbacks. He had not been taking his medication. He got approximately 6 hours of sleep a night, interrupted by nightmares and flashbacks. A GAF score of 70, indicative of transient and slight symptoms, was assigned. The basis for the rating was not provided. During a July 2007 clinical evaluation, the Veteran reported that his medications were effective and that he had no new complaints. His mood had improved on the medication but he continued to have some irritability. He was again working on marital issues. His nightmares occurred approximately 2 to 3 times a week. A GAF score of 75 was assigned; again, the basis for the rating was not given. The Veteran underwent a VA examination in February 2008. He was taking medication again and reported that his sleep was better and that he had fewer nightmares. However, he felt depressed every day and needed medication to function. He had insomnia every night and nightmares 2 to 3 times a week. He lost his temper easily and could not be around crowds. He was getting along with his wife, but had limited contact with his children. He had some contact with military friends. He enjoyed spending time with his grandson, who lived with him. He had a history of violent outbursts, including just the week before when he had grabbed someone who was following him too closely. He had not drunk alcohol for 8 years because he got into fights while drinking. He obsessively checked the doors and windows of his home. He had panic symptoms in crowds, homicidal thoughts, and inappropriate behavior when he would lose his temper and become aggressive. He did not presently have suicidal thoughts. His memory was "mildly impaired." He was no longer employed in part because he could not get along with his customers. A GAF score of 49 was assigned. The Veteran underwent another VA examination in March 2009. The examiner reported that the claims folder had been reviewed. He noted that the Veteran had been seen only once by VA psychotherapists since his last examination in February 2008. The examiner stated that there was no history of psychiatric hospitalization or suicide attempts, but did not comment on the documented suicide attempt in March 1994. The Veteran reported that his medication was helping his symptoms. He was "getting along fine" with his wife, but had significant stressors as a result of his sons' behavior. He watched television and enjoyed spending time with his grandson. The examiner reported that the Veteran had no history of violence or assaultiveness, having apparently not reviewed the voluminous evidence of a long history of violent outbursts and physical altercations. A mental status examination was essentially normal. The examiner did not note the presence of nightmares. He also noted that there was no history of inappropriate behavior, suicidal ideation or attempts, obsessive behavior, panic attacks, or homicidal thoughts, despite the Veteran's extensive history of these symptoms. The examiner did note that the Veteran had suicidal thoughts, but described them as vague and fleeting. The Veteran had threatened harm to an individual who was selling drugs to his son, but reportedly stated that he had no intent to harm him. The examiner described the Veteran's symptoms as "occasional nightmares and some irritability" but the Veteran "appears to be functioning fairly well. He interacts appropriately with his family and is also handling a significant amount of stress due to his sons' actions." The Veteran was not working; the examination report reflects that the Veteran attributed this entirely to musculoskeletal complaints and did not reference PTSD symptoms. The examiner found that the Veteran's symptoms would not interfere with gainful employment, and that they resulted only in "occasional decrease in work efficiency and ... intermittent periods of inability to perform occupational tasks." A GAF score of 55 was assigned. In March 2009, the RO proposed to reduce the Veteran's PTSD rating from 70 percent to 50 percent based on the March 2009 examination and the February and July 2007 GAF scores in the 70s. The Veteran disagreed with that proposal, stating that upon hearing the news he had a "terrible panic attack and passed out." His wife had removed all the weapons from the house and given them to his daughter to hide. The Veteran felt that the March 2009 VA examiner had misled him and misrepresented his symptoms based on "one good day." In a June 2009 rating decision, the RO reduced the Veteran's rating from 70 percent to 50 percent. The February 2007 and July 2007 clinical notes, as well as the March 2009 examination report, present significantly different accounts of the Veteran's level of disability than shown in the remaining evidence of record. None of these reports reflect any sort of serious review of the Veteran's medical history, which is significant in light of the volume of evidence reflecting a multiyear history of serious psychiatric disturbances. The clinical notes relied upon by the RO not only fail to reflect adequate review of the Veteran's medical history, but also describe his current symptomatology in generalized terms which do not adequately describe the depth of the Veteran's symptoms. In January 2007, just prior to these clinical evaluations, an SSA evaluation reflected an individual clearly in need of sustained mental health treatment. Similar findings were made on VA examination in February 2008, approximately 6 months later. The GAF scores of 70 and 75, which reflect only fleeting psychiatric symptomatology, do not appear to be based on a thorough review of the Veteran's history or current symptoms, and they are not reflective of his overall clinical picture. Although the March 2009 examination report reflects review of the claims folder, it is clear from reading the report that a thorough review of the Veteran's medical history was not accomplished. None of the Veteran's psychiatric symptoms, including suicide attempts, violent outbursts, significant depression and anxiety, frequent and severe nightmares, obsessive rituals, and paranoia were noted or discussed. The Veteran's answers to the examiners questions appear to significantly downplay his symptoms; however, clinical notes and evaluations conducted prior to this examination show that he was an excellent historian, and that he always reported his symptoms in great detail. He was consistently deemed credible in his reporting. The examiner's failure to consider the Veteran's medical history significantly diminishes the probative value of his findings. Since the 2007 clinical notes and the March 2009 examination report are inadequate, sustained confirmed improvement in the Veteran's PTSD was not shown at the time of the rating reduction. The significantly different disability pictures do not combine to offer a persuasive indication of sustained improvement clearly warranting a rating reduction. Sustained improvement in the Veteran's PTSD was NOT firmly established by a fair preponderance of the evidence at the time of the rating reduction in June 2009. The reduction of the 70 percent disability evaluation for PTSD was improper, and restoration is warranted. TDIU TDIU is established where a veteran is unable to obtain or retain substantially gainful employment due to service connected disabilities. Threshold entitlement to the benefit is shown where a veteran is rated at least 60 percent disabled due to a single service connected disability, or has multiple service connected disabilities combining to at least a 70 percent evaluation, where one disability is rated at least 40 percent disabling. 38 C.F.R. § 4.16. The Veteran has been entitled to a 70 percent disability rating as a result of his service connected PTSD since July 26, 2004, and therefore meets the schedular eligibility threshold. While the Veteran has retained some minimal functional capacity, enabling him to care for himself daily and interact with some success with others, his impairment is such that he cannot deal with authority figures or customers. He is prone to violent outbursts, and has demonstrated an increasing inability to interact appropriately with individuals who are not family members or military personnel, as evidenced by his willingness to grab an individual who he felt was following him too closely; fire a weapon in the vicinity of disruptive neighbors; and brandish a weapon at a perceived intruder and at law enforcement authorities who arrived to apprehend the suspect. His January 2007 SSA evaluation notes that his symptoms render him unable to enter the workforce. An April 2010 VA examination also concluded that the Veteran's symptoms prevented him from working "in a normal work environment" as a result of low stress tolerance and an inability to cope with criticism. The Veteran attempted suicide in September 2011, and was hospitalized as a result of his psychiatric symptoms in September 2009 and July 2012. In short, while the Veteran has demonstrated the ability to perform tasks, as he maintains the physical capacity and focus to do so, the Board cannot conceive of any real world work situation in which the Veteran could reasonably function, given the severity and chronicity of his symptoms. Even the relatively solitary duties of a self-employed carpet installer are beyond him as a result of his inappropriate and impulsive behavior. The Veteran is prevented from obtaining or retaining substantially gainful employment due to his service connected PTSD; a finding of TDIU is warranted. ORDER Restoration of a 70 percent evaluation for PTSD from September 1, 2009, is granted. Entitlement to a TDIU is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs