Citation Nr: 1318126 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 06-05 086 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Kathy Lieberman, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD T.S. Willie, Counsel INTRODUCTION The Veteran served on active duty from July 1964 to August 1967. This appeal comes to the Board of Veterans' Appeals (Board) from rating decisions of the Roanoke, Virginia Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2007, a Board hearing was held at the RO before the undersigned Veteran's Law Judge. A transcript of the hearing is of record. In a decision of July 2008, the Board denied the Veteran's claim for an initial disability rating in excess of 50 percent for PTSD. The Veteran appealed the decision to the United Stated Court of Appeals for Veterans Claims (Court). That matter was the subject of a Joint Motion and Remand in April 2009. In a Board decision of March 2010, an increased rating was again denied and the issue of a TDIU was referred to the RO. The Veteran appealed the decision to the Court. In September 2011, the Court affirmed the Board's March 2010 decision denying an increased rating for PTSD. In a rating decision of August 2011, the RO denied a new claim for a disability rating in excess of 50 percent for PTSD and denied entitlement to TDIU. The Veteran perfected an appeal to that decision. In April 2012, the Board remanded the claims for further development. At that time, the issue of entitlement to service connection for ischemic heart disease was also remanded. Service connection for coronary artery disease with history of myocardial infarction, status post coronary artery bypass grafting, was granted in a November 2012 rating decision. As the benefits sought on appeal have been granted, this issue is no longer before the Board. FINDINGS OF FACT 1. PTSD is manifested by occupational and social impairment with reduced reliability and productivity but not occupational and social impairment with deficiencies in most areas. 2. The record reveals that the Veteran has a GED and some additional vocational training in electronics and welding. He last worked for many years as a welder with a railroad. 3. He is service connected for coronary artery disease, rated 60 percent disabling; PTSD, rated 50 percent disabling; tinnitus, rated 10 percent disabling; and bilateral hearing loss, rated noncompensably disabling. His combined rating is 80 percent. He has had coronary artery bypass grafting. 4. The Veteran's service-connected disabilities do render him unable to do other than sedentary labor, for which is has no training. As such, service connected disorders essentially render him unable to obtain and retain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating greater than 50 percent disabling for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.130; Diagnostic Code (DC) 9411 (2012). 2. With resolution of reasonable doubt in the appellant's favor, the criteria for entitlement to a TDIU have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.158, 3.321, 3.340, 3.341, 4.15, 4.16, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met with regard to the issues decided herein. There is no issue as to providing an appropriate application or the completeness of the application. By correspondence dated in April 2011, VA advised the Veteran of the information and evidence needed to substantiate the claim. The letter provided notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. The Veteran was provided information regarding the assignment of disability ratings and effective dates. The appeal was most recently readjudicated in the November 2012 supplemental statement of the case. VA has also satisfied its duty to assist. The Veteran has been afforded VA compensation examinations, and the claims folder contains service treatment records, VA medical records and identified private medical records. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). PTSD Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), the United States Court of Appeals for Veterans Claims (Court) held that staged ratings are appropriate for an increased rating claim that is not on appeal from the assignment of an initial rating when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. The Veteran's PTSD is evaluated pursuant 38 C.F.R. § 4.130 Diagnostic Code 9411, and is subject to the criteria listed under the General Rating Formula for Mental Disorders. A 50 percent evaluation is warranted where 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 or abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 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 work like setting); inability to establish and maintain effective relationships. A 100 percent evaluation is indicated where there is 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. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation 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. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. In assessing the evidence of record, it is important to note that the GAF score 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 (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). A score of 31 to 40 is assigned where there is 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 younger children, is defiant at home, and is failing at school). Id. A score of 41-50 is assigned where there are 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). Id. A score of 51-60 is assigned where there are 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, conflict with peers or co- workers). Id. A score of 61-70 is indicated where there are 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, has some meaningful interpersonal relationships. Id. The Veteran appeals the denial of a rating higher than 50 percent disabling for PTSD. In August 2010, September 2010 and November 2010, the Veteran reported that he continued to suffer from symptoms of PTSD to include recurring memories and nightmares. Examination revealed he was oriented times three, his mood was depressed and somewhat anxious, affect congruent, and thought processes were logical and goal directed. His speech was clear and concise. He denied any suicidal or homicidal ideation and/or reports of hallucinations. A GAF score of 40 was assigned during these examinations. The September 2010 examiner opined that the Veteran suffered from a severe degree of symptoms and had unique circumstances that affect his treatment in a negative way. In May 2010 and July 2010, a GAF score of 45 was assigned. A GAF score of 40 was assigned in March 2011. During this examination, the Veteran was oriented times three, his mood was depressed and somewhat anxious, affect congruent, and thought processes were logical and goal directed. His speech was clear and concise. He denied any suicidal or homicidal ideation and/or reports of hallucinations. A GAF score of 35 was assigned in April 2011. At that time, he continued to report sleep disturbances, recurring thoughts, avoidance, anxiety and depression. He was oriented times three, his mood was depressed and somewhat anxious, affect congruent, and thought processes were logical and goal directed. His speech was clear and concise. He denied any suicidal or homicidal ideation and/or reports of hallucinations. In the May 2011 VA examination, it was noted that the Veteran remained married for 42 years and was a welder for 32 years before retiring. He expressed that he chose to retire because he got new younger supervisor who thought he knew it all. The Veteran was irritated significantly. He denied severe or inappropriate behavior but was worried that he would have an inappropriate outburst at work so he retired. He reported that his wife had to put up with a lot and that their relationship was difficult because irritability and his tendency to isolate. He got along fairly with one of his sons and stated that the other two were in jail. He raised his grandson and seemed to be very active with him. He denied assaultive or violent behavior, and suicide attempts. Examination revealed his affect was restricted. There was no impairment of thought processing, delusions, hallucinations, suicidal or homicidal ideations and obsessive compulsive behavior. He was oriented and reported some problems with his memory. He reported daily feelings of anxiety, depressed mood, frequent feelings of irritability and sleep problems. The VA examiner found that the Veteran's PTSD symptoms seem similar to that described in his last VA examination and the one prior to that. It was stated that he reported marital difficulties, and isolative and distant behavior from some of his family. He had some friends and saw them weekly to play music. A GAF score of 52 was assigned. In September 2011, the Veteran's representative indicated that the Veteran's mental health documents note depressed mood and GAF scores consistently between 40 and 50. It was also noted that the health notes show that the Veteran checks doors/windows and the perimeter of his property, and that he had fleeting, passive suicidal ideation. L.H, Board Certified in Clinical Social Work, stated in January 2012 correspondence that the Veteran was unemployable and that his current symptoms made him unable to manage gainful employment. L.H. had no doubt that if the Veteran attempted gainful employment at this time his symptoms would increase to a point of harm to himself or others. Since the Veteran's heart attack and triple bypass, she said his symptoms of PTSD have escalated and further deem him unemployable as a result. The Veteran was afforded another VA examination in October 2012. During this examination, a GAF score of 55 was assigned based on moderate persistent symptoms of PTSD/MDD. The Veteran was found to have moderate impairment in social functioning and mild impairment in occupational functioning. His PTSD symptoms included intrusive thoughts, distressing dreams/nightmares, flashbacks, avoidance, restricted range of affect, irritability/anger, hyperviligance and exaggerated startle response. The examiner found that the Veteran had occupational and social impairment with reduced reliability and productivity. It was noted that the Veteran had been married for 43 years and had three adult sons and four grandchildren. His relationships with his children and grandchildren were described as fair. His PTSD symptoms, he reported, interfered with his marriage as social isolation, emotional detachment, avolition and anger/irritability all caused some degree of marital discord. He reported being largely socially withdrawn without any close friends. He expressed difficulty in trusting people but stated that he occasionally still played guitar with a few music buddies. He remained unemployed and related that if he were to attempt to work he felt that his difficulty concentrating and anger would impact his ability to maintain employment. The examiner related that the Veteran's PTSD symptoms included depressed mood, anxiety, panic attacks, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The VA examiner found that the Veteran's PTSD/MDD do not alone render him entirely unable to secure or maintain gainful employment. His opinion was based solely on the Veteran's mental health and did not account for the influence of any physiological disability. Based on the evidence presented, the Board finds that a rating higher than 50 percent for PTSD is not warranted as the Veteran's symptoms are more characteristic of a disability picture that is contemplated by a 50 percent rating than that contemplated by a 70 percent rating or higher under Diagnostic Code 9411. A majority of the type of criteria contemplated for a 70 percent rating under Code 9411 have not been demonstrated. In this regard, the evidence shows that the Veteran presented well during his VA examinations. He was oriented, and with logical and goal directed thought processes. He also denied hallucinations and suicidal or homicidal ideations during both VA examinations. Despite some marital discord and family problems, the Board notes that the Veteran remains married. He expressed having a fair relationship with his children and a good relationship with his grandson. He has reported having music buddies and limited recreational activities. The above demonstrates that he can maintain effective relationships. Although suicidal ideation may have been reported during an examination, the Veteran has denied suicidal ideation during the majority of his outpatient examinations and both VA examinations revealed no impairment in this regard. Also, while he may check the perimeters of his property and checks the doors/locks, impairment in obsessive compulsive behavior was not shown during his VA examinations. The Board also notes that the Veteran worked at the same job for 32 years and seemingly functioned without significant impairment before choosing to retire. Of significance, the May 2011 VA examiner stated that the Veteran's PTSD symptoms seemed similar to that described in his last VA examination and the one prior to that. The October 2012 VA examiner found that the Veteran had occupational and social impairment with reduced reliability and productivity. His PTSD was described as moderate during this examination. In light of the above evidence, the Board finds that a rating higher than 50 percent disabling is not warranted. The Veteran has been competent and credible when reporting his symptoms. The Board acknowledges his reports to include social withdrawal, irritability, anxiety, panic attacks, isolation, decreased memory and depressed mood. The above, however, have been considered and contemplated in the 50 percent evaluation. Although the Veteran has reported having occupational difficulties, social isolation, avoidance, depressed mood and anxiety, such findings do not warrant a 70 percent evaluation when all the other manifestations are considered. See Mauerhan, 16 Vet. App. 436. Furthermore, although an examiner's classification of the level of a psychiatric impairment, by words or by a GAF score, is to be considered but is not determinative of the percentage disability rating to be assigned (38 C.F.R. § 4.126), it is notable that for the period considered in this appeal the Veteran's more probative GAF scores were 52 and 55 which is indicative of moderate symptoms. In the view of the Board, the GAF scores are consistent with the Veteran's PTSD symptomatology and the assignment of a 50 percent rating. The Board recognizes that GAF scores between 35 and 50 were assigned between August 2010 and April 2011. The Board notes, however, that these scores were assigned by L.H. Although these scores reflect serious impairment to some impairment in reality testing or communication, the scores are wildly inconsistent with the objective evidence of record to include the findings of L.H. To that end, during these examinations the Veteran's speech was clear and concise, his thought processes were logical and goal directed and he was without suicidal/homicidal ideation. The Board also notes that while a GAF score of 35 was assigned by L.H. in April 2011, during the May 2011 VA examination a GAF score of 52 was assigned in which similar psychological symptoms were reported. The Board acknowledges the GAF scores assigned by L.H. and the opinion that the Veteran suffers from a severe degree of symptoms and had unique circumstances that affect his treatment in a negative. The Board, however, affords the opinions and the GAF scores rendered by the VA examiners as more probative. The probative value of medical evidence is based on the medical expert's personal observation of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 471 (1993). It is not error for the BVA to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases. Owens v. Brown, 7 Vet. App. 429 (1995). Here, the Board finds that the opinions of the VA examiners were rendered after review of the record (containing pertinent information), examination and interview of the Veteran and consideration of the nature and extent of his PTSD. The opinions and GAF scores, which were rendered by two different examiners of greater skill and knowledge, are also consistent with each other and the objective evidence of record. In sum, the Veteran's symptoms are more characteristic of a disability picture that is contemplated by a 50 percent rating and no more. Stated differently, the medical and lay evidence as well as the GAF scores establish that there is occupational and social impairment with reduced reliability and productivity. The manifestations, however, even when accepted as credible, do not establish occupational and social impairment with deficiencies in most areas. Neither the lay or credible medical evidence shows these symptoms have been persistent or rises to the level required for a 70 percent evaluation. Accordingly, the claim is denied. The Board has also considered referral for an extraschedular rating. Consideration of referral for an extraschedular rating requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. Here, the Board finds that the record reflects that the Veteran has not required frequent periods of hospitalization for his disability and that the manifestations of the disability is contemplated by the schedular criteria. Therefore, there is no reason to believe that the average industrial impairment from the disability would be in excess of that contemplated by the schedular criteria. Therefore, referral of the case for extra-schedular consideration is not in order. TDIU The Veteran appeals the denial of TDIU. Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service- connected disabilities. 38 C.F.R. § 4.16(b). Marginal employment shall not be considered substantially gainful employment, and generally shall be deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). The central inquiry is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Board observes that a claim for TDIU is, in essence, a claim for an increased rating. Norris v. West, 12 Vet. App. 413, 420-21 (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. The record indicates that the Veteran is service-connected for PTSD, evaluated as 50 percent disabling; bilateral hearing loss disability, evaluated as 0 percent disabling; tinnitus, evaluated as 10 percent disabling; and coronary artery disease with a history of myocardial infarction, evaluated as 60 percent disabling. His combined evaluation is 80 percent. The 80 percent rating meets the minimum percentage rating required for consideration of assignment of TDIU. 38 C.F.R. § 4.16(a). It is noted that the Veteran has a GED and has some additional vocational training in electronics and in welding. He last worked, reportedly, for many years as a welder for the railroad. He reportedly retired, in part for fear of blowing up at a new boss. Examinations for the appeal period reveal that he has significant cardiovascular and psychiatric impairment. Recent examiners have noted that he was not precluded from working solely because of either of these disabilities. On the other hand, the cardiovascular examiner suggested that sedentary labor could be performed, and METS were reported between 3 and 5. This reportedly indicates that he might be able to do some light yard work. The evidence suggests that appellant has no training that would lead to sedentary work, moreover, it is reported that his psychiatric symptoms reveal he does not get along well with many people, although he has a good relationship with his family. It is noted that his social worker has concluded that since his heart problems his situation was such that the combined disorders render him unable to obtain employment. The Board concludes that the evidence more nearly approximates the symptomatology for a total rating. Resolving reasonable doubt in the appellant's favor, a total rating is warranted. ORDER A rating higher than 50 percent disabling for PTSD is denied. A total disability rating for compensation on the basis of individual unemployability is granted, subject to the law and regulations governing the award of monetary benefits. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs