Citation Nr: 1323811 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 04-33 837 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Daniel K. Krasnegor, Attorney at Law WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD C. Fields, Counsel INTRODUCTION The Veteran served on active duty from August 1970 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, which granted service connection for posttraumatic stress disorder (PTSD) and assigned a 10 percent rating effective as of January 23, 1997. The Veteran appealed from the initial rating assigned. In January 2006, the Board granted an initial rating of 30 percent for PTSD. The Veteran appealed from that decision to the United States Court of Appeals for Veterans Claims (Court). In February 2007, the Court granted a Joint Motion to Vacate and Remand the Board's denial of a rating in excess of 30 percent. In order to comply with the Court's Order, in July 2007, the Board remanded the question of a higher initial disability rating for PTSD for further development. In August 2011, the Board denied a rating in excess of 30 percent for PTSD prior to February 11, 2004, but increased the Veteran's rating to 50 percent beginning February 11, 2004. The Veteran did not further appeal from this determination, so the question of a higher disability rating for PTSD is no longer before the Board. Also in August 2011, the Board found that the question of entitlement to a TDIU had been raised as a part of the claim for a higher initial rating for PTSD, as the Veteran asserted that he was unemployable due to PTSD. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Board remanded that aspect of the appeal. The Veteran and his spouse testified as to the issue of a higher rating for PTSD (including its effects on his employability) at an August 2005 hearing at the Board. A transcript of that hearing is associated with the claims file. As the Veterans Law Judge (VLJ) who held that hearing is now retired, the Board offered the Veteran the opportunity to testify at another Board hearing, pursuant to 38 U.S.C.A. § 7107(c) (West 2002). The Veteran responded in July 2012 that he wanted a new hearing before a VLJ at the RO. Therefore, in August 2012, the Board remanded the question of entitlement to a TDIU to schedule the requested hearing. However, in September 2012, the Veteran withdrew his request for a hearing. See 38 C.F.R. § 20.704(e) (2012). The case now returns to the Board. There is a paper claims file and a Virtual VA paperless claims file; however, all pertinent documents are included in the paper claims file. FINDINGS OF FACT 1. The Veteran is service-connected for PTSD, rated no more than 50 percent disabling throughout the appeal period. 2. PTSD has rendered the Veteran unable to secure or maintain substantially gainful employment throughout the period on appeal. CONCLUSION OF LAW The criteria for entitlement to a TDIU on an extraschedular basis have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran has been assigned a 30 percent initial rating for PTSD from January 23, 1997 to February 10, 2004; and a 50 percent rating effective as of February 11, 2004. This is the only service-connected disability. The Veteran has not worked since 1996, with the exception of a one-month period in 1999, and he asserts that he is unemployable due to PTSD. The Board's decision herein to grant a TDIU constitutes a full grant of the benefit sought on appeal. Therefore, no further action is needed to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. A total disability rating may be granted where the schedular rating is less than 100 percent if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for a TDIU where there is only one service-connected disability, the condition must be rated as at least 60 percent disabling. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Where the percentage threshold criteria are not met, as in this case, a TDIU may still be granted if the evidence establishes that the Veteran is unemployable due to service-connected disabilities. The RO and the Board may not award a TDIU in the first instance under such circumstances. Rather, the case must be submitted to the Director, Compensation and Pension Service, for extra-schedular consideration of a TDIU. 38 C.F.R. § 4.16(b); Fanning v. Brown, 4 Vet. App. 225 (1993). In determining unemployability for VA purposes, consideration should be given to the Veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). The question is whether he is capable of performing the physical and mental acts required by employment, not whether he can actually find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 4.3. When all of the evidence is assembled, VA must determine whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim will be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54-55 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996). In this case, the evidence of record indicates that the Veteran has a Bachelor's degree and a Master's degree. He was a teacher for one year, when he switched to insurance sales to earn more money. The Veteran worked in insurance sales from 1974 to 1996, and he was self-employed from 1980 to 1996. He was incarcerated from 1997 to 1999 for a Class D felony related to forgery or false documentation in insurance sales. See, e.g., May 1999 and June 2000 VA examination reports. The Veteran initially sought VA mental health treatment in November 1996, complaining of increased depression over the last six months, as well as decreased concentration, anhedonia, feeling that everything he touched turned "black," and suicidal ideation with no intent. He reported losing his insurance business of 15 years, losing his license and his home, and going through bankruptcy due to being arrested and charged with false documentation. He started another insurance agency and was again arrested for selling insurance without a license. He was also separated from his wife, and had attended an 11-week program for alcoholism. In December 1996, the Veteran continued to have symptoms of major depression. He was unemployed and recently divorced, which he stated were due to his drinking and business failures. The Veteran's ex-wife submitted a letter in January 1997 indicating that he had no sense of responsibility; he was very controlling, self-centered, and "disturbed;" and he could not communicate with his family members. She stated that he had 10 jobs over the course of their 24-year marriage. In a March 1997 VA treatment record, the Veteran was found to be depressed with increased awareness of emergent PTSD symptoms, including nightmares and increased startle response. He reported that he had kept these symptoms repressed by alcohol and working. The Veteran stated that his depression worsened to the point that holding a job was impossible after he completed alcohol rehabilitation. Similarly, the Veteran asserted in a March 1997 letter that he had been suffering from depression, alcoholism, and other emotional problems for many years, but he was only recently treated for PTSD. He stated that the disorder "hit its peak" when he was arrested in May 1996, which triggered an emotional eruption and he could no longer function normally. He enrolled in a private alcohol rehabilitation program and was treated from May to June 1996. (The evidence includes records from a private alcohol treatment facility dated in May 1996.) The Veteran then attempted to return to the work force and had three different jobs that lasted only a few weeks each. He physically collapsed at home in October 1996, and he sought VA treatment in November 1996 for physical and mental disorders including PTSD. Records from the Veteran's period of incarceration from 1997 to 1999, including a June 1997 evaluation upon admission to prison, indicate anxiety, depression, complaints of nightmares, and alcohol abuse in remission. In September 1997, a psychiatric examiner for the SSA found that the Veteran was impaired due to affective disorders, namely, adjustment disorder with depression and anxiety, and alcohol abuse. He was responding to treatment with Prozac and had no marked limitation mentally. The examiner assigned a GAF of 75. In April 1999, shortly after the Veteran's release from prison, he was treated at the VA mental health clinic for complaints of depression and anxiety, with nightmares, exaggerated startle response, irritability. He claimed that he was innocent of the forgery charges for which he had been convicted and sentenced to prison. He reported being sober for three years. There was some psychomotor retardation, and insight and judgment were fair. The diagnosis was combat-related PTSD. Also in April 1999, the Veteran submitted a statement in support of his claim indicating that he had covered up his depression with alcohol for many years, and he now felt weak, depressed, and unable to function in society due to PTSD. In May 1999, the Veteran attended a VA Compensated Work Therapy (CWT) orientation group. He reported experience in the insurance business and expressed a desire to start vocational rehabilitation treatment. He was assigned a vocational counselor and given an appointment for vocational screening and planning session. During a May 1999 VA examination, the Veteran reported his history of anger outbursts and marital problems, divorce in 1997, and incarceration for forgery in his insurance business. He stated that he received six months of alcohol abuse treatment and Alcoholics Anonymous (AA) meetings while in prison. The Veteran felt quite drained and unable to perform work since his release from prison. He complained of poor concentration and memory, although memory testing was normal. He was somewhat anxious and anhedonic; and he reported feelings of detachment and estrangement from others, sleep impairment, irritability, and exaggerated startle response. He stated that he only had impaired impulse control with his family members. The Veteran was living with a close friend, and he had several other long-term friends, but he reported some difficulties communicating with his adult daughters. The VA examiner diagnosed chronic PTSD with moderate symptoms and alcohol dependence in remission, and assigned a GAF score of 55 currently and over the past year. In July 1999, the Veteran was awarded disability benefits from the Social Security Administration (SSA) based on a primary diagnosis of affective disorder and a secondary diagnosis of alcoholism in remission, effective in October 1996. The Veteran testified during the August 2005 hearing that this was based on PTSD. Also in July 1999, the Veteran submitted a letter indicating that he had worked from June 1999 to July 1999, but he had severe depression, frightening mood changes, headaches, nausea, and uncontrollable anxiety attacks throughout that month. He voluntarily resigned from the position in July 1999 due to his PTSD symptoms. A September 1999 VA treatment record noted that the Veteran was symptom free with the present combination of medications, although he reported a reappearance of anxiety and nightmares when he attempted to discontinue one of the medications. In November 1999, the Veteran reported feeling very depressed and anxious. The Veteran was again examined by VA in June 2000. He had married a woman he knew from high school in April 2000, and he got along well with her and her two children. He was also getting along well with other family members, and he described himself as "sociable and likeable." The examiner noted that the Veteran appeared to suffer from a chronically dysphoric mood. He was depressed, with a chronic lack of motivation and fatigability, as well as bouts of anger and chronic insomnia. He reported having anxiety attacks including chest pains whenever he was alone, which were alleviated by being with others, even just going to the mall. His most distressing symptom was nightmares, and he had chronic insomnia. The Veteran indicated that he did not feel he had done anything wrong in relation to the forgery for which he was convicted and incarcerated because he did not financially benefit and he felt it was a "victimless crime." He had not attended any AA meetings since his release from prison, but he denied any relapses. The Veteran stated that he would like to go back to work, but he wanted to feel mentally and physically better before doing so. He had attempted a few jobs since 1996, but they each only lasted a couple of weeks because he would get sick, including diarrhea and vomiting, when attempting to work. He quit the jobs on his own, and he denied being fired. The VA examiner diagnosed mood disorder not otherwise specified (NOS), alcohol dependence in recovery, and chronic PTSD, and stated that they had a moderate impact on the Veteran's functioning. He assigned a GAF score of 55. In a February 2001 addendum report, the June 2000 VA examiner stated that the Veteran's primary disability was mood disorder NOS. He noted that the Veteran's medication regimen was typical for persons suffering from a mood disorder rather than PTSD alone. He also stated that alcohol dependence did not significantly impair functioning because the Veteran had been in recovery for three years. The examiner opined that the Veteran's PTSD symptoms appeared to be quite under control, he had developed effective coping skills, and it was stabilized through medications. The examiner opined that PTSD was clearly secondary in terms of effect on day-to-day living and it had minimal effect on the Veteran's current functioning. The examiner stated that the GAF score of 55 was 90 percent due to mood disorder, 10 percent due to PTSD, and 0 percent due to alcohol dependence. In an April 2002 VA treatment record, the Veteran's psychiatric symptoms were noted to be of the same intensity as during his last visit in October 2001. He had dysphoria, anxiety attacks, and sleep problems including night sweats and nightmares. He also complained of fatigue, negative feelings towards himself, and guilt. His medication made him feel unpleasant. The impression was PTSD and adverse affect of psychotropic medication. His medication was changed. In an October 2002 Board hearing concerning his service connection claim for PTSD, the Veteran reported having current night sweats, nightmares, irritability, and avoiding discussing his experiences in service except with other veterans. The Veteran has submitted a June 2003 evaluation from his private psychologist, Dr. Hickling, who diagnosed PTSD and major depression and opined that the Veteran was "unable to work being totally disabled" at that time. Dr. Hickling stated that the Veteran would benefit from psychotropic medication, which should help with PTSD and depressive symptoms, as well as ongoing psychotherapy. This evaluation and opinions were based on the Veteran's reports of unwanted memories of Vietnam on a daily basis, which caused extreme and capacitating distress, as well as infrequent unpleasant dreams and occasional flashbacks. He had nightly sleep disturbances and was unable to sleep for more than three hours on most nights. He would sweat and feel his heart racing when exposed to events that reminded him of service. The Veteran also experienced avoidance and numbing, felt distant or cut off from people around him, and had lost interest in activities that used to be enjoyable. He had moderate symptoms of irritability, anger, and difficulty concentrating, as well as hypervigilance, exaggerated startle response, and survivor's guilt. He reported that his mental health symptoms appeared to cause considerable distress in relationships with other people. The Veteran was again examined in February 2004 by the same individual who performed the June 2000 VA examination. He reported similar symptoms as in June 2000, and he remained married to his second wife. When asked if he was currently drinking, the Veteran stated that he would have a beer "now and then." He denied having a problem with drinking, although his breath smelled of alcohol. The examiner suspected that the Veteran had been self-medicating with alcohol for many years prior to his beginning to take mood-stabilizing medication. Testing did not reveal any obvious deficits in thinking or memory, and the examiner stated that the Veteran was bright and "quite intellectually capable." The Veteran reported being depressed and sad most of the time, and lacking motivation to engage in work-related activity. He had not maintained significant employment since 1996. The Veteran indicated that his medications helped controlled his temper and moods, and he felt anxious when he was not taking his mood stabilizers; however, when he took his medication, he felt lethargic and unmotivated. The examiner again opined that the Veteran had three separate diagnoses of mood disorder NOS, history of alcohol dependence with only sporadic use currently, and mild symptoms of PTSD. He assigned an overall GAF of 50 and opined that the Veteran was "seriously impaired in his overall functioning in that he ha[d] not maintained employment since 1996." In an August 2004 telephone call, the examiner again opined that the Veteran's mood disorder was the major reason that he was not working. He stated that, if there was no mood disorder, the GAF score would be in the normal range. In an October 2004 letter, the Veteran's current wife asserted that he was unable to hold a job and had depression, night sweats, nightmares, and memory problems. At his August 2005 Board hearing, the Veteran reported being constantly fatigued, with no energy and decreased concentration, and that he was having flashbacks and nightmares on a daily basis. He also reported having frequent panic attacks with chest pain when he was at home alone. Other than his primary care doctor, he was not currently receiving treatment for PTSD because he could not afford a private therapist and did not want to attend group therapy sessions at the VA facility. He had not contacted VA about individual therapy sessions or medications since 2002. The Veteran stated that he was unable to work as a result of his PTSD, and that the SSA benefits counselor told him that those benefits were due to PTSD and not for a mood disorder. He indicated that he would self-medicate with alcohol before he began using psychiatric medications. The Veteran's wife also testified that he was unable to work due to PTSD, stating that he had nightmares, could not remember things, did not like to socialize, and was "jumpy" and easily scared. In September 2007, the Veteran appeared for another VA examination by the same examiner who performed the June 2000 and February 2004 examinations. He again reported that he had not worked since 1996. However, the examiner informed the Veteran that it would likely be in his best interest to be examined by another person. He acknowledged that a different psychologist or psychiatrist might have a different opinion as to the degree of impairment due to the Veteran's PTSD symptoms. No GAF score or opinion as to the severity of the Veteran's disability was provided. In a May 2008 letter, the Veteran asserted that his PTSD symptoms had worsened over the past six years, although he did not provide any specifics. In December 2008, the Veteran was examined by a different VA psychiatrist. He had last seen his provider for PTSD in June 2007. Upon examination, he had a normal affect and an anxious and dysphoric mood. He was fully oriented and had no delusions, hallucinations, inappropriate behavior, obsessive or ritualistic behavior, suicidal or homicidal thoughts, problems with activities of daily living, or memory impairment. The Veteran reported being anxious, isolating himself from other people, and having sleep impairment, nightmares, panic attacks, and flashbacks. He had not worked for 12 years. The Veteran stated that he did not feel close to people, has not spoken to his children in the past many years, and rarely talked to his friends. He did not feel like going out with people and had given up his leisure activities. The Veteran stated that he was afraid of crowds and stayed home all the time. The examiner diagnosed PTSD and assigned a GAF score of 50. In a June 2009 addendum, this VA examiner clarified that the diagnoses were PTSD, mood disorder NOS, and alcohol dependence in full remission. In contrast to the prior VA examiner, she opined that the Veteran's mood disorder and alcohol dependence both resulted from his PTSD. She further stated that, most of the time, the Veteran experienced symptoms of PTSD and mood disorder simultaneously, so she could not separate the impact of PTSD on his psychosocial functional status and quality of life. Therefore, she opined that the Veteran's current GAF score was based on the impact of his PTSD and mood disorder on his functioning and quality of life, and a separate GAF score could not be provided for PTSD. As discussed above, the Veteran has generally denied abusing alcohol since being incarcerated from 1997 to 1999, stating that he only drinks sporadically, although he was noted to have the smell of alcohol on one occasion. More recently, in a March 2011 private treatment record, the Veteran reported abusing alcohol for 30 years, including currently, and he was interested in treatment options. He also reported mild anxiety that was controlled and occasional nightmares. As the Veteran does not meet the percentage threshold criteria for a TDIU, the RO forwarded the claims file to the Director, Compensation and Pension Service, for an advisory opinion as to entitlement to a TDIU in July 2012. In doing so, the RO recommended a finding that the Veteran was entitled to TDIU based on PTSD, which was rated as 50 percent disabling effective as of February 11, 2004. The RO reasoned that Dr. Hickling had opined in 2003 that the Veteran was unemployable due to PTSD, stating that the Veteran was totally disabled and unable to work at that time. Further, the SSA had found the Veteran to be disabled since 1996. Nevertheless, in a November 2012 report, the Director, Compensation and Pension Service, determined that entitlement to TDIU on an extra-schedular basis should be denied. The Director summarized the lay and medical evidence of record, including the findings by Dr. Hickling and the SSA, as well as the VA examination reports. He also noted the Veteran's assertions that he lost his business due to PTSD. The Director stated that the Veteran was successful in the insurance business for approximately 25 years until he was convicted and incarcerated for forgery. The Director concluded that there were no medical opinions indicating that the Veteran was completely unemployable due solely to his PTSD. He opined that, although there were examinations indicating that the Veteran's PTSD had a severe functional impact, the symptomatology did not correlate to such an assessment. The Director noted that the SSA's decisions regarding unemployability are not controlling for VA determinations. He again stated that, although the Veteran was granted SSA disability in a 1999 decision based on his mental condition, corresponding medical records did not indicate that such condition was functionally limiting. As such, the Director concluded that a TDIU on an extra-schedular basis should be denied because the evidence did not show that the Veteran would be unemployable in all environments, including an isolated one, solely due to his PTSD. Considering all evidence of record, the Board observes that the severity of the Veteran's mental health symptoms has varied over the course of the appeal, to include increased deficiencies in social impairment as well as occupational impairment. Indeed, he was previously assigned a staged rating based on a finding that his symptoms met the level of a 50 percent rating as of February 11, 2004. The Board notes that a SSA psychiatric examiner assigned a GAF score of 75 in 1997, which would indicate no more than slight impairment of functioning. See Quick Reference to the Diagnostic Criteria from DSM-IV, 46-47 (1994). Nevertheless, the SSA subsequently found the Veteran to be disabled and unable to work effective as of October 1996 due to his mental health disorder. The Veteran has indicated several times that he felt weak, unmotivated to work, and had physical reactions including nausea and headaches when he tried to work for short periods of time in 1999 due to his symptoms of PTSD, such as anxiety. There is no indication that he is not credible in this respect. Additionally, there are several opinions indicating that the Veteran could not work due to his mental health symptoms. Dr. Hickling opined in June 2003 that the Veteran was totally disabled and unable to work due to his PTSD and mental health symptoms. Further, the VA examiner who conducted the examinations in 1999, 2000, and 2004 expressly stated in February 2004 that the Veteran was "seriously impaired" due to his mental health, as shown by his being unemployed since 1996. This VA examiner also assigned a GAF score of 50 at that time, which would indicate serious impairment of functioning, such as inability to hold a job. See id. Although this VA examiner also opined several times that the Veteran's primary impairment was due to mood disorder NOS; and that this was a separate condition from PTSD with distinguishable symptoms, other mental health professionals have disagreed with that opinion. Indeed, the VA examiner acknowledged in September 2007 that a different psychologist or psychiatrist might have a different opinion from him. In particular, Dr. Hickling indicated that the Veteran had PTSD based on similar symptoms. The December 2008 VA examiner expressly opined that the Veteran's symptoms and functional impairment due to PTSD and mood disorder NOS could not be separated, and that the Veteran's mood disorder and history of alcohol abuse were related to his PTSD. She also assigned a GAF of 50, which would indicate serious impairment such as inability to hold a job. See id. Each of the mental health professionals in this case appears to have considered all pertinent lay and medical evidence in offering an opinion as to the effects of the Veteran's PTSD and any related disorders on his employability. As such, the Board finds no reason to assign more probative weight to one opinion over the others. As a result, the evidence is in relative equipoise in this regard. Indeed, the RO recommended in July 2012 that the Veteran be found unemployable due to PTSD. Although the Director, Compensation and Pension Services, concluded that the Veteran was not unemployable due to PTSD; the Board must consider this opinion along with the other evidence of record. Notably, the Director did not address the Veteran's educational and employment history in its evaluation of the effects of his PTSD. In particular, the Veteran's primary employment for over 25 years included working with others in insurance, so an ability to work alone, as suggested by the Director, would not be consistent with his history. Moreover, the Veteran has generally indicated that he has panic attacks when he is alone due to his PTSD. In sum, the Board finds that the evidence is in relative equipoise as to whether the Veteran has been unemployable throughout the period on appeal for positions consistent with his education and background due to his PTSD. Therefore, the benefit-of-the-doubt doctrine applies, and the Board resolves reasonable doubt as to this matter in the Veteran's favor. 38 C.F.R. § 4.3. Although he does not meet the schedular threshold percentage for a TDIU, he is unemployable for VA purposes due solely to the service-connected PTSD. All evidence has been considered, including but not limited to the Director's opinion in this regard. Therefore, the criteria for entitlement to a TDIU have been met, and the claim is granted. ORDER A total disability rating based on individual unemployability is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs