Citation Nr: 1332409 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 07-33 013 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUES 1. Entitlement to a disability rating in excess of 50 percent from April 30, 2009 for service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from April 30, 2009. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1966 to December 1987, which included three combat tours in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision by the Honolulu, Hawaii Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in March 2011, when it was remanded for further development, and in August 2012, at which time the Board granted that Veteran entitlement to an initial disability rating of 100 percent, through April 29, 2009, and a disability rating of 50 percent from April 30, 2009, for his service-connected PTSD. The August 2012 Board decision also denied the Veteran entitlement to a TDIU from August 30, 2012. The Veteran appealed the August 2012 Board decision to the Court of Appeals for Veterans Claims (Court). In an April 2013 order, the Court granted a Joint Motion of the parties to vacate the portions of the Board's decision granting the Veteran a 50 percent disability rating from April 30, 2009 and denying entitlement to a TDIU from April 30, 2009, and these issues were returned to the Board for action consistent with the Joint Motion. To ensure a complete review of the evidence, the Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system, which included no documents relevant to the matter at hand that are not duplicates of what is in the paper claims file. FINDING OF FACT From April 30, 2009, the Veteran's PTSD is manifested by symptoms of suicidal ideation, depression, anxiety, sleep impairment, nightmares, hypervigilance, hyperarousal, avoidance, detachment from others, irritability, limited ability to interact with others, and limited ability to sustain activities of daily living; causing total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for a 100 percent disability rating for service-connected PTSD, from April 30, 2009, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2013). 2. The issue of entitlement to a TDIU due to service-connected disabilities is moot. Vettese v. Brown, 7 Vet App. 31 (1994); Holland v. Brown, 6 Vet App. 443 (1994). REASONS AND BASES FOR FINDING AND CONCLUSIONS I. Duties to Notify and Assist The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. However, inasmuch as the benefit sought is being granted, there is no reason to belabor the impact of the VCAA on this matter; any notice defect or duty to assist omission is harmless. II. Legal Criteria The Board notes it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Disability Ratings for PTSD Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C.A. § 1155. Psychiatric disability is rated under the General Rating Formula for Mental Disorders. PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411, which provides for a 50 percent evaluation 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 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; difficult establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where there is 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; intermittently illogical, obscure, or irrelevant speech; 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); and inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted 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; and memory loss for names of close relatives, own occupation, or own name. Id. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). 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. Id. However, 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 on the basis of social impairment. 38 C.F.R. § 4.126(b). The Global Assessment Functioning (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 (1996). A score of 31 to 40 reflects some impairment in reality testing or communication or major impairment in several areas such as work or school, family relations, judgment, thinking, or mood. A score of 41 to 50 is assigned where there are "[s]erious 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)." DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM-IV) 47 (4th ed. 1994). A score of 51 to 60 is appropriate where there are "[m]oderate 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)." Id. A GAF score of 61 to 70 indicates the examinee has some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functions pretty well with some meaningful interpersonal relationships. Id. at 46. While particular GAF scores are not contained in the VA schedule of ratings for mental disorders, 38 C.F.R. § 4.130, they are a useful tool in assessing a Veteran's disability and assigning disability evaluations. However, they are just one of many factors considered when determining an evaluation. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, including degree of disability, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3 The Court has held that "staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). TDIU It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. 38 C.F.R. § 4.16. "Substantially gainful employment" is that employment that "is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the Veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment will not be considered substantially gainful employment." 38 C.F.R. § 4.16(a). A TDIU may be assigned, if 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 it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 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). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). A claim for a TDIU presupposes that the rating for the service-connected disabilities is less than 100 percent, and only asks for a TDIU because of "subjective" factors that the "objective"" rating does not consider. Vittese v. Brown, 7 Vet. App. 31, 34-35 (1994). II. Analysis Evaluation of PTSD The Veteran contends that he is entitled to a disability rating in excess of 50 percent for his PTSD from April 30, 2009. The Board notes that the Veteran was granted an initial 100 percent disability rating through April 29, 2009 based on the findings from a September 2006 VA examination. At the September 2006 VA examination, the Veteran reported that he had been married and divorced twice, but that he did not know why his wives had left him. He reported that he only remembered his second wife complaining that he had hit her while he was asleep a couple of times, but he did not remember those episodes. He reported that he had no social relationships. He reported that he did have friends, but that he only saw them if they invited him over, which was only occasionally, and that when he was in a social setting he would isolate himself because he tended to get irritated when around other people. He reported that he had not been in a romantic relationship since his second marriage had ended in 1992. He reported that when he was not working, he enjoyed cleaning his house and yard and that he engaged in some walking and jogging by himself. He also reported that he would go to some live baseball games or occasional high school football games in Guam, by himself. He reported that he had been a heavy alcohol drinker in the past, but that he had cut down his drinking a lot over the past several years. The Veteran reported that he had recently retired, but that when he was employed he had problems getting along with some of his co-workers. He reported that his official reason for retirement was because of age and/or years worked, but that in reality he was "forced out" because he was not liked by his superiors. On mental status examination, the Veteran was clean, neatly groomed, and casually dressed. His psychomotor activity and speech were unremarkable. His attitude toward the examiner was cooperative, yet guarded and his affect was constricted. His mood was noted to be anxious and dysphoric. His attention was intact and he was able to do the serial 7s and spell a word forward and backward. He was oriented to person, time, and place. His thought process was unremarkable, but he was noted to be preoccupied with one or two topics. His judgment and insight were noted to be good, in that he could understand the outcome of his behavior and he understood that he had a problem, and his intelligence was average. He was not noted to have any delusions, but he was noted to have occasional auditory hallucinations. He was noted to have sleep impairment that interfered with his daily activity; he reported that he would get 4 to 5 hours of sleep a night and that he would wake up early in the morning and then fall back to sleep. He was not noted to have any inappropriate behavior, he was able to interpret proverbs appropriately, and he did not have any obsessive or ritualistic behavior. He did not endorse panic attacks and did not report homicidal or suicidal ideation. His impulse control was good, he did not report any episodes of violence, and his remote, recent, and immediate memory were all normal. The examiner noted that the Veteran had a diminished interest in participation in significant activities and a feeling of detachment or estrangement from others. The examiner also noted that the Veteran's PTSD symptoms included hypervigilance and exaggerated startle response and that his symptoms caused clinically significant distress or impairment in social, occupational or other important areas of functioning. The examiner further noted that the Veteran's PTSD symptoms occurred frequently, some constantly, and were severe to moderate in nature. The examiner noted that the Veteran's PTSD caused total social and occupational impairment and assigned a GAF score of 55. The Veteran was afforded another VA examination in June 2011. At that time he reported that his PTSD caused frequent nightmares and frequent intrusive thoughts about his combat experiences. He reported that he engaged in daily efforts to avoid conversations about his combat experiences. He reported that he felt detached from others and a diminished interest in engaging in activities on a daily basis. He reported an increase in his arousal symptoms, nightly sleep impairment, daily irritability, daily hypervigilance, and an occasional exaggerated stable response. He reported that his symptoms had been ongoing for 40 years. He reported that he was not currently employed, and that he had retired in 2005 after his company had been reorganized. He reported that while he was employed, he had difficulty getting along with his co-workers and supervisors due to his irritability and that he felt he was actually asked to retire in 2005 because he was not well liked by some of his supervisors. He reported that he had been married and divorced twice. He could not say why his wives had left him, but he did report that he did refer to his history of irritability and violent nightmares as a possibility. He reported that he was currently single and that he tended to avoid social and leisure activities. He denied any current substance abuse and he reported that he was not engaged in psychiatric care. He reported suicidal ideation, without intent or plan. On mental status examination, the Veteran was noted to have no impairment of thought process or communication. There were no delusions, hallucinations, or inappropriate behavior noted. Suicidal ideation was noted, but there was no intent or plan present and the Veteran was noted to have no access to a gun or other weapon. The Veteran was noted to have a normal ability to maintain his personal hygiene and his impulse control was normal. He was oriented to person, place, and time and there was no memory loss or impairment noted. Obsessive or ritualistic behavior was noted in that the Veteran reported engaging in "checking" behavior. Rate and flow of speech was normal. The Veteran did not report any panic attacks, but he was noted to have moderate depressed mood and moderate anxiety. The examiner diagnosed PTSD and assigned a GAF score of 65. The examiner noted that the Veteran had reduced reliability and productivity due to his PTSD signs and symptoms. VA treatment records associated with the claims file indicate that prior to April 30, 2009 the Veteran was receiving intermittent mental health treatment. However, these records show that the Veteran stopped receiving mental health treatment sometime around December 2008, as that is the last mental health treatment note associated with the claims file. The mental health treatment records up until December 2008, had documented the Veteran's complaints of various symptoms related to his PTSD, including depression, anxiety, suicidal ideation, mood changes, and sleep impairment. The records prior to December 2008, particularly those near the time the Veteran retired from his employment in 2005, document his reports of irritability with his co-workers and frustrations at work. From December 2008, the VA treatment records do not show that the Veteran was receiving mental health treatment; however, he was intermittently seen by his primary care physician for various medical conditions. These records include notations pertaining to the Veteran's PTSD and related symptoms. In a January 2009 VA treatment record it was noted that the Veteran was having less anxiety and no suicidal or homicidal ideation. An April 2009 VA treatment record notes that the Veteran's PTSD was stable, that he was having no anxiety or depression, no suicidal or homicidal ideation, and that he was applying positive coping strategies. An October 2009 VA treatment record notes that the Veteran had a positive depression screen. He had reported that he felt little interest or pleasure in doing things nearly every day and that he felt down, depressed, or hopeless nearly every day. A September 2010 VA treatment record shows that the Veteran again had a positive depression screen. He reported that he felt little interest or pleasure in doing things several days and felt down, depressed, or hopeless more than have the days. Also of record is a July 2013 private mental evaluation report that was conducted for the purpose of determining the functional impairment caused by the Veteran's service-connected disabilities. This evaluation was conducted by Dr. C.W., a certified rehabilitation and career development counselor and vocational expert. Dr. C.W. reviewed the Veteran's claims files and interviewed the Veteran prior to drafting the evaluation report. With regard to his PTSD symptoms, Dr. C.W. noted that the Veteran more often than not has a depressed or anxious mood, or both, with a related loss of mental focus; he suffers from the inability to complete a typical day without interruptions from psychologically based symptoms; he is very limited in his ability to interact successfully with others, including co-workers or supervisors in a work setting; he experiences frequent interruptions in focus and concentration and he reported that he had difficulty maintaining focus on tasks for even one to two hours at a time; he was limited in his ability to sustain an ordinary routine, even for activities of daily living or working in a competitive employment environment, and this was based on anxiety, distraction, and fatigue caused by sleep impairment. After affording the Veteran the benefit of the doubt, the Board finds that a disability rating of 100 percent is warranted for the Veteran's service-connected PTSD, for the entire period on appeal. In this regard, the Board notes that the Veteran's VA treatment records show that he was still exhibiting significant depression symptoms in October 2009 and September 2010, regardless of the fact that he had discontinued his mental health treatment. Further, at his June 2011 VA examination, the Veteran's PTSD symptoms were noted to include suicidal ideation, depressed mood, anxiety, obsessive or ritualistic behavior, frequent nightmares, frequent intrusive thoughts of combat, daily avoidance symptoms, daily feelings of detachment from others, daily diminished interest in activities, daily hyperarousal, night sleep impairment, daily irritability, daily hypervigilance, and occasional exaggerated startle response. He was noted to engage in no social activities, except when specifically asked, which only happened occasionally, and even then, he would isolate himself and it was documented that his PTSD had significantly interfered with his employment. Further, the July 2013 private mental health evaluation indicates that the Veteran's PTSD worsened since his June 2011 VA examination. Specifically July 2013 private evaluation report shows that the Veteran's PTSD was causing him a very limited ability to interact successfully with others, that he was more often than not depressed and/or anxious, and that he was limited in his ability to sustain an ordinary routine, even for activities of daily living. When comparing the September 2006 and June 2011 VA examination reports, it is shown that the Veteran's reported subjective PTSD symptoms, and the objective findings on mental status examination, documented in each report are essentially the same. As such, the Board finds that June 2011 VA examiner's finding that the Veteran's PTSD was only productive of reduced reliability and productivity is irrelevant, and that the Veteran's symptoms and objective findings on mental status examination in the June 2011 VA examination report show that the Veteran's PTSD did not change in severity since his September 2006 VA examination. Further, as noted above, the July 2013 private mental health evaluation shows that the Veteran's PTSD has now worsened since the June 2011 VA examination. Therefore, the Veteran is entitled to a 100 percent disability rating for the period on appeal. The Board acknowledges that the results of the VA examination, the symptoms described in the mental health treatment notes, and the June 2013 private mental health evaluation, do not indicate that the Veteran experiences all the symptoms associated with a 100 percent disability rating for PTSD for the period on appeal. However, as noted above, the Court has held that the symptoms enumerated under the schedule for rating mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan, 16 Vet. App. 436 (2002). Thus, a finding that there is total occupational and social impairment sufficient to warrant a 100 percent disability rating for the entire period on appeal, even though all the specific symptoms listed for a 100 percent rating are not manifested. Entitlement to a TDIU A TDIU rating contemplates that the schedular rating is less than total. 38 C.F.R. § 4.16(a). Since the Veteran is entitled to a 100 percent rating for his PTSD on a schedular basis; and, as the total rating has been made effective for the entire period encompassing the TDIU claim, the claim for a TDIU is rendered moot. See Vettese, supra ("claim for TDIU presupposes that the rating for the condition is less than 100 percent"). The Board acknowledges the Court's holding in Bradley v. Peake, 22 Vet. App. 280 (2008), indicating that if a Veteran has a schedular total rating for a particular disability and subsequently claims TDIU for a separate disability, VA must consider the TDIU claim despite the existence of the schedular total rating and award SMC under 114(s) if VA finds the separate disability supports a TDIU rating independent of the other 100 percent disability rating However, in this case the Board notes that the Veteran has not asserted, nor is there evidence suggesting, that he has any other disability that affects his employment, let alone disability with a 60 percent rating that would meet the statutory requirements for a TDIU. As such the requirements in Bradley are not applicable in this case, and the claim for entitlement to a TDIU is moot. (CONTINUED ON NEXT PAGE) ORDER The Board having determined that the Veteran's PTSD warrants a 100 percent disability rating for the entire period on appeal, the benefit sought on appeal is granted to this extent and subject to the payment of monetary benefits. The appeal for entitlement to a TDIU is dismissed. ____________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs