Citation Nr: 1521049 Decision Date: 05/18/15 Archive Date: 05/26/15 DOCKET NO. 11-14 384 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Y. Curtis, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1975 to July 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. During the pendency of the Veteran's claim for an increased evaluation, he asserted that his PTSD rendered him unemployable. Accordingly, a TDIU claim is raised by the record and is before the Board as a component of his claim for an increased evaluation. Rice v. Shinseki, 22 Vet. App. 447 (2009). The issue of a gastrointestinal disorder has been raised by the record in a November 2013 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). FINDINGS OF FACT 1. The Veteran's PTSD has been productive of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; however, the preponderance of the evidence shows that the Veteran's PTSD does not more nearly approximate being productive of disability analogous to total occupational and social impairment. 2. The Veteran meets the schedular criteria for TDIU; the competent and credible evidence of record is at least in equipoise as to whether the Veteran's service-connected disabilities prevent him from securing and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 70 percent have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.125, 4.130, Diagnostic Code 9411 (2014). 2. The criteria for entitlement to a TDIU have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.16 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has a duty to provide notice of the information and evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2014). The appeal arises from a disagreement with the initially assigned disability rating after service connection was granted. Once a decision awarding service connection, a disability rating, and an effective date has been made, section 5103(a) notice is no longer required because the claim has already been substantiated. VA also has a duty to provide assistance to substantiate a claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c). The Veteran's post-service VA and private treatment records have also been obtained. The Veteran was provided VA medical examinations in November 2009, July 2012, and July 2013. The examinations are sufficient evidence for deciding the claim. The reports are adequate as they are based upon consideration of the Veteran's prior medical history and examinations, describe the disability in sufficient detail so that the Board's evaluation is a fully informed one, and contain a reasoned explanation. Thus, VA's duty to assist has been met. II. General Rating Principles Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 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 importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, separate ratings may also be assigned for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505 (2007). III. Rating Criteria Under the General Rating Formula for Mental Disorders, a 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 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. 38 C.F.R. § 4.125 (2014). Finally, a 100 percent rating applies if the veteran has 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. Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). GAF scores ranging between 61 to 70 reflect 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, and has some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect more 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). IV. Facts The medical and lay evidence reveals that the Veteran has experienced ongoing issues with anger management. In particular, the Veteran's wife stated that the Veteran has had thirty-one jobs in thirty years. She also stated that she was afraid that he would lose his current position due to his anger outburst. The Veteran's children echoed his wife's sentiments and they all noted that they do not have a close relationship with their father. On VA examination in November 2009, the Veteran complained of irritability and his inability to keep a job. Following a psychiatric examination, the examiner noted that the Veteran was frequently irritable at work and often had conflicts with customers and staff. The examiner also explained that the Veteran became more isolated and had limited social contact with friends and family outside of his home. Finally, it was noted that the Veteran experienced intermittent feelings of numbness towards his wife and reportedly lost interest in riding his motorcycle and fishing. The examiner assigned a GAF score of 62 and specifically noted that there was not total occupational and social impairment due to PTSD signs and symptoms. He concluded the Veteran's PTSD symptoms resulted in reduced reliability or productivity. The record also reveals that the Veteran received ongoing therapy. During a session in March 2010, he reported that he was involved in a physical altercation with an individual who banged his truck with their car door. A month later, the Veteran was disciplined at work. His employer noted that he had not shown the necessary improvements required to become a proficient service advisor. His supervisor noted that the dealership regularly received negative comments regarding the Veteran's inability to provide the level of customer service that is required for the job. In May 2010, the Veteran reported that he recently lost his job after he got into an argument with the boss. The Veteran subsequently filed a claim for TDIU that was received January 2013. On VA examination in July 2012, the findings were similar to the previous examination. The Veteran endorsed symptoms of depressed mood, anxiety, suspiciousness, a chronic sleep impairment, mild memory loss, disturbance of motivation, difficulty in establishing relationships, impaired impulse control, and suicidal ideation. The examiner opined that the Veteran exhibited occupational and social impairment with reduced reliability and productivity. A GAF score of 55 was assigned. Similarly, on VA examination in July 2013, the Veteran reported a continuation of his ongoing symptoms and noted that he got into a confrontation at a convenience store three weeks prior to the examination. Following a comprehensive psychological examination, the examiner concluded that the Veteran's PTSD would not preclude him from obtaining and maintaining gainful employment. Based on the Veteran's current level of functioning, the examiner concluded that the Veteran would be capable of sedentary, flexibly scheduled employment with limited stress and responsibility that involved limited to minimal interaction with staff and customers. The examiner noted that the Veteran's PTSD symptoms resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation. A GAF score of 55 was assigned. V. Discussion A. PTSD The Veteran contends that his PTSD is more severe than the currently assigned rating and that he is entitled to a higher rating. The Board has considered the entirety of the evidence and concludes that the Veteran's PTSD does not meet the criteria for an initial disability rating in excess of 70 percent for PTSD for the period on appeal. During this period, the medical evidence shows that the Veteran was evaluated for and received ongoing treatment for psychiatric pathology and symptoms associated with his PTSD. His PTSD included a myriad of symptoms including a chronic sleep impairment, irritability, impaired impulse control, isolation, detachment, mild memory loss, anxiety, depressed mood, and suicidal ideation. Notably, the record does not reflect that any of the VA examiners concluded that the Veteran's PTSD symptoms resulted in total occupational and social impairment. Concerning his social adaptability, the evidence clearly establishes that the symptoms of the Veteran's PTSD interfere with his ability to work and socialize. It was mentioned that the Veteran had a difficult relationship with his children and his spouse. The Veteran remained married, but he had familial problems related to his anger and irritability. The claim file includes several letters from his sons that note a strained relationship with their father. The Veteran's wife also stated that the couple has few friends and that no one visits them. Additionally, for the most part, the Veteran described himself as isolative in terms of his social interactions. Regarding his employment and occupational endeavors, the Veteran has a long history of job instability and reportedly lost his most recent job in part due to his inability to get along with people. Notwithstanding, the Veteran's social and occupational difficulties, both the June 2012 and July 2013 VA examiners concluded that the Veteran is employable. The evidence also shows that the Veteran is able to care for himself - there has been no evidence of an inability to attend to basic hygiene and grooming. He has also maintained a thirty year relationship with his wife, and although he has strained relationships with his children, he does have some contact and relationships with them. There is also no evidence of cognitive or memory issues at a level so severe the Veteran is unable to remember the names of close relatives or his own occupation or name. As such, the evidence simply does not support symptoms of such frequency, severity or duration as to result in total occupational and social impairment. This is supported by the medical evidence of record which shows that medical professionals noted only "reduced reliability and productivity due to PTSD symptoms" (See November 2009 VA examination report.); "occupational and social impairment with reduced reliability and productivity" (See July 2012 VA examination report); or "occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation." (See July 2013 VA examination report). Importantly, none of the medical examiner's found that PTSD symptoms resulted in total occupational and social impairment. Therefore, an initial rating in excess of 70 percent for the appeal period is not warranted. Additionally, the Board notes that there is no indication in the evidence of record that the Veteran's psychiatric symptomatology warranted staged disability ratings for the period on appeal. See Fenderson, supra. Finally, the Board notes that under Johnson v. McDonald, 2013-7104, 2014 WL 3562218 (Fed. Cir. Aug. 6, 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, in this case, after applying the benefit of the doubt under of Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. In sum, the Board finds that the Veteran has not described other functional effects that are "exceptional" or not otherwise contemplated by the assigned evaluations - particularly because the schedular rating criteria for PTSD are not limited to considering any specific symptoms, but rather are predicated from the level of impairment that results from any and all PTSD symptoms. The rating criteria are therefore adequate to evaluate the Veteran's disabilities and referral for consideration of an extraschedular rating is not warranted. For all the foregoing reasons, the Board finds that the claim of entitlement to an initial disability rating in excess of 70 percent for PTSD must be denied for the period on appeal. In reaching the above-stated conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to an increased initial rating for his psychiatric disability, that doctrine is not applicable. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2014). B. TDIU During the period on appeal, the Veteran was service connected for PTSD (70 percent) and for tinnitus (10 percent). As such, the Veteran has a combined rating of 70 percent, with at least one disability rated at 40 percent or more. The Veteran thus meets the schedular requirements of 38 C.F.R. § 4.16(a). For a grant of TDIU there must be evidence that the Veteran is unable to secure or follow a substantially gainful occupation solely as a result of his service-connected disabilities. In other words, the sole fact that the Veteran is unemployed or has difficulty obtaining employment is not enough. Therefore, the question now presented is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. The Board notes that the Veteran's education and training is limited to his high school education and that he was previously employed in the automotive retail industry. Both the June 2012 and July 2013 VA examiners concluded that the Veteran is employable; however, the July 2013 VA examiner's conclusion that the Veteran is employable is based on the premise that the Veteran is only capable of employment within the limited confines of flexibly scheduled employment that involves limited stress and responsibility, and minimal interaction with staff and customers. The Board concludes that the limitations described by the July 2013 examiner are so constricting in terms of their scope that they can be reasonably construed as rendering the Veteran unable to secure and maintain substantially gainful employment. Accordingly, resolving doubt in the Veteran's favor, the Board finds that entitlement to a TDIU is warranted. ORDER Entitlement to an initial disability rating in excess of 70 percent for PTSD is denied. Entitlement to TDIU is granted, subject to the statutes and regulations governing the payment of monetary awards. ____________________________________________ M. N. HYLAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs