Citation Nr: 1601792 Decision Date: 01/15/16 Archive Date: 01/21/16 DOCKET NO. 11-34 341 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU). 2. Entitlement to an increased disability rating in excess of 50 percent for anxiety disorder, not otherwise specified, with PTSD features and opioid dependence, in remission. REPRESENTATION Appellant represented by: William C. Herren, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from January 1968 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In October 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. At the hearing, the Veteran submitted additional evidence, along with a waiver of initial consideration by the RO. FINDINGS OF FACT 1. For the entire increased rating period, the Veteran's service-connected psychiatric disorder has been manifested by occupational and social impairment, with deficiencies in most areas. 2. The Veteran's service-connected disabilities prevent him from securing and following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a 70 percent disability rating for anxiety disorder, not otherwise specified, with PTSD features and opioid dependence, in remission, have been met for the entire rating period. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.125, 4.126, 4.130, Diagnostic Code (DC) 9411 (2015). 2. The criteria for a TDIU have been met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341(a), 4.16, 4.25 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist There has been a significant change in the law with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014). In the instant case, the Veteran's claims are being granted. As such, any deficiencies with regard to the VCAA are harmless and nonprejudicial. Rating Criteria Disability evaluations (ratings) are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2015). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the policy of the VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the claimant's favor. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). 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). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating was filed until the final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). PTSD is evaluated (rated) under the general rating formula for mental disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is assigned when 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; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is assigned when 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; 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 rating is assigned when 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 and place; memory loss for names of close relatives, own occupation or name. A Global Assessment of Functioning score is a scaled rating reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness." See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed.1994) (DSM-IV). A score in the range of 51 to 60 indicates moderate symptoms (e.g., a flattened affect, circumstantial speech, occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (e.g., having few friends or having conflicts with peers or co-workers). A GAF score of 41 to 50 reflects a serious level of impairment (e.g., suicidal ideation, severe obsessive rituals, frequent shoplifting), or serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). While symptomatology should be the primary focus when deciding entitlement to a given disability rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused the requisite occupational and social impairment. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Increased Rating for Anxiety Disorder, Not Otherwise Specified with PTSD Features and Opioid Dependence An August 2007 rating decision granted service connection for PTSD and assigned a 50 percent disability rating from March 2007. A claim for an increased rating was received in May 2008. The Veteran had a VA examination in July 2007. The Veteran reported sleep difficulties, irritability and outbursts of anger. He reported that he stayed home most days and had very few friends. The Veteran reported that he was employed on and off since the military and had spent most of his time since service incarcerated. On mental status examination, the Veteran was oriented to time, place and person. His hygiene was appropriate. His mood was sad, and his affect was blunted. He was able to communicate effectively. His concentration was intact. The Veteran denied panic attacks. There was no history of delusions, hallucinations or obsessional rituals. There was no impairment of judgment or abstract thinking. The Veteran did not have homicidal or suicidal ideation. The examiner diagnosed severe ongoing PTSD. A GAF score of 45 was assigned. The examiner opined that the Veteran suffered from severe PTSD. The examiner noted that the Veteran was working at the present time but was always fearful of losing his job. The examiner indicated that the Veteran had difficulty relating to others socially because of his PTSD. The examiner indicated that the Veteran did not present a persistent danger to himself or others. VA outpatient records dated from September 2007 to May 2008 reflect that the Veteran was seen for individual counseling. The treatment records show that a GAF score of 60 was assigned during this period. VA outpatient records dated in April 2008 and May 2008 reflect that the Veteran was seen for individual counseling. The reports noted that the Veteran seemed motived to reduce his anger and isolation. His mood was euthymic, and his affect was appropriate to content. His thoughts were logical and goal-directed, and speech was within normal limits. Upon VA examination in August 2008, the Veteran reported pervasive feelings of anxiety and depression, insomnia, social isolation, irritability, poor concentration and fleeting suicidal ideation without plan or intent. The Veteran reported that he was on methadone for opioid dependence. The Veteran reported that he was last employed at an energy plant in San Antonio, where he worked for 7 years. He reported that he became angry and anxious and quit working the prior year. The examiner indicated that the Veteran's symptoms were consistent with moderate to severe PTSD with opioid dependence on Methadone maintenance and symptoms associated with his medical problems. On mental status examination, the Veteran was logical and coherent. He denied hallucinations and delusions. He denied homicidal or suicidal ideation but admitted fleeting suicidal ideations without intent. His immediate, recent and remote memory were essentially intact. His insight and judgment were within normal limits. The examiner assigned a GAF score of 45 for the Veteran's PTSD symptoms. VA treatment records dated in October 2008 show that the Veteran admitted for treatment of opiate addiction. A GAF score of 55 was assigned upon admission. A GAF score of 65 was assigned at discharge. In an August 2010 statement, the Veteran stated that he had short-term memory difficulties. He noted that he was on medication for mood, anxiety and anger due to his PTSD. He reported that he still experienced mood swings, but that his anger was a little more in control. An October 2010 VA psychiatry treatment record noted that the Veteran was unemployed. The Veteran reported a number of PTSD symptoms. Mental status examination revealed that the Veteran's recent and remote memory appeared intact. His concentration was okay. His mood was dysthymic with reduced range but normal intensity of anxious affect. His thought processes were logical and goal-directed. There was no suicidal or homicidal ideation. A VA psychiatrist assigned a GAF score of 50. The psychiatrist opined that the Veteran's highest GAF within the year was 52, and his lowest GAF was 40. Upon VA examination in April 2011, the Veteran reported that he was depressed. Mental status examination showed unremarkable psychomotor activity. The Veteran's affect was normal. His speech was unremarkable. He was oriented to time, person and place. His thought process and thought content were unremarkable. There was no evidence of delusions. His judgment was not impaired. The Veteran did not have inappropriate behavior. He denied panic attacks, homicidal thoughts and suicidal thoughts. His impulse control was good. The Veteran did not have episodes of violence. His remote, recent and immediate memory were normal. The examiner assigned a GAF score of 60. With regard to his functional status, the Veteran reported that he had difficulties in relationships. He reported that he had anger and would isolate himself. He reported that he got angry and quit his job three years earlier. The examiner noted that the Veteran was unemployed. The examiner opined that there was no relationship between the Veteran's unemployment and his PTSD. The examiner noted that the Veteran had experienced a heroin relapse in the prior two weeks due to depression. The examiner opined that PTSD should not prevent employability, as the Veteran's symptoms were mild. In June 2012, the Veteran submitted a statement from a VA social worker. The social worker noted that the Veteran had a promising career that he left because of his PTSD symptoms. The social worker noted that the Veteran suffered from anger, depression, isolation and problems being around people. The social worker noted that the Veteran would love to work if he could, but his attempts had not been successful for years. The social worker opined that the Veteran was not able to work and would have to be treated for the rest of his life. At a VA examination in December 2014, the VA examiner diagnosed anxiety disorder, not otherwise specified, with PTSD features. The examiner noted that the Veteran did not endorse the full criteria for a diagnosis of PTSD. The examiner also diagnosed opioid dependence, in remission. The examiner opined that the Veteran had occupational and social impairment due to mild or transient symptoms which decrease work efficiency and the ability to perform occupational tasks only during periods of significant stress. The examiner indicated that it was not possible to differentiate what portion of the Veteran's occupational impairment was due to the Veteran's diagnosed anxiety disorder, not otherwise specified and his opioid use. The examiner noted that the Veteran had not worked for seven years. It was noted that the Veteran had previously been employed as a plant manager. The Veteran reported that he went off on a manager and threw a clipboard at him. He had not worked since that time. The examiner noted that the Veteran's mood was within normal limits. His thoughts were logical and goal-directed. The Veteran denied homicidal and suicidal ideation. The examiner did not assign a GAF score. In October 2015, the Veteran submitted an evaluation by a private psychologist. The report reflects that the Veteran denied auditory and visual hallucinations. The Veteran reported suicidal ideation and indicated that he considered harming other people. He reported that he was on Buprenorphine for opioid dependence. The private psychologist diagnosed chronic PTSD, opioid dependence and persistent mood disorder. A GAF score of 30 was assigned. The psychologist opined that the Veteran's stress tolerance was very low, which may result in marked impairment in his ability to perform work activities. The psychologist noted that, due to high anxiety and aversion to social situations, the Veteran had severe impairment in his ability to tolerate work situations which require interaction with a supervisor or co-workers and may involve toleration of criticism and/or conflict. The evidence shows that, throughout the rating period, the Veteran's anxiety disorder has resulted in occupational and social impairment with deficiencies in most areas. The Veteran had occupational impairment during the rating period. The Veteran worked as a plant manager and left that position in 2007 due to difficulties at work, including being angry and anxious and having conflict with a manager. The evidence shows social impairment due to anxiety disorder. The Veteran has indicated that he interacts with family members but has few other social relationships. In April 2011, the Veteran reported that he lived with his aunt and wife. He reported that he rarely went out and had no friends. In December 2014, the Veteran reported that he was living with his sister and brother-in-law and did not usually go anywhere unless he had a VA appointment. During the appeal period, several medical professionals have assigned GAF scores that are indicative of severe impairment. In August 2008, the VA examiner assigned a GAF score of 45. A GAF score of 50 was assigned in October 2010. More recently, in October 2015, a private psychologist assigned a GAF score of 30. Moreover, a VA social worker and a private psychologist have opined that the Veteran is unable to work due to anxiety symptoms. Although there is some evidence to the contrary, the Board finds that based on the above evidence, the Veteran's PTSD symptomatology approximates occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, and mood. The Board finds that a 70 percent disability rating is warranted for anxiety disorder, not otherwise specified, with PTSD features and opioid dependence, in remission, during the relevant entire appeal period. The Board finds that the evidence does not more nearly approximates the occupational or social impairment equivalent to what would be caused by the symptoms for a 100 percent rating under 38 C.F.R. § 4.130 at any time during the appeal period. The evidence does not show that the Veteran had 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. In this regard, the evidence during the appeal period indicates that the Veteran was well-oriented and did not have impairment in his thought processes or communication. He was noted to have appropriate hygiene, and examiners opined that he was capable of managing his affairs. Consequently, the manifestations of the Veteran's service-connected anxiety disorder are not productive of functional impairment comparable to the criteria for a 100 percent schedular rating. Extraschedular Considerations In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2015). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, 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. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. In this case, the Board finds the schedular rating criteria adequate to rate the Veteran's anxiety disorder. A comparison between the level of severity and symptomatology with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board has awarded a TDIU throughout the rating period, which renders referral for an extraschedular rating moot. Accordingly, the Board finds consideration of an extraschedular rating unwarranted. TDIU A Veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating may be assigned where the schedular rating is less than total when the disabled person is 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, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to age or the impairment caused by any non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Where a Veteran is unemployable by reason of his or her service-connected disabilities, but they fail to meet the percentage standards set forth in § 4.16(a), TDIU claims should be submitted to the Director, Compensation and Pension Service, for extraschedular consideration. 38 C.F.R. § 4.16(b). The Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Instead, the Board must refer any claim that meets the criteria for referral for consideration of entitlement to TDIU on an extraschedular basis to the Director, Compensation and Pension Service. The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for a TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). Service connection is currently in effect for anxiety disorder, not otherwise specified, with PTSD features and opioid dependence, rated as 70 percent disabling during the relevant entire appeal period; shell fragment wound of the left leg, rated as 10 percent disabling; shell fragment wound of the left thigh, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; osteoarthritis of the left knee status post shell fragment wound with scar, rated as 10 percent disabling; status post fracture of the left epicondyle, left humerus, rated as 0 percent disabling; malaria, rated as 0 percent disabling; shell fragment wounds of the left knee and right buttock, rated as 0 percent disabling; bilateral hearing loss, rated as 0 percent disabling; and shell fragment wound scar of the right buttock, rated as 0 percent disabling. The combined schedular rating criteria for consideration of TDIU under 38 C.F.R. § 4.16(a) have been met during the entire appeal period because the Veteran has a combined rating of 70 percent for his service-connected disabilities (with consideration of the increased rating grant as outlined above), with one disability rated at 40 percent or more. A claim for a TDIU was received on February 26, 2009. The Veteran alleged that service-connected PTSD prevented him from working. The Veteran reported that he last worked as a lead operator at an energy plant. He reported that he last worked in June 2007. An August 2008 VA examination noted that the Veteran was mentally capable of performing activities of daily living but had problems establishing effective work and social relationships. An April 2011 VA examination noted the Veteran's report that he got angry and quit his job. The examiner opined that there was no relationship between the Veteran's unemployment and his PTSD. The examiner noted that the Veteran had experienced a heroin relapse in the prior two weeks due to depression. The examiner opined that PTSD should not prevent employability, as the Veteran's symptoms were mild. A statement from a VA social worker, received in June 2012, noted that the Veteran had a promising career that he left because of his PTSD symptoms. The social worker noted that the Veteran suffered from anger, depression, isolation and problems being around people. The social worker note that the Veteran would love to work if he could, but his attempts had not been successful for years. The social worker opined that the Veteran is not able to work and would have to be treated for the rest of his life. The December 2014 VA examination reflects that the Veteran reported that he had anger and anxiety at work. The Veteran reported that he became angry and threw a clipboard at a manager. The examiner opined that the Veteran had occupational and social impairment due to mild or transient symptoms which decrease work efficiency and the ability to perform occupational tasks only during periods of significant stress. The examiner indicated that it was not possible to differentiate what portion of the Veteran's occupational impairment was due to the Veteran's diagnosed anxiety disorder, not otherwise specified and his opioid use. In October 2015, a private psychologist opined that the Veteran's stress tolerance is very low, which may result in marked impairment in his ability to perform work activities. The psychologist noted that, due to high anxiety and aversion to social situations, the Veteran has severe impairment in his ability to tolerate work situations which require interaction with a supervisor or co-workers and may involve toleration of criticism and/or conflict. At the Board hearing, the Veteran testified that his ability to work is impaired due to his service-connected knee disability and anxiety. He testified that he is unable to handle stress and avoids stressful situations. The Veteran indicated that he used to do air conditioning repair work but is not unable to perform that type of work because of his knee problems. He stated that he had never had office type jobs. He reported that he has earned a Bachelor's degree in sociology while he was incarcerated. The Board finds that the evidence is at least in equipoise as to whether the Veteran's service-connected disabilities render him unemployable. The evidence shows that the Veteran reported that he quit his last job at an energy plant after an argument with a manager. There is persuasive and credible evidence that the Veteran's anxiety symptoms prevent him from performing a substantially gainful occupation. The June 2012 opinion from the VA social worker and the October 2015 opinion of the private psychologist both concluded that the Veteran is unable to work due to his PTSD and anxiety symptoms. Accordingly, the Board finds that the Veteran is entitled to a TDIU. ORDER A 70 percent rating is granted for PTSD, subject to regulations governing the payment of monetary benefits. A TDIU is granted, subject to regulations governing the payment of monetary benefits. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs