Citation Nr: 1639871 Decision Date: 09/30/16 Archive Date: 10/13/16 DOCKET NO. 10-04 377 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial disability evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to May 1, 2014. 2. Entitlement to a total disability evaluation based upon individual unemployability (TDIU) prior to May 1, 2014. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from December 1965 to September 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In August 2013, the Board remanded the matter for further development. In an August 2015 rating decision, the RO increased the evaluation of PTSD to 100 percent disabling effective May 1, 2014. Because the maximum benefit was not granted, the issue of entitlement to a higher evaluation remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In August 2013 the Board also remanded a derivative claim for a TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As for the period of the appeal since May 1, 2014, the award of a 100 percent schedular rating renders moot the issue of entitlement to a TDIU from this date. See Herlehy v. Principi, 15 Vet. App. 33 (2001). In this regard, the Board is cognizant of the decision of the United States Court of Appeals for Veterans Claims (Court) in Bradley v. Peake, 22 Vet. App. 280 (2008) in which the Court held that, although no additional disability compensation may be paid when a total schedular disability evaluation is already in effect, a separate award of a TDIU predicated on a single disability (perhaps not ratable at the schedular 100 percent level) when considered together with another disability separately rated at 60 percent or more may warrant payment of special monthly compensation (SMC) under 38 U.S.C.A. § 1114(s). The Court reasoned that it might therefore benefit the Veteran to obtain or retain a TDIU even where a 100 percent schedular evaluation is already in effect. Here however, as to the period from May 1, 2014, the Veteran has two other service-connected disabilities, tinnitus, rated as 10 percent disabling, and bilateral hearing loss disability, rated as non-compensable disabling. No separate disability is rated at 60 percent. As such, the concerns addressed in Bradley are not present in the current case, and the Board need not further address whether a TDIU is warranted from May 1, 2014. FINDING OF FACT For the entire period under review, the Veteran's symptoms of PTSD, such as impairment in thought processes or communication, persistent hallucinations, and disorientation as to time or place, cause total occupational and social impairment. CONCLUSIONS OF LAW 1. Resolving any reasonable doubt in favor of the Veteran, the criteria for a rating of 100 percent for PTSD with are met for the period prior to May 1, 2014. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2015). 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2015). REASONS AND BASES FOR FINDING AND CONCLUSIONS Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. Each disability must be viewed in relation to its history, with an emphasis on the limitation of activity imposed by the disabling condition. Medical reports must be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 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. See 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.7 (2015). While the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1 994). The Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Therefore, the Board will determine whether further staged evaluations are warranted. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. See 38 C.F.R. § 4.126 (2015). The Veteran's PTSD is currently rated under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. 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 Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the American Psychiatric Association 's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM- IV), p. 32). An examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. See 38 C.F.R. § 4.126 (2015); VAOPGCPREC 10-95 (Mar. 1995); 60 Fed. Reg. 43186 (1995). The Board notes that effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations to remove outdated references to the DSM -IV and replaced them with references to the recently updated Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094 (August 4, 2014). The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the AOJ on or after August 4, 2014. VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014, even if such claims are subsequently remanded to the AOJ. See 80 Fed. Reg. 53, 14308 (March 19, 2015) (emphasis added). The RO certified the Veteran's appeal to the Board in May 2010 and as such, this claim is governed by DSM-IV. Therefore, while the Board acknowledges that the DSM-5 represents the most up-to-date clinical diagnostic guidelines, due process requires that the Veteran's claim be considered using the DSM-IV criteria. 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 warranted when there is occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to symptoms such 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 an inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted where there is evidence of total occupational and social impairment due to 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; disorientation to time or place; memory loss for names of close relatives, own occupation or own name. Id. The "such symptoms as" language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means "for example" and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, as the Court also pointed out in that case, "[w]ithout those examples, differentiating a 30% evaluation from a 50% evaluation would be extremely ambiguous." Id. The Court went on to state that the list of examples "provides guidance as to the severity of symptoms contemplated for each rating." Id. Accordingly, while each of the examples needs not be proven in any one case, the particular symptoms must be analyzed in light of those given examples. Put another way, the severity represented by those examples may not be ignored. The Federal Circuit has indicated that when addressing the issue of a veteran's entitlement to a disability rating under 38 C.F.R. § 4.130, an explicit finding as to how most of the enumerated areas are affected may be important, if not absolutely required. See Vazquez-Claudio v. Shinseki, 2012-7114 (Fed. Cir. Apr. 8, 2013). VA received the Veteran's claim of entitlement to service connection for PTSD on March 22, 2007. VA has obtained the Veteran's VA medical records, as well as private medical records. A review thereof discloses no mention of any psychiatric disability until April 2009, when the Veteran was first assessed as having PTSD per DSM-IV during a VA mental health history and physical examination. Contemporaneous notes also document a history of stroke in January 2009, with some apparent cognitive impairment. Prior to April 2009, there is some evidence relating to the Veteran's social and occupational capacity, however. In particular, the Board notes that the evidence indicates that the Veteran was self-employed as a welder and operating heavy equipment, and that he stopped working sometime in the 2000s due to physical disabilities. See e.g. August 2007 outpatient clinic visit note from the University of Texas Health Center at Tyler, and April 2008 from Veteran's sister. The aforementioned initial assessment of PTSD occurred on April 27, 2009, when the Veteran first presented for mental health treatment. At that time, he denied any prior history of any such treatment. Examination identified numerous symptoms of depression, and anxiety. Examination also identified audio hallucinations, with the Veteran reporting having heard noise for 10 years. He identified seeing "shadows," and hallucinations. There was psychomotor retardation, fatigue, suicidal ideation, decreased orientation, with disorientation on occasion. He was isolative, reported panic attacks twice per week and was hopeless. Social and occupational impairment were noted, and the VA staff psychiatrist noted that the Veteran was self-employed to avoid being fired due to PTSD. The Veteran was prescribed mirtazapine for treatment of his PTSD at this time. Mental status examination showed the Veteran to be well-groomed, well-related, cooperative, easily engaged, with psychomotor retardation. No abnormal movements were noted. His speech was slow. Mood was depressed, tearful and anxious. Affect was mood congruent, anxious, and flat. Thought process was coherent and goal-directed. He related auditory and tactile hallucinations, feelings of depersonalization, derealization and suicidal ideation. Sensorium and cognition were grossly intact. He was oriented times 3. Concentration was impaired, and the Veteran could not calculate dates or do serial 7s. Recent memory was intact. Insight was limited and judgement was impaired. The examiner assessed panic disorder without agoraphobia, generalized anxiety disorder, PTSD, major depression, recurrent, severe, depression due to general medical condition: due to loss of vision and physical limitations at present, and psychosis. She remarked that "[m]ild cognitive impairment may be due to [cerebrovascular accident]," i.e. a stroke. A GAF score of 30 was assigned. On May 20, 2009, the Veteran was afforded a VA psychiatric examination. In terms of significant medical history, the examiner identified hypertension, high cholesterol, and a history of CVA, perhaps in 1995, but certainly in January 2009. In terms of non-PTSD symptoms, the examiner noted depression, suicidal thoughts, memory problems and easy frustration. The Veteran was notably trained as a welder, with a high school education. He had been divorced for 9 years, and got along well with his adult children. He socialized with friends, and raised livestock as a hobby. He had a history of assaultiveness and violence, but nothing recent. On mental status examination, the Veteran was clean, neatly groomed, and appropriately and casually dressed. Psychomotor activity was unremarkable. Speech was impoverished. Attitude was cooperative, and overly dependent. Affect was, constricted, blunted and flat. He was slightly depressed and could not do serial 7s, or spell a word forward and backward. His pace was slow. He could recall only 2/3 names of objects after 5 minutes. He was intact to person and place, but not time. He did not know the date or day of the week. His thought process was "blocking" and content was "poverty of thought." He had no delusions, and knew outcome of behavior. He acknowledged auditory hallucinations. He had no obsessive/ritualistic behavior. The Veteran related a history of weekly or greater, sometimes daily, panic attacks. He denied homicidal/suicidal thoughts. His impulse control was fair, and had problems with mood and motivation. He could maintain personal hygiene, with the examiner noting that his activities of daily living were limited by the stroke and medical/physical difficulties. PTSD, chronic, mild to moderate; pain disorder associated with both psychological factors and a general medical condition; vascular dementia, mild and alcohol induced mood disorder were assessed by the May 2009 VA examiner. The examiner also assessed personality disorder NOS with prominent dependent features, avoidant and schizoid features. A GAF score of 49 was assigned. In terms of symptoms, the examiner remarked that due to the level of signs and symptoms reported during the psychodiagnostic testing and mental status examination, a differential diganosis was warranted by the presence of these discrete symptoms. The examiner specifically found that PTSD resulted in reduced reliability and productivity, stating that: His [activities of daily living] are negatively impacted by his medical/physical problems and limited due to his subjective pain experience which would therefore, impact upon his ability to function in an occupational milieu. His vascular dementia would definitely impact upon his ability to psychologically function in an occupational milieu. His severe personality disorder would overwhelmingly interfere with his ability to psychosocially function in an occupational environment. His severe personality disorder is independently responsible for impairment in psychosocial adjustment and a lowered quality of life. The [alcohol] dependence disorder is independently responsible for impairment in his quality of life and results in impairment in psychosocial adjustment making him more irritable and unable to concentrate when he is in withdrawal and leads to a depressed mood. The presence of a discrete [symptoms] set of mood signs are independently responsible for impairment in psychosocial adjustment and a lowered quality of life. His cycle of using [alcohol], being depressed and using to help alleviate the mood [symptoms] results in a circular pattern which causes social withdrawal and social constriction. Of record is an August 2009 psychiatric evaluation from W.B.R., M.D. Mental status examination showed the Veteran to be dazed appearing, but oriented to person, place, time, and date, although confused during the interview and required frequent structure by the interviewer. He was notably depressed in conversation and behavior. His attitude was cooperative but withdrawn. Eye contact was fair, with some avoidance. There was psychomotor slowing with some anxiety driven movements no TD or EPS. Speech was dysarthric and decreased in rate and volume. Mood was depressed. Affect was blunted. Attention and concentration were impaired. He heard and understood less than 25% of what was said in the room and less than 50% what was said directly to him at first pass. With careful structure by the interviewer he was able to spell "WORLD" backwards and to say the days of the week backwards. Remote memory was good. Immediate recall was impaired. Thought content exhibited no overt suicidal or homicidal ideations. Thought Process and perceptions were concrete, slow, and easily confused. Judgment and insight were fair. He was dependent upon and followed family structure. PTSD, status-post stroke with persistent vascular dementia, and mood disorder due to PTSD and stroke were assessed. A GAF of 35 was assigned. In December 2009, the RO proposed a finding of incompetency, largely based upon the August 2009 report of Dr. R. In February 2010, the RO found the Veteran incompetent, noting the report of Dr. R., as well as the history of stroke in early 2009. The Veteran points to this as evidence of increased impairment from PTSD. VA records following the Veteran's initial presentation in April 2009 reflect continued treatment for PTSD, and that the Veteran remained unemployed. Overall, from 2009 through 2014, VA records document a relatively stable clinical picture, with the Veteran continuing to exhibit mild to moderate memory problems. He also continued to remain isolated, with few friends and family. A November 2013 VA geriatric neuropsychiatry note reflects increased social isolation, with a negative effect, and that the Veteran would require lifelong medication for his PTSD. The note reflects that the Veteran's case was "complex," indicating that the PTSD medications had some effect on the Veteran's cognition. On May 1, 2014, in accordance with the Board's remand directives, the Veteran received another VA examination. The RO has utilized this examination report to effectuate the award of a 100 percent disability evaluation for PTSD. Examination resulted in assessment of PTSD and vascular dementia. The examiner specifically found that it was not possible to differentiate between the symptoms of either disability because the two diagnosed mental disorders had features that were shared, and that interacted with each other. She found it was not, therefore, medically or ethically possible to clearly distinguish the two diagnosed psychiatric disabilities. The examiner concluded the Veteran was totally occupationally and socially impaired, with it again not possible to distinguish between the effects of PTSD or the vascular dementia. With respect to symptoms she identified depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, impairment of short-and long-term memory, for example, retention of only highly learned material, while forgetting to complete tasks, difficulty in understanding complex commands, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships difficulty in adapting to stressful circumstances, including work or a work like setting, and inability to establish and maintain effective relationships. Here, the RO has effectuated a 50 percent evaluation from the date of the Veteran's claim, i.e. March 22, 2007, despite the lack of any clinical evidence pertaining to the presence and severity of the Veteran's PTSD. Nevertheless, the Board must acknowledge that the Veteran had PTSD, to include prior to his initial April 2009 and his January 2009 stroke. It is also apparent to the Board that as of the Veteran's initial presentation at VA for mental health treatment on April 27, 2009, he was overall substantially impaired and unable to work. At that time, mental status examination reflected thoughts of suicide, hallucinations, fatigue, isolation, panic attacks twice per week, anxiety, and impaired concentration. The Veteran also exhibited memory impairment, and did not know the day of the week or the date. He could maintain personal hygiene, but his activities were limited by a history of stroke and other medical problems. Speech was slow, and thought process was impaired. It was noted that the Veteran had been self-employed in order to avoid interference caused by the assessed PTSD. VA examination in May 2009 also shows a substantial level of impairment, to the extent that the Veteran would overall be totally occupationally impaired. Examination clearly showed significant cognitive impairment. However, in addition to mild to moderate PTSD the May 2009 examiner assessed pain disorder associated with both psychological factors and a general medical condition; vascular dementia, mild, and alcohol induced mood disorder, in assigning a GAF of 49. She delineated between all of the diagnoses, finding that the PTSD only resulted in resulted in reduced reliability and productivity. The RO assigned the initial 50 percent on this notation. VA records following the May 2009 VA examination continue to reflect assessment of PTSD, with an apparently stable history. The Veteran remained unemployed, and was somewhat socially isolated, relying on family for assistance with his activities of daily living. His isolation apparently increased as time went on. However, it is seems that not only his PTSD, but also his stroke residuals and various physical disabilities played a role in his impairment. Significantly, the record shows that the Veteran experienced a significant cognitive decline. In May 1, 2014, the Veteran was once again afforded a VA psychiatric examination. At this time, only two psychiatric disabilities were assessed - PTSD and vascular dementia. The examiner found total occupational and social impairment, following examination of the Veteran, and endorsed symptoms of depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, impairment of short-and long-term memory, for example, retention of only highly learned material, while forgetting to complete tasks, difficulty in understanding complex commands, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships difficulty in adapting to stressful circumstances, including work or a work like setting, and inability to establish and maintain effective relationships. At issue is the extent to which the service connected psychiatric PTSD results in impairment distinguishable from any nonservice-connected disability. Review of the record demonstrates that the Veteran has been totally occupationally impaired related to cognitive impairment since at least the April 27, 2009, VA treatment note. Also, since this time, he has been largely dependent on others for a number of health problems, including PTSD, depression and anxiety. The Veteran's nonservice-connected stroke played has probably played a role in his problems with memory and concentration, as well as any cognitive impairment in thought process. The May 2009 VA examiner assessed several psychiatric disabilities, as well as a personality disorder, which is not subject to service connection. 38 C.F.R. §§ 3.303(c), 4.9, 4.127; see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). In doing so, she also differentiated between all of the diagnoses, and only found impairment to a level causing reduced reliability and productivity. Such would indicate that a 50 percent evaluation is proper. See 38 C.F.R. § 4.130, Diagnostic Code 9411. However, of record is the August 2009 psychiatric evaluation of Dr. R. Dr. R. diagnosed PTSD, vascular dementia and mood disorder due to PTSD, and assigned the Veteran a GAF score of 35. In doing so, Dr. R. noted that the Veteran was dependent on his family, and noted impaired memory, attention and thought process. Dr. R. seems to weigh PTSD more heavily than the May 2009 VA examiner. Notably, on VA examination in May 1, 2014, a VA examiner found total occupational and social impairment, and diagnosed both PTSD and vascular dementia. In offering her opinion, based solely on these diagnoses, she stated that that impairment of each mental health disability could not be delineated because the two shared symptoms that overlapped and interacted. In resolving all doubt in the Veteran's favor, the Board concludes that as of March 22, 2007, the date of claim, the evidence indicates total occupational and social impairment due to PTSD. In awarding this evaluation, the Board is aware that the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation is to be avoided. 38 C.F.R. § 4.14. Notably, VA examination in May 2009 distinguishes between PTSD and other nonservice-connected disabilities in terms of impairment resulting from psychiatric disabilities. However, Dr. R.'s opinion is somewhat less clear, suggesting that the Veteran's stroke played a less substantial role, and that the Veteran had a mood disorder, secondary to PTSD, and vascular dementia, in addition to PTSD, excluding diagnosis of any other psychiatric disability. On the other end of the spectrum, the May 1, 2014, VA examiner concluded that the Veteran had two psychiatric disabilities, PTSD and vascular dementia, and that the effects and symptoms of the two could not be separated. Thus, it appearing to the Board, as likely as not, that the effects of PTSD and any other psychiatric disability cannot be separated, the Board concludes that, effective the date of the Veteran's claim, a 100 percent maximum schedular evaluation is warranted. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (when it is not possible to separate the effects of a nonservice-connected condition from those of a service-connected condition, reasonable doubt should be resolved in the claimant's favor with regard to the question of whether certain signs and symptoms can be attributed to the service-connected condition). In closing, the Board notes that there is no clinical evidence of PTSD, or any other psychiatric disability, until the April 2009 VA mental health history and physical. The effective date of an evaluation and award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a) (West 2014); 38 C.F.R. § 3.400 (2015). However, here, the RO has awarded March 22, 2007, as the date entitlement arose, based upon the findings of a May 2009 examination report. Thus, the Board concedes that the disability was as severe in mid-2009, as it was in March 2007. Fenderson, supra. There no evidence to suggest the contrary, or that there was some intervening event between the date of claim and the date of examination to have worsened the disability. Given the decision to grant a 100 percent rating for PTSD, prior to May 1, 2014, the claim for a TDIU is moot for the entire appeal period. PTSD is the only service-connected disability from March 22, 2007, until February 7, 2012, when service connection was made effective for tinnitus with a 10 percent evaluation, and bilateral hearing loss with zero percent evaluation. As noted above, a grant of a TDIU prior to May 1, 2014, would not result in SMC because the Veteran does not have any additional service-connected disabilities independently ratable at 60 percent. Bradley v. Peake, 22 Vet. App. 280 (2008). ORDER An initial evaluation of 100 percent for PTSD prior to May 1, 2014, is granted, subject to the laws and regulations governing monetary awards. Entitlement to TDIU is denied as moot. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs