Citation Nr: 1644166 Decision Date: 11/21/16 Archive Date: 12/01/16 DOCKET NO. 10-43 943A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to January 19, 2010. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to PTSD, on an extraschedular basis, prior to January 19, 2010. ATTORNEY FOR THE BOARD Jack S. Komperda, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1958 to August 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which increased the Veteran's disability rating for PTSD to 50 percent. Following remands by the Board in January 2013 and February 2016, the Appeals Management Center increased the Veteran's disability rating for his PTSD in a July 2016 rating decision to 100 percent effective January 19, 2010. The question of whether the Veteran is entitled to an award of TDIU for the period from January 19, 2010, is rendered moot by the grant of a 100 percent schedular ("total") rating for PTSD, leaving no question of law or fact to decide regarding the TDIU issue for this period on appeal. 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 4.14, 4.16. However, as the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, the claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). As the Veteran was not awarded the maximum rating for PTSD prior to January 19, 2010, the issues remain in appellate status and have been characterized as shown above. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issue of entitlement to a TDIU based on PTSD prior to January 19, 2010, as well as an extraschedular rating for PTSD during this period is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDING OF FACT Prior to January 19, 2010, the Veteran's PTSD symptoms have most nearly approximated occupational and social impairment with reduced reliability and productivity, but not with deficiencies in most areas or total occupational and social impairment. CONCLUSION OF LAW Prior to January 19, 2010, the schedular criteria for a disability rating for PTSD in excess of 50 percent have not been met. 38 U.S.C.A. § 1155, 5107 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. 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 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. Increased Evaluation The issue now before the Board is the question of whether a disability rating in excess of 50 percent is assignable for PTSD for the appeal period prior to January 19, 2010. The Veteran contends that an increased rating is warranted as he experiences severe symptoms of PTSD. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Ratings Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Where entitlement to compensation 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. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Consistent with the facts found, the rating may be higher or lower for segments of the time under review on appeal, i.e., the rating may be staged. Fenderson v. West, 12 Vet. App. 119 (1999). When evaluating a mental disorder, VA 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 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. 38 C.F.R. § 4.126. The Veteran's PTSD is currently evaluated as 50 percent disabling for the period prior to January 19, 2010, in accordance with the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. Under the provisions for rating psychiatric disorders, a 50 percent disability rating requires evidence of the following: 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. A 70 percent disability rating requires: 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 worklike setting; inability to establish and maintain effective relationships.) The criteria for a 100 percent rating are: 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. 38 C.F.R. § 4.130, DC 9411. When determining the appropriate disability evaluation to assign, the Board's primary consideration is a veteran's symptoms, but it must also make findings as to how those symptoms impact a veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms; a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. The Global Assessment of Functioning (GAF) Scale is used to report the clinician's judgment of the individual's overall level of functioning. The GAF Scale is to be rated with respect only to psychological, social and occupational functioning. See American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders 44 (4th ed. 1994). While not determinative, a GAF score is highly probative as it relates directly to the veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. See Massey v. Brown, 7 Vet. App. 204, 207 (1994). GAF scores range from 1-100 with the higher numbers representing higher levels of functioning. A GAF score of 41 to 50 is defined as denoting serious symptoms or any serious impairment in social, occupational, or school functioning. GAF scores from 51 to 60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupation, or school functioning (e.g., few friends, conflicts with peers or co-workers). Scores from 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupation, or school functioning (e.g., occasional truancy or theft within the household), but generally functioning pretty well with some meaningful relationships. VA had previously adopted the American Psychiatric Association: Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV), for rating purposes. VA implemented DSM-5, effective August 4, 2014, and the Secretary, VA, determined that DSM-5 applies to claims certified to the Board on and after August 4, 2014. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). As the Veteran's increased rating claim was originally certified to the Board prior to August 4, 2014, the DSM-5 is not applicable to this case. Effective August 4, 2014, VA also amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM-IV. The amendments replace those references with references to the recently updated DSM-5. However, according to the DSM-5, clinicians do not typically assess GAF scores. The DSM-5 introduction states that it was recommended that the GAF be dropped from DSM-5 for several reasons, including its conceptual lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice. The Veteran filed his claim for increase on August 1, 2008. The Board will also consider evidence within the year prior to the claim for increase. The relevant medical evidence of record includes VA and private treatment records, as well as lay statements from the Veteran and his family. Following a review of the relevant evidence of record, the Board finds that the Veteran is not entitled to a rating in excess of 50 percent for PTSD prior to January 19, 2010. In this case, a December 2007 private treatment record from the Goldsboro Psychiatric Clinic noted the Veteran had diagnoses of PTSD and dysthymic disorder. He was assigned a GAF score of 50. The examiner noted the Veteran was a widower for the past year and a half. Following his military service, he worked on and off as a carpenter, and he was presently unemployed. The Veteran began having nightmares in 1971 and presently had a few nightmares in which he awoke in a panic and sweats lasting one to two minutes. He had flashbacks two to three times per week, and he averaged six to eight hours of sleep per night. He startled easily, was hypervigilant, and he could not tolerate anyone behind him. He rarely socialized, and then only with family. A separate December 2007 private treatment record noted the Veteran rarely experienced anger out of the blue, he never experienced fear out of the blue, he never felt helpless or hopeless, never felt suicidal, never had crying spells, never hears names or cars drive up, never hears footsteps or noises in the house, never sees shadows moving or sees animals. He experiences anger, mood swings, worry, racing or jumpy thoughts, and sadness out of the blue about 25 percent of the time. He felt depressed 50 percent of the time and agitated all the time. He experienced night sweats two to three times per week. He startled, was hypervigilant, and rarely socialized with family. He did not have intrusive thoughts. In a September 2008 statement, the Veteran's son said the Veteran's temperament continued to decline which he partly attributed to the recent deaths of the Veteran's wife, daughter and brother. The son stated the Veteran often woke up sweating and suffering from some sort of panic attack. The Veteran found it difficult to focus on completing routine tasks. In September 2008, the Veteran underwent a VA PTSD examination. The examiner noted that since the Veteran's last VA examination, he has had an increase in his overall level of distress. He was more anxious, more depressed, and had more difficulty sleeping. He received only about five or six hours of sleep in a typical night and took about an hour to fall asleep. He awoke several times throughout the night with some terminal insomnia. He had anger and irritability issues which have not significantly increased. He was presently having panic attacks about twice weekly, usually associated with bad memories of his combat experience. He had no substance abuse history and did not have any ongoing treatment. The VA examiner noted the Veteran took care of his personal activities of daily living such as dressing, bathing and feeding himself. He lived with his daughter. Since his last evaluation, one of his daughters suddenly died and he was widowed. He did not socialize very often outside the house and only did so because of obligations such as going to church services twice weekly or to his lodge, where he was the secretary. The rest of the time was spent doing chores around the house, watching television or taking a walk for relaxation. Upon mental health examination, the Veteran looked somewhat younger than his stated age. He was alert, oriented and cooperative. There was no sign of a thought disorder, loosened associations, flight of ideas, hallucinations, delusions, obsessions, compulsions or phobias. He rated himself moderately to severely anxious and depressed most of the time. He had moderate to severe insomnia, as well as some anger and irritability issues and decreased energy. He denied suicidal or homicidal ideation. He had an increase in the overall level of flashbacks and nightmares, which were occurring about one or two times per week. He continued to have difficulty with an increased startle response, hypervigilance, interpersonal guardedness, difficulty concentrating, feelings of a foreshortened life, emotional numbing, detachment and estrangement from others, and decreased interest in hobbies and social activities. The VA examiner noted that had the Veteran not been retired, he would have at least a moderate degree of impairment in the occupational realm, with significant reduction in reliability and productivity as a result of his psychiatric problems. He was also showing moderate to severe impairment in the social, recreational and familial areas. He was assigned a GAF score of 50. Having carefully considered all the evidence of record in light of the applicable rating criteria, the Board finds that the overall symptomatology and level of impairment have most nearly approximated those indicative of a 50 percent rating. An evaluation in excess of 50 percent is not warranted. 38 C.F.R. § 4.7. During this period, the Veteran's PTSD does not reflect deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. He did not work or attend school. He lived with his daughter. He attended church twice a week and filled the role of secretary at his lodge. The VA examiner found no sign of a thought disorder, but his mood was moderately to severely anxious and depressed most of the time. The record indicates no findings or histories of near-continuous panic attacks or depression affecting the Veteran's ability to function independently, appropriately and effectively. The Veteran has not endorsed experiencing any homicidal or suicidal ideation. The record also shows that the Veteran is capable of caring for himself. Further, the medical evidence of record does not indicate any findings that the Veteran experienced obsessional rituals which interfered with his routine activities. His speech was not found to be intermittently illogical, obscure or irrelevant. When considering the Veteran's symptoms in total, the Board finds that they do not result in occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. Overall, during the period in question, between approximately August 2007 and January 2010, the Board finds that the weight of the credible evidence demonstrates that the Veteran's PTSD symptomatology more closely approximates the schedular criteria for the 50 percent disability rating. The Veteran has shown some difficulty in establishing and maintaining effective social relationships; however, the level of impairment is contemplated in his 50 percent rating and is not productive of occupational and social impairment with deficiencies in most areas. Based on the foregoing, the Board finds that prior to January 19, 2010, the overall symptomatology associated with the Veteran's PTSD more closely approximated the schedular criteria required for the 50 percent disability rating. Therefore, the Board finds that, in the absence of more severe symptomatology more nearly approximating such ratings, the Veteran is not entitled to a rating in excess of 50 percent. As the criteria for the next higher, 70 percent rating is not met, it logically follows that the criteria for the higher 100 percent rating is likewise not met. The Board has considered the statements of the Veteran and his son as to the extent of his PTSD during the period in question. They are certainly competent to report that the Veteran's symptoms are worse. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, in evaluating a claim for an increased schedular disability rating, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. Massey v. Brown, 7 Vet. App. 204, 208 (1994). While the Veteran and his family members are competent to report that his symptoms are worse, the training and experience of medical personnel makes the medical findings found in treatment notes and examinations more probative as to the extent of the disability. See Cromley v. Brown, 7 Vet. App. 376, 379 (1995). In sum, the Board finds that prior to January 19, 2010, a rating in excess of 50 percent for PTSD on a schedular basis is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to an increased rating. 38 U.S.C.A. § 5107. ORDER Prior to January 19, 2010, a schedular disability rating in excess of 50 percent for PTSD is denied. REMAND With respect to the TDIU claim as well as a rating on an extraschedular basis, the Veteran stated in his January 2014 Application for Increased Compensation based on Unemployability (VA Form 21-8940) that he last worked in August 1984 as an airman for the U.S. Air Force and that he has been unable to work since that time due to PTSD. The Board notes that the Veteran does not currently meet the schedular criteria for a TDIU due to PTSD prior to January 19, 2010. The Veteran's son submitted lay statements in September 2008 and January 2010 which stated that the Veteran's PTSD continued to worsen, and that his father has not returned to his full-time work as a carpenter because of his mental condition. VA policy is to grant a TDIU in all cases where service-connected disabilities preclude gainful employment, regardless of the percentage evaluations. 38 C.F.R. § 4.16(b). The Board is prohibited from assigning a TDIU on the basis of 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim is referred to VA's Director of Compensation Service for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1 (2001). On remand, the RO should refer the Veteran's claim for a TDIU to the VA's Director of Compensation Service for extraschedular consideration. Accordingly, the case is REMANDED for the following action: 1. Refer the claim to the Compensation Service Director for extraschedular consideration. The Director should be asked to consider all of the evidence of record, to make a specific determination as to: A. whether the evidence establishes that, at any time prior to January 19, 2010, the Veteran's service-connected PTSD rendered him unable to secure or follow a substantially gainful occupation, so as to warrant an award of extraschedular TDIU; and B. to make a determination as to whether the Veteran is entitled to a rating in excess of 50 percent for PTSD on an extraschedular basis at any time prior to January 19, 2010. 2. After conducting any other development deemed necessary, readjudicate the Veteran's claim. If any benefits sought remain denied, issue an appropriate Supplemental Statement of the Case (SSOC) and provide the Veteran an opportunity to respond. The case should then be returned to the Board, if otherwise in order, for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs