Citation Nr: 1720003 Decision Date: 06/06/17 Archive Date: 06/21/17 DOCKET NO. 09-46 920A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to a total disability rating based on unemployability (TDIU) prior to August 18, 2009. 2. Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. Gabay, Associate Counsel INTRODUCTION The Veteran served active duty in the United States Army from September 1968 to September 1971. The matter of entitlement to a TDIU prior to August 18, 2009, comes before the Board of Veterans' Appeals (Board) from a February 2016 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The matter of entitlement to an initial disability rating in excess of 30 percent for PTSD comes before the Board from an April 2009 rating decision from the RO in Oakland, California. FINDINGS OF FACT 1. The competent and credible evidence demonstrates that the Veteran's service connected disabilities were so severe that they precluded him from obtaining and maintaining substantially gainful employment from September 14, 2006. 2. The evidence of record shows that the Veteran's PTSD has been productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal, due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). CONCLUSIONS OF LAW 1. The criteria for a TDIU from September 14, 2006, are met. 38 U.S.C.A. §§ 501, 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19 (2016). 2. The criteria for an increased rating of 30 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155 , 5013, 5103A, 5107, 7104 (West 14); 38 C.F.R. §§ 3.102 , 3.103, 3.159, 3.321, 4.1, 4.7, 4.130, Diagnostic Code 9411 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has satisfied its duties under the Veteran's Claims Assistance Act of 2000 (VCAA) to notify and assist. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326 (2014). As here, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been substantiated, thereby rendering section 5103(a) notice no longer necessary because the purpose the notice is intended to serve has been fulfilled. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 491 (2006). VA's duty to assist under the VCAA includes helping claimants to obtain service treatment records and other pertinent records, including private medical records. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment records and VA medical records. The duty to obtain relevant records is satisfied. See 38 C.F.R. § 3.159(c). VA's duty to assist also includes providing a medical examination and/or obtaining a medical opinion when necessary to make a decision on the claim, as defined by law. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79 (2006). An adequate examination must consider the issue at hand and provide sufficient analysis for the Board to weigh that examination against others. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). However, "there is no reasons or bases requirement imposed on examiners." Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012). Rather, a medical opinion is adequate when it is based on consideration of the veteran's prior medical history and examinations, and the final report describes the disability in sufficient detail so that the Board's "'evaluation of the claimed disability will be a fully informed one.'" Ardison v. Brown, 6 Vet. App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). The Board finds that the VA examinations provided are adequate under the law. All appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2014). The Appellant has been accorded the opportunity to present evidence and argument in support of her claims. Merits of the Claim A. TDIU In a February 2016 rating decision, the Veteran was granted a TDIU effective August 18, 2009. Here, the Veteran's representative asserts that the Veteran is entitled to TDIU prior to that date. Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2016). In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). In determining whether the Veteran is eligible to receive TDIU benefits prior to August 18, 2009, the Board observes that the Veteran was service connected for ischemic heart disease/atherosclerotic coronary artery disease with previous myocardial infection, left ventricular dysfunction with congestive heart failure and dyspnea and status post percutaneous coronary intervention with stents, rated at 10 percent disabling; PTSD, rated at 30 percent disabling; type 2 diabetes mellitus with erectile dysfunction, rated at 20 percent disabling; post-operative residuals, left knee medial meniscectomy, rated at 10 percent disabling; osteoarthritis, left knee with limitation of motion, rated at 10 percent disabling; tinnitus, rated at 10 percent disabling; diabetic peripheral neuropathy, right lower extremity associated with type 2 diabetes mellitus with erectile dysfunction, rated at 10 percent disabling; diabetic peripheral neuropathy, left lower extremity associated with type 2 diabetes mellitus with erectile dysfunction, rated at 10 percent disabling; and bilateral hearing loss, rated at 0 percent disabling. The Veteran's 20 percent rating for diabetes mellitus with erectile dysfunction and 10 percent ratings for diabetic peripheral neuropathy left and right lower extremities combine to a 35 percent rating. See 38 C.F.R. § 4.25. Adding the bilateral factor, the rating is 38.5, which is then converted to the nearest degree divisible by 10, which is 40 percent. See 38 C.F.R. §§ 4.25, 4.26. Further, his combined service connected rating prior to August 18, 2009, was 70 percent. Therefore the Veteran met the schedular criteria for a TDIU prior to August 18, 2009. 38 C.F.R. § 4.16(a) (2016). Having determined that the Veteran met the percentage threshold requirements, the remaining inquiry is whether he was unable to secure or follow substantially gainful occupation as a result of such service-connected disabilities prior to August 18, 2009. The evidence of record indicates that the Veteran was last employed in August 2006, and that his PTSD was productive of occupational deficiencies due to his inability to control his temper and avoid outbursts of anger, as well as an inability to effectively communicate with management. The evidence of record demonstrates that the Veteran's service-connected disabilities render him unable to secure and follow a substantially gainful occupation, on a schedular basis as of September 14, 2009 - the date in which he was service connected for peripheral neuropathy. Based on the above analysis, the competent, credible, and probative evidence of record demonstrates that the Veteran's service-connected disabilities rendered him unemployable. In resolving all doubt in the Veteran's behalf, entitlement to a TDIU has been established and his appeal is granted, as of September 14, 2009. 38 C.F.R. § 4.16 (2013). B. PTSD Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2014). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2016). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran's claim is to be considered. In initial rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2 (2016). VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2016). The Veteran's PTSD is currently evaluated as 30 percent disabling from July 18, 2005, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411 (2014). Under Diagnostic Code 9411, a 30 percent rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent evaluation requires 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; and, difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is prescribed when there is evidence of 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); and inability to establish and maintain effective relationships. Id. A 100 percent rating is prescribed when there is evidence of 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 as to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). However, a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that such symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). The Board notes that GAF scores are just one component of the Veteran's disability picture, and that it does not have a "formula" that it follows in assigning evaluations. Rather, the Board considers the Veteran's entire disability picture, including GAF scores. Under such circumstances Veterans with identical GAF scores may be assigned different evaluations based on each individual's symptomatology and level of functioning. Furthermore, the Board need not accept a GAF score as probative. See Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995) (it is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in so doing, the Board may accept one medical opinion and reject others). The medical evidence, combined with the Veteran's subjective reports of his symptoms, indicates that the severity level of his PTSD warrants no more than the currently assigned 30 percent rating. The evidence shows that the Veteran's PTSD caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal) due to such symptoms as: some sleep impairment, avoidance of triggering events, estrangement, irritability, exaggerated startle response and hypervigilance. 38 C.F.R. § 4.130, Diagnostic Code 9411. Regarding occupational impairment, a July 2009 VA treatment note stated that the Veteran last worked as a manager at Castle Garage Door, where he experienced some anger and frustration during the work day. The Veteran's September 2009 statements suggest that he had difficulty with authority while at work, and became easily frustrated. However, nothing in the record suggests that these symptoms manifested themselves to the point of warranting a 50 percent disability rating. Regarding social impairment, a July 2005 private treatment record notes that the Veteran was easily "triggered" when he saw news clips of the Iraqi War, and that the Veteran was "constantly high strung and anxious" with particular anger directed toward Asians. However, the Veteran reported in the same July 2005 treatment record that these particular symptoms had gradually improved. Between February 2007 and February 2008, the Veteran underwent four separate PTSD screens in which the examiner awarded him a GAF score of 60. A June 2009 VA treatment note reports that the Veteran regularly attended PTSD support groups and that he believed the group therapy was helping. Finally, in a November 2011 VA examination, the examiner noted that the Veteran was able to sustain conversation without loose association or flight of ideas, and was not delusional. Thus, the medical evidence, combined with the Veteran's subjective reports of his symptoms, indicated that his PTSD manifested occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to such symptoms as: some sleep impairment, avoidance of triggering events, estrangement, irritability, exaggerated startle response and hypervigilance. The Board finds the Veteran's symptoms of his PTSD warrant no more than the currently assigned 30 percent disability evaluation. 38 C.F.R. § 4.130; Diagnostic Code 9411. The next higher, 50 percent rating, is not demonstrated by the evidence of record, as the Veteran's PTSD was not manifested by 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, and difficulty in establishing and maintaining effective work and social relationships. Id. The VA examinations indicated that the Veteran was very close to his wife and children. Therefore there is no indication that the Veteran had difficulty in establishing and maintaining effective social relationships. The evidence notes that the Veteran stopped working in August 2006, but there is no indication that his lack of employment was due to his PTSD. The Veteran's thought processes were noted to be normal and logical, and while there was some evidence that his PTSD affected his mood, the Veteran stated that he still enjoyed spending time with family and was active in his PTSD support group. Additionally there was no indication that the Veteran's PTSD warranted a 70 or 100 percent rating because there was no evidence of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood or total social and occupational impairment. The Veteran appeared to have family relationships that sustained him and that he maintained relatively well. Therefore the evidence indicates that the Veteran did not have total social and occupational impairment or that he was deficient in most areas, like work, family relations, judgment, thinking or mood. Therefore, the Veteran's PTSD warrants no more than the currently assigned 30 percent rating. The medical evidence provided consistent GAF scores of 60, which indicates a range from 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 to some 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). The Veteran's overall symptomatology more accurately reflects mild symptoms until his death. Certainly, the evidence never supports that the Veteran is entitled to a 100 percent rating which would indicate total occupational and social impairment. The Board has also considered the Veteran's statements regarding the severity of his PTSD. The Veteran contended that his PTSD was far more disabling than the ratings he was assigned, and in fact, the Veteran is competent to report the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). Ultimately, however, the opinions and observations of the Veteran do not meet the burden for a higher rating imposed by the rating criteria under 38 C.F.R. § 4.130 with respect to determining the severity of his service-connected PTSD. The evidence does not show that symptomatology associated with the Veteran's PTSD more nearly approximates the schedular criteria associated with a higher rating than the currently assigned 30 percent rating, at any time relevant to the appeal period. Therefore, the Veteran's PTSD warrants no more than the currently assigned 30 percent rating. ORDER Entitlement to a TDIU is granted on a schedular basis from September 14, 2006, to August 18, 2009, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an initial disability rating, in excess of 30 percent, for PTSD is denied. ____________________________________________ CYNTHIA M. BRUCE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs