Citation Nr: 1722809	
Decision Date: 06/20/17    Archive Date: 06/29/17

DOCKET NO.  12-19 572	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 

2.  Entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disabilities.


REPRESENTATION

Appellant represented by:	Sean Ravin, Attorney-at-Law


WITNESSES AT HEARING ON APPEAL

Appellant and R. H.


ATTORNEY FOR THE BOARD

T. S. Kelly, Counsel


INTRODUCTION

The Veteran, who is the appellant, had active service from December 1965 to February 1968.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2009 and December 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  The August 2009 rating decision granted service connection for PTSD and assigned an initial 30 percent disability rating.  The June 2010 rating decision denied entitlement to a TDIU. 

The Veteran and R. H. testified at a hearing in December 2014 before the undersigned.  A copy of the transcript has been associated with the Veteran's electronic claims file. 

This matter was before the Board in February 2015, at which time the Board increased the Veteran's disability for his PTSD from 30 to 50 percent and remanded the issue of entitlement to a TDIU for further development.

The Veteran subsequently appealed this decision to the United States Court of Appeals for Veterans Claims (Court), who, in a September 2016 decision, set aside the part of the Board decision that denied an evaluation in excess of 50 percent for PTSD and remanded the matter to the Board for actions consistent with the Court decision.  

The Veteran, through his attorney, following the Court decision, submitted additional evidence and argument in support of his claim, along with the appropriate waiver for initial review by the RO. 


FINDINGS OF FACT

1.  For the entire appeal period, psychiatric symptoms due to PTSD, and the severity of such, more nearly approximated a rating based on occupational and social impairment with deficiencies in most areas, such as work, family relations, and mood.

2.  Service connection is currently in effect for PTSD, now rated as 70 percent disabling; tinnitus, rated as 10 percent disabling; and bilateral hearing loss and a deviated nasal septum, both rated as noncompensable.  The combined disability evaluation is 70 percent.

3.  The Veteran's service-connected disabilities have precluded substantially gainful employment consistent with his education and occupational experience since September 1, 2009.


CONCLUSIONS OF LAW

1.  Resolving reasonable doubt in favor of the Veteran, the disability criteria for a 70 percent evaluation for PTSD, and no more, have been met since March 4, 2009.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2016).

2.  The criteria for a TDIU have been met since September 1, 2009.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2016).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016).  Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (b)(1).  For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim.  73 Fed. Reg. 23,353 (Apr. 30, 2008). 

As to the TDIU claim, as the Board is granting the full benefit sought, no further assistance is required.  

As it relates to the PTSD claim, as the Veteran's appeal arises from his disagreement with the initial rating following the grant of service connection no additional notice is required.  The United States Court of Appeals for Veterans Claims (Court) and the United States Court of Appeals for the Federal Circuit (Federal Circuit) have held that, once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).

The Board finds that there has been substantial compliance with the assistance provisions set forth in the law and regulations.  The record in this case includes service treatment records, private treatment reports and records, VA treatment records, VA examination reports, Social Security records, and lay evidence, to include testimony of the Veteran at his hearing.  No additional pertinent evidence has been identified by the claimant as it relates to his claim for a higher disability evaluation or TDIU claim. 

As it relates to the necessity for an examination, the Veteran was afforded several VA examinations throughout the course of the appeal.  The results from these examinations are sufficient in order to properly address the Veteran's claim.  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the VA examinations are adequate for rating purposes, because they were performed by medical professionals, were based on a thorough examination of the Veteran, and reported findings pertinent to the rating criteria.  Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008); see Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that VA must provide an examination that is adequate for rating purposes).

The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements and arguments by his attorney and by providing testimony at his hearing, which resulted in a Board remand for further development on the TDIU issue.  For these reasons, it is not prejudicial to the Veteran for the Board to proceed to finally decide the appeal.  Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further action is necessary to assist the Veteran in substantiating this claim.

PTSD

Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  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.  It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran.  See 38 C.F.R. § 4.3. 

Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time.  See Fenderson v. West, 12 Vet. App. 119 (1999).

In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances.  38 C.F.R. § 4.21 (2016).  In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). 

The General Formula for Rating Mental Disorders, Diagnostic Code 9411, provides that 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 abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.

A 70 percent evaluation is assigned for 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.  The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood.  Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). 

A 100 percent evaluation is assigned for 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, Diagnostic Code 9411.

The symptoms cited above follow the phrase "such symptoms as" which indicates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.  Accordingly, the Board has not required the presence of all or most of the enumerated symptoms for any particular rating.  The list of symptoms merely provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation.  The Board must consider all symptoms of the veteran's condition which affect the level of occupational and social impairment.  If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned.  Mauerhan v. Principi, 16 Vet. App. 436, 441-443 (2002).

The Global Assessment of Function (GAF) is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." American Psychiatric Association : DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM), 32 (4th ed.) (1994) (DSM IV); 38 C.F.R. §§ 4.125, 4.130 (2015).  GAF scores from 71 through 80 is indicative that, if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more that slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in school work).  Scores ranging from 61 through 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships.  Scores ranging from 51 through 60 reflect 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).  Scores ranging from 41 through 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job).  A GAF score of from 31 through 40 contemplates some impairment in reality testing or communication (e.g., speech at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work).  See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995).

The Veteran maintains that the symptomatology associated with his service-connected PTSD warrants a disability evaluation higher than that which is currently assigned, indicating that a 70 percent disability evaluation has been warranted throughout the appeal period.  

After reviewing all of the evidence of record, to include findings from VA and private examinations, and lay evidence from the Veteran, the Board finds that the Veteran's PTSD symptoms have included depression, anxiety, restricted affect, mild memory loss, problems concentrating, sleep disturbances, insomnia, nightmares, occasional panic attacks, infrequent rambling speech, intrusive recollections of his stressors, forgetting to complete tasks, low energy, decreased motivation, anger, irritability, dislike of crowds, problems getting along with people, lack of a social life (beyond his family, some close friends, and attending meetings at the Military Order of the Purple Heart (MOPH)), avoidance, hypervigilance, difficulty establishing and maintaining effective interpersonal relationships, difficulty adapting to stressful circumstances, and feelings of guilt.  With regard to mood, the record also shows that the Veteran feels depressed nearly every day, has anxiety, and has significant difficulty with anger.  The record further demonstrates that the Veteran has had passive suicidal ideation.  Outside of his wife, his few friends, and his social activity with The American Legion and MOPH, the record shows that the Veteran has significant difficulty getting along with people.  Moreover, in  May 2011 and November 2014 reports,  a private psychologist, E. T., Ph.D., indicated that the Veteran had severe PTSD and assigned a GAF score of 43.  Finally, in a January 2017 report, T. M. Ph.D., indicated that the Veteran suffered from marked occupational and social impairment with deficiencies in most areas, including work, family relationships, judgment, thinking, and mood.  He stated that the Veteran suffered from frequent thoughts of violence towards others, suicidal ideations, impaired impulse control marked by unprovoked irritability, and violence.  He also reported that the Veteran suffered from near-continuous anxiety and depression and was unable to adapt to stressful circumstances.  He assigned a GAF of 40 as the Veteran demonstrated some impairment in reality testing and communication and exhibited illogical, obscure, and irrelevant speech throughout the interview.  He also noted that the Veteran's memory and speech patterns had declined markedly since 2014.  He opined that the Veteran had suffered from moderate to severe PTSD since he left Vietnam and that his current level of symptoms and functioning rendered him unemployable.  He noted that the Veteran had been incapable of sustaining substantial and gainful employment since 2009. 

The Board finds that there is conflicting evidence of record with regard to the severity of the Veteran's PTSD.  The Board finds that the evidence is at least in equipoise as to whether the Veteran's PTSD results in occupational and social impairment with deficiencies in most areas such as work, family relations, judgement, thinking, or mood as indicated for a higher 70 percent evaluation for PTSD throughout the appeal period.  The Board finds that the VA and private examinations of record provide competent, credible, and probative evidence with regard to the severity of the Veteran's PTSD.  Resolving reasonable doubt in the Veteran's favor, the Board finds that for the entire rating period, the severity of the Veteran's psychiatric symptoms, overall, more nearly approximates the criteria for assignment of a 70 percent rating under Diagnostic Code 9411.  The Veteran has requested the assignment of a 70 percent evaluation throughout the appeal period.  

The Board has reviewed all of the evidence of record, lay and medical, and finds that the Veteran has not met the criteria for a higher 100 percent disability rating for PTSD.  See 38 C.F.R. § 4.130.  The record does not indicate total occupational and social impairment, due to symptoms of such a severity as described for a 100 percent evaluation for PTSD.  The examiners, both VA and private have indicated that the Veteran has had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood.  These are the criteria associated with a 70 percent disability evaluation.  Moreover, the Board finds that total social impairment has not been indicated as the Veteran was still able to maintain a relationships with his wife, with some difficulties, again, noted in his interpersonal relationships.

As noted above 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).  On the other hand, if the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned.  Mauerhan v. Principi, at 443.  The Court of Appeals for the Federal Circuit has embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities.  Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). 

Ultimately, in Mauerhan, the Court upheld the Board's decision noting that the Board had considered all of the veteran's psychiatric symptoms, whether listed in the applicable rating criteria or not, and had assigned a rating based on the Veteran's level of occupational and social impairment.  Mauerhan v. Principi, at 444. 

Applying this analysis to the criteria for the 100 percent rating, it follows that the Veteran would be entitled to that rating if PTSD caused total occupational and social impairment, regardless of whether he had some, all, or none of the symptoms listed in the rating formula, and regardless of whether his symptoms were listed or not. 

The Board concludes that the Veteran's disability picture does not more nearly approximate the criteria for a 100 percent rating criteria under DC 9411 for any period.  38 C.F.R. § 4.130.  The weight of the evidence shows that the Veteran has not 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; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name for any period.


TDIU

A TDIU may be assigned when a Veteran has one service-connected disability rated at 60 percent or more, or two or more service-connected disabilities with at least one rated at 40 percent or more and he has a combined rating of at least 70 percent.  38 C.F.R. § 4.16(a).  In calculating whether a Veteran meets that 60/70 percent schedular criteria, disabilities resulting from common etiology or a single accident, or disabilities affecting a single body system, are considered one disability.  The record must also show that the service-connected disabilities alone result in such impairment of mind or body that the average person would be precluded from securing or following a substantially gainful occupation.  38 C.F.R. § 4.16(a). 

In any event, it is the policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled.  38 C.F.R. § 4.16(b); see 38 C.F.R. §§ 3.340, 3.341, 4.15 (2016). 

In this regard, in Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits.  Specifically, the Court indicated that there was a need to discuss whether the standard delineated in the controlling regulations was an "objective" one based on the average industrial impairment or a "subjective" one based upon a Veteran's actual industrial impairment.  In a pertinent precedent decision, VA General Counsel concluded that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances.  Thus, the criteria for determining unemployability include a subjective standard.  It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation.  VAOPGCPREC 75-91 (O.G.C. Prec. 75-91); 57 Fed. Reg. 2317 (1992). 

The Court has also held that a Veteran's advancing age and nonservice-connected disabilities may not be considered in the determination of whether a Veteran is entitled to a TDIU.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16(a)(b), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993).  For a Veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places him in a different position than other Veterans with the same disability rating.  The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough to prove unemployability.  Additionally, it is noted that a high rating in and of itself is recognition that the impairment makes it difficult to obtain and keep employment.  Thus, the question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment.  See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). 

Furthermore, marginal employment shall not be considered substantially gainful employment.  Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person.  Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold.  Consideration shall be given in all claims to the nature of the employment and the reason for termination.  38 C.F.R. § 4.16(a).

Service connection is currently in effect for PTSD, rated as 70 percent disabling; tinnitus, rated as 10 percent disabling; and bilateral hearing loss and a deviated nasal septum, both rated as noncompensable.  The combined disability evaluation is 70 percent.

Based upon the above assigned disability evaluations, the Veteran has met the criteria for consideration under 38 C.F.R. § 4.16(a).

The Veteran maintains that he has been unemployable as a result of his service-connected disabilities since 2009.  In support of his claim, the Veteran submitted an award determination by the Social Security Administration that he had been unemployable for Social Security disability purposes since September 2009.  The primary diagnosis listed was PTSD, with the secondary diagnosis of an adjustment disorder with depression and anxiety.  Also of record is an employment statement from the Veteran's prior employer indicating that he had been employed from April 2001 until September 30, 2009, but the date last worked being reported as March 8, 2009 .  In addition, Dr. T., in her May 2011 and November 2014 reports, opined that based on the Veteran's education, training, past work experience and current level of symptoms related to his PTSD alone, he was not a viable rehabilitation candidate, nor was he capable of sustaining substantial, gainful work activity.  She noted he was unemployable and that he was receiving Social Security Disability benefits based on his service-connected PTSD.  Moreover, as noted above, Dr. M., in his January 2017 report, indicated that the current level of symptoms and functioning rendered the Veteran unemployable and that he had been incapable of sustaining substantial and gainful employment since 2009.

The Veteran cannot work in the field in which he has training and experience, he has a lack of training and education in other fields of work, and his service-connected PTSD prevents him from obtaining and securing substantially gainful employment.  The Board finds that the weight of the evidence, including the examiners' findings, along with the Veteran's statements and work history, demonstrate that he has met the criteria set forth in § 4.16, and that a TDIU based upon service-connected disabilities is warranted since September 1, 2009.  


ORDER

A 70 percent evaluation for PTSD, and no more, from March 4, 2009, is granted.

A TDIU from September 1, 2009, is granted. 




____________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs