Citation Nr: 1723344 Decision Date: 06/21/17 Archive Date: 06/29/17 DOCKET NO. 13-20 073 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to a service-connected disability. REPRESENTATION Veteran represented by: Christy Jean, Attorney ATTORNEY FOR THE BOARD LM Stallings, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1982 to May 1995. These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated October 2010 and February 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The appeal for TDIU was previously before the Board in August 2015, at which time it was remanded to be considered in conjunction with the Veteran's pending claim for an increased rating for PTSD, as the two issues were inextricably intertwined. The Board finds that since the TDIU claim was raised in December 2008, and since he identified PTSD as preventing employment, the claim is deemed new and material evidence as to the increased rating issue; accordingly, the February 2008 rating action awarding a 50 percent initial evaluation is deemed to be the decision on appeal with respect to that issue. In November 2016, the RO issued a supplemental statement of the case considering PTSD and TDIU in conjunction with one another. The claims have now been returned to the Board for appellate review. FINDINGS OF FACT 1. Throughout the rating period on appeal, the weight of the evidence reflects occupational and social impairment with deficiencies in most areas, and an inability to establish and maintain effective relationships; total social and occupational impairment has not been shown. 2. The Veteran's service-connected disabilities, standing alone, are not of such severity so as to preclude his substantially gainful employment. CONCLUSION OF LAW 1. Throughout the rating period on appeal, the criteria for an initial rating of 70 percent for PTSD, but no higher have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 3.326(a), 4.1, 4.2, 4.3, 4.7, 4.125, 4.130, Diagnostic Code 9411 (2016). 2. The criteria for TDIU have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.18, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. VA satisfied its duty to notify via a September 2007 and April 2009 letters that provided the Veteran with adequate notice prior to the initial rating decisions of February 2008 and October 2010, for PTSD and TDIU respectively. The duty to assist has also been met. VA has obtained, to the extent possible, all relevant evidence identified by the Veteran and necessary for an equitable resolution of the issues. Pursuant to the Board's August 2015 remand, in January 2016 the RO sent the Veteran a VCAA Duty to Assist letter with respect to the Veteran's claim for an increased rating for PTSD. The RO then acquired outstanding VA treatment records. In May 2016, the RO readjudicated, and denied, the Veteran's claim for an increased rating for his service-connected PTSD. In October 2016, the RO issued a supplemental statement of the case, again denying entitlement to TDIU based on newly received evidence. Finally, in November 2016 the RO issued a supplemental statement of the case in which the RO adjudicated the matters of an increased rating for PTSD and entitlement to TDIU in conjunction with one another, wherein both an increased rating for PTSD and entitlement to TDIU were denied. Therefore, as the maximum schedular rating had not been assigned and such rating has not been assigned during the entire appeal period, the claims have been returned to the Board. AB v Brown, 6 Vet App 35 (1993). In light of the above, the Board concludes that there was substantial compliance with the instructions in the prior remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board concludes VA has met all other statutory and regulatory assistance provisions. See 38 U.S.C.A. §§ 5103A; 38 C.F.R. §§ 3.102, 3.159, 3.326; see also Scott v McDonald, 789 F.3d 1375 (Fed. Cir. 2015). B. Legal Standards and Analysis 1. Increased Rating for service-connected PTSD The Veteran contends that he is entitled to a rating in excess of 50 percent for his service-connected PTSD. Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126 (a). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate ratings may be assigned for separate periods of time based on the facts found. In other words, the ratings may be staged. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's PTSD has been rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. All psychiatric disabilities are evaluated under a general rating formula for mental disorders. Significantly, 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. 38 C.F.R. § 4.21; Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443; see also Vazquez-Claudio, 713 F.3d at 117. Ultimately, it is the overall level of functional impairment, and not merely the presence or absence of specific symptoms, that impact the rating. The Board notes that, effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders, including 38 C.F.R. § 4.130, to remove outdated references to the 4th edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) and replace them with references to the recently updated Fifth Edition (DSM-5). See Final Rule, Schedule for Rating Disabilities - Mental Disorders and Definition of Psychosis for Certain VA Purposes, 80 Fed. Reg. 14308 (Mar. 19, 2015). As the provisions of this amendment were not intended to apply to claims that had been certified for appeal to the Board on or before August 4, 2014, see id., and this case was certified in June 2014, the Board will not consider them in this decision. The Veteran's PTSD is currently rated at 50 percent disabling under the general rating formula, which contemplates for such a rating for 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 effective work and social relationships. A 70 percent rating is warranted 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); and inability to establish and maintain effective relationships. The maximum schedular 100 percent rating is warranted 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 dv of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. In assessing the evidence of record, it is important to note that the Global Assessment of Functioning (GAF) scale is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed.1994) (DSM-IV). A GAF score of 41-50 is defined as: "[s]erious 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, cannot work)." A GAF score of 51-60 is defined as : "[m]oderate symptoms (e.g., flat affect and circumlocutory speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers)." A GAF score of 61-70 is defined as: "[s]ome 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, has some meaningful interpersonal relationships." Id. Mental health records dated in January 2008 show passive suicidal ideation. A VA social work record dated in May 2008 noted occasional brief thoughts of suicide. The Veteran noted that the impact his death would have on his children was a major factor preventing him from self-harm. The Veteran underwent a VA PTSD examination in May 2009. He complained of chronic sleep impairments, typically waking four to five times per night, along with occasional nightmares. He also endorsed symptoms of anxiety, hypervigilance, irritability, and foreshadowing. The Veteran responded negatively when asked if he suffered from homicidal or suicidal thoughts. Additionally, he did not have any issues with self-care and was able to manage his own money. He had been married for 10 years, had 3 children and a stepson. He had a good relationship with the children. While he spent his time mostly indoors this was largely due to heart problems. He was averse to crowds and noted feeling uncomfortable waiting for his daughter's event at a recent track meet. The examiner opined that the symptoms experienced by the Veteran adversely affected his psychosocial functioning and quality of life. A GAF score of 50 was assigned. The Veteran received mental health treatment at the Biloxi VA medical center from 2009 through 2016. The 2009 treatment reports reflect poor sleep, being treated with medication. The Veteran denied feeling depressed, delusions, or suicidal or homicidal thoughts. See Biloxi VAMC records. An April 2009 record noted that he played darts twice a week. In May 2010, the Veteran was seen for an emergency mental health examination as he had been awake the evening before with suicidal thoughts. The Veteran denied any intent. The VA psychiatrist advised the Veteran that he should attend group suicidal counseling sessions after this incident. Other May 2010 records noted that the Veteran would go hunting with friends. During a June 2010 VA mental health interview the Veteran endorsed passive suicidal ideation but asserted that his family kept him from pursuing that avenue. A GAF score of 50 was issued around this time. The Veteran attended group counseling sessions in July 2010. Records from those sessions reflect that he participated in the group sessions, during which he denied any suicidal or homicidal ideation. The Veteran denied feeling depressed, delusions, or suicidal or homicidal thoughts. See Biloxi VAMC records. The Veteran had another VA PTSD examination in August 2010. He complained of chronic sleep impairments with occasional nightmares. He also endorsed symptoms of anxiety and depression. The Veteran reported occasional suicidal ideation but denied any plan or intent. Additionally, the Veteran did not show any problems with self-care and was able to manage his own money. He would sometimes attend his daughters gymnastic and track events. He also continued to play darts and go hunting. During the August 2010 examination, the Veteran had a GAF score of 70-71. The examiner opined that the symptoms experienced by the Veteran did not appear that his social and occupational function adversely affected his quality of life. In February 2015, the Veteran had another VA PTSD examination. He reported that he had divorced in 2010 but now had a girlfriend. He lived with this girlfriend and her teenage son. He reported problems with the relationship and indicated that soon he would be living with a friend. He saw his children every few weeks and they also talked on the phone multiple times weekly. His increasing irritability was causing him to be less social. The Veteran reported an irritable mood, social isolation, angry outbursts, panic attacks weekly or less, depressed mood, and sleeping approximately 5-6 hours per night with recurrent distressing dreams. The Veteran asserted that he managed his PTSD symptoms until a close friend passed away unexpectedly approximately 2-3 years ago. The Veteran endorsed intermittent suicidal ideation but denied any plan or intent due to his family. Additionally, he did not show any problems with self-care and was able to manage his personal finances. The examiner opined that the symptoms experienced by the Veteran caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. Also in February 2015, the Veteran was seen for a VA mental health examination. The examiner noted that the Veteran still felt depressed and anxious but denied suicidal or homicidal ideation. In May 2017 the Veteran underwent another VA PTSD examination. He reported insomnia, angry outbursts, and nightly nightmares. The Veteran endorsed persistent negative emotions, a marked diminished interest in participation in significant actives, and feelings of detachment or estrangement from others. However, he continued to see his children often and enjoyed spending time helping his son. The examiner opined that the symptoms experienced by the Veteran 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 normal routine behavior, self-care and conversation. The above evidence reflects that throughout the Veteran's PTSD treatment he has had symptoms of anxiety, depressed mood, sleep impairment, flashbacks, nightmares, and distressing recollections of the event, and diminished interest in significant activities (30 percent criteria), difficulty in establishing and maintaining effective work and social relationships and angry outbursts (50 percent criteria), and suicidal ideation (70 percent criteria). In May 2010, the Veteran underwent emergency treatment for suicidal ideation, which led him to attend group psychotherapy sessions. From August 2010 through May 2017 he had consistent suicidal ideation and has also maintained that his children keep him from acting on those feelings. The Veteran's February 2015 VA PTSD examination reflected significant distress and impairment in social and occupational function, as well as weekly or less panic attacks. The Veteran related that the sudden death of his friend 2-3 years prior likely exacerbated his PTSD symptoms. The Veteran's May 2017 VA PTSD examination reflected consistent feelings of detachment or estrangement from others and marked diminished interest in his typical activities. The Board finds that the Veteran has an occasional decrease in efficiency and intermittent periods of inability to perform occupational tasks. Throughout the appeal period, the Veteran's PTSD symptoms have consistently shown that he is able to manage his personal finances and his self-care has not suffered. However, a higher schedular rating of 70 percent is warranted because the medical evidence shows Veteran's entire disability picture and overall level of impairment have worsened to a level more nearly approximated by a 70 percent rating. The Veteran has consistently reported suicidal ideation from his first VA examination in May 2010 to the present day. He received emergency treatment for suicide in 2010 and participated in group sessions to manage suicidal feelings. The Veteran reported suicidal ideation both in February 2015 and May 2017. While the Veteran has not needed to seek emergency or additional treatment for suicidal thoughts as frequently as in the past, those thoughts continue to plague him. The Veteran has also been able to continue to manage his own finances and have satisfactory self-care, however his outbursts of anger, social isolation. and emotional detachment has also worsened as shown in the May 2017 VA PTSD examination. Therefore, while the Veteran has consistently exhibited symptoms in the 30 percent criteria range, the symptoms in the 50 percent criteria range and the 70 percent criteria range have become more prominent. Therefore, in light of the Veteran's overall level of impairment, a schedular rating of 70 percent is appropriate. A higher schedular rating of 100 percent is not warranted because the Veteran's symptoms and overall level of impairment did not more nearly approximate the criteria for such a rating. Specifically, the Veteran did not suffer from any delusions, inappropriate behavior, or in persistent danger of hurting himself or others. Moreover, he had maintained good relationships with his children. While he divorced during the pendency of the appeal, he entered a subsequent relationship. He also had friends and until recently had routinely engaged in activities such as darts and hunting. There is no showing of total social impairment, or of total occupational impairment due to the PTSD. Therefore, the Board has determined that the Veteran's PTSD has manifested to the level of a 70 percent schedular rating, and not higher, throughout the appeal period. A 70 percent rating is granted. 2. Entitlement to TDIU The Veteran has asserted that he is entitled to TDIU due to his service-connected disabilities. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but age and impairment caused by nonservice-connected disabilities are not factors for consideration. 38 C.F.R. §§ 3.341, 4.16, 4.19. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the Board notes that the Veteran is service connected for PTSD evaluated as 50 percent, right shoulder tendonitis/rotator cuff impingement, evaluated as 20 percent, right elbow tendonitis, evaluated as 10 percent, tinnitus, evaluated as 10 percent, and ulnar neuropathy, right arm, evaluated as 10 percent. The Veteran's service-connected disabilities meet the combined percentage rating standards for TDIU. 38 C.F.R. § 4.16(a). In determining whether a claimant is unable to secure or follow a substantially gainful occupation, 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). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when the Board conducts a TDIU analysis, it must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Beaty v. Brown, 6 Vet. App. 532, 534 (1994) (considering Veteran's eighth grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356, 357 (1991) (considering veteran's master's degree in education and his part-time work as a tutor). That a veteran can no longer perform a particular job, however, is not dispositive of the issue. Rather, the criteria for a TDIU rating contemplate that a veteran's service-connected disabilities alone preclude him from securing or following all forms of substantially gainful employment. The Veteran filed his claim for TDIU in December 2008, at which time he stated that his left shoulder and his PTSD kept him from working. The RO reviewed the Veteran's Social Security records, which reflected that the Veteran's non-service connected congenital heart failure was the reason he was unable to work. The Veteran underwent two VA examinations in 2010. During a January 2010 VA PTSD examination he reported to the examiner that he did not work due to his congestive heart failure. At the Veteran's VA examination in August 2010, the VA examiner opined that the Veteran was capable of sedentary to light or moderate duty employment based on his service-connected conditions. The record shows that prior to stopping work, the Veteran was a self-employed carpenter. Social Security records indicate that the Veteran stopped working due to congestive heart failure, further aggravated by the heat, and a back condition in December 2005. The Veteran received a pacemaker in January 2006 and is on the heart transplant list. The Veteran asserted that he will occasionally assist a friend with a small carpentry project, however this is primarily to keep himself out of the house and not for income. VA Treatment records show that the Veteran does still perform intermittent word work and metal work to pass the time. There is no evidence in the record that the Veteran has sought out additional training or different types of work since December 2005. Social Security records indicate that the Veteran did work as an insurance adjustor from 1995 to 1996 but there is no indication that the Veteran returned to that line of work after December 2005. The RO sent the Veteran a VA 21-4192 in January 2016, requesting additional employment information in connection with the Veteran's claim for TDIU. He did not return any additional information. The preponderance of the evidence is against finding that the Veteran's service-connected disabilities preclude him from returning to carpentry and woodworking. Instead, upon weighing the medical evidence, the Veteran's non-service connected congenital heart condition is the primary cause of his inability to work, supported both by Social Security records and VA examination reports. In summary, the Board finds that the weight of the lay and medical evidence does not demonstrate that the Veteran is precluded from securing or following substantially gainful employment solely by reason of his service-connected disorders. Nor does the evidence demonstrate that he is incapable of performing the mental and physical acts required by employment due solely to his service-connected disorders, even when his disability is assessed in the context of subjective factors such as his occupational background and level of education. While the Board does not doubt that the Veteran's service-connected disabilities result in some functional impairment, the weight of the evidence does not support that his service-connected disabilities are of such severity so as to preclude his participation in any form of substantially gainful employment. The Board believes that the symptomatology associated with the service-connected disabilities is appropriately compensated via the combined 70 percent rating which is currently assigned. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a), 4.1. Thus, the Board finds that referral of the Veteran's claim for entitlement to TDIU to the Director of Compensation Services is not warranted. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a rating of 70 percent for PTSD is granted. Entitlement to TDIU is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs