Citation Nr: 1726537 Decision Date: 07/11/17 Archive Date: 07/20/17 DOCKET NO. 09-20 027 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to a disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) for the period prior to May 26, 2009. 2. Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder during the period from May 26, 2009 to September 25, 2012. 3. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder during the period from September 26, 2012 to September 30, 2013. 4. Entitlement to a total disability rating due to individual unemployability (TDIU) for the period prior to September 26, 2012. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from September 1998 to September 2001, from July 2002 to July 2003, and from November 2003 to June 2005. He also had service in the Army Reserve between periods of active duty. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Buffalo, New York, which granted an increased rating of 30 percent for the Veteran's PTSD, effective October 30, 2007. During the pendency of the appeal, the disability has been assigned "staged" ratings as indicated on the title page of this decision. See Hart v. Mansfield, 21 Vet. App. 505 (2007). However, as these ratings are still less than the maximum benefit available, the appeal is still pending. AB v. Brown, 6 Vet. App. 35, 38 (1993). In August 2012 and October 2015, the appeal was remanded to the RO for further development, which has been accomplished. See Stegall v. West, 11 Vet. App. 268, 271 (1998). It now returns to the Board for appellate review. As of the October 2015 remand, the Veteran had been assigned a 100 percent rating for his PTSD, effective December 2, 2014. However, in an April 2017 rating decision, the 100 percent rating assigned to the Veteran's PTSD was granted an earlier effective date of October 1, 2013. The record before the Board consists solely of electronic records within Virtual VA and the Veterans Benefits Management System (VBMS). FINDINGS OF FACT 1. Prior to May 26, 2009, the Veteran's PTSD was manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. From May 26, 2009 to September 25, 2012, the Veteran's PTSD was manifested by occupational and social impairment with reduced reliability and productivity. 3. From September 26, 2012, the Veteran's PTSD manifested in total social and occupational impairment. 4. Prior to September 26, 2012, the Veteran was not unable to obtain or maintain substantially gainful employment due solely to service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for PTSD prior to May 26, 2009 have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2016). 2. The criteria a rating in excess of 50 percent for PTSD from May 26, 2009 to September 25, 2012 have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2016). 3. The criteria for a rating of 100 percent for PTSD have been met from September 26, 2012. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2016), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claims. The record also reflects that all available pertinent treatment records have been obtained, to include the Veteran's service treatment records and post-service VA treatment records. No other outstanding, existing evidence that could be obtained to substantiate the claims has been identified. The Board is also unaware of any such evidence. In addition, the Veteran was afforded the necessary VA examinations. Accordingly, the Board will address the merits of the claims. II. Legal Criteria Under governing law, the effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection, shall be the day following separation from active service or the date entitlement arose, if the claim is received within one year of separation from service; otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110 (a); 38 C.F.R. § 3.400 (b)(2). Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2016). 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. §§ 3.321 (a), 4.1 (2016). The Veteran's PTSD was rated as 30 percent disabling under the General Rating Formula for Mental Disorders set forth in 38 C.F.R. § 4.130, Diagnostic Code 9411, prior to May 26, 2009, as 50 percent disabling from that date until September 25, 2012 and as 70 percent disabling thereafter. Under the General Rating Formula, a 30 percent evaluation is warranted if 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, or mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent evaluation is warranted 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 and maintaining effective work and social relationships. Id. The next higher evaluation of 70 percent 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); inability to establish and maintain effective relationships. Id. A 100 percent evaluation 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 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. 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). Further, simply because this Veteran has some symptoms that are contemplated at a higher rating level does not mean the impact of his PTSD overall rises that level. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). The Board must look to the frequency, severity, and duration of the impairment. Id. A GAF score of 41-50 contemplates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or serious impairment in social, occupational, or social functioning (e.g., no friends, unable to keep a job). A GAF score of 51-60 reflects 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). A GAF score of 61-70 contemplates 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, has some meaningful interpersonal relationships. While 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, the GAF scores assigned in a case are not dispositive of whether overall improvement has been established; rather, they must be considered in light of the actual symptoms of the veteran's disorder. See 38 C.F.R. § 4.126(a). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2016); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. III. Analysis In this case, the Board has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. The Veteran was afforded four VA examinations over the course of the appeal period, as well as one in March 2016. At a November 2007 VA examination, the Veteran reported that he was currently receiving inpatient treatment for PTSD and substance abuse. He had been working part-time prior to that admission. He denied having lost a job as a result of his PTSD. Subjective symptoms included feeling depressed and experiencing spontaneous crying, suffering anxiety, and having nightmares. The Veteran stated that he was withdrawn from people and feared spiders, sleeping with the light on because of his fears. He indicated that he would become quickly frustrated in interpersonal situations and that when he was at work was easily annoyed by coworkers. He reported that he had friends, but he could not describe the activities in which he engaged with them. He asserted that he liked to help kids, having coached soccer and football in the past. The Veteran related that he could go to the movies and to restaurants provided he could sit in the back. He was able to attend family social gatherings, but not those with other people. The examiner stated that the Veteran's interpersonal relationships and social functioning were at least mildly impaired, and that his occupational functioning was at least moderately impaired. The examiner observed that personal hygiene was good and that the Veteran was generally cooperative, but somewhat angry and bitter. Affect was anxious and depressed. Speech was relevant, coherent, and goal-directed. There were no visual or auditory hallucinations or delusions or any form of cognitive disruption. The examiner indicated that the Veteran's capacity for abstract thinking was more well-developed than expected. Remote, immediate, and short-term memory were all mildly impaired. The Veteran reported that he thought about suicide, but had never formed a plan. There was no homicidal ideation. The examiner stated that insight appeared to be somewhat well-developed and judgment appeared to be relatively intact. The GAF score assigned was 65. The next examination was conducted in May 2009. The Veteran reported that he had divorced since the last examination, largely due to his PTSD symptoms. He was living with a former girlfriend, along with his daughter. The Veteran was not employed, but he was in school. He asserted that his symptoms sometimes caused problems at school, but that his grades had been generally good. The Veteran was receiving outpatient treatment for his PTSD. The examiner observed that the Veteran's appearance, attitude, and behaviors appeared to be within normal limits. The Veteran's attire was casual, and his hygiene and grooming were good. The Veteran was fully cooperative and maintained good eye contact. The examiner observed that the Veteran's speech was relevant, coherent, and productive and that his thought processes were rational and goal-directed. There was no evidence of hallucinations, delusions, or obsessional or ritualistic behaviors. However, the Veteran reported that he was hypervigilant, would set booby traps around the house, and would frequently check the windows and doors. The Veteran was oriented to person, place, and time. The examiner observed that the Veteran's short-term memory and concentration were disrupted due primarily due to PTSD sleep deprivation. The Veteran's mood was slightly anxious and his affect was mildly restricted. He reported having nightmares virtually every night. The examiner documented that the Veteran presented with moderate to severe social anxiety and social avoidance, and that he displayed some decline in his ability to enjoy daily activities. The Veteran regularly enjoyed spending time with his children. He was neither suicidal nor homicidal. The examiner stated that the Veteran clearly was trying to improve, but found that the Veteran's symptoms had clearly worsened in the last two years and were having a moderate to severe impact on his overall functioning. The GAF scores was 53. In September 2012, the VA examiner found that the Veteran experienced occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and mood. The examiner documented symptoms including difficulty falling or staying asleep, irritability, difficulty concentrating, restricted range of affect, exaggerated startle response and vigilance, markedly diminished interest in participation in significant activities, and feelings of detachment from others. Other manifestations were depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, circumstantial speech, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective relationships and adapting to stressful circumstances, and impaired impulse control. The examiner stated that the Veteran's PTSD symptoms significantly disrupted all aspects of his social functioning. The examiner stated that the Veteran was not consistently able to interact with others without becoming hostile and aggressive. Social contacts were primarily limited to the Veteran's sister and one or two close friends. The Veteran had been largely unable to successfully function in a vocational environment with his PTSD symptoms resulting in him leaving or being asked to leave at least two positions. In addition, the examiner stated that the Veteran's thought processing and other cognitive issues rendered him unemployable at that time. The examiner stated that it was her opinion that the Veteran was totally socially and occupationally impaired due to his PTSD and assigned a GAF score of 50. An August 20, 2013 VA opinion states that the Veteran's degree of social and occupational was impairment is severe, extending to a majority of the areas related to both social and occupational functioning. The opinion was based on the September 26, 2012 VA examination, and the examiner stated that it was her opinion that the Veteran should be considered to have total social and occupational impairment attributable to his PTSD. The Veteran participated in VA mental health treatment, both inpatient and outpatient, during the appeal period, and the records of this treatment are in the claims file. However, these treatment notes do not reflect symptomatology greater or more severe than those documented at VA examinations. In addition to PTSD, the Veteran has diagnoses of depressive disorder, a cognitive disorder, associated with a post-service traumatic brain injury, and substance use disorders. The September 2012 and August 2013 VA examiners each indicated that the symptoms of the different disabilities could not be distinguished from each other. Therefore, the Board determines that the totality of the Veteran's psychiatric disorder symptoms is a result of his service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998) (when it is not possible to separate the effects of the service-connected condition from a nonservice-connected condition, 38 C.F.R. § 3.102 requires that reasonable doubt on any issue be resolved in the Veteran's favor, and that such signs and symptoms be attributed to the service-connected condition). A review of the claims file reveals that no change in the ratings assigned to the Veteran's PTSD is warranted prior to September 26, 2012. The 30 percent rating assigned prior to May 26, 2009 contemplates the Veteran's symptoms of feeling depressed and anxious, isolating himself from people, and mild memory impairment. While the Veteran had thoughts of suicide, he had no plans or other symptoms suggestive of greater impairment, such as panic attacks, disrupted speech or thought processes, impairment of insight or judgment, or inability to perform the activities of daily living. He also maintained family relationships and some social relationships. Even though the Veteran was hospitalized at the time of the November 2007 VA examination, he had been working prior to entering the treatment program and was employed after leaving the hospital. In light of these facts, the Board determines that a rating in excess of 30 percent is not warranted prior to May 26, 2009. The 50 percent rating was assigned, effective May 26, 2009, based on the results of the May 2009 VA examination and contemplates the Veteran's hypervigilance, disruption of short-and long-term memory, anxious mood, restricted affect, and social avoidance. However, as the Veteran was involved in relationships with a girlfriend and his children, successfully engaged in an educational program, exhibited normal speech and thought processes, and was able to maintain his personal hygiene and grooming, the Board determines that the Veteran's symptoms did not more closely approximate a rating in excess of 70 percent from May 26, 2009 to September 25, 2012. Finally, as noted in the Introduction, a 100 percent rating was assigned to the Veteran's PTSD from December 2, 2014 and then from October 1, 2013, based on the August 2013 opinion. A review of the record reveals that the date for this opinion was apparently confused with the date of an ankle opinion which was provided on October 1, 2013. However, regardless of the date of the opinion, the examiner based it on the findings at the September 2012 VA examination. Consequently, the Board concludes that a 100 percent rating for the Veteran's PTSD is warranted from September 26, 2012. IV. TDIU prior to September 26, 2012 A total disability evaluation may be assigned where the schedular evaluation is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2016). For purposes of calculating the percentage requirements of one 60 percent disability, or one 40 percent disability, the following disabilities will be considered 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. "Substantially gainful employment" is not currently defined in VA regulations. For a veteran to prevail on a claim based on unemployability, the record must reflect some factor which takes the claimant's case outside the norm for such a veteran and not just that the Veteran is unemployed or has difficulty finding employment. Marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16 (a). For purposes of 38 C.F.R. § 4.16 (a) , 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. However, consideration shall be given in all claims to the nature of the employment and the reasons for termination. Id. Prior to September 26, 2012, the Veteran did not meet the schedular requirement TDIU, having a combined rating of no more than 60 percent. Moreover, the Veteran was employed and then pursuing an educational degree and achieving good grades despite his disabilities. Consequently, the Board finds that the Veteran was not unable to obtain or maintain substantially gainful employment due solely to service-connected disabilities prior to September 26, 2012. ORDER Entitlement to a rating in excess of 30 percent for PTSD for the period prior to May 26, 2009 is denied. Entitlement to a rating in excess of 50 percent for PTSD for the period from May 26, 2009 to September 25, 2012 is denied. Entitlement to a 100 percent rating for PTSD for the period from September 26, 2012 is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to TDIU for the period prior to September 26, 2012 is denied. ______________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs