Citation Nr: 1728071	
Decision Date: 07/19/17    Archive Date: 07/27/17

DOCKET NO.  10-33 561	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUES

1. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD).

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


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

A. Keninger, Associate Counsel



INTRODUCTION

The Veteran served on active duty from August 1969 to August 1971.

These matters come before the Board of Veterans' Appeals (Board) from a June 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, which denied an increased rating in excess of 70 percent for PTSD and denied entitlement to TDIU.

The Veteran initially requested a Travel Board hearing and was notified he had been placed on the waitlist. In September 2011, the Veteran indicated he wished to withdraw his request for a hearing. Thus, the hearing request is deemed withdrawn, and the Board will proceed with review. 38 C.F.R. § 20.704(d).

A Statement of the Case (SOC), issued by the RO in July 2010, and a Supplemental Statement of the Case (SSOC), issued by the RO in January 2017, continued to deny a rating in excess of 70 percent for PTSD and deny a TDIU.


FINDINGS OF FACT

1. Throughout the appeal, the Veteran's PTSD has not been manifested by total social and occupational impairment.

2. The preponderance of the evidence is against a finding that the Veteran is unable to obtain or maintain any form of substantially gainful employment due to service-connected disabilities alone.


CONCLUSIONS OF LAW

1. The requirements for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.130, Diagnostic Code 9411 (2016).

2. The criteria for entitlement to TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

II. Increase Rating - PTSD

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. 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 the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.

Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of the disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3.

The Court has held that, in determining the present level of a disability for an increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.

The Veteran's service-connected PTSD is currently evaluated as 70 percent disabling from June 11, 2003, under Diagnostic Code 9411 of the General Rating Formula for Mental Disorders.  See 38 C.F.R. § 4.130, Diagnostic Code 9411 (2016). VA received the Veteran's claim for an increased rating for PTSD due to his allegations that his PTSD had gotten worse on August 18, 2008. 

Under the formula, a 70 percent rating is warranted where there is 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 inability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411.

A 100 percent rating is warranted where there is 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 Court held that evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating." Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather, "serve as examples of the type and degree of symptom, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas"-i.e., "the regulation . . . requires an ultimate factual conclusion as to the Veteran's level of impairment in 'most areas.'" Vasquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, Diagnostic Code 9411.

Further, when evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission." 38 C.F.R. § 4.126(a). The Board must also "assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of examination." Id.

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 Health Disorders (4th ed. 1994) (DSM-IV). A GAF score of 51 to 60 indicates moderate symptoms, or moderate difficulty in social, occupational, or school functioning. DSM-IV; 38 C.F.R. §§ 4.125, 4.130. Scores ranging from 41 to 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). See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995).

Although GAF scores are important in evaluating mental disorders, the Board must consider all the pertinent evidence of record and set forth a decision based on the totality of the evidence in accordance with all applicable legal criteria. Carpenter, 8 Vet. App. at 242. An assigned GAF score, like an examiner's assessment of the severity of a disability, is not dispositive of the percentage rating issue; rather, it must be considered in light of the actual symptoms of a psychiatric disorder (which provide the primary basis for the rating assigned). See 38 C.F.R. § 4.126(a). Accordingly, an examiner's classification of the level of psychiatric impairment, by word or by a GAF score, is to be considered but is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. Id.; see also 38 C.F.R. § 4.126, VAOPGCPREC 10-95, 60 Fed. Reg. 43186 (1995).

From September 2007 through January 2009 the Veteran received regular treatment for his PTSD through VA. This treatment included group therapy on a regular basis for most of this time period. Throughout this treatment, the Veteran reported symptoms including survivors guilt and guilt about his experience in Vietnam, sleep disturbances and nightmares, occasionally yelling or crying in his sleep, depression, poor appetite, defensive behaviors, feelings of restlessness, anxiety, and frustration, difficulty concentrating, and feelings that he has let his family down. The Veteran continuously reported that he enjoyed meeting and connecting with other Veterans, including involvement and leadership roles in groups for Veterans in his community. The Veteran also reported that his medication helped him with his symptoms. The Veteran occasionally reported he felt he may be better off dead or had thoughts of hurting himself though he indicated he had no plan or real intent, and treating psychiatrists and therapists consistently reported the Veteran had no suicidal or homicidal ideation. It was also continuously reported that he was oriented to time, person, and place and his speech pattern and behaviors were normal. The Veteran was assigned a GAF score of 60 in November 2007.

The Veteran began an 18-day inpatient treatment for his PTSD in September 2008. At admission, the Veteran reported symptoms including hypervigilance, reporting that he did not feel secure unless he was carrying a weapon, nightmares, sadness, anxiety, intrusive memories, low mood, and poor concentration. He also indicated he would have panic attacks that caused him to experience an elevated heart rate and shortness of breath lasting for a few minutes. At intake, it was noted that the Veteran appeared comfortable and had good hygiene. His speech, movement, and mood were normal with no evidence of disorganized through processes. The examiner noted no suicidal or homicidal ideation and assigned a GAF score of 45. 

During his treatment, the Veteran indicated he had withdrawn from some of his leadership and organizing roles because he has difficulty working with other people, though he still is involved with the groups and volunteers his time. Treatment records also include notes indicating that the veteran does not have extensive participation in group therapy, preferring to allow others to carry on most of the conversation. At the end of his inpatient treatment, the Veteran was assigned a GAF score of 46.

The Veteran underwent a VA examination in December 2008. At this examination, the Veteran reported symptoms of high anxiety and nervousness, hypervigilance and increased startle response, depression, isolation behaviors, some memory loss, panic attacks, and nightmares. He reported having a fair and improving relationship with his children, and he had a few close friends who were also veterans. Though he indicated some social relationships, he reported he preferred to be by himself during his leisure time. At the time of the examination, the Veteran reported some suicidal thoughts but no suicidal or homicidal ideation.

The December 2008 examiner opined that, though the Veteran did not engage in many social activities, he was capable of the basic activities of daily living and was minimally able to meet work demands and responsibilities, despite a demonstrated difficulty in getting along with others and a tendency to isolate. The examiner further opined that there were no impairments of thought processes or communication, and the Veteran's behavior was appropriate, engaging, and responsive. A GAF score of 51 was assigned.

After a short gap, the Veteran again began seeking regular treatment for PTSD in July 2009 and continued regular treatment on an approximately monthly basis until October 2011, with group therapy treatment throughout most of that time. The Veteran continued to report symptoms including flashbacks, nightmares, trouble sleeping, outbursts of anger, hypervigilance, anxiety, depression, irritability, survivor's guilt, and difficulty forgiving himself for his experiences in Vietnam. The Veteran reported thinking about suicide, but with no intent or plan. Despite these symptoms, the Veteran continued to participate in volunteer activities. In December 2010, GAF scores of 51 and 55 were assigned, and in August 2011, a GAF score of 50 was assigned.

In January 2017, the Veteran had a VA examination. The Veteran reported symptoms of intrusive memories, distressing dreams, physiological reactions to reminders of traumatic events, avoidance behaviors, persistent negative beliefs, distorted cognitions about the cause or consequences of traumatic events causing the Veteran to blame himself, a negative emotional state, mild memory loss, irritable behavior, and angry outbursts expressed with verbal or physical aggression. At this examination it was noted that the Veteran had difficulty establishing and maintaining social relationships, but the Veteran reported he had a few friends who were Veterans, though he did spend most of his leisure time alone. No suicidal ideation or hallucinations were noted. The examiner opined these symptoms cause clinically significant distress or impairment in social, occupational, and other areas of functioning.

After a review of the relevant evidence of record, the Board concludes the Veteran is not entitled to a rating in excess of 70 percent. The Board finds the Veteran's PTSD is manifested by severe occupational and social impairment, which deficiencies such as work, family and social relationships, depressed mood, and impaired judgment resulting in the Veteran being quick to anger. However, as described above, a 100 percent rating is not warranted without severe manifestations that more nearly approximate total occupational and social impairment. The VA examiner in December 2008 and January 2017 opined that the Veteran did have clinically significant impairments with work and social relationships, but his symptoms did not rise to the level total social and occupational impairment. Additionally, the Veteran's GAF scores range from 45 to 60 from 2008 to the present, indicating serious, but not total social and occupational impairment. The Board finds the Veteran's PTSD symptoms do not result in total social and occupational impairment, and therefore, a 100 percent rating is not warranted.

The Board acknowledges that the Veteran did complete an 18-day inpatient program for treatment of his PTSD. However, the Board notes that this treatment was not for an extended period of time or in excess of 21 days, and the total disability picture, prior to and during the Veteran's inpatient treatment, did not rise to the level required for a 100 percent rating as noted above. 38 C.F.R. §§ 4.1, 4.29.

III. TDIU

A TDIU rating may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 C.F.R. § 4.16(a). There are minimum disability rating percentages that must be shown for the service-connected disabilities, alone or in combination, to even qualify for consideration for a TDIU award under § 4.16(a). Indeed, if there is only one such disability, it must be rated at 60 percent or more; if instead 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. Id. 

If a Veteran does not meet the aforementioned criteria, a total disability may still be assigned, but on a different basis. It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Therefore, the rating boards are required to submit to the Director, Compensation Service, for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage of standards set forth in 38 C.F.R. § 4.16(a). Id. 

In determining whether a Veteran is unemployable for VA purposes, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). A Veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001).

The Court has held that the central inquiry in determining whether a Veteran is entitled to a TDIU is whether service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). The test of individual unemployability is whether a Veteran, as a result of his service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his educational and occupational experience. 38 C.F.R. § 3.340, 3.341, 4.16. The Board also notes that the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; rather, that determination is for the adjudicator. 38 C.F.R. § 4.16(a); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013).

The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. A high rating itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

The Veteran is service connected for PTSD, rated at 70 percent; non-obstructive coronary artery disease, rated at 10 percent prior to January 4, 2010, and 30 percent thereafter; bilateral hearing loss, rated at 20 percent; and tinnitus, rated at 10 percent from February 21, 2002. The Veteran's combined rating for compensation purposes is 80 percent prior to January 4, 2010 and 90 percent thereafter. 

Because the Veteran meets the schedular criteria for eligibility for TDIU from June 11, 2003, the remaining inquiry is whether the Veteran is unable to secure or follow substantially gainful occupation due solely to his service-connected disabilities.

After leaving service, the Veteran began working as a lineman for an electric company, staying in this position for over 30 years until he reached retirement age. In October and November 2007, the Veteran's treatment records indicate he began to consider retiring due to his physical deterioration and did not feel he would be able to continue to do the job for much longer. In December 2007, the Veteran began reporting frustration with his co-workers and supervisors. In July 2008, the Veteran's therapist encouraged him to retire.

In July 2008, The Veteran took a leave of absence. In August 2008, a private physician wrote a letter indicating the Veteran could not work for the next three months due to PTSD, hypertension, asthma, a cervical spine disability, and joint pain. Following a few months on leave, the Veteran made the decision to retire.

In December 2008 at a VA examination, and the subsequent May 2009 addendum, the examiner opined that the Veteran is an employment risk due to his physical limitations associated with his back and asthma problems. As noted above, the Veteran is not service-connected for a back disability or asthma. Additionally, the December 2008 examiner noted that the Veteran had problems getting along with others and had a tendency to isolate himself. The examiner noted that the Veteran's hearing loss and tinnitus did not affect his employment, but there did appear to be a link between his PTSD and current employment issues. The examiner ultimately opined that the Veteran could be employed so long as it was a position with loose supervision, low stress, and little public interaction. However, this examiner also noted there was a good prognosis for improvement. 

A January 2017 VA examination opined that the Veteran was able to understand and follow directions and retain instructions with only mild impairment. It was further noted that the Veteran was mild to moderately impaired in his ability to appropriately respond to co-workers, supervisors, and the public due to his PTSD.

As indicated previously, the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; rather, that determination is for the adjudicator.  38 C.F.R. § 4.16(a).  However, medical examiners are responsible for providing a full description of the effects of disability upon the person's ordinary activity.  38 C.F.R. § 4.10.  In this regard, the functional effects resulting from the Veteran's service-connected disabilities as assessed by the December 2008 and January 2017 examiners are highly probative.

Based on the evidence of record, the Board finds that the Veteran is not unemployable due to his service-connected disabilities. The December 2008 VA examiner found the Veteran would be able to work in a position that did not require extensive interaction with the public, supervisors, and other co-workers. Nine years later, in January 2017, another VA examiner made similar conclusions. 

The Board notes that a private physician in August 2008 found the Veteran was unable to work due to his disabilities. However, the Board finds this opinion less probative because the opinion was based on the Veteran's entire medical picture at that time, which was not limited to service-connect disabilities only. Additionally, the letter did not include a rationale for this opinion; it simply indicated that chronic disabilities prevented the Veteran from working. The Board also notes a letter from a social worker in October 2008 indicated the Veteran's psychiatric and physical disabilities prevented the Veteran from working. However, again, this opinion did not distinguish which disabilities prevented the Veteran from substantially gainful employment, nor did it provide a rationale for this opinion, making it less probative than the opinions provided by VA medical examiners in December 2008 and January 2017.

The Board also notes that the Veteran terminated his employment in 2008 around the time he sought inpatient treatment for PTSD. However, the Veteran chose to retire based on numerous factors, including his physical disabilities that are not service connected and frustrations with company policies, particularly those regarding safety.

In conclusion, the Board finds the Veteran's service-connected disabilities do not preclude the Veteran from obtaining and sustaining substantially gainful employment. As the preponderance of the evidence is against entitlement to a TDIU rating, it follows that there is not such a balance of the positive evidence with the negative evidence to otherwise permit a favorable determination on this issue. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.



ORDER

Entitlement to a rating in excess of 70 percent for PTSD is denied.

Entitlement to a TDIU rating is denied.




____________________________________________
A. P. SIMPSON 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs