Citation Nr: 1747294 Decision Date: 10/23/17 Archive Date: 10/31/17 DOCKET NO. 13-33 954A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an increased rating greater than 50 percent for service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Robert Chisholm, Attorney ATTORNEY FOR THE BOARD A. Parsons, Associate Counsel FINDINGS OF FACT 1. Prior to January 27, 2014, the Veteran's PTSD manifested as chronic sleep impairment with nightmares, intrusive thoughts, flashbacks, survivor's guilt, anxiety, depression, some diminished memory, some diminished interest in activities, hypervigilance. 2. Beginning on January 27, 2014, the Veteran's PTSD manifested as cognitive insufficiency, inability to adapt to stressful circumstances, speech tangential and circumstantial, intrusive memories, recurrent dreams, and dissociative reactions causing deficiencies in most areas. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in greater than 50 percent for service-connected PTSD prior to January 27, 2014 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.126, 4.130, Diagnostic Code 9411 (2016). 2. The criteria for an increased rating of 70 percent for service-connected PTSD have been met effective January 27, 2014. . 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.126, 4.130, Diagnostic Code 9411 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in active duty from December 1943 to March 1946. This appeal comes before the Board of Veterans' Appeals (Board) from an August 2012 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In an August 2015 Board decision, the Board denied an increased rating greater than 50 percent for service-connected PTSD. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In September 2016, the Court issued an order granting the parties' Joint Motion for Partial Remand (Joint Motion) to vacate a portion of the Board's August 2015 decision on this claim and remanded the case to the Board for compliance with the Joint Motion. The Joint Motion noted the Veteran claimed in 2013 that he could not secure employment due to his PTSD. Further, in his January 2014 Disability Benefits Questionnaire, he reported he was not able to function well enough to work. Thus, the issue of entitlement to a TDIU is before the Board. It is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). There is some evidence that pre-dates the Veteran's claim for compensation, such as, for example, a June 2009 neuropsychological report. While the Veteran's medical history is certainly important, the Board will focus more on the evidence from the date of claim forward, since that is the evidence on which disability ratings are based. Turning to the evidence of record from April 29, 2011 and prior to January 27, 2014, the Veteran was afforded an initial VA psychiatric examination in July 2011. The Veteran reported his military history, with current psychiatric symptoms including sleep impairment with nightmares, intrusive thoughts, flashbacks, survivor's guilt, anxiety, and depression. He denied panic attacks and suicidal/homicidal ideation. The examiner noted that there was no significant social dysfunction. Upon mental status examination, the Veteran was alert and oriented, with anxious mood, and intact judgment and insight. There was no evidence of a thought disorder, hallucinations, or delusions; however, the Veteran did have some memory problems. The examiner concluded that the Veteran met the diagnostic criteria for PTSD as a result of his active service, with symptomatology as noted above. He noted that the Veteran's social functioning was very good and stable, his marriage was stable, and employment function was stable, although the Veteran retired years before. The examiner assigned a current GAF score of 55; however, for the Veteran's PTSD specifically, he concluded the appropriate GAF score was 65. In May 2011, the Veteran was seen for referral for mental health services. He reported disturbing memories, nightmares, flashbacks, thought avoidance, and some loss of interest in activities. The Veteran endorsed feeling emotionally numb, cut off from others, irritable, angry, hypervigilant, and jumpy. He also reported difficulty concentrating. The Veteran was seen for an initial mental health appointment in June 2011. He reported no previous mental health treatment or intervention. The psychologist noted the Veteran's presentation measures were all within expected limits except for moo and receptive language ability. He reported no suicidal or homicidal ideation. He reported increasing problems with sleep disturbance, including combat-related dreams, flashbacks, disturbing memories, memory avoidance, hypervigilance, specific and generalized anxiety, and dysphoria. He also reported being unable to engage in his profession as an artist and felt immobilized. He was seen for an Initial Psychosocial Assessment in September 2011. The Veteran reported painful and disturbing memories, memory avoidance, and hypervigilance. His appearance and presentation were within expected limits except for diminished receptive language capability. His GAF score was estimated to be 50. The Veteran continued to seek mental health treatment. From June 2011 through January 2014, his affect ranged from broad to anxious with a depressed mood. He never endorsed suicidal or homicidal ideation. In February 2012, he demonstrated diminished word finding, mental flexibility, personal names, and some long term and short term memory. His GAF score ranged from 50 to 54. The Veteran was evaluated by a private psychologist in January 2014, after which the psychologist completed a Review PTSD Disability Benefits Questionnaire (DBQ) regarding the Veteran's psychiatric condition. Therein, the psychologist diagnosed the Veteran with PTSD, major depressive disorder (MDD), generalized anxiety disorder (GAD), and assigned a current GAF score of 51. The psychologist indicated that it was possible, to some extent, to differentiate what symptoms were attributable to each psychiatric diagnosis. She attributed the Veteran's symptoms as follows: MDD - depressed mood, low appetite and energy, anhedonia, apathy, low motivation, social withdrawal, and hopelessness; GAD - anxiousness and worry, racing thoughts, muscle tension, irritability; PTSD - intrusive memories, recurrent dreams, dissociative reactions, psychological distress, physiological reactions to triggers, blocked memories, exaggerated negative beliefs, distorted cognitions, diminished interest in activities, feelings of detachment, inability to experience positive emotions, irritable behavior and angry outbursts, hypervigilance, exaggerated startle response, poor concentration, and sleep disturbances. The psychologist summarized the Veteran's level of impairment as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. She attributed 90 percent to 100 percent of the indicated level of occupational and social impairment to the Veteran's PTSD. A May 2014 letter from a private physician reported that the Veteran was being treated for depression and anxiety and that he was currently taking paroxetine for sleep issues and anxiety. The Veteran was most recently afforded a VA PTSD examination in June 2014. The examiner diagnosed PTSD and an unspecified neurocognitive disorder. He noted that the Veteran's symptoms attributable to his psychiatric diagnoses could be differentiated, and noted that symptoms of intrusive thoughts, avoidance, and alteration in mood and arousal were attributable to PTSD, while deficits in memory were attributable to the Veteran's neurocognitive disorder. The examiner summarized the Veteran's level of impairment as occupational and social impairment with reduced reliability and productivity, and he noted that it was not possible to differentiate what portion of the occupational and social impairment was caused by each diagnosed mental disorder without resorting to mere speculation. The Veteran reported current psychiatric symptoms including anxiety; suspiciousness; chronic sleep impairment; mild memory loss (such as forgetting names, directions, or recent events); circumstantial, circumlocutory, or stereotyped speech; and disturbances of motivation and mood. He also reported experiencing nightmares of his military experiences and reported flashbacks triggered by smells, sights, feel, and noises, which left him feeling "overwhelmed." Upon mental status examination, the Veteran appeared alert and oriented, with a euthymic mood and appropriate affect. His speech was normal in rate and tone; however, he was tangential and circumstantial when attempting to answer questions. There was no evidence of hallucinations, delusions, mania, or obsessive-compulsive features. He appeared to be of average intelligence, capable of abstract thinking, with fair insight, and no difficulties with activities of daily living due to his mental health diagnoses. The examiner noted that since the Veteran's previous VA examination in 2011, his psychosocial functioning had declined somewhat, with continued signs and symptoms of PTSD and neurocognitive impairment as discussed above. He concluded that the Veteran's prognosis for substantial improvement of psychiatric symptoms and functional status was poor, as he had been consistently involved in therapy and treated with psychiatric medication with minimal response. In August 2014, the Veteran was evaluated by a neuropsychologist for memory loss. It was noted that he had been in a car accident in February 2014. Afterwards, he had some emotional adjustment difficulties, and he had been tried on various medications that caused increased confusion. However, even after those medications were discontinued, he continued to have cognitive deficits. The Veteran's spouse reported that after the accident, he had experienced an increase in PTSD symptoms, including a visual hallucination, and nightmares. The Veteran denied pervasive depression or suicidal thoughts. Upon questioning, he did not endorse any of the symptoms usually associated with dementia. He described his mood as calm. The Veteran was appropriately dressed and groomed. His affect was broad in range and generally appropriate to the situation. His speech was at all times coherent, but he had some word retrieval difficulties. On a few occasions he also lost his train of thought, but could be easily redirected. The psychologist saw nothing to suggest either delirium or psychosis. After additional diagnostic testing, the conclusion was that the Veteran demonstrated moderate word-finding difficulty and dysnomia, along with a moderate memory deficit that could best be described as a retrieval problem. In terms of etiology, it was concluded that this was not likely due to any kind of concussion or traumatic brain injury from the car accident. The psychologist suspected that, first, the accident had triggered dormant PTSD symptomatology, which could have been enough to cause some confusion, and, second, the various anti-depression medications had resulted in hyponatremia, that could also cause significant cognitive dysfunction. In May 2015, the Veteran returned to the private neuropsychologist for a follow-up visit. There was concern that his memory difficulties were possibly worsening. The Veteran reported increasing social withdrawal, but the psychologist noted this was more likely due to insecurity than depression. The Veteran remained appropriately dressed and groomed, with no symptoms of delirium or psychosis. His affect was broad in range and he remained socially appropriate at all times. Following additional diagnostic testing, it was concluded that the Veteran continued to demonstrate cognitive impairment in various domains which interfered with some of his daily activities; the psychologist stated that a diagnosis of dementia was now reasonable. He noted that the cause of the dementia was likely multifactorial, but significantly, he stated that in terms of the Veteran's mood disorder, the symptoms of his PTSD appeared to be relatively less intense, although he noted potential emerging depression. He was not suicidal or psychotic. A social work comprehensive assessment dated July 2015 noted the Veteran initially denied having children from his first marriage, but his wife reminded him he had two daughters. During the assessment, the Veteran reported he wanted a job, but the social worker noted that due to his short term memory issues, gaining full time employment may not be possible. A VA treatment record dated November 2015 noted he had trouble recognizing his daughter whom he had not seen in many years and whose visit caused him a lot of stress. The psychologist noted the Veteran's memory appeared to worsen with stress. VA treatment records dated October 2016 note the Veteran had difficulty with recognizing his wife, and often asked for the "other lady," which appeared to be a younger version of his wife that he recalled better. The Veteran's speech was coherent, eye contact good, he demonstrated no unusual behavior, hallucinations, delusions, or paranoia, his mood was neutral and affect congruent, his judgment and insight were fair, and he has no suicidal or homicidal intentions. The Veteran reported wanting to be able to work but acknowledged his memory problems prevented him from working. He also expressed a desire to volunteer at his synagogue library. In June 2016, the Veteran requested a consultation to attend Side By Side Adult Day Care. The social worker noted the Veteran was very social and viewed attending the program as an opportunity to socialize with others and work on his art. However, in October 2016, the Veteran's wife reported she was considering removing the Veteran from Side By Side because he experienced difficulty when she left him there, including both a physical and emotional reaction. In June 2017, the Board sought a Veterans Health Administration expert opinion to determine whether the Veteran's symptoms due to dementia, to include his cognitive insufficiency, could be differentiated from the symptoms due to his PTSD. The examiner opined that it was not medically possible to differentiate which of the Veteran's symptoms were due to his PTSD and which were due to his dementia. Further, the examiner could not determine which symptom or symptoms of his PTSD might serve as precursors to dementia. Prior to January 27, 2014 Prior to January 27, 2017, the Veteran is not entitled to a disability rating greater than 50 percent for his service-connected PTSD. During the 2011 VA examination, he reported chronic sleep impairment with nightmares, intrusive thoughts, flashbacks, survivor's guilt, anxiety, and depression. Throughout his mental health treatment, his mood was depressed and affect ranged from broad to anxious. His depressed mood was not noted to impact his ability to function independently, appropriately, and effectively. He endorsed feelings of irritability and anger in May 2011, but did not report any angry outbursts or irritability in any of his subsequent mental health treatment. Although he reported feeling immobilized by his inability to engage in his profession as an artist, he reported only some loss of interest in activities, and disturbances in motivation and mood are contemplated by the 50 percent rating criteria. Language retention difficulty and memory deficits were noted, but he retained highly learned material. Difficulty understanding complex commands and impairment of long-term and short-term memory are also contemplated by the 50 percent rating. The Board notes that the Veteran's representative has argued the Veteran's GAF scores entitle him to a 70 percent rating for the entire period on appeal. While GAF scores are informative, the rating schedule does not assign disability percentages based solely on GAF scores and they are but one factor to be considered in conjunction with all the other evidence of record. The Veteran's representative indicated a GAF score of 50 denotes serious symptoms such as suicidal ideation, severe obsessional rituals, frequent shoplifting, or serious impairment in social, occupational, or school functioning. The Board has considered the Veteran's GAF scores; however, the Veteran did not demonstrate serious symptoms such as suicidal ideation, severe obsessional rituals, or frequent shoplifting. He additionally did not show serious impairment in social, occupational, or school functioning. The Veteran's symptoms prior to January 27, 2014 do not support an increased 70 percent rating. As such, a rating greater than 50 percent prior to January 27, 2014 is not warranted. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, since the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Beginning January 27, 2014 The Board finds that the Veteran is entitled to an increased rating of 70 percent, but not greater, effective January 27, 2014. The Board finds the Veteran's PTSD, with associated cognitive insufficiency, causes occupational impairment with deficiencies in most areas. He consistently reported sleep impairment, nightmares, flashbacks, circumstantial speech, and disturbances of motivation and mood. The Veteran occasionally reported having no motivation to paint. See VA treatment records dated May 2016 and March 2016. The June 2014 VA examiner noted the Veteran's speech was tangential and circumstantial. The August 2014 neuropsychiatric report noted the Veteran had a memory retrieval problem and lost his train of thought on a few occasions, however he could be redirected easily. Thus he has not demonstrated a gross impairment in communication. Additionally, the Veteran had difficulty adapting to the stressful situation of his daughter's visit and it was noted his memory problems worsened with stress. Although the Board finds the Veteran's PTSD, to include his cognitive insufficiency, warrants a 70 percent rating, the Veteran is not totally socially impaired. His psychologist referred to him as social and he expressed desire to join Side By Side so that he could socialize and work on his art. The Veteran also consistently reported wanting to paint more and participate in volunteer opportunities. Further, he has maintained a strong relationship with his wife, despite his increasing symptoms. A total, 100 percent schedular rating requires not only total occupational impairment due to the psychiatric symptomatology, but also total social impairment. Despite the Veteran demonstrating intermittent inability to recognize his wife, and had difficulty recalling his daughter whom he had not seen in several years, these symptoms do not warrant a 100 percent disability rating. The Veteran does not have gross impairment in thought process or communication, as his speech is generally goal directed. His judgment and insight are fair. He does not demonstrate inappropriate behavior, and there is no danger he will hurt himself or others. He is able to maintain his own personal hygiene including bathing, dressing, and grooming. While he relies on his wife to help cue his memory and drive him to doctor's appointments, his PTSD symptoms do not cause total occupational and social impairment. As such, the Board finds that the Veteran's PTSD most closely approximated the 70 percent disability rating effective January 27, 2014, but at no time have the Veteran's symptoms met the rating criteria for a higher 100 percent disability rating. He has not demonstrated other symptoms of similar severity, frequency, and duration in order to warrant an increased disability rating in excess of 70 percent for any time after January 27, 2014. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). ORDER Entitlement to an initial rating greater than 50 percent for service-connected PTSD prior to January 27, 2014, is denied. Entitlement to an increased rating of 70 percent for service-connected PTSD for the period beginning January 27, 2014, is granted, subject to the laws and regulations governing monetary awards. REMAND The Veteran submitted a private employability evaluation in November 2016. The Veteran's wife reported that by 2007 he was having difficulties hearing due to his service-connected tinnitus and was experiencing interpersonal conflicts, which caused him to become irritable. She stated his irritability resulted in lower class enrollment, which led to his termination. However, as most of the Veteran's employment information was relayed to the examiner by the Veteran's wife, the Board finds more development is necessary before a determination on entitlement to a TDIU can be made. There is actually no objective evidence that verifies the string of events that the Veteran's wife states led to him losing his job, and much of her statement and the vocational assessments discuss the Veteran's hearing loss, which he is not service-connected for. The Veteran should be advised that he can submit statements from his former employers, or former co-workers, that would corroborate the circumstances in which he left his employment in 2007. The record indicates the Veteran worked for Sears in the 1970s before taking early retirement. From 1984 through approximately 1992, he was employed as an art instructor at Kendall College. He then worked a variety of sales jobs until he obtained employment at East Grand Rapids Recreational Center from 2003 through 2007 as a part-time art instructor. Since the Veteran only recently submitted a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, the RO has not yet had an opportunity to obtain the Veteran's employment records. Since the Veteran does not allege he left his positions with Sears or Kendall College due to his service-connected conditions, there is no need to solicit those records. He does state, however, that he left his position with East Grand Rapids Recreational Center because of his service-connected disabilities. If the Veteran would like VA to consider any of his records from his prior employers, or any employer other than East Grand Rapids Recreational Center, he can complete additional forms for the RO to do so. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. After obtaining consent from the Veteran, the RO should obtain copies of any employment records from East Grand Rapids Recreational Center (or from any other former employer the Veteran feels relevant). The employer should note the beginning and ending dates of any employment; time lost from gainful employment due to his service-connected disabilities; and whether any concessions were made to the Veteran because of his service-connected disabilities. The specific reason for his termination should be reported. 2. Advise the Veteran he can submit lay statements from his former supervisors, employers, or co-workers describing the circumstances that led to him leaving his job in 2007, or any other personal observations about the Veteran's behavior in the work place. 3. Then, after completing the above and any other development deemed necessary, readjudicate the claim. If benefits sought on appeal are denied, provide a supplemental statement of the case to the Veteran and his representative. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs