Citation Nr: 1751311 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 12-33 940A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent for posttraumatic disorder (PTSD) for the period prior to April 19, 2011, in excess of 50 percent for the period from April 19, 2011 to August 30, 2012, and in excess of 70 percent thereafter. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Christopher Loiacono, Agent WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Hendricks, Associate Counsel INTRODUCTION The Veteran had active duty service from January 2001 to May 2002 and from August 2004 to January 2006. This matter is before the Board of Veterans' Appeals (Board) on appeal from January 2011 and December 2013 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. During the pendency of the appeal, in a September 2012 rating decision, the AOJ awarded the Veteran a 50 percent evaluation for his PTSD effective April 19, 2011, and a 70 percent evaluation effective August 31, 2012. The Board has therefore recharacterized the issue on appeal in order to comport with that award of benefits. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in April 2016. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Throughout the appeal period, the symptoms associated with the Veteran's PTSD resulted in no more than occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. CONCLUSION OF LAW The criteria for establishing a 70 percent evaluation, but no higher, throughout the appeal period for the Veteran's PTSD have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2016). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2016); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2016); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2016); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2016). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the claimant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran was initially awarded service connection for PTSD from September 13, 2007; subsequently, he filed his claim for an increased evaluation in August 2010. Thus, the Board will undertake analysis of the claim for an increased evaluation for PTSD based on evidence since August 2009, one year prior to the Veteran's claim for an increase. The Veteran's PTSD has been evaluated as 30 percent disabling for the period prior to April 19, 2011, 50 percent disabling for the period from April 19, 2011 to August 30, 2012, and 70 percent disabling thereafter. Those evaluations are assigned under Diagnostic Code 9411. Under Diagnostic Code 9411, which is governed by a General Rating Formula for Mental Disorders, a 10 percent evaluation is warranted for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders, Diagnostic Code 9411 (2016). A 30 percent rating is warranted for 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; mild memory loss (such as forgetting names, directions, recent events). See Id. A 50 percent rating 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. See Id. 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); inability to establish and maintain effective relationships. See Id. A 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 danger of hurting self or others; 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. See Id. The Board is mindful that the lists of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet App 436, 442-3 (2002). On the other hand, if the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443. The United States Court of Appeals for the Federal Circuit has embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). One factor for consideration in evaluating mental disorders is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)). A GAF score of 61 to 70 indicates some mild symptomatology (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, with some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Scores ranging from 41 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). Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). During his April 2016 Board hearing, the Veteran reported he has had anger problems, impatience, unsociability, panic attacks, hypervigilance, and depression since 2010. The Veteran also testified that he suffered from suicidal thoughts during the period from August 2010 through August 2012. Further, the Veteran reported that he had been employed on and off throughout the appeal period, had been reprimanded several times at work, and was forced to resign from several jobs. He reported that he was getting into verbal and physical altercations with people about every week. Additionally, he reported he had a hard time remembering people, names, and places, suffered from panic attacks and sleep impairment, and had problems socializing. Turning to the clinical evidence, the Veteran underwent a VA psychiatric examination in September 2010. The Veteran reported that since his last visit, he had jumped around to several jobs. He reported he feared killing someone if he stayed in law enforcement and he kept a machete on the front seat of his car with occasional violent thoughts about using it. The Veteran stated he spent a lot of time in the woods alone to decompress. He reported his sleep remained disturbed and restless. Further, the Veteran stated he was estranged from his wife for over a year, but that he had a relationship with his children. He reported having jumped from different police departments for work due to his loss of temper and telling people off that resulted in job terminations. Additionally, the Veteran reported he experienced panic attacks with shortness of breath, chest pain, increased heart rate, and hyperventilation. He reported he avoids groups of people and does not like when cars follow him, but that he had no clear feelings of persecution or paranoid delusions. The examiner noted the Veteran was independent in his activities of daily living. On examination, the Veteran's general appearance was normal, and he was well-dressed and groomed. He was cooperative, his communication was intact, his speech was normal, and his psychomotor activity was within normal limits. He maintained good eye contact, mood and affect were normal, and thought processes were linear. The Veteran's thought content revolved around his concern with his loss of temper and his violent thoughts, but there was no suicidal intent or evidence of psychosis. The examiner noted his memory, insight, judgment, and cognitive function were all normal. The examiner assigned a GAF score of 68, and opined that the severity of the Veteran's PTSD was mild to moderate. In August 2010, the Veteran reported irritability, anger issues, and sleep disturbances. Additionally, he reported not being able to keep a job, and that in the eight years prior, he had worked in six different departments. The Veteran stated he was concerned that he gets so irritated with people that something might happen, but denied any current specific plan or intent. In September 2010, the Veteran was hyper aroused and reported having difficulty in relating to others due to the stressors he encountered on a daily basis. He reported he was fearful of losing control when he was at work and had begun to avoid certain incidents to prevent losing his job due to an angry outburst. The Veteran stated he found it difficult to engage in social "chit chat," and that he often hurt people's feeling before realizing what he has said. In October 2010, the Veteran reported he still gets irritated easily, but denied acting on it. He adamantly denied any suicidal or homicidal ideation, or any auditory or visual delusions. He reported he had been working and denied any issues at work. On examination, the Veteran was casually dressed and neatly groomed, his mood was pleasant and appropriate, his speech was normal, and his thought process and content were also both normal. VA treatment notes in December 2010 showed the Veteran reporting that he still had temper problems which would "come and go." He reported people's stupidity made him angry, but denied feeling depressed or having any suicidal ideations. He reported he still had nightmares and intrusive thoughts, but was sleeping well. However, the Veteran did report that he had killed his cat while sleeping a week prior. On examination, the Veteran was casually dressed, fairly well-groomed, his mood was appropriate, his affect was congruent to his mood, his speech was normal, his thought process was coherent, his thought content was normal, and he reported no auditory or visual hallucinations. In January 2011, the Veteran reported he was looking for a part time job to supplement his income, that his mood was stable, and that while he continued to experience irritability toward people, he was better able to tolerate people now with his current medication regime. He denied any hallucinations, homicidal or suicidal ideations, and the examiner noted he was stable, clean, and cooperative. In April 2011, the Veteran reported having panic attacks, feeling lightheaded, and having chest pain at work. He stated the panic attacks had been occurring for two years, but were getting worse. He reported he was employed by a sheriff's department, but often felt anxious and angry at work. He stated he had worked in every department of law enforcement in the area and had been asked to resign because of his behavior. He reported poor concentration that interfered with his ability to complete reports in a timely fashion, and that he had low tolerance for the criminals he worked with and injustice he saw. He also noted he experienced nightmares. On examination, the Veteran's appearance was neat and well-groomed. His mood was anxious and irritable, and his affect was congruent with his mood. His speech and thought content were normal, and he denied any psychotic symptoms. His judgment and insight were fair, and he denied any suicidal ideation. The examiner noted the Veteran described feeling so angry that he wants to hurt, but not kill people. The examiner's assessment was that the Veteran experienced symptoms of PTSD that were interfering with his work, relationships, and overall mental health. In early June 2011, the Veteran reported he continued to experience panic attacks, usually while driving, which consisted of pain in the center of his chest and heavy breathing. On examination, the Veteran was neat and well-groomed, his mood was anxious and sad, and his affect was congruent to his mood. He reported poor sleep, but denied any psychotic symptoms. The Veteran underwent a second VA psychiatric examination in August 2012. The examiner noted in recent history that the Veteran had been warned several times for behavioral problems as a police officer, and had become unemployed two months prior to the examination. Further, the Veteran reported having legal problems due to his anger/behavior issues. The examiner stated the Veteran's symptoms included depressed mood, anxiety, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work-like setting, inability to establish and maintain effective relationships, suicidal ideation, impaired impulse control, spatial disorientation, and persistent danger of hurting self or others. Specifically, the Veteran reported he pulled a gun on another police officer and had begun to squeeze the trigger. On examination, the Veteran had normal cognitive functioning with decreased concentration and impairment in short-term memory, an anxious mood with flat affect, good eye contact, normal speech, was appropriately groomed, but reported suicidal ideations daily with no plan to hurt himself. The examiner opined that the Veteran's PTSD symptoms caused occupational and social impairment with reduced reliability and productivity. The Veteran underwent a third VA psychiatric examination in March 2015. The Veteran reported that he had limited interaction with his children, seeing them only once a month. He reported that he was currently employed as a probation and parole officer and had been since August 2014. The Veteran indicated his symptoms included panic attacks once or twice a week, restlessness, anxiety, fear of crowds, nightmares, sleep problems, irritability, experiencing anger outbursts, fatigue, and a poor appetite. The Veteran denied any suicidal or homicidal ideations, and also denied any hallucinations. The examiner noted the Veteran's symptoms included depressed mood, anxiety, panic attacks, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work like setting. On examination, the Veteran's cognitive functioning was normal, he had an anxious mood with congruent affect, short-term memory impairment, concrete thought processes, poor eye contact, and normal speech. The examiner opined that the Veteran's PTSD symptoms caused occupational and social impairment with reduced reliability and productivity. The Veteran underwent a private psychiatric examination in August 2016. On examination, the Veteran appeared quite anxious and depressed. The examiner noted he appeared fidgety throughout the session, and he spoke in a low, monotone voice. The examiner formally assessed the Veteran's mood with the Beck's Depression Inventory-II, and found the Veteran had clinically significant symptoms of severe depression and anxiety. Further, the examiner noted the assessment indicated the Veteran felt sad all the time, experienced anhedonia, had difficulty making decisions, had poor concentration, fatigue, feelings of restlessness and worthlessness, as well as guilt and irritability. The Veteran denied any suicidal or homicidal ideations, plans, or intent. He reported nearly daily alcohol consumption. The Veteran also reported episodes of flashbacks, to include a recent flashback where he saw a dead animal on the side of the road that triggered visions of dead and dismembered bodies he had witnessed during combat. The Veteran also indicated nightmares and episodes of hypervigilance. Further, the Veteran complained of a loss of control when he gets angry, and reported during these episodes, he cannot remember what he did or said. He stated that during an incident on the job as a police officer, he shot and killed a woman, but stated he only remembered half the episode. He stated he has a constant fear that he is going to lose control and hurt someone, and reported numerous episodes of road rage and confrontations. Specifically, he reported pulling out a gun on a group of six people in a Walmart parking lot. Additionally, the Veteran reported panic attacks a few times a month with physical manifestations, as well as ongoing episodes of flashbacks. The examiner concluded that the Veteran's PTSD symptoms have remained quite severe since 2006. The examiner indicated that after a comprehensive review of the Veteran's VA medical records and examinations, the Veteran has experienced consistent, severe PTSD symptoms of disturbing nightmares, hypervigilance, irritability, angry outbursts with dangerous, acting out behaviors, emotional numbness, social withdrawal and numerous flashbacks since at least 2010. The examiner noted that the Veteran's work history of employment with numerous law enforcement agencies and his inability to successfully maintain consistent employment due to his mental health impairments related to his PTSD and gave further evidence that he has had a consistent pattern of severe PTSD since at least 2010. The examiner opined that the Veteran has total occupational and social impairment in all domains of his life, to include family relations, work, and social relationships. Based on the foregoing evidence, the Board finds that a 70 percent evaluation, but not higher, is warranted throughout the appeal period. The Board notes that currently, the basis of the award of 70 percent is the August 2012 VA examination; however, in review of the noted symptoms in that examination and the evidence of record prior to that time, particularly the VA treatment records and the September 2010 examination report, the Board cannot find any discernable difference in symptomatology described during those periods of time. Specifically, the Veteran was reporting panic attacks, depression, irritability, impaired impulse control, to include unprovoked irritability with periods of violence, difficulty in adapting to stressful circumstances, particularly at work, and inability to maintain effective relationships prior to the August 2012 VA examination. See Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (holding that "it is the information in a medical opinion, and not the date the medical opinion was provided that is relevant when assigning an effective date"). Additionally, the Board finds that the evidence subsequent to the August 2012 VA examination continues to support a 70 percent evaluation. In the March 2015 VA examination report, the Veteran continued to report depressed mood, anxiety, panic attacks, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. These symptoms remain commensurate with a 70 percent evaluation under Diagnostic Code 9411. Moreover, while the August 2016 private examiner opined that the Veteran had total occupational and social impairment in all domains in his life, the Board finds that this opinion has little probative value. While the Veteran reported severe symptoms during the examination, to include impaired impulse control with periods of violence, anhedonia, nightmares, poor concentration, depression, and hypervigilance, he did not report gross impairment in thought processes or communication, persistent delusions or hallucinations, inability to perform activities of daily living, disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name. Further, the Board notes that the Veteran did report at the August 2016 examination that he had a constant fear that he was going to lose control and hurt someone, and that he had numerous episodes of confrontations. The Board also notes that the record reflected that the Veteran has reported anger problems and violent thoughts as early as his September 2010 VA examination. However, the Board still cannot find that the Veteran had total occupational and social impairment or was in persistent danger of hurting himself or others at any point during the appeal period. The examiners consistently stated the Veteran was independent in his activities of daily living, that he was appropriately dressed and groomed, fully oriented, and that he was cooperative during examinations. Further, while the overall evidence in the record showed that the Veteran reported irritability, some verbal and physical altercations with people, anger issues, and violent thoughts, he also consistently reported that he had no homicidal or suicidal plans, or any psychotic symptoms. Additionally, although the Veteran reported he had to be moved to several different departments in law enforcement, he seemed to remain employed full-time throughout the majority of the appeal period. The Board does also note that at the August 2012 VA examination, the VA examiner noted that the Veteran's symptoms included being in persistent danger of hurting himself or others, and that the Veteran had been unemployed for two months due to behavioral problems. However, the record showed that these symptoms appeared to be short-lived; at the March 2015 VA examination, the Veteran reported he was employed again as a probation and parole officer, and had been since 2014. Additionally, while the March 2015 VA examiner indicated that the Veteran had difficulty establishing and maintaining effective work and social relationships, there was no indication of continued persistent danger of hurting self or others. Thus, based on the above, the Board gives little weight to the August 2016 private examiner's opinion, as it seems to be contradicted by the weight of the objective and clinical findings of record, and cannot find that the Veteran's symptomatology reflects a total occupational and social impairment at any point during the appeal period. Thus, the Board must find that an evaluation higher than 70 percent is not warranted for the Veteran's PTSD. Accordingly, the Board finds that a 70 percent evaluation, but no higher, for the Veteran's PTSD is warranted throughout the entire appeal period. See 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. In so reaching that conclusion, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C.A. § 5107 (b) (West 2014); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER A 70 percent evaluation, but no higher, throughout the appeal period for the Veteran's PTSD is granted. REMAND The Board finds that additional development and clarification is needed before final adjudication of the Veteran's TDIU claim can be completed. At the Veteran's April 2016 Board hearing, the Veteran reported that he had been employed on and off since 2009, had been reprimanded several times at work, and was forced to resign from several jobs. In August 2010, the Veteran reported he was not able to keep a job. However, in a VA treatment note in October 2010, the Veteran reported he had been working, and denied any issues at work. Further, in April 2011, the Veteran reported he was employed by a sheriff's department. At his VA examination in August 2012, he reported he had become unemployed two months prior to the examination; however, he subsequently reported at his March 2015 VA examination that he was currently employed as a probation and parole officer and had been since August 2014. Based on the above, it currently remains unclear what periods of time during the appeal period, if any, the Veteran was not engaged in full-time employment. Thus, the Board finds a remand is necessary for the AOJ to fully develop the TDIU claim, to include obtaining a full employment history from the Veteran throughout the entire appeal period. Accordingly, the case is REMANDED for the following action: 1. The AOJ should properly complete development of the TDIU claim, to include providing the Veteran with VCAA notice and VA Form 21-8940, as appropriate. The AOJ should also obtain a full employment history from the Veteran throughout the entire appeal period. 2. Following any indicated development, the AOJ should review the claims file and readjudicate the Veteran's claim for entitlement to TDIU. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. 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). ______________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs