Citation Nr: 1751677 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 12-27 399A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to an initial 70 percent rating for posttraumatic stress disorder (PTSD) for the period prior to November 15, 2007. 2. Entitlement to a TDIU rating for the period prior to January 21, 2011. REPRESENTATION Veteran represented by: West Virginia Department of Veterans Assistance WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran served on active duty from April 1969 to November 1970. He served in the Republic of Vietnam (RVN) from September 1969 to November 1970. These matters are before the Board of Veterans' Appeals (Board) on appeal, in part, from a December 2010 rating decision of the Huntington, West Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA). By that rating action, the RO granted service connection for PTSD and assigned an initial 50 percent rating, effective March 28, 2005. The Veteran disagreed with the initial 50 percent rating. By an August 2012 rating action, the RO assigned a 70 percent rating to the service-connected PTSD, effective November 15, 2007. In January 2017, the Veteran testified at a video conference hearing before the undersigned Veteran Law Judge. A copy of the hearing transcript is of record. During the hearing, and with respect to the initial rating claim on appeal, the Veteran testified that he was solely seeking entitlement to an initial 70 percent rating for PTSD for the period prior to November 15, 2007. Transcript (T.) at pages (pgs.) 4, 7. Thus, the Board has characterized the initial rating claim on appeal to accurately reflect the Veteran's contention as indicated on the title page. Also, during the hearing, the Veteran raised the issue of entitlement to an award of a TDIU rating for the period prior to January 21, 2011. T. at page (pg.) 3. In a November 2011 rating decision, the RO granted a TDIU rating, effective January 21, 2011. As the issue of entitlement to a TDIU is part and parcel of the Veteran's claim for a higher initial rating for PTSD and the evidence shows that he was last employed on a full-time basis on February 26, 2010, the Board finds that the issue of entitlement to a TDIU rating for the period prior to January 21, 2011 is properly before the Board. See Rice v. Shinseki, 22 Vet. App. 447 (2009). FINDINGS OF FACT 1. For the period prior to November 15, 2007, the Veteran's PTSD has been productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; but not total occupational and social impairment. 2. The Veteran has been unable to secure or follow substantially gainful employment as a result of his service-connected PTSD since February 27, 2010, the day after he was last employed on a full-time basis. CONCLUSIONS OF LAW 1. For the period prior to November 15, 2007, the criteria for an initial rating of 70 percent, but no more, for PTSD have been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for an award of a TDIU rating have been met beginning February 27, 2010. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Introductory Matters At the outset, the Board finds that its duty to notify and a duty to assist claimants in substantiating a claim for VA benefits has been met. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). In addition, the Veteran also offered testimony before the undersigned Veterans Law Judge at a Board hearing in January 2017. The Board finds that all requirements for hearing officers have been met. 38 C.F.R. § 3.103(c)(2) (2017); Bryant v. Shinseki, 23 Vet. App. 488 (2010). II. Entitlement to an initial 70 percent rating for PTSD for the period prior to November15, 2007 The Veteran seeks an initial disability rating of 70 percent for PTSD for the period prior to November 15, 2007. The Veteran maintains that his PTSD symptoms have remained constant since the inception of his appeal in March 2005 and, thus, an initial 70 percent rating is warranted from the date of VA's receipt of his original claim on March 28, 2005. See T. at pgs. 4-7. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2017). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2017). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2017). After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2017). The Veteran's service-connected PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411 (2017). That DC uses the General Rating Formula for Mental Disorders. Under that DC, a 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood, due to such symptoms as: suicidal ideations; 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 worklike setting); and the inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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. However, the symptoms recited in the criteria in the rating schedule for evaluating mental disorders are "not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). "[A] veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The symptoms shall have caused occupational and social impairment in most of the referenced areas. Vazquez-Claudio, 713 F.3d 112. When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126. In addition, the evaluation must be 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 the examination. 38 C.F.R. § 4.126 (2017). Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score. The GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). The GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See, e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which must provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126 (a). The Board also notes that the GAF scale was removed from the more recent DSM-V for several reasons, including its conceptual lack of clarity, and questionable psychometrics in routine practice. See DSM-V, Introduction, The Multiaxial System (2013). By a December 2010 rating decision, the RO granted service connection for PTSD; an initial 50 percent rating was assigned, effective March 25, 2008. The Board finds that the evidence of record supports a determination that the Veteran's PTSD symptoms warrant an initial disability rating of 70 percent for the period prior to November 15, 2007. As for the severity of the Veteran's PTSD for the period prior to November 15, 2007, his treating clinicians at the local VA treatment center and Vet Center indicated that it had reached a level that had resulted in social and occupational impairment with deficiencies in most areas, including work, family relations, judgment, thinking or mood. See Vet Center reports, prepared in March 2005 and November 2009; and April 2005 VA treatment report. As for the duration of the PTSD symptoms, in March 2005 and November 2009 reports, the Veteran's Vet Center treating clinicians had characterized his PTSD as chronic and severe from his initial diagnosis at that facility in January 2005. These clinicians, as well as an April 2005 VA clinician, collectively determined that the Veteran had angry outbursts that had interfered with his occupational and marital relationships. Notably, an April 2005 VA treatment report reflects that the Veteran reported having been verbally abusive in his relationship with his wife. The above-cited Vet Center and VA treatment reports also disclose that the Veteran had fragile social supports and had described himself as a "loner" with no close relationships, hobbies or interest. As for the frequency of his PTSD symptoms, the Veteran indicated at his January 2017 Board hearing that they had remained constant since the inception of his appeal in March 2005. Confirming the severity, frequency, and duration of the Veteran's PTSD symptoms is a November 2009 Vet Center report. In that report, the clinician opined that the Veteran had moderate to severe social isolation and avoidance, marked inability to maintain effective social and work relationships, and a history of marital conflict. An April 2005 VA treatment report disclosed that the Veteran reported having had suicidal thoughts without a plan. Although the March 2005 Vet Center clinician reported that the Veteran had had suicidal and homicidal ideations, these were found to have been separate manifestations of other psychiatric disorders, such as major depression and anxiety disorder. While there does not appear to be obsessional rituals which interfere with the Veteran's routine activities during the prescribed period on appeal, near-continuous depression has been shown, as well as difficulty in adapting to stressful circumstances (including his former employment with the West Virginia Department of Transportation). As such, the Veteran has displayed many, but not all, symptoms listed as examples under the 70 percent rating criteria. Resolving all doubt in favor of the Veteran, the Boards finds that the overall level of impairment during the appeal period is best reflected by an initial disability rating of 70 percent for the period prior to November 15, 2007. The Board finds, however, that the preponderance of the evidence of record is against an initial 100 percent rating for the period prior to November 15, 2007. First, although there is significant social and occupational impairment, that impairment does not more nearly approximately total impairment. As noted above, despite his occupational discord caused by his PTSD during the period prior to November 15, 2007, the Veteran remained employed. He also remained married for over three decades with two children. Furthermore, he did not exhibit inappropriate behavior, persistent delusions or hallucinations, disorientation to time or place, or memory loss for names of close relatives, occupation, or his own name. Finally, the Veteran's thought processes and communication were not noted to be grossly impaired. As such, the Veteran's PTSD does not warrant an initial 100 percent rating for the period prior to November 15, 2007. The Board also considered the Veteran's lay statements in reaching these determinations. The Veteran is competent to report his psychiatric symptoms, including depression, anxiety, difficulty with interpersonal and occupational relationships, irritability, problems with anger, and social isolation. See Jandreau v. Nicholson, 492 F.3d 1372, 1366-67 (Fed. Cir. 2007). The Board also finds his statements to be credible and consistent with the initial 70 percent rating for the period prior to November 15, 2007 assigned herein. To any extent he argues his symptomatology is more severe, his statements must be weighed against the other evidence of record. Here, the specific examination findings of trained healthcare professionals are of greater probative weight than the Veteran's general lay assertions. III. Entitlement to a TDIU rating for the period prior to January 21, 2011 The Board also finds that the Veteran's service-connected PTSD has rendered him unable to secure and follow a substantially gainful occupation beginning February 27, 2010, the date after he was last employed on a full-time basis. It is the established policy of the 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. A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Entitlement to a TDIU is based on an individual's particular circumstances. 38 C.F.R. § 4.16; Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). Thus, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history, but not his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R.§§ 3.341, 4.16, 4.19 (2017); see also Todd, 27 Vet. App. at 85-86; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable at 40 percent or more, and there is sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In this decision, the Board granted the Veteran an initial 70 percent disability rating for his PTSD for the period prior to November 15, 2007. During the appeal period, the Veteran has been service connected for the following disabilities (in addition to his PTSD): (i) bilateral hearing loss (rated as 30 percent disabling); and, (ii) tinnitus (rated as 10 percent disabling). Therefore, the schedular criteria for an award of TDIU has been met throughout the relevant period because the Veteran had a service-connected disability rated at 40 percent or more and additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16. The Board finds that the evidence of record demonstrates that the Veteran's service-connected PTSD rendered him unable to secure or follow substantially gainful employment as of February 27, 2010, the day after he was last employed on a full time basis. The record shows that since leaving the military, the Veteran worked full-time for the Department of West Virginia Highways. See VA Form 21-8940, Veterans Claim for Increased Compensation Based on Unemployability. He reports that he was terminated from that position because of his PTSD symptoms. Since that time, the Veteran has not attempted to seek gainful employment. (See December 2013 VA Form 21-4140, Employment Questionnaire. The Board will resolve reasonable doubt and find that the Veteran is entitled to a TDIU rating beginning February 27, 2010, the date after he was last employed on a full-time basis. As noted in the PTSD analysis above, as for the duration of the PTSD symptoms, in March 2005 and November 2009 reports, the Veteran's Vet Center treating clinicians characterized his PTSD as having been chronic and severe from his initial diagnosis at that facility in January 2005. These clinicians, as well as an Apri 2005 VA clinician, collectively determined that the Veteran had angry outbursts that had interfered with his occupational and marital relationships. Evidence confirming these reports includes a May 2011 VA examiner's opinion that the Veteran's chronic PTSD had impacted his ability to function in physical or sedentary employment environment. Conversely, a Social Security Administration (SSA) report reflects that that agency had found the Veteran to have been disabled as of December 26, 2010 based on primary and secondary diagnoses of osteoarthrosis and allied disorder and affective disorders, respectively. The Board finds that the evidence of record establishes that since February 27, 2010--the date after the Veteran was last employed on a full-time basis, his PTSD, acting alone, has rendered him unable to secure and follow a substantially gainful occupation. Although the Board has considered the evidence showing other disabilities have also rendered him unemployable, the Board finds that the evidence supports a finding that his PTSD alone has rendered him since that date. This is primarily shown by the comments of medical professionals, the opinions of which have been discussed herein. Here, the Board notes that this determination is not inconsistent with its determination that the Veteran's PTSD does not result in total occupational and social impairment prior to November 15, 2007. ORDER Entitlement to an initial disability rating of 70 percent, but no more, for PTSD for the period prior to November 15, 2007 is granted, subject to the laws and regulations governing the disbursement of monetary benefits. Entitlement to a TDIU rating, effective from February 27, 2010, is granted subject to the laws and regulations governing the disbursement of monetary benefits. ____________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs