Citation Nr: 1752027 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 10-46 568 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to an increased initial disability rating for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), mood disorder not otherwise specified, with anxiety, depressed mood and alcohol abuse, rated as 30 percent disabling prior to February 19, 2013 and as 50 percent disabling thereafter. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to acquired psychiatric disorder and diabetes mellitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD I. Altendorfer, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1966 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The RO in Boise, Idaho certified the appeal to the Board. The Veteran's claims file remains in the jurisdiction of the Boise RO. In a July 2017 rating decision, the RO granted entitlement to service connection for alcohol abuse, secondary to service-connected acquired psychiatric disorder, effective February 26, 2008. The symptoms attributable to alcohol abuse cannot be distinguished from other service-connected psychiatric disabilities. Accordingly, evaluation of the Veteran's claim under Diagnostic Code 9411 encompasses symptoms associated with alcohol abuse. See Mittleider v. West, 11 Vet. App. 181(1998); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). In February 2013 and January 2015, the Board remanded the current issues for further evidentiary development. In regards to the increased rating claim, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998). The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). VETERAN'S CONTENTIONS The Veteran contends that the current evaluation of his service-connected acquired psychiatric disorder fails to fully capture the severity his disability. The Veteran reports symptoms of anxiety, depression, isolation, and alcohol abuse. Specifically, the Veteran details how PTSD and alcohol abuse has impacted his occupation as a tax preparer. He explains that in the last ten years he has experienced increased difficulty concentrating and difficulty learning new material. In addition, the Veteran reports that his error rate increased in the last 10 years. In turn, his clientele and income diminished. The Veteran's spouse, daughter, sons, and co-worker submitted statements, reporting the Veteran's irritability, isolative behavior, and difficulty to maintain personal relationships, anxiety, obsessive compulsive behavior, and anger. FACTUAL FINDINGS 1. During a June 2017 VA examination, the Veteran reported that he worked for 38 years has a tax preparer. On April 15, 2016, the Veteran retired. 2. During a September 2008 VA examination, the Veteran reported difficulty concentrating, experiencing intrusive thoughts, and exhibiting obsessive compulsive counting behaviors. The examiner observed signs of depression and anxiety. The examiner estimated the Veteran's level of function on the Global Assessment of Function (GAF) Scale at 48. This score considered the Veteran's whole psychiatric disability, to include symptoms of PTSD. 3. During an August 2010 VA examination, the Veteran reported intrusive thoughts, depression, and weekly "anxiety-types of attacks that are triggered by noises." The examination report indicated that the Veteran's psychosocial stressors include "[a]lcohol abuse and dependence with collateral interpersonal relationship problems with his [sic] wife and children." The examiner estimated the Veteran's level of function on the GAF Scale at 48. 4. During a May 2012 VA examination, the Veteran endorsed symptoms of suspiciousness, which were attributed to PTSD, and symptoms of anger, irritability, paranoia, which were attributed to alcohol abuse. The examiner opined that the Veteran's symptoms were not severe enough either to interfere with occupation and social functioning or to require continuous medication. The examiner estimated the Veteran's level of function on the GAF Scale at 65. 5. In April 2013, a VA treating clinician reported that the Veteran experienced anger, irritability, anxiousness, depressed mood, chronic sleep difficulty with occasional nightmares, isolating and avoiding behavior, survivor guilt, flattened affect, difficulty to maintain effective work and social relationships, and emotional numbness. The VA clinician opined that the Veteran's psychiatric disability resulted in "increased" occupational and social impairment with reduced reliability and productivity. The clinician estimated the Veteran's level of function on the GAF Scale at 48. 6. During a July 2014 VA examination, the Veteran endorsed symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, circumstantial speech, impaired judgment, impaired abstract thinking, disturbances of motivation and mood. The VA examiner found that the Veteran's psychiatric disability "significantly interfere[s] with the productivity and quality of his work . . . ." The examiner noted that the Veteran's disability "is not severe enough to preclude all types of competitive full time employment, but it does very significantly interfere with his work as a tax preparer . . . ." The examiner observed the Veteran presenting fluent speech, poor memory, appropriate behavior, angry mood, and a reactive affect. 7. During a June 2017 VA examination, the Veteran endorsed symptoms of anxiety, chronic sleep impairment, flattened affect, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work-like setting. The Veteran reported isolating himself from friends. 8. In an April 2013 Application for Increased Compensation Based on Unemployability, the Veteran reported working as a tax preparer and listed earned income for the years between 2008 and 2013, from January through April of each year. The Veteran reported the following highest gross earnings per month for each year: $8,518.00 in 2008, $6,933.00 in 2009, $6,344.00 in 2010, $5,765 in 2011, and $5,182.00 in 2012. 9. Between 2008 and 2013, the Veteran's reported highest gross earnings per month declined by $3,933.00, or 46.17%. 10. The Veteran's reported highest gross earnings per month between 2008 and 2013 remained above the average poverty threshold. 11. Throughout the claim period, the Veteran reported his psychiatric disability impacted his ability to effectively perform as a tax preparer, citing concentration difficulties, trouble learning new information, reduced ability to maintain a high attention to detail, increased errors in tax preparation documents, fines levied against the Veteran from the Internal Revenue Service for reported errors, and difficultly retaining clients. 12. Prior to the Veteran's reported retirement on April 15, 2016, the Veteran's psychiatric disability resulted in functional limitation most closely approximating occupational and social impairment with reduced reliability. 13. The Veteran has denied hallucinations and delusions, and the examiners did not observe such. 14. Since April 15, 2016, the Veteran's PTSD has resulted in functional limitation most closely approximating occupational and social impairment with deficiencies in most areas. Specifically, the evidence demonstrates social and occupational impairment with deficiencies in work, family relations, and judgment. LEGAL CONCLUSION The criteria for an initial evaluation of 50 percent, beginning February 26, 2008, and 70 percent, beginning April 15, 2016 for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION As indicated above, the Board finds that prior to April 15, 2016 a higher rating of 50 percent is warranted based on social and occupational impairment with reduced reliability. In addressing why the criteria for a schedular rating higher than 70 percent are not met, the record does not reflect deficiencies in work, mood, or thinking prior to April 15, 2016. In regards to the Veteran's occupation, the Veteran reported increased difficulties concentrating and learning new tax law, as well as, a decline in personal income. Pursuant to Diagnostic Code 9411, impairment due to an acquired psychiatric disability must impact both occupationally and socially. 38 C.F.R. § 4.130 (2017). Here, the record reveals that the Veteran continued to manage a business as tax preparer, retain clients, and earn an income, despite his psychiatric disability. The Board finds that the Veteran's occupational impairment amounted to reduced reliability until he retired. In regards to the Veteran's mood and thinking, the record reveals that the Veteran's mood has been "good" and the Veteran's thought processes intact. Specifically, VA treatment records in May 2010, June 2010, November 2010, July 2011, November 2011, November 2012, December 2014, and July 2015 documented the Veteran's mood to be good or better and thought content to be goal directed. The Board acknowledges the Veteran's reports of suicidal ideations during the period under review. However, as evidenced by the Veteran's continued employment as a tax preparer until April 2016 as well as treatment records that characterized the Veteran's mood as euthymic and thought processes as intact, the Board concludes that the occurrence of suicidal ideations, in combination with the other aforementioned symptoms, did not in this case result in social and occupational impairment with deficiencies in most areas, such that a rating higher than 50 percent is warranted prior to April 15, 2016. A higher rating of 70 percent, however, is warranted based on social and occupational impairment with deficiencies in most areas from April 15, 2016. In addressing why the criteria for a schedular rating higher than 70 percent are not met, the record does not reflect that the Veteran has demonstrated the symptoms associated with a 100 percent rating, or other symptoms of similar severity, frequency, and duration. For example, the Veteran has denied experiencing hallucinations and delusions, and the examiners did not observe such. In determining that the criteria for a 100 percent rating are not met, the Board has considered the lay assertions, including the Veteran's own statements. It notes that those statements primarily describe symptoms, such as unprovoked irritability with episodes of verbal outbursts, depression, familial difficulties, difficulty concentrating, anxiety, difficulty to maintain work as a tax preparer as well as isolation, which are contemplated by the 70 percent, rather than the 100 percent, rating criteria. In any event, to the extent entitlement to a 100 percent rating based on those symptoms is claimed, the Board concludes that the findings during medical evaluation, which do not reflect total occupational and social impairment, are more probative than the lay assertions of record. The Board has accordingly relied heavily on the VA examinations and VA treatment showing limitation of function that, at most, approximates the criteria for a 70 percent evaluation. In short, based on the evidence and analysis above, the Board finds the criteria for a rating of 50 percent for PTSD, but no higher, are met prior to April 15, 2016 and the criteria for a rating of 70 percent, but no higher, are met thereafter. ORDER An increased rating of 50 percent for an acquired psychiatric disorder is granted, effective February 26, 2008. An increased rating of 70 percent for an acquired psychiatric disorder is granted, effective April 15, 2016. REMAND While further delay is regrettable, additional development is necessary prior to adjudication of the Veteran's claim for entitlement to a TDIU. VA will grant a TDIU when the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. See 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. The term "substantially gainful employment" means "employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides." See Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). In other words, it is an occupation "that provides annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income . . . ." Faust v. West, 13 Vet. App. 342, 356 (2000). Here, the record reveals inconsistencies as to whether the Veteran maintains gainful employment. Specifically, the June 2017 VA examination documented the Veteran's report that he retired on April 15, 2016 as a tax preparer. However, in July 2017 Statement of Accredited Representative in Appealed Case, the Veteran's representative stated "PTSD prevents him from maintaining gainful employment. He tries to do a little seasonal work; however, he loses time because of PTSD." In order resolve the discrepancy as to whether to Veteran continues to maintain gainful employment, the Veteran's claim must be remanded for an additional opinion regarding the functional impact of the Veteran's PTSD and alcoholism on his ability to obtain and maintain substantially gainful employment. Accordingly, the case is REMANDED for the following action: 1. Update the file with any VA treatment records relevant to the Veteran's claim from February 2008 to the present. If any requested records are unavailable, the Veteran and his representative should be notified of such. 2. Provide the Veteran a copy of an Application for Increased Compensation Based on Unemployment. Instruct the Veteran to complete the application and provide an updated employment history, to include employment within the 5 last years. The Veteran should specifically be instructed to submit copies of proof of income, such as income tax returns for 2013 to the present, if he alleges he has earned less than $12,000 per year since 2013. Provide the Veteran a reasonable time to complete the application and return it to the AOJ. 3. After the above has been completed to the extent possible, attempt to obtain an addendum opinion from the June 2017 VA examiner. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request. The examiner is asked to evaluate the extent to which the Veteran's service-connected disabilities (PTSD, alcoholism, diabetes mellitus, and hypertension), separately, or in combination, have impaired his ability to meet the demands of a job, either sedentary or physical, at any time during the course of the appeal. The examiner's opinion should include an evaluation of the limitations and restrictions imposed by his service-connected impairments on such routine work activities as interacting with coworkers; sitting, standing, and walking; plus lifting, carrying, pushing, and pulling. 4. Then, readjudicate the claim for entitlement to TDIU. 5. If any benefit sought remains denied, for any pending claim, furnish the appellant and his representative with a supplemental statement of the case. A reasonable period should be allowed for response before the appeal is returned to the Board. Finally, return the case to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters 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. §§ 5109B, 7112 (2012). ______________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs