Citation Nr: 1752420 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 10-31 432 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to a disability evaluation in excess of 50 percent for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) and major depressive disorder. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Eric A. Gang, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Christopher M. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1966 to May 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Subsequent to the continuance of a 50 percent rating for PTSD in the July 2008 decision, the Veteran requested an increased rating for his PTSD in August 2008 and in February 2009, claims which were denied in October 2008 and May 2009 rating decisions, respectively. The Veteran's appeal of his increased rating claim was denied in a September 2012 Board decision, which he appealed to the United Stated Court of Appeals for Veterans Claims (Court). In August 2013, pursuant to a Joint Motion for Partial Remand, the Court issued an Order that remanded the part of the Board's decision denying an increased rating for PTSD to the Board for further proceedings. Thereafter, in November 2014 the Board remanded the increased rating claim to the RO for further development. Following the issuance of a June 2017 supplemental statement of the case which continued the denial of an increased rating, the case was returned to the Board for its adjudication. The TDIU claim was found to be raised pursuant to Rice v. Shinseki, 222 Vet. App. 447 (2009) in the Board's prior November 2014 remand. The Veteran was given appropriate notice regarding the newly raised claim and it was properly adjudicated by the RO via the June 2017 supplemental statement of the case which denied the TDIU claim. The Board notes that in the October 2008 and May 2009 rating decisions, the RO denied service connection for PTSD. The Veteran directly appealed that issue to the Board in his substantive appeal submitted in July 2010, and the issue on appeal has remained one of an increased rating for PTSD during the entire pendency of the claim. As a function of the Board's de novo review authority, the Board has characterized the Veteran's claim for PTSD as a claim for an acquired psychiatric disorder, to include PTSD and major depressive disorder. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (VA has an obligation to consider whether possible mental disorders are service connected if those disorders are indicated by the evidence in the record even if a veteran's claim does not specifically identify those disorders and instead identifies a distinct but related mental disorder.). In November 2011, the Veteran testified before the Board at a video conference hearing. A copy of the transcript has been associated with the claims file. FINDINGS OF FACT 1. The Veteran's acquired psychiatric disorder is shown to be productive of occupational and social impairment with reduced reliability and productivity due to symptoms not adequately contemplated by the criteria for a 50 percent evaluation; however, the disorder does not result in total social and occupational impairment. 2. The evidence of record shows that the Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The criteria for a 70 percent rating for an acquired psychiatric disorder, to include PTSD and major depressive disorder, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.17, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for TDIU have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). The Board also notes that, to the full extent possible, and in regards to those issues not being remanded, VA complied with all prior remand instruction requests, and there exist no deficiencies in VA's duties to notify and assist in that regard. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order); but see D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required). Acquired Psychiatric Disorder Disability evaluations are determined by considering a Veteran's present symptomatology in light of VA's Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule are numerical representations of the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their subsequent effect on civilian life after discharge. 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In every instance where the rating schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The Veteran currently is assigned a 50 percent disability rating pursuant to the General Rating Formula for Mental Disorders as outlined in 38 C.F.R. § 4.130, Diagnostic Code 9411 (for PTSD). Under the General Rating Formula, a rating of 50 percent is warranted if it is productive of 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 compete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating may be assigned 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); and inability to establish and maintain effective relationships. A 100 percent schedular evaluation contemplates total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Specifically with regards to evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign a rating 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. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. See 38 C.F.R. § 4.126. Furthermore, ratings are assigned according to the manifestation of particular symptoms. The use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase 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 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). When determining the appropriate disability evaluation to assign for psychiatric disabilities, however, the Board's "primary consideration" is the Veteran's symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). In treating and evaluating mental disorders under the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, 4th edition (DSM-IV), mental health professionals assign a Global Assessment of Functioning (GAF) score. The GAF scale is a scale of psychological, social, and occupational functioning on a hypothetical continuum of mental health and illness. Assessments on the GAF scale are not to include impairment in functioning due to physical or environmental limitations. Clinicians have assigned the Veteran GAF scores ranging from 49 to 65, with most scores near 50. GAF scores of 41 to 50 are for serious symptoms (e.g., suicidal ideation, severe obsessional rituals) or serious impairment in social or occupational functioning (e.g., no friends, unable to keep a job). GAF scores of 51 to 60 are for moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social or occupational functioning (e.g., few friends, conflicts with peers or co-workers). Upon consideration of the record, the Board finds that the preponderance of the evidence warrants increasing the evaluation of the Veteran's acquired psychiatric disorder to 70 percent. To begin, the Veteran has inconsistently endorsed both suicidal and homicidal ideation tied to his emotional state and the circumstances of his daily life. For example, in a May 2008 outpatient record he described an altercation at work and admitted that he was still very angry about the incident with active homicidal ideation. Similarly, the Veteran noted in a September 2009 outpatient record that he had recently been suspended at work for exhibiting anger toward another employee at work. He reported experiencing problems with anger and irritability causing him difficulties at work on the June 2010 VA examination. During the November 2011 hearing before a Veterans Law Judge, the Veteran detailed several past incidents where he acted with anger towards a fellow employee with intent to harm or even kill them. He also admitted that he had suicidal thoughts and had a plan for acting on those thoughts. The Veteran has also endorsed experiencing hallucinations during the pendency of the appeal. In a series of outpatient records from May 2008 he detailed vivid auditory and visual hallucinations tied to his experiences in service. He also reported a history of experiencing auditory and visual hallucinations on both the March 2009 and June 2010 VA examinations. In addition, during the June 2010 examination the Veteran reported that his mental health issues have impaired his ability to maintain personal hygiene and have interrupted his daily functioning. Most importantly, the Veteran has demonstrated significant difficulty in handling stressful situations as well as in maintaining effective relationships. As discussed, he has reported several instances while he was still working when he got into altercations with fellow employees and was reprimanded for that behavior, to include being put on probation in 2009. Although he has acknowledged being in a long-term relationship for several years, he has never lived with his girlfriend and has indeed lived on his own during the entire period of the appeal. He has also consistently reported having one friend that he visits with on occasion. Other than these limited social interactions, he has maintained that he prefers to be alone and that he avoids large crowds and people that he is not familiar with. This additional symptomatology, when taken together with the symptomatology already encompassed by the current 50 percent rating, to include the Veteran's noted depression, difficulty sleeping, and memory issues, warrants an increase of the disability rating for the Veteran's acquired psychiatric disorder to 70 percent. The 70 rating, which corresponds to occupational and social impairment with deficiencies in most areas, correlates with the GAF scores assigned to the Veteran during the pendency of the appeal that clustered around 50. It also correlates with the findings of all three VA examiners who have evaluated the Veteran while this case was on appeal, as each examiner noted the Veteran's difficulty in maintaining effective occupational and social relationships and remarked on his history of symptoms including suicidal and homicidal ideation, visual and auditory hallucinations, and difficulty adapting to stressful situations, especially in the work environment. The Board does not find, however, that the disability picture for the Veteran's acquired psychiatric disorder warrants a 100 percent rating at any time during the appeal. Although the Veteran has a history of hallucinations as well as suicidal and homicidal ideations, this symptomatology has manifested only intermittently at best, and he has gone long periods of time without reporting any of those symptoms. Furthermore, while the Veteran has acknowledged some memory loss and an inability to perform activities of daily living, to include a history of failing to maintain personal hygiene at times, for the most part the Veteran has not exhibited such symptoms to more than a mild degree. On his most recent VA examination in June 2016, he reported no memory issues or difficulties maintaining his personal hygiene, and detailed that he regularly attends to activities of daily living. There is also no evidence of disorientation to time or place or severe memory loss. The Board acknowledges that Dr. A.I. in his June 2014 evaluation found evidence that the Veteran was routinely neglecting his personal hygiene and showed considerable cognitive impairment, with slow psychomotor skills as well as deficits in concentration and in impulse control. However, on all three VA examinations a mental health evaluation revealed only mild symptoms of attention difficulties and memory impairment and no evidence of psychomotor impairment as detailed by Dr. A.I. Furthermore, Dr. A.I.'s finding that the Veteran exhibited routine neglect of his personal hygiene is based solely on the Veteran's reporting of failing to attend to personal hygiene three or four times a month during the June 2010 examination; at no other point did the Veteran endorse neglecting personal hygiene or exhibit such neglect. In summation, the Board finds that the significant impairment encompassed by the 70 percent rating criteria most closely corresponds with the disability picture for the Veteran's acquired psychiatric disorder. During the entire pendency of the appeal he has demonstrated difficulties in social and occupational functioning reflected in the relative paucity of close relationships he has with other people as well as his long history of conflict with fellow employees when he was still working. That being said, he has not shown the severe, debilitating impairment encompassed by the 100 percent disability rating. As reflected most recently on the June 2016 examination, he still attends to activities of daily living, he maintains some interpersonal relationships, and he seeks out regular therapy that combined with his medication allow him to achieve some regular functioning while still living on his own. In short, the Veteran is not wholly incapacitated by his acquired psychological disorder, and the 70 percent rating reflects that. To this extent, the appeal is granted. TDIU VA will grant TDIU when the evidence shows that a veteran is precluded by reason of a service-connected disability or disabilities from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16. The relevant issue is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Advancing age, any impairment caused by conditions that are not service-connected, and prior unemployability status must be disregarded when determining whether a veteran is currently unemployable. 38 C.F.R. §§ 4.16(a), 4.19. TDIU may be assigned when the schedular rating is less than total, where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Where the percentage requirements for TDIU are not met, a total disability rating may nevertheless be assigned on an extraschedular basis when the veteran is unable to secure or follow a substantially gainful occupation as a result of his or her service-connected disability or disabilities. 38 C.F.R. § 4.16(b). The Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Instead, the Board must refer any claim that meets the criteria for referral for consideration of entitlement to a TDIU on an extraschedular basis to the Director of Compensation and Pension Service. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). With the Board's decision to assign a 70 percent rating for an acquired psychiatric disorder, the Veteran qualifies for consideration for TDIU on a schedular basis under 38 C.F.R. § 4.16(a). However, the Veteran would still only be entitled to TDIU if the evidence demonstrates that he was unable to secure or follow substantially gainful employment as a result of his service-connected disabilities. Upon review of the claims file, the Board finds that the preponderance of the evidence is in support of a determination that the Veteran was unable to secure substantially gainful employment as a result of his service-connected disabilities from November 18, 2011, the date of his last day of employment with his former employer. As detailed in his most recent VA examination, dated in June 2016, the examiner found that the Veteran's acquired psychiatric disorder resulted in significant difficulty in establishing and maintaining effective work relationships as well as difficulty in adapting to stressful work circumstances. This was exemplified by the Veteran's report of being involved in several workplace disputes which resulted in reprimands and suspensions on numerous occasions in the years leading up to his decision to retire in November 2011. The June 2016 VA examiner's opinion was that due to the Veteran's irritability, concentration difficulties, and sleep impairment, he would perform best in a job in which he worked alone, had few competing job demands, and few interruptions; in essence, a realistically unobtainable job for an individual with the Veteran's employment and educational background. This conceptualization of the Veteran's occupational impairment and job prospects was corroborated by the two evaluations submitted by the Veteran from private assessors. In his June 2014 assessment, Dr. A.I. detailed the Veteran's own reported workplace issues during his last few years of work from 2009 to 2011, which included several verbal altercations. According to the Veteran he was reprimanded three times during his last year of work for acting out in anger towards fellow employees. After reviewing the Veteran's medical history and self-reported difficulties maintaining concentration and reacting appropriately to stressful workplace situations, it was Dr. A.I.'s opinion that the Veteran should not have been working during the final few years of his employment before his retirement, and that it was only the poor judgment of his manager that allowed him to remain in his position. Dr. A.I. also found that the Veteran continued to work beyond the point that it was healthy to do so as he viewed his regular employment as a coping mechanism for the symptoms of his acquired psychiatric disorder. Similarly, in a January 2017 vocational assessment, a J.C., who identified herself as a vocational expert, concluded that the Veteran, as due to his acquired psychiatric disorder, would only be able to obtain "marginally sheltered employment", defined as employment that does not adhere to the standards of a competitive workplace environment. For all of these reasons, the Board finds that it is at least as likely as not that the Veteran would not be able to secure and follow a substantially gainful occupation, and TDIU is accordingly granted. ORDER A disability rating of 70 percent, but no more, is granted for an acquired psychiatric disorder, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to TDIU is granted. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs