Citation Nr: 1753434 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 09-04 940 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Casadei, Counsel INTRODUCTION The Veteran served on active duty from May 1968 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. By way of procedural background, in an October 2015 decision, the Board denied entitlement to an initial rating in excess of 50 percent for PTSD. The issue of entitlement to TDIU was remanded to the Agency of Original Jurisdiction (AOJ) for referral to the Director, Compensation and Pension Service for consideration of whether a TDIU is warranted on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b) (2017). The Veteran appealed the Board's October 2015 decision to the Veterans Claims Court. In August 2016, the Court Clerk granted the parties' Joint Motion for Partial Remand, vacated that portion of the Board's October 2015 decision which denied an initial rating in excess of 50 percent for PTSD and remanded the matter for further development and readjudication. In March 2016, a determination from the Acting Director Compensation Service was received on the matter of TDIU on an extraschedular basis and, in March 2016, the RO issued a supplemental statement of the case (SSOC) with respect to this issue. In October 2016, the matter was returned to the Board's docket. The matters were most recently before the Board in March 2017, at which they were remanded for further development. Upon completion of that development, the matters were readjudicated in a September 2017 SSOC. The case was thereafter returned to the Board. FINDINGS OF FACT 1. The Veteran's PTSD disability more nearly approximated occupational and social impairment, with deficiencies in most areas, such as work, judgement, thinking, and mood. 2. For the entire initial rating period on appeal, the Veteran's PTSD has not been manifested by total social impairment. 3. For the rating period beginning July 1, 2008, PTSD prevented the Veteran from obtaining or maintaining a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a 70 percent rating, but not higher, for PTSD have been met for the initial rating period on appeal. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.21, 4.126, 4.130, Diagnostic Code (DC) 9411 (2017). 2. The criteria for entitlement to a TDIU beginning July 1, 2008, have been met. 38 U.S.C.A. § 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating for PTSD Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). A 70 percent rating is 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 that is 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. 38 C.F.R. § 4.130. A 100 percent rating is assigned 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; and memory loss for names of close relatives, or for the veteran's own occupation or name. In applying the above criteria, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability. See 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181 (1998) (citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so)). In determining the level of impairment under 38 C.F.R. § 4.130, a rating specialist is not restricted to the symptoms provided under the diagnostic code, and should consider all symptoms which affect occupational and social impairment, including those identified in the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM-IV or DSM 5). See Mauerhan v. Principi, 16 Vet. App. 436 (2002). If the evidence demonstrates that a claimant suffers symptoms or effects that cause an occupational or social impairment equivalent to those listed in that diagnostic code, the appropriate, equivalent rating is assigned. See id. Within the DSM-IV, Global Assessment Functioning (GAF) scale scores ranging from 1 to 100 reflect "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996). GAF scores from 71 to 80 reflect transient symptoms, if present, and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family arguments); resulting in no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind school work). GAF scores from 61 to 70 reflect some mild symptoms (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. GAF 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 obsession rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, inability to keep a job). GAF scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech which 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., a depressed patient who avoids friends, neglects family, and is unable to do work). DSM-IV at 46-47. Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM-IV. The amendments replace those references with references to the recently updated "DSM-5." As the Veteran's claim was certified to the Board prior to August 4, 2014, the DSM-5 is not applicable to this case. Nonetheless, according to the DSM-5, clinicians do not typically assess GAF scores. The DSM-5 introduction states that it was recommended that the GAF be dropped from DSM-5 for several reasons, including its conceptual lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice. In reviewing the evidence of record, the Board will consider the assigned GAF score; however, the Board is cognizant that GAF scores are not, in and of themselves, the dispositive element in rating a disability. Rather, GAF scores must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a) (2017). Upon review of the evidence of record, PTSD symptoms result in occupational and social impairment with deficiencies in most areas such as work, family relations, judgement, thinking, and mood. Evidence relevant to this determination shows that in October and November 2006, the Veteran presented to VA for psychological testing and an initial mental health consultation. Regarding his psychiatric symptomatology, he reported recurrent and intrusive memories about his experiences in Vietnam which caused him significant distress, avoidance of conversations, thoughts, and feelings about the events in service, a loss of interest in previously pleasurable activities, feelings of emotional detachment; a moderate sense of foreshortened future, sleep difficulties, and problems concentrating; and hypervigilance. It was indicated that his symptoms caused him "moderate" distress and "severe" social and "moderate" occupational impairment. The Veteran reported that he had been married six times and stated that his trust issues and emotional detachment were the reasons his past marriages had ended. He stated that he felt close to his current wife, as well as to his oldest daughter, but reported only occasional contact and a fair relationship with his other children. The clinician diagnosed PTSD and major depressive disorder and assigned a GAF score of 55, indicative of moderate symptoms or moderate difficulty in social, occupational, or school functioning. Private treatment records were also obtained that show that the Veteran began psychiatric treatment with E.H., M.D., in June 2006. His initial assessment notes that he was experiencing nightmares 3-4 times week, flashbacks daily, panic attacks lasting 1-2 minutes 3-4 times a day, night sweats 3-4 times a week, exaggerated startle response, hypervigilance, memory problems, and intrusive thoughts. Also indicated was spontaneous feelings of fear, anger, and sadness, feelings of helplessness, worry, and mood swings. Feelings of hopelessness and thoughts of suicide were denied. At that time, Dr. E.H. prescribed medications and assigned a GAF score of 35, reflective of some impairment in reality testing or communication or major impairment in several areas such as work or school, family relations, judgment, thinking, or mood. The Veteran presented for a follow-up assessment in July 2006 at which time he reported an improvement in symptomatology due to the prescribed medications and a GAF score of 60 was assigned, indicative of moderate symptoms or moderate difficulty in social, occupational, or school functioning. Records dated thereafter (through December 2012) indicate the recurrence of symptoms initially reported, varying in frequency and duration, with the occasional addition of feelings of hopelessness. The assigned GAF scores ranged from 45-50, indicative of serious symptoms or any serious impairment in social, occupational or school functioning. In a letter dated on December 27, 2012, Dr. E.H. noted that the Veteran's PTSD was manifested by hypervigilance, exaggerated startle response, moderate short-term memory impairment, depression, anger, sadness, and fear. Dr. E.H. assigned a GAF score of 40 and stated that because of his PTSD, the Veteran was moderately compromised in his ability to sustain social relationships and unable to sustain work relationships. It was Dr. E.H.'s opinion, therefore, that the Veteran was totally and permanently disabled. The Veteran was afforded a VA examination in January 2009. At that time, he reported that he was experiencing anxiety, depression, insomnia, irritability, mood swings, decreased energy, and crying spells, all of which had improved with treatment, to include four prescription medications, from his private clinician. He also reported panic attacks 1-2 times per week and flashbacks and nightmares 4 times per week. Upon mental status examination, the Veteran was alert, oriented, and cooperative, and the examiner found no gross signs of a thought disorder, loosened associations, flight of ideas, hallucinations, delusions, obsessions, compulsions, or phobias. Suicidal and homicidal ideation was denied, but it was indicated that he had an increased startle response, was hypervigilant, demonstrated interpersonal guardedness, and exhibited a decreased interest in activities, feelings of detachment and estrangement, emotional numbness, and an exaggerated startle response. It was also noted that he had a sense of foreshortened future. Occupationally, it was noted that the Veteran was no longer working. He reported that he had quit working on account of increasing fatigue, anxiety, and difficulty with attention and concentration. He reported missing one or two days of work per month in the last year because of PTSD symptomatology. From a social standpoint, he reported that he was able to conduct activities of daily living, such as dressing, bathing, and feeding himself, without difficulty. It was noted that he lived with his wife and stepdaughter and that he socialized outside of the home with the two of them once a month. He also reported attending church. Overall, the examiner assigned a GAF score of 50 and opined that the symptomatology resulted in moderate impairment of social and occupational functioning. The Veteran was afforded another VA examination in January 2013. Regarding the symptoms of his PTSD, the examiner noted depressed mood, anxiety, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood. Specifically, he reported feeling sad and down, stating that the feeling came and went. He reported occasional crying spells but was unable to indicate their frequency and stated that when thinking back about his life, he thought that it could have been better. He denied having hobbies or engaging in pleasurable activities, other than going to church twice a month. He also reported difficulty concentrating, stating that he has trouble comprehending what he reads. He indicated having no energy and endorsed sleep disturbances, as well as nightmares 3-4 times a week. The Veteran further reported symptoms of hypervigilance. Suicidal and homicidal thoughts and ideation were denied but it was noted that he had experienced suicidal ideation in 2010 but had no plan or intent at that time. He also stated that he experienced hallucinations, but the examiner indicated that the Veteran's description of such was not typical of a psychotic hallucination. Rather, it was felt that the Veteran's account was demonstrative of hypervigilance. In terms of social functioning, the January 2013 VA examiner indicated that the Veteran reported that he had experienced some significant marital discord in the past year, but that it had since improved. He stated that he and his wife began marriage counseling and felt that his marriage was better. He stated that he had good relationships with two of his daughters and with his step-daughter, but that he had no contact with his adult son. He also indicated being close with his grandchildren. He reported having one friend with whom he occasionally spoke. In terms of occupational functioning, the Veteran stated that he had not worked since 2008. Factors leading to his decision to retire included feeling more stress at work in addition to the job itself changing. The examiner indicated that currently, the Veteran may experience problems with attention and concentration, as well as fatigue related to chronic sleep problems and depression that could impede his ability to complete tasks on time. It was also noted that he would have problems with interpersonal relationships with his co-workers and supervisors due to his avoidance behaviors. Overall, the examiner indicated that PTSD symptomatology was moderate and that it resulted in occupational and social impairment with reduced reliability and productivity, and a GAF score of 55 was assigned. In private treatment records dated from 2012 to 2016, the Veteran continuously reported daily nightmares, flashbacks, and chronic sleep impairment. His mood was generally noted to be depressed, irritable, and flat. Further, in an August 2016 treatment record, he was noted to have a flat affect and was more depressed. The examiner indicated "no socialization." Further, these private treatment records consistently noted a GAF score of 45 from 2012 to 2016, indicative of serious symptoms or any serious impairment in social, occupational or school functioning. Upon review of all the evidence of record, both lay and medical, the evidence is in equipoise as to whether PTSD more nearly approximates a 70 percent rating (i.e., occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood) for the initial rating period on appeal. The VA and private treatment records discussed above reveal that PTSD has been manifested by depression, nightmares, flashbacks, night sweats, anxiety, panic attacks, sleep impairment, near-continuous depression, and occasional suicidal ideation in 2010. Some of these symptoms are specifically included in the 70 percent rating criteria under DC 9411 and more nearly approximate occupational and social impairment, with deficiencies in most areas, such as work, thinking, and mood. Moreover, the Veteran's GAF scores throughout the examinations discussed above range from 35 to 60, with the most common at 45, indicative of moderate to serious symptoms or moderate to serious impairment in social, occupational or school functioning. Accordingly, and resolving reasonable doubt in his favor, a 70 percent rating for PTSD is warranted for the rating period on appeal. Nonetheless, for the entire rating period on appeal, PTSD symptomatology does not more nearly approximate the criteria for a 100 percent rating. The Veteran's PTSD symptoms do not more nearly approximate total social impairment and do not contemplate the symptomology considered under the 100 percent rating criteria. The evidence shows that he remains married and has relationships with his children. He has reported that he socialized outside of the home with his family once a month. He also indicated that he was close with his grandchildren and attends church. In reaching this conclusion regarding the degree of occupational and social impairment, the Board has considered all the Veteran's psychiatric symptoms and impairment, whether or not the symptom is specifically listed in the rating criteria, considering such symptoms as "like or similar to" the symptoms in the rating criteria. See Mauerhan, 16 Vet. App. at 442 (stating that the symptoms listed in VA's general rating formula for mental disorders is 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, and that, without those examples, differentiating between rating evaluations would be extremely ambiguous); Vazquez-Claudio, 713 F.3d at 116-17 (the rating criteria under § 4.130 is "symptom-driven" and "a veteran may only qualify for a given rating under [this criteria] by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration"). With this in mind, the evidence shows that the Veteran's overall PTSD picture is already adequately contemplated by the 70 percent rating granted herein. The Veteran does suffer from disturbance of motivation and mood (depression and anxiety), and sleep impairment, but these symptoms are specifically contemplated in the 30, 50, and 70 percent rating criteria. The same is true with the rare suicidal ideation, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships, which are symptoms specifically contemplated under the 70 percent PTSD rating. The GAF scores are also consistent with social and occupational deficiencies in areas, such as work, thinking, and mood. For these reasons, the evidence does not demonstrate total social impairment and does not more nearly approximate the symptoms contemplate under the 100 percent rating criteria. Accordingly, a 70 percent rating for PTSD, but no higher, is warranted for the entire initial rating period on appeal. TDIU A veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A total rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In determining whether a veteran is entitled to a TDIU, neither his or her nonservice-connected disabilities nor age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The test of individual unemployability is whether a veteran, as a result of his or her service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his education and occupational experience. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. The evidence indicates that the Veteran may be unemployable due to his service-connected PTSD. In his December 2012 TDIU application (VA Form 21-8940), he reported that PTSD prevented him from securing or following any substantial gainful employment. He reported completing 2 years of college education. He specifically stated that he last worked and became too disabled to work in July 2008. Accordingly, the Board will only consider whether entitlement to a TDIU is warranted for the period beginning July 1, 2008, the date he contends he became too disabled to work and the date he last worked full-time. See VA Form 21-8940. Regarding the rating period beginning July 1, 2008, the Veteran is in receipt of a 70 percent rating for PTSD (granted herein). Therefore, the 70 percent PTSD rating is sufficient to meet the schedular criteria for TDIU under 38 C.F.R. § 4.16(a). The evidence relevant to the Veteran's unemployability includes a December 2012 statement from Dr. E.H., his treating psychiatrist since June 2006. Dr. E.H. specifically indicated that, "because of this service connected PTSD [the Veteran] is moderately compromised in his ability to sustain social relationships and he is unable to sustain work relationships. Therefore I consider him permanently and totally disabled and unemployable." This medical opinion to be highly probative as to the Veteran's employability as Dr. E.H. has been treating the Veteran for his PTSD disability for over 10 years. Further, during the January 2009 VA examination, it was noted that the Veteran was no longer working. He reported that he had quit working on account of increasing fatigue, anxiety, and difficulty with attention and concentration. He reported missing one or two days of work per month in the last year because of his PTSD symptomatology. In the January 2013 VA PTSD examination, the Veteran stated that he had not worked since 2008. Factors leading to his decision to retire included feeling more stress at work. The examiner indicated that the Veteran experienced problems with attention and concentration, as well as fatigue related to chronic sleep problems and depression that could impede his ability to complete tasks on time. It was also noted that he would have problems with interpersonal relationships with his co-workers and supervisors due to his avoidance behaviors. Based on this evidence, in addition to the Veteran's work history and educational level, and resolving reasonable doubt in his favor, entitlement to a TDIU is warranted effective July 1, 2008, the date the Veteran last worked. Finally, VA has met all statutory and regulatory notice and duty to assist provisions and the Veteran has not asserted otherwise. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). ORDER For the entire initial rating period on appeal, a 70 percent rating, but no higher, for PTSD is granted, subject to the laws and regulations governing monetary benefits. Beginning July 1, 2008, a TDIU is granted, subject to the laws and regulations governing monetary benefits. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs