Citation Nr: 1754776 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 12-33 387A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total rating based on individual employability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Casadei, Counsel INTRODUCTION The Veteran served on active duty from September 2001 to March 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. Below the Board increases the rating for the Veteran's PTSD to 70 percent. The issues of entitlement to a rating higher than 70 percent for PTSD and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT For the entire rating period on appeal, the Veteran's PTSD has been manifested by occupational and social impairment with deficiencies in most areas such as work, judgment, thinking, and mood. CONCLUSION OF LAW For the entire rating period on appeal, the criteria for a disability rating of 70 percent for PTSD have been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist In this case, 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). Disability Rating Criteria 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. § 1155 (2012); 38 C.F.R. § 4.1 (2017). 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 (2017). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2017). As is the case here, where entitlement to compensation has already been established and an increase in the disability 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). In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Veteran is in receipt of a 50 percent rating for PTSD under DC 9411 for the entire rating period on appeal. Under such diagnostic code, a 50 percent rating is assigned 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability 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. A 100 percent disability 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, the Board notes that, 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. 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 argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). 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 (depressed patient who avoids friends, neglects family, and is unable to do work). 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. However, 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). Increased Rating Analysis for PTSD By way of procedural background, the Board notes that the Veteran submitted an informal claim for an increased PTSD rating in January 2011. The Veteran contends that his PTSD disability is more severe than what is contemplated by the currently assigned 50 percent disability rating and states that his symptoms are compatible with a 70 percent rating. The pertinent evidence of record includes a January 2011 memorandum from the Veteran's Vocational Rehabilitation Counselor (VCR). The purpose of the memorandum was to provide information concerning the status of the Veteran's Chapter 31 case. According to the VCR, and due to the Veteran's worsening effects of his service-connected disabilities, it was "not feasible" for the Veteran to achieve a vocational goal and was noted to not profit from vocational rehabilitation services at that time. VA treatment records include October 2011 mental health psychiatry clinic notes. At that time, the Veteran reported increased anxiety and depression. He also indicated that he had nightmares and flashbacks and would isolate himself in his room. The Veteran reported feelings of hopelessness, decreased concentration, and poor energy. In a separate October 2011 treatment note, the Veteran reported that interaction with people were irritating and increased his anger. He noticed himself unable to cope with normal activities and self-medicated with marijuana, which allowed some interaction with others versus total isolation. The Veteran was afforded a VA examination in April 2011. During the evaluation, the Veteran reported that he was not married and had no current romantic relationship. He indicated that he was living with a roommate, but was planning to return to living with his parents. The Veteran also reported having a few friends and watched sports with them a few times a week. He enjoyed reading, playing videogames, and writing. Upon mental status examination, the Veteran's mood was described as "scatterbrained," and his affect was appropriate. The Veteran also reported that his symptoms fluctuated and indicated that he sometimes did not leave the house for a week. Other symptoms included sleep impairment, irritability with aggressive thoughts, depressed mood, reduced appetite, and indicated that he was "completely apathetic" about his wellbeing. He also indicated that he had some short-term memory problems. Regarding the Veteran's occupational impairment, the examiner noted that the Veteran was currently unemployed and had worked at a fast food restaurant for about 6-8 months. He also indicated that he had submitted applications for employment, but had not been hired. The Veteran also specifically indicated that he did not believe that he was unemployed due to the effects of his mental disorder. The examiner indicated that the Veteran was not considered unemployable due to PTSD symptoms. A GAF score of 60 was assigned, indicative of moderate symptoms or moderate difficulty in social, occupational, or school functioning. The Veteran underwent another VA PTSD examination in October 2016. During the evaluation, the Veteran reported living with his parents, his sister, and her 3 children. He also reported seeing his friends on Saturday or Sunday to watch football. The Veteran stopped working in 2008 and reported that his jobs included part-time work at various fast food and gas stations. He stated that he "just stopped going" to work at the fast food restaurant and indicated that he was terminated from his previous gas station job, but could not remember the details as to why he was terminated. During the day, the Veteran reported that he tried to do yard work, played video games and was less inclined to engage in social activities than in the past. Current symptoms were noted to include depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood. The examiner also noted that the Veteran endorsed depressed mood that had become more persistent over the past year. The Veteran had reduced appetite and passive thoughts of death. Irritability and anger were also endorsed. The Veteran also reported chronic sleep impairment with nightmares about 1-2 times a week. The examiner noted that the Veteran's symptoms caused reduced occupational reliability and productivity. Further, the Veteran's irritability was noted to intermittently disrupt his interpersonal interactions on the job and the Veteran was noted to have difficulty in highly demanding positions. Social Security Administration (SSA) disability records indicate that the Veteran was granted SSA benefits due to, in part, affective and mood disorders from September 2009 to March 2014. In a March 2012 report of psychological evaluation, the Veteran was noted to have a depressed mood with anxious affect. A GAF score of 50 was assigned, indicative of serious symptoms or any serious impairment in social, occupational or school functioning. The evidence from the SSA also includes a February 2014 psychiatric evaluation where the Veteran reported anxiety, paranoia, depression, and irritability. The Veteran indicated that he would not be able to work because he would become frustrated and would "flip out" on other co-workers and could not control his temper. Upon review of all evidence of record, both lay and medical, the Board finds that the evidence is in equipoise as to whether the Veteran's PTSD more nearly approximates a 70 percent disability rating (i.e., occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood) for the entire rating period on appeal. The treatment records and psychiatric examinations discussed above reveal that the Veteran's PTSD has been manifested by depression, some social isolation, anxiety, sleep impairment, mild memory loss, nightmares, near-continuous depression, and irritability and anger. He has also some occasional thoughts of death and feelings of hopelessness. Some of these symptoms are specifically included in the 70 percent rating criteria under Diagnostic Code 9411 and more nearly approximate occupational and social impairment, with deficiencies in most areas, such as work, judgment, thinking, and mood. Moreover, the Veteran's GAF scores throughout the rating period on appeal have varied, ranging between 50 and 60, indicative of moderate to severe symptoms or moderate to severe impairment in social, occupational or school functioning. Accordingly, and resolving any reasonable doubt in the Veteran's favor, the Board finds that the criteria for a 70 percent rating for PTSD are approximated for the entire rating period on appeal. 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 disability 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 contemplated by the 70 percent rating granted herein. The Veteran does experience 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 Veteran's passing thoughts of death, and difficulty in adapting to stressful circumstances, which are symptoms specifically contemplated under the 70 percent PTSD disability rating. The Veteran's GAF scores are also consistent with social and occupational deficiencies in areas, such as work, thinking, and mood. Finally, the Board notes that neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER For the entire rating period on appeal, a 70 percent rating for PTSD is granted, subject to the laws and regulations governing monetary benefits. REMAND Regarding the claim for a TDIU, further development is required to assist in determining whether the Veteran is unemployable due to his service-connected disabilities. The Veteran's VCR in January 2011 stated that it was "not feasible" for the Veteran to achieve a vocational goal. During the April 2011 VA examination, the Veteran reported that he was unemployed for the last 3-4 years. He also indicated that he had submitted applications for employment, but had not been hired. However, the Veteran specifically indicated that he did not believe that he was unemployed due to the effects of his mental disorder. Nevertheless, the October 2016 VA examiner noted that the Veteran's mental health symptoms caused reduced occupational reliability and productivity. Further, the Veteran's irritability may intermittently disrupt his interpersonal interactions on the job and the Veteran was noted to have difficulty in highly demanding positions. This evidence suggests that the Veteran's PTSD may impact his ability to work. Moreover, SSA records show that the Veteran has been found disabled due to his PTSD, asthma, and migraine disorders from September 2009 to March 2014; notably, the Veteran is service connected for all these disabilities. Accordingly, it is necessary that the Veteran be afforded a VA examination in connection with his claim for TDIU to determine whether his service-connected disabilities, either singularly or in combination, impact his ability to obtain and/or maintain gainful employment. In February 2011, the RO sent to the Veteran VA Form 21-8940, Veterans Application for Compensation Based on Employability, which collects information about employment history and education necessary to determine a claim for TDIU. The Veteran did not complete and return the form. However, in light of the fact that a VA examination in connection with his TDIU claim is being afforded to him, he should also be given an additional opportunity to submit a completed TDIU form. Lastly, as decided above, the Board has assigned a 70 percent rating for the Veteran's PTSD for the entire rating period on appeal. However, it is unclear whether he is satisfied with the 70 percent rating or whether he seeks a higher 100 percent schedular rating under DC 9411. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). On his December 2012 VA Form 9, he stated that his PTSD symptoms are "compatible with a 70 percent service connected rating." Although his wording suggests that he may be satisfied with the 70 percent rating, it is not clear. Moreover, the Veteran's representative in the October 2017 Informal hearing Presentation, only stated that the Veteran PTSD warrants an increased disability rating "in excess of 50 percent." See also March 2012 notice of disagreement indicating that "I am requesting a rating of 100%." The question of whether he is satisfied with the 70 percent rating is significant because the criteria for a higher 100 percent schedular rating for PTSD involves determining the level of occupational impairment, as does the issue of entitlement to a TDIU being remanded herein. Accordingly, the case is REMANDED for the following actions: 1. Implement the Board's grant of a 70 percent rating for the Veteran's PTSD. 2. Forward (i) a VA Form 21-8940 to the Veteran to be completed and returned, and (ii) subsequently forward a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit, to the former employer(s) listed on any submitted VA Form 21-8940. 3. Thereafter, schedule a VA examination to be conducted by a suitable examiner to help ascertain the effect of the service-connected disabilities on employability. The relevant documents in the claims folder should be made available for review in connection with this examination. **The Veteran's service-connected disabilities are: PTSD, exercised-induced asthma, and migraine headaches. After reviewing the claims file, particularly to include SSA records and the VA examination reports, the examiner is asked to: (a) Evaluate the effect of all the service-connected disabilities on the Veteran's employability (the ability to obtain or maintain substantially gainful employment). Specifically, the examiner should assess the extent of any functional and industrial impairment resulting from EACH of the Veteran's service-connected disabilities. Clearly explain what kind of employment limitations might result, if any. (b) Also determine whether the Veteran's service-connected disabilities, either singularly or in the aggregate, cause any functional impairment that may affect his ability to function and perform tasks in a work or work like setting. (c) In rendering the opinion, the examiner should consider the Veteran's education, special training, and previous work experience, but should not consider age or the effect of any non-service-connected disabilities. A complete rationale should be provided. 4. After completing any other development that may be warranted, readjudicate the claims for an increased rating higher than 70 percent for PTSD and a TDIU. If the benefits sought are not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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. §§ 5109B, 7112 (2012). ____________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs