Citation Nr: 1754780 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 13-09 641A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an initial increased rating for post-traumatic stress disorder with panic disorder and agoraphobia (PTSD) in excess of 30 percent before August 3, 2012 and in excess of 70 percent beginning August 3, 2012. 2. Entitlement to a total disability rating due to individual unemployability (TDIU) before June 15, 2017. REPRESENTATION Appellant represented by: Kenneth Carpenter, Attorney ATTORNEY FOR THE BOARD M. Zimmerman, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1965 to February 1968, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from decisions issued in April 2011 and February 2013 by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The issue of entitlement to a total disability rating due to a TDIU before June 15, 2017 is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Before August 3, 2012 the Veteran's PTSD caused no more than occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks. 2. Beginning August 3, 2012 the Veteran's PTSD caused no more than occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 30 percent for PTSD before August 3, 2012 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.130, Diagnostic Code (DC) 9411 (2017). 2. The criteria for an initial disability rating in excess of 70 percent for PTSD beginning August 3, 2012 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.130, (DC) 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In his April 2012 notice of disagreement, the Veteran alleged that VA failed to develop evidence from the Veteran before assigning the initial rating to determine the extent of the resulting occupational and social impairment. VA sent the Veteran a letter in December 2006 requesting, among other things, any treatment records pertinent to the Veteran's claimed condition(s), especially those which were recent (within the last 12 months). This request specifically included reports or statements from doctors, hospitals, laboratories, medical facilities, mental health clinics, x-rays, physical therapy records, surgical reports, etc. The letter suggested evidence such as lay statements, service medical records, employment physical examinations, pharmacy prescriptions records, insurance examination reports, and reports from any doctor who had treated the Veteran for his PTSD. The letter outlined how VA makes disability determinations and what steps to take if the Veteran wished to have VA assist in obtaining any records to support his claim. Before issuing its April 2011 rating decision, VA had obtained and considered VA outpatient treatment records from two different VA medical centers covering a combined period from October 2006 to February 2011. VA had also provided an examination in August 2010. While the Veteran alleges a failure to develop further information, he has not indicated what other information exists to support his claim or what he expects VA to do to obtain this information. The Board notes that the duty to assist is a two-way street. If the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). While this appeal has been pending, VA has obtained updated VA treatment records and provided new VA examinations in August 2012 and June 2017. As VA has provided the above noted assistance and notified the Veteran about what evidence he needs and how to inform VA of outstanding records, and the Veteran has not suggested what other relevant information still needs to be obtained, the Board finds that VA has satisfied its obligation to assist the Veteran in obtaining records. The relevant laws and regulations governing the Veteran's claims were provided to him in the Statements of the Case dated February 2013 and February 2015 supplemented in June 2017. II. Evidence The Veteran first sought treatment for PTSD in October 2006, after a non-service-connected medical crisis brought him to a hospital and exposed him to sights of blood and other reminders of his stressors from service as a medic in the Republic of Vietnam. The Veteran endorsed symptoms including social and emotional isolation, depressed mood, nightmares, and poor sleep. He was dressed appropriately and denied any experiences or perceptions consistent with psychosis. He reported being a self-employed liquor store owner. In an affidavit of January 2008, the Veteran endorsed symptoms including nightmares (including one incident where he awoke choking his wife), isolation and disconnection from other people, daily stress and depression caused by his other symptoms. In June 2008 a mental health treatment note indicated that the Veteran continued to over-invest in work while neglecting recreational activities. Records indicate that after this appointment he stopped therapy for about two years. A primary care visit record from November 2009 included a PTSD screening where the Veteran endorsed most symptoms as "a little bit" or "not at all" bothersome and endorsed "moderate" for sleep problems, nightmares, panic response, and avoidance. In June 2010 he returned to therapy because he was becoming more irritable, describing himself as "downright mean" at times. His wife confirmed this evaluation. The Veteran was provided a VA examination in August 2010. The examiner reviewed the Veteran's PTSD intake from October 2006 and examined the Veteran. She diagnosed the Veteran with PTSD and a panic disorder with agoraphobia, secondary to the PTSD, with a Global Assessment of Functioning of 65. The Veteran reported that he had had sleep problems and nightmares for decades but had experienced changes because of his symptoms over the past year including losing interest in hunting and fishing and avoiding crowds, even his own family. However, the Veteran also reported that he had been working for five years as a grain hauler and that his relationship with his supervisors and coworkers was "good." The examiner noted that the Veteran's affect and mood were normal; his concentration was within normal limits; communication and speech within normal limits; he had panic attack weekly or less often; he was suspicious of everyone; delusions and hallucinations were absent; thought processes were appropriate; judgment was not impaired; abstract thinking was normal; memory was mildly impaired, causing the Veteran to forget names, directions, and recent events; testing revealed mild cognitive impairment; suicidal and homicidal ideations were absent. The examiner opined that the Veteran's PTSD caused occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks. She based this opinion on the Veteran's symptoms, including: anxiety; suspiciousness; panic attacks weekly or less often; chronic sleep impairment; and mild memory loss such as forgetting information or what he has read; and strained relationships. She noted that while the Veteran had trouble concentrating, he had no trouble understanding commands. The Veteran was provided a VA examination in August 2012. The examiner reviewed the claims file and examined the Veteran. This examiner opined that the Veterans PTSD caused occupational and social impairment with deficiencies in most areas such a work, school, family relations, judgment, thinking and/or mood. A GAF of 53 was assigned. The examiner based this opinion on the Veteran's symptoms, including: anxiety; panic attacks more than once per week; chronic sleep impairment; impaired judgment; disturbance of motivation and mood; difficulty establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances including work or worklike setting; inability to establish and maintain effective relationships; and impaired impulse control, such as unprovoked irritability with periods of violence. Specifically, the Veteran described having weekly "shit fits," a daughter who no longer spoke with him, few friends whom he met infrequently, and managing his panic attacks by avoiding people. He also described having to attend monthly meetings for work which often led to him verbally "blowing up" at coworkers. Regarding the Veteran's employment, the Veteran reported that he had worked for a meat company for 15 years, driven his own semi rig for 12 years, and had worked for the same two companies as a ditch rider up to the time of the exam. At each of these jobs the Veteran reported being left mostly to himself and loosely supervised. The examiner opined that if the Veteran were employed in a position with more face to face contact he his anger would most likely escalate on a daily basis to the point where he might not be able to continue in that position. In October 2014 a VA doctor wrote that she had treated the Veteran since October 2013 for symptoms including "flash backs, hyper anxiety, irritability, avoidance, social isolation etc." The doctor opined that the Veteran's daily activities were restricted by his PTSD symptoms and that he had not been able to "hold on to a reasonable gainful employment since 2012" and that she strongly believed that his inability to be able to hold a gainful job was due to his PTSD. No further explanation or support for this opinion was provided. VA medical notes from 2015 through 2017 consistently record symptoms including poor sleep, flashbacks, anxiety, avoidance of crowds, irritability and anger. In February 2017 he reported working 50 hours per week as truck driver around town. The Veteran was provided a VA examination in June 2017. This examiner reviewed VBMS and examined the Veteran. This examiner opined that the Veterans PTSD caused occupational and social impairment with deficiencies in most areas such a work, school, family relations, judgment, thinking and/or mood. This opinion was based on the Veteran's symptoms, including: depressed mood; anxiety; suspiciousness; panic attacks more than once a week; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work like setting; and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. III. Analysis i. Before August 3, 2012 The Veteran is seeking an initial disability rating in excess of 30 percent for PTSD before August 3, 2012. A rating of 30 percent indicates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A higher rating of 50 percent requires evidence that his PTSD caused 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; difficulty in establishing and maintaining effective work and social relationships. The evidence of the Veteran's symptoms before August 3, 2012 includes his treatment records, his own statements, and the August 2010 VA examiner's notes and opinion. The evidence does not show that the Veteran had a flattened affect or circumlocutory, or stereotyped speech during this period. The August 2010 VA examiner noted normal affect and speech. There is evidence of panic attacks, but the examiner noted that they occurred weekly or less often. While the examiner noted mildly impaired memory, she noted this to cause the Veteran to forget names, directions, and recent events. No long term memory loss was noted. The Veteran had no problem understanding commands. Neither judgment nor abstract thinking was impaired. The Veteran did claim and was noted to have depressed mood. He also claimed irritability and social and emotional isolation were impacting his life. As the rating criteria are not meant to be an exhaustive list of symptoms, the Board takes these symptoms into consideration even though they are not specifically mentioned in the rating criteria. In his April 2012 notice of disagreement the Veteran asserted that the RO had impermissibly relied on the "unsubstantiated" opinion of the August 2010 VA examiner and relied on a recitation of specific symptoms in assigning a rating, as opposed to discussing the frequency, severity, and duration of psychiatric symptoms, as required by 38 C.F.R. § 4.126(a) (2017). The nature of many PTSD symptoms, such anxiety or suspiciousness, are such that they are constant but not always producing a noticeable impact on the Veteran's social functioning. The one symptom that has a severity connected to its frequency of occurrence is panic attacks. The Veteran's panic attacks were noted to be at most weekly during this period. The Board notes that the Veterans responses on his June 2008 PTSD screening confirm that his symptoms, for the most part, were mild during this time period. This is also supported by the fact that the Veteran remained employed and described his relationship with his supervisor and coworkers as "good." The Board finds, based on the Veteran's own report, consistent with his medical records and the August 2010 VA examiner's report, that his symptoms closely matched the criteria for his current rating of 30 percent and do not satisfy the criteria for a higher 50 percent rating. This is based on consideration of the listed rating criteria, other reported symptoms, and consideration of the Veteran's relatively mild and infrequent symptoms during this time period. Therefore, the Board finds that the weight of the evidence is against granting a higher rating for PTSD before August 3, 2012. ii. Beginning August 3, 2012. The Veteran is seeking an initial disability rating in excess of 70 percent for PTSD before August 3, 2012. A rating of 70 percent indicates 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 worklike setting); inability to establish and maintain effective relationships. A higher rating of 100 percent requires evidence that his PTSD caused 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. The evidence of the Veteran's symptoms beginning August 3, 2012 includes VA examinations from August 2012 and June 2017 as well as the Veteran's statements and medical records. It is clear, as of August 3, 2012, that the Veteran's symptoms had increased in both severity and frequency. The August 2012 VA examiner noted that the Veteran's panic attacks now occurred more than once per week and he only managed them by avoiding people. He described having angry outbursts at least once per week. His family relationships had deteriorated to the point that he described them as "strained" one of his children no longer spoke to him. He mentioned having few friends and only meeting them infrequently. The examiner noted that while the Veteran remained employed with little human contact required, he usually ended up "verbally exploding" at coworkers when required to attend a monthly meeting. The examiner opined that any job with more frequent face to face interaction would likely result in an increase in angry outbursts. The Board notes, but gives little weight, to the opinion offered by the Veteran's treating doctor in October 2014. This opinion briefly expressed the doctor's belief that the Veteran's symptoms prevented him from securing gainful employment and had done so since 2012. There was no supporting rationale and it is not clear that the doctor was aware of the Veteran's continued employment during this period. His June 2017 VA examiner noted similar symptoms to those described in the August 2012 VA examiner's report. The Veteran described himself as tense about 90 percent of the time, reacting to normal social situations with irritability, anger, and confrontation. He also described an increase in panic symptoms when around people. The examiner noted during the examination that the Veteran's mood was anxious and irritable, as well as demonstrating panic symptoms related to having the interview in a closed room. While the same memory loss and trouble concentrating was noted, the Veteran presented in casual dress, on time, and fully cooperative. His thought processes and judgment were not impaired and he exhibited no delusions, hallucinations, or suicidal/homicidal ideations. The Veteran's medical records during this period showed continued treatment but did not indicate symptoms beyond those noted in the VA examinations. As acknowledged and discussed above, the listed symptoms of the rating criteria are not an exhaustive list. However, the Board notes that of the listed symptoms, the Veteran has been specifically noted not to suffer from any of them except for the intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene). This is strong evidence against finding that the Veteran's symptoms rise to the level of total occupational and social impairment. The Veteran's continued maintenance of friendships, even though few, including monthly meeting for coffee, is strong evidence against finding that the Veteran's symptoms cause total social impairment. Furthermore, his continued employment is strong evidence against a finding that his symptoms cause total occupational impairment. Based on the Veteran's reported and observed symptoms, most notably his ability to maintain some personal relationships and maintain employment, the Board finds that the weight of the evidence is against the Veteran's claim for a 100 percent rating beginning August 3, 2012. ORDER Entitlement to an initial increased rating for PTSD in excess of 30 percent before August 3, 2012 is denied. Entitlement to an initial increased rating for PTSD in excess of 70 percent beginning August 3, 2012 is denied. REMAND A TDIU may be assigned where the Veteran's service-connected disabilities alone prevent him from securing and following a substantially gainful occupation. 38 C.F.R. § 4.16. Substantially gainful employment is "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991) (Citing VA Adjudication Manual M21-1 para. 50.55(8)). "This suggests a living wage." Ferraro v. Derwinski, U.S. Vet. App. No. 90-444, slip op. at 9 (June 24, 1991). See also Cornett v. Califano, 590 F.2d 91, 94 (4th Cir. 1978); Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989). The Veteran submitted a one page summary of his FICA earnings covering the relevant years 2006 to 2010, along with the argument that this information showed he was only marginally employed during the period on appeal. He has not submitted any similar documentation covering the period 2011 to before June 15, 2017. The record is conflicted as to when the Veteran worked and how much he earned, both absolutely and relative to non-disabled workers in that particular occupation in the community where the Veteran resides. On his application for TDIU form 21-8940, submitted in February 2015, the Veteran stated that he was self-employed as the owner operator of a liquor store from August 1996 to April 2010, working 90 hours per week. He listed his income for 2007 as $36,000, which does not match his FICA earnings listed for the same year. He also stated that he worked part time as a ditch rider for two companies from 2006 to October 2012, earning around $1,200 per month. He listed October 31, 2012 as the last day he worked, checking the box stating that he left this job because of disability. He also listed unspecified "odd jobs" beginning in April 2010 in the box for education or training. VA treatment records indicate that the Veteran's occupation was listed as "self-employed liquor store owner" as late as February 2017. It is not clear if this was copied from older records or if the Veteran reported this as his employment after April 2010. In February 2017 he reported working 50 hours per week as a truck driver around town. In June 2017 he indicated that he had worked seasonally as a truck driver every October to February for the past five years, and was not sure if he would continue in October 2017 because of his age. The Board cannot properly evaluate the Veteran's claim for a TDIU without clarification of his employment status and income during the period on appeal. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with a new VA form 21-4192 for each of his listed employers and provide appropriate instructions and time to complete and return these forms. Complete any indicated development based on information obtained from these forms in accordance with 38 C.F.R. § 3.159(c) (2017). 2. Contact the Veteran and request the following information for each year beginning in 2006: A. Where was the Veteran employed during this year, including part-time and self-employment? B. For each place of employment listed in A., how much did the Veteran earn? C. For each place of employment listed in A., was the Veteran paid less than a non-disabled worker performing the same work in the same community? If addressing self-employment, did the Veteran's disability cause him to earn less than someone without a disability, providing the same service in the same community? D. For each place of employment listed in A., was the Veteran given any sort of preferential treatment or protection because of his disability, personal relationship, or any other reason? E. Did the Veteran have income other than from employment listed in A.? 3. Readjudicate the claim. 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs