Citation Nr: 1756022 Decision Date: 12/05/17 Archive Date: 12/15/17 DOCKET NO. 12-11 241 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) before April 11, 2017. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.A. Flynn, Counsel INTRODUCTION The Veteran served on active duty from June 1967 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from two rating decisions of the VA RO. A February 2010 rating decision granted service connection for anxiety disorder and assigned an initial 30 percent rating. A May 2017 rating decision assigned a 100 percent rating for anxiety disorder effective April 11, 2017, and it denied entitlement to a TDIU before April 11, 2017. FINDINGS OF FACT 1. For the period prior to April 2017, the Veteran's PTSD was manifested by symptoms producing no more than occupational and social impairment with deficiencies in most areas. 2. The Veteran's service-connected disabilities have precluded him from securing and following a substantially gainful occupation consistent with his education and work experience. CONCLUSIONS OF LAW 1. For the period prior to April 2017, the criteria for a rating of 70 percent, but no greater, for PTSD have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). 2. The criteria for a TDIU have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16, 4.18 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This appeal has previously been before the Board, most recently in October 2014, when it remanded the Veteran's claims in order to obtain outstanding treatment records and afford him an examination. Both actions were accomplished. The Board finds that its remand instructions have been substantially complied with, and the Board will proceed in adjudicating the Veteran's claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that when the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146 47 (1999). 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). Increased Rating The Veteran contends that his anxiety disorder warrants a rating in excess of 30 percent before April 11, 2017. A greater schedular rating is unavailable to the Veteran as of April 11, 2017, because the Veteran's acquired psychiatric disability has been rated 100 percent disabling since that time. The Board will thus consider whether a greater schedular rating is available to the Veteran before April 11, 2017. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2017). Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4 (2017). When 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. 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2017). In general, when 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). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are appropriate for an increased rating claim, if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Separate disabilities arising from a single disease entity are to be rated separately. 38 C.F.R. § 4.25 (2017); see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Pyramiding-the evaluation of the same disability or the same manifestations of a disability under different diagnostic codes-is to be avoided when rating a veteran's service-connected disabilities. See 38 C.F.R. § 4.14 (2017). Under the General Rating Formula for Mental Disorders, in pertinent part, a 30 percent rating applies to 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, or mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9435. A 50 percent rating applies to 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. Id. A 70 percent rating applies to 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); or an inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned when a psychiatric disorder causes total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. Id. "Suicidal ideation appears only in the 70 percent evaluation criteria [] [t]here are no analogues at the lower evaluation levels." Also, "[b]oth passive and active suicidal ideation are comprised of thoughts: passive suicidal ideation entails thoughts such as wishing that you were dead, while active suicidal ideation entails thoughts of self-directed violence and death." See Bankhead v. Shulkin, 29 Vet. App. 10 (2017). Evidence of more than thought or thoughts of ending one's life to establish the symptom of suicidal ideation, is not required. In other words, a Veteran need not be at a risk, whether a high or low risk, of self-harm in order to establish the criteria of suicidal ideation. "The presence of suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas." See id. Also it may not be found that a claimant does not have suicidal ideation merely because he has not been hospitalized or treated on an inpatient basis, as this would impose a higher standard than the criteria in the Diagnostic Codes for mental disorders. See id. "VA did not include in the criteria for a 70 percent evaluation the risk of actual self-harm. In fact, to the extent that risk of self-harm is expressly mentioned in § 4.130 at all, it is referenced in the criteria for a 100 percent evaluation as 'persistent danger of hurting self, a symptom VA deemed to be typically associated with total occupational and social impairment. 38 C.F.R. § 4.130." However, VA adjudicators are not "absolutely prohibited from considering risk of self-harm in assessing [a] level of occupational and social impairment" but there must be a differentiation between suicidal ideation, which is generally indicative of a 70 percent evaluation, and a risk of self-harm, the persistent danger of which is generally indicative of a 100 percent evaluation. See id. When rating a mental disorder, VA must consider the frequency, severity, and duration of the Veteran's psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency must 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 rating the level of disability from a mental disorder, the rating agency must consider the extent of social impairment, but cannot assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126 (2017). Furthermore, the specified factors for each incremental rating are examples, rather than requirements, for a particular rating. The Board will not limit its analysis solely to whether the Veteran exhibited the symptoms listed in the rating criteria. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Indeed, the symptoms listed under § 4.130 are not intended to serve as an exhaustive list of the symptoms that VA may consider but as examples of the type of degree of symptoms, or the effects, that would warrant a particular rating. Mauerhan, 16 Vet. App. at 442 (2002). The Veteran's actual symptomatology, and resulting social and occupational impairment, will be the primary focus when assigning a disability rating for a mental disorder, and the Veteran may qualify for a particular rating by demonstrating the particular symptoms associated with that percentage, or other symptoms of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). Also relevant to the Board's analysis is the Global Assessment of Functioning (GAF) score assigned to the Veteran, which is a scale that indicates the psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. Carpenter v. Brown, 8 Vet. App. 240 (1995); Richard v. Brown, 9 Vet. App. 266 (1996); American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV); 38 C.F.R. § 4.130 (2017). While a GAF score is not itself determinative of the most appropriate disability rating, the Board must consider it when assigning a disability rating. VAOPGCPREC 10-95. GAF scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). GAF 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 51 to 60 indicate 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). American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994); 38 C.F.R. § 4.130 (2017). Turning to the facts in this case, the Veteran filed his underlying claim of entitlement to service connection for an acquired psychiatric disability in October 2009. In December 2009, a clinician assigned the Veteran a GAF score of 60. The Veteran underwent a VA examination in February 2010, at which time the Veteran complained of experiencing a mild depressed mood two to three times a week, with each episode lasting one to two hours. The Veteran described experiencing decreased energy and passive suicidal and homicidal ideation. The Veteran had been married to his current spouse for 30 years, and he described his marriage as "OK". The Veteran had close relationships with his adult son and daughter. The Veteran indicated that he had 8 friends. The examiner indicated that the Veteran retired in 2003 as the result of a left knee injury that he occurred on the job. The examiner indicated that the Veteran experienced an occasional decrease in work efficiency with intermittent periods of inability to perform occupational tasks due to psychiatric signs and symptoms, but with generally satisfactory functioning. The Veteran underwent a private psychological evaluation in March 2010, at which time the clinician noted that the Veteran retired from his position as an assistant manager at a lumber company in 2003. The Veteran lived with his spouse, his granddaughter, her husband, and their two children. The Veteran reported that all got along well in the home. The Veteran maintained close friendships, and he enjoyed fishing with his friends. The Veteran reported experiencing nightmares and sleep disturbance. The Veteran indicated that he experienced feelings of anger, frustration, and survivor's guilt. The Veteran denied experiencing suicidal or homicidal thoughts. The clinician diagnosed the Veteran with PTSD and a mood disorder not otherwise specified. The clinician assigned the Veteran a GAF score of 52. In July 2011, a clinician assigned the Veteran a GAF score of 48. In November 2011, a clinician assigned the Veteran a GAF score of 45. In February 2012, a clinician assigned the Veteran a GAF score of 45. In April 2012, a clinician diagnosed the Veteran with moderate to severe depression and assigned the Veteran a GAF score of 45. The Veteran indicated that he had experienced suicidal ideation over the past year. The clinician observed that group therapy offered only moderate level of relief from the Veteran's symptoms due to the Veteran's high levels of avoidance. Also in April 2012, a clinician indicated that the Veteran experienced social avoidance, depression, episodes of panic anxiety, and combat nightmares and flashbacks. The clinician assigned the Veteran a GAF score of 45 and opined that the Veteran was unable to engage in significant gainful employment. In November 2012, the Veteran reported that he had separated from his spouse, and he indicated that he was interested in being closer to his family in Ohio. The Veteran indicated that his relationship with his spouse had not been good for many years, and he found himself getting more depressed. The clinician assigned the Veteran a GAF score of 51. The Veteran underwent an additional VA examination in August 2012, at which time the examiner diagnosed the Veteran with mixed anxiety and depressive symptoms. The examiner indicated that the Veteran's psychiatric symptoms produced occupational and social impairment due to mild or transient symptoms that decreased work efficiency and the ability to perform occupational tasks only during periods of significant stress, or the Veteran's symptoms were controlled by medication. The Veteran was married, and he reported that he did not socialize much because he lived in a rural area. The examiner indicated that the Veteran retired in 2003 after a job-related injury to his knee. The examiner indicated that the Veteran had a depressed mood, anxiety, and chronic sleep impairment. The Veteran reported that once weekly, certain noises made the Veteran shake and want to be alone. The examiner found the Veteran to be capable of managing his financial affairs. The examiner assigned the Veteran a GAF score of 60. In a separate clinical record from August 2012, a clinician noted that the Veteran was very stressed by his current financial situation. Sleep remained a major problem. The clinician assigned the Veteran a GAF score of 45. In March 2013, a clinician noted that the Veteran last worked full-time in a Florida lumber yard, where he sustained a work-related injury. The Veteran reported that he worked up to two days weekly driving cars between car dealers. The clinician assigned the Veteran a GAF score of 62. In April 2013, the Veteran reported that he had separated from his spouse, and he lived with his daughter and her family. In June 2013, the Veteran reported that he planned to move from Florida to Ohio to live with his children. The Veteran indicated that he felt hopeless and "welcomed death". The clinician assigned the Veteran a GAF score of 48. In November 2013, the Veteran reported that he felt emotional numbing and that he "just exist[ed]". The clinician assigned the Veteran a GAF score of 60. In March 2014, the Veteran reported that he was divorcing from his spouse. The Veteran lived with his daughter and felt as if he could not connect with people. In September 2014, the Veteran indicated that he experienced conflict while living with his daughter and her family. The Veteran had recently divorced. The Veteran denied feeling suicidal, but he indicated that he occasionally felt hopeless. The clinician diagnosed the Veteran with major depressive disorder and PTSD. In a separate record from September 2014, while the Veteran denied suicidality, he indicated that he occasionally wished that he would not wake up. The Veteran reported that he moved to Ohio two years before to live with his daughter; the Veteran indicated that the move had not worked out well. In April 2015, a clinician opined that the Veteran was unable to obtain or maintain gainful employment. The Veteran was experiencing "severe financial problems", with the Veteran recently experiencing a foreclosure of his property in Florida. The Veteran reported that he had been working a part-time position for the past six months. In August 2015, a clinician noted that the Veteran had experienced an inability to obtain and maintain gainful employment over the past six months. The clinician opined that the Veteran was not able to obtain and maintain gainful employment and assigned the Veteran a GAF score of 38. In September 2015, the Veteran reported that he was isolated, and he spent most of his time at home with his dog. In November 2015, a clinician noted that the Veteran had not been able to obtain and maintain gainful employment. The Veteran was isolated at home, and a clinician noted that his symptoms were worsening. In December 2015, a clinician assigned the Veteran a GAF score of 45. In March 2016, a clinician indicated that the Veteran had "debilitating" symptoms of PTSD. The Veteran lived with his dog, and leaving his home caused him anxiety. The Veteran was isolated. The clinician assigned the Veteran a GAF score of 40. In June 2016, the Veteran lived in a duplex apartment with his adult daughter. In September 2016, the Veteran indicated that he had severe financial problems. The Veteran experienced nightmares, flashbacks, irritability, and avoidance. In December 2016, the Veteran reported experiencing isolation living in an apartment. The Veteran's son was his main support, and he felt close to his dog. The Veteran was under severe financial stress living on limited income. The Veteran underwent an additional VA examination in April 2017, at which time the examiner found that the Veteran had total occupational and social impairment as a result of his psychiatric disability. The Veteran rented a house and lived with his dog. The Veteran reported that he was socially isolated and did not get along well with other people. The Veteran's son did his grocery shopping. The Veteran drove and completed his own activities of daily living. The Veteran reported that he last worked for a lumber company in 2003. The examiner found that the Veteran suffered from a depressed mood, anxiety, 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 in adapting to stressful circumstances, including work or a work-like setting, and an inability to establish and maintain effective relationships. The Veteran was alert, oriented, and he was casually dressed and groomed. The Veteran's affect was anxious, his speech was clear and fluent, and his mood was depressed. The Veteran had no suicidal or homicidal ideation, and he had no hallucinations or delusions. Effective until the April 2017 assignment of a 100 percent rating, the Board finds that a 70 percent rating is appropriate. The Veteran's symptoms during this time are consistent with a finding that the Veteran suffered from occupational and social impairment with deficiencies in most areas. The Veteran suffered from suicidal thoughts (February 2010 and April 2012), hopelessness (June 2013), he "welcomed death" (June 2013), and he "wished that he would not wake up" (September 2014). The Board finds that this consistent active and passive suicidality is consistent with a 70 percent rating. See Bankhead v. Shulkin. Moreover, in April 2012, a clinician indicated that the Veteran's depression was "moderate to severe". With regard to the Veteran's social functioning during this time, the Veteran separated from his spouse, attempted to live with one of his children for a time, and after that living arrangement failed, the Veteran ultimately lived alone, where he felt socially isolated. With regard to the Veteran's occupational functioning during this time, clinicians, for example in April 2012, April 2015, and August 2015, found that the Veteran was unable to engage in significant gainful employment as a result of his psychiatric symptoms. Thus, upon review of these facts, the Board finds that from his date of claim until the April 2017, the Veteran's psychiatric symptoms resulted in occupational and social impairment with deficiencies in most areas. With that said, the Board cannot find that the evidence supports a finding that the Veteran suffered from the total occupational and social impairment that is associated with a 100 percent rating at any time prior to April 2017. While the Veteran's impairment was significant (as reflected by the Board's assignment of a 70 percent rating), the Board otherwise observes that during this time, the Veteran was able to live alone without assistance and maintain a relationship with his son. Factors such as these are inconsistent with a finding that the Veteran was totally occupationally or socially impaired at any time prior to April 2017. TDIU VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a Veteran is precluded, by reason of service-connected disability, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Benefits based on individual unemployability are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there are two or more service-connected disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Substantially gainful employment is employment that is ordinarily followed by the nondisabled to earn a livelihood, with earnings common to the particular occupation in the community where the employee resides. The term suggests a living wage. Ferraro v. Derwinski, 1 Vet. App. 326 (1991). The ability to work sporadically or to obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a) (2017); Moore v. Derwinski, 1 Vet. App. 356 (1991). A Veteran may be considered unemployable upon termination of employment that occurred because of disability, or in which special consideration was given on account of the disability, when it is satisfactorily shown that the Veteran is unable to secure further employment. 38 C.F.R. § 4.18 (2017). The determination as to whether a TDIU is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. Ferraro v. Derwinski, 1 Vet. App. 326 (1991). Any consideration as to whether the Veteran is unemployable is a subjective one that is based upon the Veteran's actual level of industrial impairment, not merely the level of industrial impairment experienced by the average person. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Advancing age and nonservice-connected disability may not be considered in the determination of whether a Veteran is entitled to a TDIU. 38 C.F.R. §§ 3.341(a), 4.19 (2017). The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. A high rating for service-connected disability, in itself, is recognition that the impairment makes it difficult to obtain and keep employment. Instead, the question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Turning to the facts in this case, pursuant to the Board's above grant of an increased rating, the combined rating of the Veteran's service-connected disabilities (PTSD, diabetes mellitus, and residuals of a shell fragment wound) meet the percentage requirements for the award of a TDIU since this time. 38 C.F.R. § 4.16(a) (2017). The Board further finds that the Veteran's service-connected disabilities have rendered him unemployable since that time. The Veteran has experienced only limited periods of employment since 2003 (retiring after having a knee injury), and the Veteran's employment has never been full-time. In March 2013, the Veteran reported that he engaged in up to two days of work weekly transferring cars for automobile dealerships. The Veteran worked from September 2014 to April 2015 as a general merchandise clerk at a retailer, during which time his weekly wages were never greater than $270. The Veteran has otherwise been unemployed since April 2012. The Board cannot find that this work history constitutes substantially gainful employment, nor does it support a finding that the Veteran is able to engage in substantially gainful employment. To this end, clinicians have consistently found the Veteran to be unable to engage in substantially gainful employment since April 2012. In April 2012, a clinician opined that the Veteran was unable to engage in significant gainful employment. In August 2015, a clinician noted that the Veteran had experienced an inability to obtain and maintain gainful employment over the past six months, and the clinician opined that the Veteran was unable to obtain and maintain gainful employment. In April 2017, an examiner opined that the Veteran's psychiatric disability precluded him from gaining or maintaining substantially gainful employment. In support of this finding, the examiner stated that the Veteran would be unable to cope with the stress and pressures of competitive employment because of his psychiatric disability. Thus, upon review of the totality of the evidence, the Board finds that the Veteran has been unemployable due solely to his service-connected disabilities. (ORDER ON NEXT PAGE) ORDER For the period prior to April 2017, a rating of 70 percent, but no greater, for PTSD is granted, subject to the controlling regulations applicable to the payment of monetary benefits. A TDIU is granted, subject to the controlling regulations applicable to the payment of monetary benefits. ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs