Citation Nr: 1756037	
Decision Date: 12/05/17    Archive Date: 12/15/17

DOCKET NO.  99-13 744A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to an initial rating in excess of 10 percent for posttraumatic stress disorder (PTSD) from December 23, 1997 through July 26, 2006.

2.  Entitlement to an initial rating in excess of 50 percent for PTSD from November 1, 2006 through August 27, 2009.

3.  Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected PTSD prior to August 28, 2009.


REPRESENTATION

Appellant represented by:	Joseph R. Moore, Attorney at Law


ATTORNEY FOR THE BOARD

L. Kirscher Strauss, Counsel


INTRODUCTION

The Veteran served honorably on active duty from June 1974 to April 1976 and from June 1976 to June 1978.  He also served from May 1980 to March 1984, but received an other than honorable discharge from this period of service.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.  An April 2009 rating decision granted service connection for PTSD and assigned a temporary total 100 percent rating (TTR) effective July 27, 2006, and a 50 percent rating from November 1, 2006.  A December 2009 rating decision granted another TTR, effective August 28, 2009, followed by a 100 percent schedular rating effective December 1, 2009.  The Veteran disagreed with the 50 percent assigned from November 1, 2006 through August 27, 2009.

In October 2014, the Board granted an earlier effective date of December 23, 1997 for the grant of service connection for PTSD.  At that time, the Board also remanded the issues of entitlement to an initial rating in excess of 50 percent for PTSD prior to August 28, 2009 and entitlement to a TDIU prior to August 28, 2009.

In a December 2014 rating decision, the RO effectuated the October 2014 Board decision, granting an earlier effective date of December 23, 1997 for service connection for PTSD and assigned an initial 10 percent rating.  The Veteran disagreed with the 10 percent rating assigned for PTSD from December 23, 1997 through July 26, 2006 and perfected a timely appeal.

In an April 2017 supplemental statement of the case (SSOC), the RO denied entitlement to a TDIU prior to August 28, 2009 and continued to deny an initial rating in excess of 50 percent for PTSD [from November 1, 2006 and] prior to August 28, 2009. 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (2012).


FINDINGS OF FACT

1.  For the time periods from December 23, 1997 through July 26, 2006 and from November 1, 2006 through August 27, 2009, the Veteran's PTSD has been manifested by irritable, dysthymic mood with occasional episodes of violence or angry outbursts; flat, constricted, or anxious affect; mild memory impairment; limited insight and judgment; occasional auditory hallucinations related to the non-military stressor of killing his common-law wife; and impaired concentration, productive of no more than occupational and social impairment with reduced reliability and productivity.

2.  Since receipt of the claim for a TDIU on September 30, 2009, the Veteran was receiving a temporary total rating of 100 percent for hospitalization related to service-connected PTSD, followed by a 100 percent schedular rating for PTSD, effective December 1, 2009; as such, there is no controversy with respect to the question of the Veteran's entitlement to a TDIU from that date, forward.

3.  A claim for entitlement to a TDIU was not received by VA or raised by the evidence of record prior to September 30, 2009.


CONCLUSIONS OF LAW

1.  For the period from December 23, 1997 through July 26, 2006, the criteria for an initial rating of 50 percent, but no higher, for PTSD have been more nearly approximated.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017).

2.  For the period from November 1, 2006 through August 27, 2009, the criteria for an initial rating in excess of 50 percent for PTSD have not been met or more nearly approximated.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017).

3.  Since receipt of the claim for a TDIU on September 30, 2009, the question of whether the Veteran is entitled to an award of TDIU is moot given the facts of this case, and the appeal is dismissed.  38 U.S.C.A. § 7105 (2012); 38 C.F.R. § 4.16 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Due Process

VA has a duty to notify and assist claimants in substantiating claims for VA benefits.  See generally, 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  In the instant case, VA provided adequate notice in letters sent to the Veteran in November 2001, August 2003, and September 2004 regarding the underlying claim to reopen and establish service connection for the previously denied claim of service connection for PTSD.  VA also provided adequate notice in a January 2016 letter to the Veteran regarding claims for higher disability ratings and a TDIU.

VA has a duty to assist a claimant in the development of a claim.  This duty includes assisting the claimant procuring relevant treatment records and providing an examination when necessary.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159.  

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993); see also D'Aries v. Peake, 22 Vet. App. 97, 105.  Service treatment and personnel records, VA treatment records, medical opinions from a private psychiatrist, records from the Social Security Administration (SSA), education documents, and lay statements are associated with the claims file.  VA provided relevant examinations as discussed further in the decision. 

There is no indication of additional existing evidence that is necessary for a fair adjudication of the claims that are the subject of this appeal.  Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist.  

II. Increased Rating Claims

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10.  In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the veteran's disability.  38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).  

In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings."  See Fenderson v. West, 12 Vet. App. 119 (1999).  Where there is a question as to which of two ratings shall be applied, the higher rating 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.

The Veteran's service-connected PTSD has been rated as 10 percent disabling since service connection was established effective December 23, 1997 through July 26, 2006, and as 50 percent disabling from November 1, 2006 through August 27, 2009, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411, which uses the General Rating Formula for Mental Disorders.  He contends that a higher rating is warranted for both applicable time periods on appeal.

Under the General Rating Formula, a 10 percent rating is assigned when there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or where symptoms are controlled by continuous medication. 

A 30 percent evaluation is assigned when there is 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; and mild memory loss, such as forgetting names, directions, recent events.  

A 50 percent evaluation is for assignment when there is 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 establishing effective work and social relationships. 

A 70 percent evaluation is contemplated for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control, such as unprovoked irritability with periods of violence; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances, including work or a work-like setting; inability to establish and maintain effective relationships.  

A 100 percent evaluation is warranted when there is evidence of 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 and place; memory loss for names of close relatives, own occupation or name.  38 C.F.R. § 4.130, Diagnostic Code 9411.

When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission.  The rating agency shall assign an evaluation 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.  38 C.F.R. § 4.126.  The symptoms listed in the relevant rating criteria are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.  See Mauerhan v. Principi, 16 Vet. App. 436 (2002).  

In assessing the evidence of record, it is important to note that the Global Assessment of Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness."  See Richard v. Brown, 9 Vet. App. 266, 267 (citing Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) 32 (4th ed. 1994)). 

In this regard, the Board notes that 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 Fifth Edition (DSM-5), and examinations conducted pursuant to the DSM-5 do not include GAF scores.  Because the applicable time periods on appeal occur prior to the regulatory amendments, the Board will consider the GAF scores in adjudicating the claims.  During the periods from December 23, 1997 through July 26, 2006 and from November 1, 2006 through August 27, 2009, the Veteran's GAF scores ranged from 45 to 62.  

GAF scores ranging from 61 to 70 indicate 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, has some meaningful interpersonal relationships.  DSM-IV at 32.  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 peer or coworkers).  Id.  GAF scores ranging from 41 to 50 indicate serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).  Id.

GAF scores are just one component of a veteran's disability picture, and the Board does not have a "formula" that it follows in assigning evaluations.  Rather, the Board considers the Veteran's entire disability picture, including GAF scores.  Under such circumstances, Veterans with identical GAF scores may be assigned different evaluations based on each individual's symptomatology and level of functioning.  Furthermore, the Board need not accept a GAF score as probative.  See Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995) (it is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in so doing, the Board may accept one medical opinion and reject others).

By way of history, service connection for PTSD was eventually granted effective from December 23, 1997 and attributed to events the Veteran witnessed during his participation in the contiguous water of the Republic of Vietnam during Operation Frequent Wind in April 1975, involving the evacuation of thousands of Americans and others from Saigon, and Operation Eagle Pull in June 1975, which involved the evacuation of 287 U.S. and foreign nationals from Phnom Penh, Cambodia.  The evidence of record also documents the Veteran's reports of childhood physical abuse and using alcohol since age 14, and a post-service stressor involving the Veteran's 1993 murder of his common-law wife and another man.

Although the evidence of record contains conflicting statements by the Veteran to treatment providers and to VA personnel in the course of seeking VA compensation benefits regarding the proper rating for his PTSD, the Board recognizes that "'when it is not possible to separate the effects of a nonservice-connected disorder from those of a service-connected disorder, reasonable doubt should be resolved in the claimant's favor with regard to the question of whether certain signs and symptoms can be attributed to the service-connected disability.  See Mittleider v. West, 11 Vet. App. 181, 182 (1998); see also 38 C.F.R. § 3.102; Mauerhan v. Principi, 16 Vet. App. 436 (2002) (factors listed in the rating formula are examples of conditions that warrant a particular rating and are used to help differentiate between the different evaluation levels).  Therefore, to the extent the Board is unable to discern whether the Veteran's PTSD symptoms at any given time relate to his military stressors or non-service related stressors, the Board resolves doubt and attributes the symptoms to military stressors.

Turning to the evidence, in connection with his December 1997 claim for service connection, the Veteran was afforded a VA PTSD examination in May 1998; however, he failed to report to the examination without explanation.  

A July 2000 VA psychiatry note reflects the Veteran's report that he had been incarcerated for the past three years because he violated the terms of his probation for the original offense of murder in 1993.  He stated that he was unable to attend his appointment scheduled in June because he had been arrested for public intoxication.  He reported current symptoms of feeling depressed, having trouble staying asleep, and low interest.  He denied suicidal or homicidal ideation.  He described prior work history at the Social Security Administration and in construction.  Mental status examination findings included the following: alert and oriented [to person, place, and time]; normal behavior and movements; established good rapport with interviewer; speech normal in rate and tone; mood described as "pissed about everything," believing that he "gave a lot and got very little back;" middle-range, slightly angry-looking, and non-labile affect; linear thought process; cognition grossly intact; and insight and judgment good.  The examiner commented that the Veteran "did not mention any [symptoms] of PTSD."  The assigned GAF score was 59.

In August 2000, the Veteran participated in a psychological evaluation in connection with his claim for SSA disability benefits.  He reported completing twelfth grade and one year of college and described prior work history as a dump truck driver, construction worker, and records and analyst clerk for SSA.  He identified a legal history involving several arrests and an incarceration from which he was released in March 2000.  He self-identified as having a propensity for violence when he misses his medication, including Trazadone and Wellbutrin for psychiatric symptoms.  He indicated that his fiancé was his only friend and that he attended church twice monthly.  He described his sleep as "okay" with medication.

Mental status examination findings included the following: alert and fully oriented; polite and cooperative demeanor with good eye contact; full affect and pleasant mood with no indications of depression, anxiety, or mania; coherent and relevant speech; no evidence of blocking, muteness, repetitions, flight of ideas, loosening of associations, tangentiality, circumstantiality, or confusion in thought process; no evidence of hallucinations, delusions, ideas of reference, phobias, or obsessions or compulsions; adequate task attentiveness; intact recent and remote memory; attention span, concentration, and general fund of knowledge in the low average range; limited insight and judgment; and limited ability to adjust to day-to-day situations.

The examiner summarized that the Veteran appeared to function in the average range of verbal and intellectual ability and cognitive functioning appeared adequate such that he "should have no difficulties with understanding, carrying out, or remembering instructions."  The examiner stated that clinical presentation indicated the Veteran would likely respond appropriately to supervision and he had adequate social skills to relate well to coworkers.  However, he reported significant problems in social functioning.  He could likely handle mild work pressures in a work setting.  He appeared capable of functioning independently, but would need assistance managing his financial affairs due to history of alcohol abuse and continued use of alcohol.

A September 2000 intake report from a VA outpatient substance abuse clinic (OSAC) reflects the Veteran's request for treatment of alcohol abuse and housing assistance to satisfy a court order related to his probation.  He reported he had resumed drinking three months after release from incarceration and had violated his probation by drinking and assaulting his girlfriend's son, who was reportedly assaulting her.  He disclosed a family history of physical abuse, chemical abuse, and psychological problems, stating that he struggles to overcome those early experiences.  He also reported his history of PTSD associated with his military service in Vietnam.  He indicated he completed 14 years of education and 8 months of technical training, he did not have a valid driver's license, his longest full-time job was 12 years, and his last occupation was concrete finisher.  In the past 3 years, his employment had been in a controlled environment.

On mental status examination, there were no signs or symptoms of psychosis or other thought disorders elicited, he appeared to have above average intelligence, and appeared to be knowledgeable and motivated about substance abuse recovery.  He denied current suicidal or homicidal ideation, but endorsed both in the past.  He denied problems with attention, recall, or memory and denied problems with anger management, explaining he had taken numerous anger management courses and had learned to control this problem.

During an October 2000 VA psychiatry visit, the Veteran complained of periods of amnesia for three to four years, occurring three to four times per year.  He described losing time for three hours at a time and discovering he had walked miles away or found himself in a new location, not recalling how he got there.  The assessment included rule out amnestic problem versus psychogenic amnesia.

Private treatment records dated in November 2000 document that the Veteran was hospitalized after he was transferred from a VA emergency department because he had been beaten in the head with a lead pipe by his girlfriend's son.  The discharge diagnosis was closed head injury with left frontal skull fracture.

During a March 2001 VA neurology consultation, the Veteran described his "blackout spells," stating he had had them for 25 years, but they became very frequent since the November 2000 head trauma.  He reported a history of head concussion at age 15 and head trauma in 1975.  The neurologist ordered an EEG to rule out seizures or other functional etiologies of the "spells of altered awareness."  The EEG was reported as normal during the awake, drowsy, and light sleep states.

In July 2001, the Veteran received VA emergency care for a laceration to his forearm after putting his arm through a window in anger.

In August 2001, the Veteran presented to VA urgent care requesting help for his substance abuse.  He indicated he had been sober for over a year until he relapsed.  He described experiencing a lot of personal stress in his significant relationship at the time he relapsed, but also admitted having fear regarding blackouts and absence of memory, lasting from 15 minutes to 4 hours at a time, which began approximately two months after his severe head injury in November 2000.

The Veteran completed a VA neuropsychological assessment in September 2001, which included an interview; behavioral observations; and intelligence, memory, and neuropsychological testing.  The clinical psychologist concluded that the results of sensitive measures suggested the possibility of very mild impairment in brain functioning, but overall intelligence was normal and memory abilities were above average.  He reported that etiology of any impairment might be related to the head injury sustained last year, particularly if, as the Veteran reported, the injury was sufficiently severe to result in a seizure disorder.  However, the history of alcohol dependence could also be a contributing factor.  The psychologist related that the Veteran was cognitively capable of competitive employment and seemed able to profit from vocational rehabilitation and training.

Subsequent VA treatment records reflect that the Veteran received cognitive therapy beginning in September 2001 to address impairments associated with the November 2000 traumatic brain injury (TBI).

During a November 2001 PTSD screening, the Veteran endorsed depressed and anxious mood, mood lability with anger outbursts, memory lapses, profound feelings of guilt and shame, insomnia, anxiety in social situations, and recent suicidal ideation without intent or plan.  Regarding PTSD symptoms, the Veteran reported that the events that led to his incarceration had "replaced" his previous re-experiencing symptoms related to traumatic events in Vietnam.  He described having recurrent and intrusive memories, and related symptoms of insomnia, depression, isolation, hyperarousal, and irritability related to the 1993 events.  On mental status examination, he was alert and fully oriented; pleasant, cooperative, and soft-spoken; affect was flat and consistent with mood; he became visibly upset and teary when discussing the events of 1993; speech, motor behavior, thought process, and thought content were within normal limits; and judgment and insight were fair to good.  The assigned GAF score was 55.

A February 2002 disability determination and transmittal from the Social Security Administration found the Veteran to be disabled for SSA purposes based on the primary diagnosis of recurrent major depression and the secondary diagnosis of PTSD.  SSA found the Veteran's disability began November 19, 2000, the date he was hospitalized for a closed head injury.

A February 2002 VA mental health note reflects the Veteran's complaint that he continued to have trouble falling asleep; however, he reported that since he had been on Depakote for six months for his seizure disorder, he noticed his anger had been less explosive.  He discussed the death of his common-law wife, became tearful, and expressed shame.  Objectively, his mood was dysthymic and his affect was tearful and sad, congruent with his mood.  The assigned GAF score was 45.  He was admitted to a VA PTSD day treatment program and generally attended PTSD groups regularly until January 2003.

During a September 2002 psychiatric evaluation, the Veteran stated he was afraid he was going to hurt someone because he had experienced increased irritability and hostility for the past few weeks.  At the same time, he started having "recurring nightmares of his overseas duty" and his "old murder case."  He admitted having an episode of rage in the VA cafeteria the previous day and being asked by security to go home.  On mental status examination, his mood was irritable; affect was anxious and depressed; and his speech was slowed.  He endorsed auditory hallucinations over the last few weeks involving his common-law wife's last words.  The psychiatrist remarked that while the Veteran had fears that he would harm someone, he "never wants to lose control like that again."  The assigned GAF score was 45.

The reported results of a psychological assessment and health survey in November 2002 indicated "severe emotional distress or depression."

In April 2003, the Veteran reported he had run out of Gabapentin for seizure control a couple weeks earlier and had experienced insomnia ever since.  The psychiatrist renewed the Gabapentin prescription.  Mental status examination findings included alert and fully oriented appearance, no exacerbation of psychotic features, mood described as feeling "okay," constricted affect, no psychomotor agitation or retardation, goal-directed thought process, good eye contact, fair to poor insight and judgment, and good impulse control during interview.

During an April 2004 VA psychiatry visit, the Veteran reported doing well and continuing to participate with the Escort Services at a VA medical center (VAMC) through Vocational Rehabilitation.  He described having increased depressive symptoms with anhedonia and difficulty initiating activities and asked whether his Celexa (citalopram) could be increased.  Mental status examination findings were similar to those reported in April 2003.  He denied suicidal or homicidal ideas, intent, or plans and had no formal thought disorder.  His dose of Celexa was increased.  At a July 2004 follow-up visit, he endorsed intermittent insomnia, but denied anhedonia and lack of interest or energy.  Findings on mental status examination were unchanged from those reported during the previous appointment.  In December 2004, the Veteran reported "doing well," although he still experienced intermittent insomnia, and the VA psychiatrist renewed his Risperdal and Celexa medications.  

During a June 2005 follow-up visit with his VA psychiatrist, the Veteran continued to report doing well and denied having current anhedonia and lack of interest or energy; psychotic features; or suicidal or homicidal ideas, intent, or plans.  Objectively, he had constricted affect, fair to poor insight, and fair judgment and impulse control during the interviews. 

In August 2005, the Veteran told a VA primary care physician that he planned to travel to the Philippines because he had children there and was going to get married.  The physician asked the Veteran to advise his psychiatrist of his travel plans.

In September 2005, PTSD and depression screening was negative, with the Veteran denying PTSD or depression symptoms within the past month.  

The Veteran was afforded a VA examination November 2005.  Following a review of the claims file and examination of the Veteran, the Axis I diagnosis was polysubstance dependence in current remission and cognitive disorder, the Axis II diagnosis was mixed personality disorder with Cluster B traits, and the assigned GAF score was 62.  The psychiatrist concluded that the Veteran did not currently exhibit symptoms of PTSD, including due to identified stressors related to Operations Eagle Pull and Frequent Winds during his first period of service.  The psychiatrist noted it was "clear that the Veteran's substance addiction and disturbance of mood and behavior worsened during his active duty times, particularly during the time of his third" period of service characterized as other than honorable, but the examiner could find no evidence that the active duty experiences caused those conditions.  Instead, the psychiatrist concluded that the majority of the Veteran's symptoms and related dysfunctions were related to his diagnoses of polysubstance dependency and personality disorder.  

However, to the extent that subsequent RO and Board decisions granted service connection for PTSD and an earlier effective date based, in part, on some medical opinion evidence concluding that the Veteran, in fact, did have PTSD related to events during his service in Vietnam, the Board will consider the mental status examination findings from the November 2005 VA examination.  

The examiner indicated that since completing a VA alcohol and drug treatment program in 2001 and remaining "almost drug-free," the Veteran had experienced a corresponding decrease in mood and behavioral disturbance and was comparatively better-adjusted in recent years.  In addition to treatment records reflecting these findings, the Veteran himself endorsed this opinion.

On mental status examination, the Veteran was appropriately dressed, able to maintain personal hygiene, and oriented to person, time, and place.  His attitude toward the examiner was "manipulative, guarded."  Speech and psychomotor activity were unremarkable.  The Veteran did "not evidence significant mood dysphoria," but affect was constricted.  He was easily distracted.  Thought process and content were unremarkable with no delusions.  Judgment was intact, intelligence was average, and the Veteran had some insight to his problems.  The Veteran had mild sleep impairment, which had improved since he was "not using as much."   He denied having obsessive or ritualistic behavior, panic attacks, or current suicidal or homicidal ideation, and the examiner observed he had good impulse control.  The examiner noted the Veteran's remote history of very strong violence and its effects on the Veteran's motivation and mood, and his history of suicidal and homicidal thinking and behavior that had usually been related to substance abuse or addiction.  Finally, the Veteran had "minimal cognitive defects" manifested by mildly impaired remote, recent, and immediate memory.

Subsequent VA treatment records show that the Veteran participated in an incentive therapy program working as an escort at a VA Medical Center through Vocational Rehabilitation and that he functioned well in the program with some supervision.  The records document that he reported to the job assignment on time, his hygiene and appearance were good, and he got along well with peers and staff.  During an April 2008 VA psychiatry visit, the Veteran reported doing well and denied anhedonia, lack of interest of energy, or psychotic features.  

A July 2008 VA psychiatry note reflects that the Veteran was evaluated at the request of police after being peripherally involved in an incident involving a firearm on station earlier in the day.  He had been under the impression that he and a co-veteran were going to a casino and in preparation for the trip, the co-veteran asked the Veteran to carry a firearm and ammunition while they were travelling.  The co-veteran instead drove to a VAMC, jumped out of the car, and went to a vocational rehabilitation case manager's office.  The police confiscated the Veteran's gun and requested evaluation.  The Veteran's breathalyzer results were .084 and he reported having a few beers earlier in the day.  He did not appear and interact in an intoxicated or impaired manner and was able to relate details to the psychiatrist and police in a coherent and consistent manner.  He was not psychotic, depressed, suicidal, or homicidal, and he reported compliance with his medications.  The Veteran had not been driving and planned to take city transportation or contact a friend to return to his residence.  

Later that afternoon, the Veteran appeared at his vocational rehabilitation case manager's door "very nervous, hands trembling more than usual, strong odor of alcohol, angry facial expression."  Another veteran in the hallway had accused the Veteran of having a gun.  The police escorted the Veteran to another location for questioning, along with the contents of a green duffle bag.  The Veteran was discharged from the vocational rehabilitation incentive therapy work program the next day due to non-compliance and use of alcohol.

The Veteran was afforded another VA examination in December 2008.  He endorsed PTSD symptoms such as distressing dreams, efforts to avoid recollections of the trauma, feeling detached from others, sleep impairment, and irritability and anger outbursts.  He denied obsessive/ritualistic behavior, panic attacks, or suicidal or homicidal thoughts.  Mental status examination findings included the following: clean, neatly groomed appearance; oriented to person, time, and place; slow speech; cooperative, friendly attitude; depressed mood with normal affect; intact attention; unremarkable thought process and content with no delusions or hallucinations; intact insight and judgment; average intelligence; good impulse control; and normal remote and immediate memory with mildly impaired recent memory.  The Veteran reported that within the last year, he was no longer working through the incentive therapy program with VA vocational rehabilitation.  The diagnosis was chronic, moderate PTSD with an assigned GAF score of 60.  The examiner concluded the Veteran's PTSD resulted occupational and social functioning with reduced reliability and productivity.

During a December 2008 call with vocational rehabilitation staff, the Veteran reported he had not obtained assistance for his alcohol abuse yet, which was a condition for his return to the program, but he stated he quit without help.  The counselor advised him that he would need to complete a substance abuse treatment program with documentation that he had remained sober for at least 60 days to return to the vocational rehabilitation program.  In January 2009, the Veteran began participating in a VA Return-from-Relapse group related to his alcohol and cannabis abuse.

For the time periods from December 23, 1997 through July 26, 2006 and from November 1, 2006 through August 27, 2009, the Board finds the Veteran's PTSD has been manifested by irritable, dysthymic mood with occasional episodes of violence or angry outbursts; flat, constricted, or anxious affect; mild memory impairment; limited insight and judgment; suicidal ideation without intent or plan in November 2001 and occasional auditory hallucinations, each related to the non-military stressor of killing his common-law wife; and impaired concentration.  Subjectively, his PTSD has been manifested by mood lability with angry outbursts and a propensity for violence; some sleep disturbance; memory impairment; and some distressing dreams.  

With resolution of reasonable doubt in the Veteran's favor for the period from December 23, 1997 through July 26, 2006, and for the period from November 1, 2006 through August 27, 2009, the Board finds the Veteran's psychiatric impairment due to PTSD more nearly approximates the criteria for a 50 percent rating.  However, a higher, 70 percent rating is not warranted for either period because the Veteran's PTSD has not been manifested by "particular symptoms associated with that percentage, or others of similar severity, frequency, and duration."  See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (describing when a veteran may qualify for a given disability rating under [38 C.F.R.] § 4.130).  

For example, while the Veteran sometimes endorsed feeling depressed and was observed to appear depressed at times, the 70 percent rating criteria contemplate near-continuous depression that affects the ability to function independently, appropriately, and effectively.  The evidence does not demonstrate the Veteran's depression to be that frequent or severe.  Similarly, a 70 percent rating contemplates symptoms such as impaired impulse control such as unprovoked irritability with periods of violence.  During the two relevant time periods in this appeal, the Veteran generally demonstrated intact or "good" impulse control except in July 2007 when he put his arm through a window.  In other words, the Veteran has generally been successful in maintaining self-control and avoiding periods of violence despite frequent irritability.  The evidence does not show that any period of violence was unprovoked.  Finally, although the Veteran endorsed suicidal ideation in November 2001, the Board finds this single instance of this symptom insufficient to warrant a 70 percent rating because the Veteran himself attributed this symptom to the experience of killing his common-law wife in 1993.  Regardless, the Veteran's singe episode of suicidal ideation has not been shown to result in social or occupational impairment beyond the criteria for a 50 percent rating.  The Board also notes that the November 2005 VA examiner accurately pointed out that during the period of several years that the Veteran decreased or ceased his alcohol consumption, the treatment records documented a corresponding decrease in mood and behavioral disturbance and improved sleep.  In other words, the Veteran appeared to experience some degree of improvement in psychiatric symptoms during the time that he decreased his alcohol consumption.

The Board also finds that the GAF scores assigned during the periods from December 23, 1997 through July 26, 2006 and from November 1, 2006 through August 27, 2009, which ranged from 45 to 62, do not provide a basis for a rating in excess of 50 percent.  Again, GAF scores ranging from 45 to 62 denote symptoms and impairment ranging from serious to mild.  The Board finds the majority of the assigned scores, which indicate moderate symptoms or impairment, are consistent with the severity, frequency, and duration of the Veteran's PTSD symptoms as noted in the contemporaneous clinical evidence of record.

In summary, the Board finds that a rating higher than 50 percent is not warranted for the Veteran's PTSD at any time from December 23, 1997 through July 26, 2006 and from November 1, 2006 through August 27, 2009.  The Board has considered staged ratings under Fenderson v. West, 12 Vet. App. 119 (1999), but concludes that they are not warranted because as explained above, the medical and lay evidence of record did not support a higher rating than already assigned.

The Board has considered whether referral for an extraschedular rating under 38 C.F.R. § 3.321(b)(1) is warranted in this case.  The Board finds that the Veteran's symptoms associated with his PTSD, such as anxious mood, sleep impairment, impaired judgment, and irritability, are contemplated by the schedular rating criteria.  Moreover, the Board emphasizes that the General Rating Formula for Mental Disorders specifically allows for consideration of symptoms not mentioned by the rating criteria, as reflected by the phrase "due to such symptoms as" that is included for the 30 percent criteria and higher.  38 C.F.R. § 4.130.  

Neither the facts of the case nor the Veteran's allegations raise the issue of extraschedular consideration.  Thus, no analysis is required.  See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016) (holding that an extraschedular analysis is not warranted where it is not "specifically sought by the claimant nor reasonably raised by the facts found by the Board") (citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007).  See also Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (explaining that the Board had no obligation to analyze whether referral is warranted for extraschedular consideration if an extraschedular rating is not specifically sought by the claimant or reasonably raised by the facts found by the Board).  

Similarly, the Board recognizes that a claim for a total rating based on individual unemployability may be raised as a separate claim, or in the context of an initial rating or a claim for an increase.  See Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009).  In this case, the Veteran raised the issue of entitlement to a TDIU, and the Board addresses the issue below.

III. TDIU

On September 30, 2009, VA received the Veteran's claim of entitlement to a TDIU based on his only service-connected disability, PTSD.  Effective August 28, 2009 through November 30, 2009, he was receiving a temporary total rating of 100 percent for hospitalization related to service-connected PTSD.  Since December 1, 2009, he has been receiving a 100 percent schedular rating for his PTSD.  

In Bradley v. Peake, 22 Vet. App. 280 (2008), the Court held that there could be a situation where a veteran has a schedular total rating for a particular service-connected disability, and could establish a TDIU rating for another service-connected disability in order to qualify for special monthly compensation (SMC) under 38 U.S.C. § 1114(s) by having an "additional" disability of 60 percent or more ("housebound" rate).  In Bradley, the Court found that a TDIU was warranted in addition to a schedular 100 percent evaluation where the TDIU had been granted for a disability other than the disability for which a 100 percent rating was in effect.  Bradley, 22 Vet. App. at 293.  This case is distinguishable from Bradley because the Veteran seeks entitlement to a TDIU based solely upon his service-connected PTSD, which is his only service-connected disability.  Accordingly, the issue of entitlement to a TDIU is rendered moot by the assignment of the 100 percent disability rating in effect prior to receipt of the TDIU claim.  See 38 C.F.R. § 4.16(a) (TDIU may be assigned "where the schedular rating is less than total.").

Moreover, the Board has reviewed the evidence of record and finds that neither the Veteran nor his attorney or former representative raised the issue of entitlement to a TDIU prior to September 30, 2009 and the issue of TDIU was not otherwise raised by the record.  See Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009) (holding that a claim for a total rating based on individual unemployability may be raised as a separate claim, or in the context of an initial rating or a claim for an increase); see also 38 U.S.C.A. § 5110(a), (b)(2); 38 C.F.R. § 3.400(o) (describing how effective dates are assigned in claims for increases).  Therefore, a TDIU is not warranted prior to August 28, 2009.


ORDER

For the period from December 23, 1997 through July 26, 2006, an initial 50 percent rating is granted for PTSD, subject to controlling regulations applicable to the payment of VA monetary benefits.

From November 1, 2006 through August 27, 2009, an initial rating in excess of 50 percent for PTSD is denied.

The claim of entitlement to a TDIU is dismissed.




____________________________________________
K. Conner
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs