Citation Nr: 1757040 Decision Date: 12/11/17 Archive Date: 12/20/17 DOCKET NO. 14-34 089 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE 1. Entitlement to an initial disability rating in excess of 50 percent prior to November 21, 2014 and a rating in excess of 70 percent beginning November 21, 2014. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to November 21, 2014. REPRESENTATION Veteran represented by: Karl Kazmierczak, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and her husband ATTORNEY FOR THE BOARD Michael Duffy, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1987 to August 1988. This appeal comes to the Board of Veterans' Appeals (Board) from a January 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and her husband testified before the undersigned Veteran's Law Judge at a May 2017 hearing. A transcript of the hearing is associated with the evidence of record. FINDINGS OF FACT 1. During the period at issue, the Veteran's PTSD symptoms resulted in total occupational and social impairment. 2. The Veteran's only service-connected disability is PTSD, and there are no active claims for service connection for other disabilities. CONCLUSION OF LAW 1. The criteria for a 100 percent disability rating for the Veteran's PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.10, 4.130, DC 9411 (2017). 2. The issue of entitlement to a TDIU prior to November 21, 2014 is moot. See 38 U.S.C. § 1114; Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Rating Principles Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. Disabilities must be reviewed in relation to their history. Where there is a question as to which of two evaluations apply, the Board assigns the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. See 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Accordingly, separate ratings may be assigned for separate periods of time based on the facts found, which is a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Pyramiding, that is the evaluation of the same disability or the same manifestation of a disability under different diagnostic codes (DCs), is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Where 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. It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans' Claims stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). PTSD is rated under the schedule of ratings for mental disorders, 38 C.F.R. § 4.130, DC 9411. The rating criteria are as follows: A 10 percent rating is warranted for 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 symptoms controlled by continuous medication. A 30 percent rating is warranted for 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 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted 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 that 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 rating is warranted for 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 psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Although the Veteran's symptomatology is the primary consideration, the Veteran's level of impairment must be in "most areas" applicable to the relevant percentage rating criteria. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). In evaluating psychiatric disorders, VA has adopted and employs the nomenclature in the rating schedule based upon the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association (DSM). See 38 C.F.R. § 4.130. As such, the diagnosis of a mental disorder should conform to the DSM. See 38 C.F.R. § 4.125(a). Effective August 4, 2014, VA amended the portion of its Rating Schedule dealing with mental disorders and its adjudication regulations that define the term "psychosis" to remove outdated references to the Fourth Edition of the DSM (DSM-IV) and replace them with references to the recently updated Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094 (August 4, 2014). The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the AOJ on or after August 4, 2014. VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board on or before August 4, 2014, even if such claims are subsequently remanded to the AOJ. See 80 Fed. Reg. 53, 14308 (March 19, 2015). Because the AOJ certified the Veteran's appeal to the Board in January 2015, this claim is not governed by the DSM-IV. Nevertheless, under the DSM-IV, diagnoses many times will include an Axis V diagnosis, or a Global Assessment of Functioning (GAF) score. The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). According to the DSM-IV, in relevant part, a GAF score between 21 and 30 indicates behavior considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation). A GAF score between 31 and 40 is indicative of some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed adult avoids friends, neglects family, and is unable to work). A GAF score between 41 and 50 is indicative of 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). 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 coworkers). 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. While an examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, it is not determinative of the percentage VA disability rating to be assigned. The percentage rating is to be based on all the evidence that bears on occupational and social impairment. 38 C.F.R. § 4.126; VAOPGCPREC 10-95 (1995); 60 Fed. Reg. 43186 (1995). Analysis The Veteran was afforded a VA examination of her PTSD in November 2011. The examiner reported that the Veteran's symptoms included recurring thoughts of her trauma, nightmares, difficulty sleeping, intense distress with exposure to similar events, thought avoidance, angry outbursts, irritability, difficulty concentrating, hypervigilance, anxiety around people, an exaggerated startle response, panic attacks, difficulty establishing and maintaining effective relationships, difficulty adapting to stress and work, impaired impulse control, and an intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. In regard to occupational and social functioning, the examiner noted that the Veteran reported she would go into a rage at times and had difficulty trusting people. The Veteran reported that she had difficulty maintaining employment and was fired from at least eight jobs due to angry outbursts at work. The examiner noted the Veteran had a history of suicide attempts and hospitalizations. The Veteran reported living with her mother and stepfather and having a very good relationship with her siblings. She reported she had a son and a relationship long-term partner for more than 15 years, but she indicated the relationships had problems due to her psychiatric symptoms. On examination, the examiner indicated the Veteran exhibited mildly inappropriate behavior and nervousness but was able to maintain eye contact and communicate within normal limits. However, the Veteran reported impaired attention and concentration. The examiner noted the Veteran had a history of suspiciousness, delusional thinking, and periods of psychotic symptoms. The examiner noted the Veteran reported impaired short-term memory and suicidal ideation. The examiner assigned the Veteran a GAF score of 42 at the time. Diagnoses were PTSD secondary to military sexual trauma, bipolar disorder with psychotic features, and alcohol abuse in sustained full remission. The examiner opined that is was possible to differentiate symptoms between the diagnoses. Symptoms attributable to PTSD included fear, nightmares, irritability, angry outbursts, avoidant behavior, restricted range of affect, detachment from others, intense distress, difficulty concentrating, hypervigilance, and exaggerated started response. The examiner opined the Veteran's symptoms resulted in occupational and social impairment with deficiencies in most areas, such as work school, family relations, judgment, thinking, and/or mood. The examiner opined that while 75 percent of the symptoms were attributable to PTSD, 25 percent were attributable to the Veteran's bipolar disorder. The Veteran was afforded a second VA mental health examination in November 2012, which revealed many substantially similar findings. Her GAF score at the time was 40. She appeared disheveled and severely thin for her height and reported that she often had no desire to eat. The examiner opined that occupational and social impairment was 50 percent attributable to PTSD, 30 percent to bipolar disorder, and 10 percent to alcohol abuse. The examiner opined the Veteran would have near continuous panic or depression affecting the ability to function independently, appropriately, and effectively. The Veteran was afforded additional examinations of her mental health in September 2013 and November 2014, which revealed many substantially similar findings to the prior examinations. The November 2014 VA examiner concurred with the initial examiner's opinion that 75 percent of the Veteran's symptoms are attributable to PTSD. However, the November 2014 examiner opined that the Veteran was totally occupationally and socially impaired as a result of her psychological symptoms. The examiner noted the Veteran has minimal insight into the interaction between family and marital dynamics and her increased anger, and the examiner noted the Veteran's distress was intensified by her husband's threats to leave her. The Board is precluded from differentiating between symptomatology attributed to a service-connected disability and a nonservice-connected disability in the absence of medical evidence which does so. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). The VA examinations of record indicate the Veteran has many symptoms which have resulted in total and occupational impairment. While the examiners only attribute at most 75 percent of the symptoms to the Veteran's service-connected PTSD, the Board finds the opinions do not provide adequate rationale for how the percentage figures were calculated. Moreover, the examiners' opinions do not clearly explain the extent to which the symptoms attributable to PTSD alone affect the Veteran's occupational and social functioning. Therefore, while the Board affords some probative weight to the opinions to the extent that they identify relevant symptoms, the Board affords less probative weight to the findings regarding the Veteran's occupational and social functioning. After reviewing the evidence of record, the Board finds that it would be impractical and speculative to further attempt to ascertain what the level of occupational and social functioning of the Veteran due to PTSD would be in the absence of comorbid psychological disorders including bipolar disorder, which are not service connected. Resolving all reasonable doubt in the Veteran's favor, for the purposes of this decision, the Board will consider all of the Veteran's mental health symptoms to be related to her service-connected PTSD in the adjudication of this claim. The Board notes that the record contains many medical opinions and records identifying symptomatology such as suicidal ideation and an inability to establish and maintain effective relationships, which is consistent with the frequency, duration, and severity of symptoms contemplated by a 70 percent disability rating. However, the Board also notes lay statements in the record and hospitalization records indicate the Veteran has a history of decompensation with suicidal ideation and medication overdoses. See generally records received from the Social Security Administration (SSA); March 2017 hearing testimony. The Board finds these symptoms are more akin to the persistent danger of hurting self or others contemplated by a 100 percent rating. The Board also notes the VA examiners found the Veteran would have an intermittent inability to perform activities of daily living including maintenance of personal hygiene, which is also contemplated by a 100 percent rating. Moreover, the Board finds that the frequency, duration, and severity of the Veteran's symptoms throughout the period at issue more nearly approximates the total occupational and social impairment contemplated by a 100 percent disability rating. In regard to occupational functioning, the record shows no compelling evidence of significant occupational activity since the Veteran was fired from her last job in 2007, and SSA found she was unable to work due to psychological disabilities since that time. See generally records from SSA. The VA examiners' opinions indicate her disability precludes work, which is consistent with the employment data and medical records received from SSA, lay statements from the Veteran's family and friends regarding her ability to function on a daily basis, and her history of episodes of decompensation. In regard to social functioning, the Board finds that while the Veteran interacts with others including friends and family at times, the interaction often results in verbal or physical conflict. The hearing testimony from the Veteran's husband indicates social interaction is often limited to receiving care and is interrupted by angry outbursts. See, e.g., May 2017 Hearing Testimony from the Veteran's husband (indicating the family needs to monitor the Veteran frequently to make sure she hasn't overdosed on her medications). In light of the above, the Board finds that the evidence supports a finding that the Veteran is entitled to a 100 percent disability rating for PTSD. Entitlement to a TDIU prior to November 21, 2014 In an April 2017 rating decision, the Veteran was awarded a TDIU for her PTSD symptoms as of the date of her 70 percent rating for PTSD (November 21, 2014). Her representative requested an earlier effective date for the award back to the filing date of the Veteran's PTSD claim. See May 2017 letter from the Veteran's representative. However, the Board is granting the Veteran the maximum schedular rating of 100 percent for PTSD for the entire period at issue back to the filing date. The Board notes that a grant of a 100 percent disability evaluation does not always render the issue of entitlement to a TDIU moot. VA's duty to maximize a claimant's benefits includes consideration of whether her disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted under 38 U.S.C. § 1114(s) if a veteran has a 100 percent disability rating for a single disability, and VA finds that a TDIU is warranted based solely on a disability or disabilities other than the disability that is rated at 100 percent. See Bradley, 22 Vet. App. 280 (analyzing 38 U.S.C. § 1114(s)). In this case, as PTSD is the Veteran's only service-connected disability and there are no active claims for service connection for other disabilities, the Veteran cannot receive additional special compensation based on an award of a TDIU for the period beginning December 1, 2016. Therefore, the Board finds the Veteran's benefits have already been maximized, and further evaluation of entitlement to a TDIU is moot. ORDER Entitlement to a 100 percent disability rating for PTSD is granted. The issue of entitlement to a TDIU prior to November 21, 2014 is dismissed as moot. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs