Citation Nr: 1757535 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 13-15 889 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an initial disability rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected PTSD, including on an extraschedular basis. REPRESENTATION Appellant represented by: Kenneth M. Carpenter, Attorney ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from January 1969 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) above. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless, electronic claims processing system. For reasons discussed below, the issue of entitlement to TDIU is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required on his part. FINDING OF FACT For the entire appeal period, the Veteran's PTSD resulted in social and occupational impairment with reduced reliability and productivity due to a myriad of symptoms, including anxiety, depression, self-isolation and disturbances in mood, with occasional episodes of impaired impulse control manifested by anger and irritability but without more severe manifestations, such as episodes of violence, that more nearly approximate occupational and social impairment with deficiencies in most areas or total occupational and social impairment. CONCLUSION OF LAW The criteria for an initial 50 percent rating for PTSD have not been met. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§ 3.321, 4.7, 4.130, Diagnostic Code (DC) 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). Neither the Veteran nor his attorney- representative has referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The May 2010 rating decision on appeal granted service connection for PTSD and assigned an initial 50 percent rating, effective from October 29, 2007. The Veteran perfected an appeal as to the initial rating assigned, which is the basis of this appeal. He and his attorney have consistently argued that his service-connected PTSD warrants a 70 percent initial rating, as he has manifested deficiencies in most areas throughout the appeal period. After careful review of the lay and medical evidence of record, the Board disagrees and finds that the Veteran's service-connected PTSD warrants no more than a 50 percent rating throughout the appeal period, as the preponderance of the evidence shows that his disability has resulted in an occupational and social impairment with no more than reduced reliability and productivity. The evidence does not reflect that the Veteran has deficiencies in most areas, including in judgement, family, or thinking. The preponderance of the evidence reflects that the Veteran's PTSD has been consistently manifested by anxiety, depression, anger, irritability, and self-isolation with avoidance, paranoia, and withdrawal. The Veteran has also endorsed experiencing flashbacks, nightmares, exaggerated startle response, and hypervigilance. He has also reported having problems with his short-term memory, as well as with attention and concentration. The evidence shows the Veteran's myriad of symptoms have resulted in impaired social functioning as a result of his anxiety, avoidance, and withdrawal. In this regard, the Veteran has variously reported that he is withdrawn and emotionally numb and hyper around crowds. See VA outpatient treatment records dated November 2008 and February 2011. He has also reported avoiding social activities with individuals, although he also stated that he will "make an appearance" and eventually leave. See February 2011 VA treatment record. Despite his self-isolation and withdrawal, the evidence shows that he has occasionally reported having friends or acquaintances in the community and at work, although he has never reported having any close friends. See VA outpatient treatment records dated July 2008 and December 2011; see also VA examination reports dated March and December 2010 and January 2011. Despite the evidence of a social impairment, the Board notes the Veteran has no serious deficiencies in family relations and interactions. Indeed, in April 2009, the Veteran reported that he rarely socialized outside of his wife and immediate family. During the January 2011 VA examination, he also reported that his symptoms do not impact his relationship with his wife and family. The evidence shows the Veteran has been married three times but remarried his first wife in 2008 and has remained married to her throughout the appeal. The Veteran has generally described his relationship with his wife as good, although evidence dated later in the appeal period shows he has reported they do not have a physical relationship. See VA outpatient treatment records dated January 2009 and May 2015; see also VA examination reports dated January 2011 and February 2013. He has also reported being close to his children, siblings, and parents when they were alive, and has reported that he enjoys spending time with his grandchildren. See July 2008 VA treatment record; VA examination reports dated January 2011 The evidence shows that the Veteran's father and mother died in 2012 and 2013, respectively, and that after their deaths, he began having problems with his siblings over his mother's estate. See VA outpatient treatment records dated January 2014, May 2015, and August 2016; see also March 2017 VA examination report. The Veteran's family conflict has continued since 2013 and has resulted in the loss of communication with his siblings; however, the Veteran has continued to interact with his wife and other family members, as he has reported going biking, running, and fishing with his grandson during the summer and talking to one sister. See e.g., VA treatment records dated October 2015; see also March 2017 VA examination report. The preponderance of the evidence also shows the Veteran's symptoms have resulted in deficiencies at work and with his mood throughout the appeal. The evidence shows the Veteran stopped working in July 2011; however, before he retired, the Veteran consistently reported feeling stressed at work, as well as losing focus and making mistakes. See e.g., VA treatment records dated July 2008, January 2009, and August 2010. The evidence also shows a progression of the Veteran's stress and resulting irritability and anger at work. For instance, during the March 2010 VA examination, the Veteran endorsed having significant stress at work due to training someone else but he denied having any other significant problems on the job. However, subsequent evidence shows he was counseled by his superiors regarding his attitude at work and inability to get along with other co-workers and that there was increased demand on each employee, which led to his retirement. See May 2010 VA treatment record; February 2013 VA examination report. The Veteran also reported occasionally throwing things at work due to increased stress and anxiety and, in this regard, as noted, he has endorsed experiencing hypervigilance, paranoia, nervousness and irritability, particularly when driving and at work. See e.g., May 2012 VA examination report. Despite the foregoing, the preponderance of the evidence does not show that the Veteran's anger, irritability, or other disturbances in mood has resulted in violence during the appeal. Indeed, there is no indication or allegation that the Veteran demonstrated violence toward his family members at any time during the appeal period. Additionally, while he has presented evidence showing that he occasionally threw things at work when he got upset, he reported that he would throw things out of frustration but would never hurt anyone and was not prone to violence. See e.g., March 2010 VA examination report. The Board also finds probative that, while an August 2016 treatment record describes the Veteran's temper and emotions as out of control, there is no lay or medical evidence showing that he experienced any outbursts of anger or severe impaired impulse control after he stopped working in July 2011. Similarly, the Board finds probative that, despite the Veteran's problems with anger and irritability, as well as concentration and memory, the evidence shows that he remained able to motivate himself for work until he retired. Overall, the Board acknowledges that the Veteran's PTSD is manifested by moderately severe symptoms that result in deficiencies in interpersonal relations, work, and mood. Indeed, despite the evidence of the Veteran's anxiety, anger, irritability, difficulty with memory and concentration, and other symptoms, the Board finds probative that the Veteran has maintained friendships and relationships with others, albeit sometimes strained, and continued to work until he retired in 2011. The Board also finds probative that the preponderance of the evidence does not show any serious deficiencies in family relations, judgement, or thinking. As noted above, the Veteran has maintained effective relationships with his wife and grandchildren and, while he began having problems with his siblings beginning in 2012, the evidence reflects that his family problems are situational in nature and have not been persistent throughout the appeal period. Additionally, there is no evidence of difficulty in thought processing or content. Indeed, the Veteran's thought process has been consistently described as goal-directed, logical, and coherent and, while he has reported having intrusive thoughts, nightmares, and flashbacks, he has consistently denied having delusions, hallucinations, or suicidal or homicidal ideation. In a November 2017 statement, the Veteran endorsed having suicidal thoughts, particularly when his parents died. See also March 2017 VA examination report. However, the other evidence of record, inclusive of the VA outpatient treatment records and VA examination reports dated throughout the appeal, show that he consistently denied having suicidal or homicidal thoughts. Therefore, the Board finds that the Veteran's PTSD has not been manifested by suicidal thoughts or any other serious impairment in thinking. The Veteran has not been shown to be obsessive or compulsive and, while his judgement was described as fair in 2008, his judgment is otherwise described as average and good. Moreover, the Board notes the Veteran's speech, while occasionally described as somewhat slow and soft-spoken, is otherwise normal. The Veteran has also maintained spatial orientation in all spheres throughout the appeal. The Board again acknowledges that the Veteran has reported experiencing persistent depression throughout the appeal but there is no indication that his depression has affected his ability to function independently, appropriately, or effectively. Indeed, he has remained able to perform activities of daily living, including maintaining personal hygiene and, while he self-isolates, he continues to perform yard work and enjoy doing activities with his wife and grandchildren. In reviewing the record, the Veteran has submitted statements from himself, his wife, and Dr. Bonney which purport to establish that the Veteran's PTSD is manifested by severe symptoms which warrant a higher, 70 percent rating; however, these statements are not consistent with the overall disability picture reflected in the other evidence of record which shows that his PTSD has been manifested by moderately severe symptoms that have resulted in social and occupational functioning with deficiencies in interpersonal relations, work, and mood; however, his symptoms are not shown to be of the severity or frequency to have resulted in a more severe occupational and social impairment, including with deficiencies in judgement, family, or thinking. In making this determination, the Board notes that the Veteran's GAF scores have predominately ranged in the 50s, which indicates moderate symptoms or moderate difficulty in social or occupational functioning. The Veteran was assigned GAF scores in the 40s in 2010 and once in 2013, which indicates serious symptoms. After review of the record, the Board finds that the GAF scores assigned in this case are reflective of the Veteran's overall disability picture which is shown to be predominately manifested by moderate symptoms and resulting social and occupational impairment, with serious symptoms and functioning that occur no more than occasionally and do not result in a social or occupational impairment with deficiencies in most areas. Given the foregoing, the Board finds that the Veteran's service-connected PTSD more nearly approximates the level of disability contemplated by the 50 percent rating under the General Rating Formula for Mental Disorders found at 38 C.F.R. § 4.130, Diagnostic Code 9411. Indeed, as discussed above, the Veteran's PTSD is manifested by a myriad of moderately severe symptoms that result in an occupational and social impairment with no more than reduced reliability and productivity. The evidence does not reflect that the Veteran has deficiencies is most areas, including in judgement, family, or thinking. Nor does the evidence reflect that the Veteran's PTSD has resulted in total occupational and social impairment as a result of symptoms such as had persistent impairment in thought processes or communication, grossly inappropriate behavior, persistent danger of hurting others, intermittent inability to perform activities of daily living, disorientation to time or place, or memory loss for names of close relatives, own occupation, or own names. The Board has considered whether additional staged ratings are appropriate for the Veteran's service-connected PTSD. However, the Board find that his symptomatology has been stable throughout the appeal period; therefore, assigning additional staged ratings for such disability is not warranted. In sum, the Board finds that the preponderance of the evidence is against the grant of an initial rating in excess of 50 percent at any point during the appeal period. As the evidence preponderates against the Veteran's claim, the benefit-of-the-doubt doctrine is not applicable in this case. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. ORDER An initial rating in excess of 50 percent for service-connected PTSD is denied. REMAND The Veteran was awarded a TDIU due to his service-connected disabilities, effective February 16, 2015. See July 2015 rating decision. Given the Board's determination that the Veteran's service-connected PTSD warrants a 50 percent rating since October 29, 2007, the Veteran's combined disability rating does not meet the schedular requirements for consideration of entitlement to a TDIU prior to February 16, 2015. However, there is lay and medical evidence of record showing the Veteran was unable to secure and follow a substantially gainful occupation due to his service-connected PTSD prior to February 16, 2015. See statements from Veteran's attorney dated February and October 2015; October 2017 vocational assessment. The Board is precluded from assigning a TDIU on an extraschedular basis in the first instance. Given the evidence that the Veteran was unable to secure and follow a substantially gainful occupation due to his service-connected disabilities prior to February 16, 2015, the Board must refer this case to the Director of the Compensation Service for consideration of entitlement to a TDIU on an extraschedular basis. Accordingly, the case is REMANDED for the following action: 1. Refer the issue of entitlement to a TDIU prior to February 16, 2015, on an extraschedular basis to the VA Director of the Compensation Service for adjudication. The Director is requested to provide adequate reasons and bases for any decision, to include discussion of whether the Veteran met the requirements for assignment of a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b). 2. Then, after undertaking any other appropriate development deemed necessary, readjudicate the issue on appeal on the basis of the additional evidence of record. If the determination remains adverse to the Veteran, he and his representative should be furnished with a Supplemental Statement of the Case. An appropriate period of time should then be allowed for a response before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ L.M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs