Citation Nr: 1758046 Decision Date: 12/14/17 Archive Date: 12/28/17 DOCKET NO. 13-21 407 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. L. Burroughs, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1968 to April 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in June 2010 from the Department of Veterans Affairs (VA) Regional Office in Newark, New Jersey (RO). The Veteran testified during a videoconference hearing before the undersigned Veterans Law Judge in September 2015. A transcript of that hearing has been associated with the claims file. This matter was remanded in July 2016 for further development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2002). FINDINGS OF FACT 1. With reasonable doubt resolved in favor of the Veteran, his PTSD symptoms have more nearly approximated occupational and social impairment with deficiencies in most areas, but not total impairment, for the entire period on appeal. 2. With reasonable doubt resolved in favor of the Veteran, the evidence of record demonstrates that his PTSD renders him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating of 70 percent, but no higher, for PTSD have been met for the entire period on appeal. 38 U.S.C. § 1155, 5107 (2002); 38 C.F.R. § 3.102, 3.159, 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for TDIU have been met. 38 U.S.C. § 1155, 5107 (2002); 38 C.F.R. § 3.102, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The matter was Remanded in July 2016 for the purpose of obtaining outstanding VA treatment records. Further, while it was being returned to obtain those records, the Board directed that the Veteran should be scheduled for a new VA examination. The records were obtained. The Veteran was also scheduled for a VA examination, which he failed to appear for. Consequently, the Board finds that there has been substantial compliance with its Remand directives. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. [Emphasis added.] Examples of "good cause" include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. See 38 C.F.R. § 3.655 (2017); see also Engelke v. Gober, 10 Vet. App. 396, 399 (1997). As indicated, the Veteran did not appear for a scheduled VA examination which was directed by the Board's July 2016 Remand. Neither he, nor his representative, provided good cause for this lack of appearance. The Veteran was advised of such in the July 2017 supplemental statement of the case. However, rather than summarily denying his claim as dictated 38 C.F.R. § 3.655, or even advising him of the rule, the agency of original jurisdiction merely noted that evidence from the examination could have been useful to his claim. The AOJ then went on to rate the Veteran's claim based on the treatment records it received. Thus, as the Veteran was not fully advised of the adverse effect that his failure to report would have on his claim, and that the AOJ appears to have applied the wrong standard, the Board finds that it would be prejudicial to the Veteran at this stage of the appeal to simply deny his claim based on his failure to report for the examination. The appeal will be based on review of the evidence of record. Since the July 2016 Remand, 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). Disability ratings are determined by comparing a Veteran's present symptoms with criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155 (2002); 38 C.F.R. Part 4 (2017). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2017). After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107 (2002); 38 C.F.R. § 3.102, 4.3 (2017). Diagnostic Code 9411 addresses PTSD. Under that code, a 70 percent rating for PTSD is provided 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent rating for PTSD is provided 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. 38 C.F.R. § 4.125-4.130. 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 for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2017). Global Assessment of Functioning (GAF) scores are 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); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) [citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), p. 32]. GAF scores ranging above 60 indicate mild symptoms, those between 51 to 60 reflect more 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). Scores ranging from 41 to 50 reflect 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). See 38 C.F.R. § 4.130 (2017). Factual Background In June and December 2009 VA mental health records physicians indicated that the Veteran maintained good coping skills for his PTSD symptomatology. A primary method of coping was isolation from society in an effort to preclude aggravation. Although not medicated he underwent weekly group therapy sessions. During this period, his mental status was alert, oriented, calm, and coherent without active psychosis. Affect was flat. He denied suicidal or homicidal ideation and showed adequate impulse control. GAF score was 50. On August 2009 VA examination, the Veteran reported symptoms of depression, anxiousness, flashbacks, nightmares, disturbed sleep, intrusive thoughts, and hypervigilance. He reported being separated from his wife and living with his daughter. He characterized his family relationships as positive and reported good relationships with his siblings. He reported being in weekly therapy since 2008. He indicated that through therapy he had developed friendships and was afforded a good opportunity to gain social support, insight, camaraderie, and positive self-evaluation. He denied medication, auditory or visual hallucinations, paranoid ideations, and suicidal or homicidal ideations. Physical examination revealed appropriate behavior, grooming, and dress. He was open and fully cooperative with average intellectual ability. He was alert within normal limits and had appropriate thought content. Speech was unremarkable, clear, coherent, and goal directed. There was no evidence of tangential or loose association or disorder or psychoses. His insight, concentration skills, short-term memory, abstract reasoning, and impulse control were intact. Judgment was adequate. The examiner opined that the Veteran had mild to moderate symptomatology. GAF score was 65. In January 2010, a clinician specified that isolation on the part of veterans was a coping mechanism. See MH & BS Group Counseling Record. However, the group counseling sessions were considered a safe space. As a result, attendees were comfortable engaging in controlled socialization and expressing their fears, concerns, and discomfort toward the general public. On August 2011 VA PTSD examination, the examiner noted that there had been no changes since his last examination. The Veteran maintained some contact with all of his children although in differing degrees. He also reported limited contact with his siblings. He reported no friends. Attributable symptoms were anxiety, chronic sleep impairment, disturbances in motivation and mood, difficulty in establishing and maintaining effective relationships, and difficulty in adapting to stressful circumstances. Following examination, the examiner opined that the Veteran's symptoms did not impact employability and were "mild and barely impacted both social and occupational functioning." No GAF score was provided. On June 2015 Board hearing, the Veteran testified that he sought counseling weekly. He testified that loud noises reminiscent of the war, such has helicopters, place him in panic. He indicated that he still maintained a relationship with his children and grandchildren. He reported being separated from his spouse and only maintaining minimal contact with her by phone. He testified that he left the marriage because he was unable to maintain it without conflict. Specifically, noting that he did not want to go to prison. He also reported impaired ability to socialize. In September 2016, the Veteran underwent a mental health initial assessment. See MH &BS Treatment Note. He reported intrusive thoughts, hypervigilance, difficulty controlling his temper, and isolation from family and friends. He specified spending the majority of his time in his bedroom, because he felt secure and safe there. He noted that in order to control his anxiety when in public he located and faced the nearest exit, stayed away from windows, and kept his back to walls. He denied having close friends. He reported continued weekly therapy to control his symptomatology. There were no signs of acute distress. His speech was spontaneous, coherent, and relevant. His mood was anxious and sad with appropriate affect. He had neither gross thought disorder nor symptoms of psychosis. He denied suicidal and homicidal ideations or intent. Reality testing was good with intact abstract and calculating abilities. He his fund of knowledge was average with good insight, judgement, and memory. He was fully oriented. GAF score was 41. His physician noted impaired social and occupational functioning. The remaining VA treatment medical records confirm reports of anxiety, irritability, nightmares, flashbacks, depression, anger, and intrusive thoughts. In addition, these records note on-going self-imposed isolation as a preventative measure against aggression and conflict. GAF scores ranged between 41 and 50 with no indication of homicidal or suicidal ideation or hallucinations. Analysis With resolution of reasonable doubt in the favor of the Veteran, the Board finds that his PTSD warrants a 70 percent rating. The medical and lay evidence supports a finding of occupational and social impairment in most areas. Further, his GAF scores during the appeal indicate that he has had generally moderate to serious symptomatology. That said, the Veteran throughout the appeal has engaged in isolationist behavior. He has limited contact with both family and the general public in order to manage his aggression. Of note, he essentially ended contact with his spouse to decrease conflict which he has suggested could have caused imprisonment, which intimates problems with impulse control. Correspondingly, although the Veteran has maintained "friendships" with fellow counseling group members, the Board does not consider these relationships sufficient to preclude a rating of 70 percent. Importantly, these relationships have been fostered and maintained under a controlled environment with a mediator present at all times. As referenced by his clinician, these therapy sessions allow the Veteran the opportunity to appropriately socialize with others in a safe environment. Comparatively, his social interactions outside of therapy appear minimal. Further, they are usually preplanned and discussed with his clinicians. Such preplanning suggests that in order to be successful, the Veteran has to maintain control over not just the activities, but his thought processing prior to interacting with others. The Board acknowledges that the VA examinations of record do not indicate impairment in most areas. However, these reports do not address the Veteran's therapy records or isolationist behavior. The Board finds them less probative than the entirety of the combined record. In sum, the record indicates that the Veteran has a generally impaired ability to maintain appropriate behavior, communication, and thought processing. The severity of his impairment is evident in his need to preplan, or avoid, encounters with others when there is even the slightest indication that his initial responses might be seen as inappropriate or plainly aggressive. Finally, in addition to his impaired socialization skills, his hypervigilance/anxiety requires him to have complete control of his space in order to feel comfortable in public. In light of the aforementioned, the Board finds that a 70 percent rating is warranted for the entire period on appeal. The Board finds that the Veteran did not meet the criteria for a higher (100 percent) disability rating for his PTSD at any time during the claims period. As will be addressed below, the evidence clearly establishes that the Veteran's PTSD symptoms totally impair his ability to work. However, the record does not establish that he also had total social impairment as is required for a 100 percent PTSD schedular disability rating. In regard to social impairment, the record establishes that although there are signs of dysfunction, he has maintained a relationship with family members; including living with a daughter. The record indicates that he has some friendships. Furthermore, gross impairment in thought processes or persistent delusions or hallucinations, or grossly inappropriate behavior simply has not been shown by the record. Indeed, the Veteran has consistently been found to have at least fair judgement and has continually been able to take care of his daily needs. He also has not asserted suicidal or homicidal ideation. TDIU Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R.§ 4.16 (a). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. The Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU. 38 C.F.R. § 3.341 (a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16 (b). The Veteran is now in receipt of a 70 percent rating for his PTSD. In addition, he has a 20 percent rating for diabetes mellitus type II, a 10 percent rating for tinnitus, and a noncompensable rating for bilateral hearing loss. Therefore entitlement to TDIU is applicable on a schedular basis. 38 C.F.R.§ 4.16 (a). The record also reflects that the Veteran's highest level of education is three years of high school and he has been unemployed since 2003. See Veteran's August 2009 Application for Increased Compensation Based on Unemployability. That said, the record is highly suggestive that the Veteran's psychiatric impairments would render him unprepared to cope with the unpredictable stresses and strains of a regulated work environment. His psychiatric symptomatology, particularly isolationism, severely impacts his ability to interact with others outside of controlled environments and/or preplanned events. Beyond his isolationist tendencies, he also maintains symptoms of hypervigilance, irritability, flashbacks, and intrusive thoughts. Compounded with the Veteran's symptomatology is his lack of employment for well over a decade. In this regard, it reasonable to believe that his symptomatology would only be intensified by the stress of having to reenter the work force after so long. In sum, the Board finds it unlikely that the Veteran would be able to realistically obtain or maintain substantially gainful employment. The findings of the VA examiners as to employability have been considered but the collective evidence of record more probative. Thus, in affording the Veteran the benefit of the doubt, entitlement to a TDIU is warranted. SMC Consideration Issuance of a TDIU in turn raises the issue of entitlement to special monthly compensation (SMC). In that regard, the Board has considered the decision of the Court in Bradley v. Peake, 22 Vet. App. 280 (2008). In Bradley, the Court held that SMC might be warranted when a separate award of a TDIU rating, predicated on a single disability (perhaps not ratable at the schedular 100 percent level), is considered together with another disability separately rated at 60 percent or more. See 38 U.S.C. §1114 (s); see also Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). In the instant case, an SMC rating is inapplicable as the Veteran does not have a separate disability rated at 60 percent or more. The record does not contain lay or medical evidence that the Veteran was rendered housebound. Rather, the record reflects that he traveled to therapy sessions and other locations throughout the pendency of the appeal. As such, the concerns addressed in Bradley and Buie are not present, and the Board needs not further address whether SMC ratings are warranted during the pendency of the appeal. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record)." ORDER Entitlement to a 70 percent rating, but no higher, for PTSD is granted. Entitlement to a TDIU is granted. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs