Citation Nr: 1800802 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 13-14 757 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to a disability rating in excess of 50 percent disabling for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based in individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Gielow, Counsel INTRODUCTION The Veteran had active duty service from December 1967 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2010 and December 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In June 2016, the Veteran testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A hearing transcript has been associated with the record. This appeal was previously before the Board in September 2016, at which time it was remanded for additional development. FINDINGS OF FACT 1. The Veteran's PTSD disability more nearly approximates occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood; his PTSD does not more nearly approximate total occupational and social impairment. 2. Resolving doubt in the Veteran's favor, his PTSD prevents him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a 70 percent disability rating for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1 through 4.14, 4.130, Diagnostic Code 9411 (2017). 2. Throughout the appeal period, the criteria for entitlement to TDIU on a schedular basis have been met. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. § 4.16(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA Duties to Notify and Assist The Veteran's representative argued that the March 2017 VA examination contained no opinion or rationale with regard to the Veteran's ability to work. However, the Board finds that the requested VA examiner sufficiently addressed the Veteran's occupational impairment, opining that the Veteran's overall impairment due to PTSD is best summarized by occupational and social impairment with reduced reliability and productivity. See March 2017 VA examination report at p. 7. The examiner also opined that "if he presents in an employment setting with the presentation he showed today, it is hard to imagine he would be hired" and stated "I am inclined to think that his personality disorder is the most acute factor in his work performance deficit." Id. at p. 13, 19. In a similar vein, the Board finds that there has been adequate and substantial compliance with the Board's previous remand of September 2016 with regard to this opinion. As stated above, the examiner sufficiently addressed the Veteran's social and occupational functioning as specifically directed by the remand. Moreover, also concerning the remand directives, it is significant to note that he was provided an opportunity to identify any outstanding VA and private treatment records-which would include outstanding private treatment records from Dr. Liss since 2012 as discussed during the June 2016 hearing-but he did not respond as requested either by sending in the records or by completing a VA Form 21-4142a, (General Release for Medical Provider Information) so that VA could obtain them. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (indicating that a Court or Board remand confers upon the appellant the right to substantial, but not strict, compliance with that order); see also Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (VA's duty to assist is not always a one-way street). Neither the Veteran nor his representative has raised any other 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 [V]eteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to the duty to assist). II. Increased Rating for PTSD Effective August 4, 2014, VA promulgated an interim final rule amending the portion of its Schedule for Rating Disabilities dealing with mental disorders to remove outdated DSM references by deleting references to the DSM-IV and DSM-IV Text Revision and replacing them with references to the updated version, the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). 79 Fed. Reg. 45,093-02 (Aug. 4, 2014). Notably, the DSM-5 eliminated the use of "Global Assessment of Functioning" (GAF) scores, but the rule expressly states that its provisions do not apply to claims that have been certified to or were pending before the Board, the U.S. Court of Appeals for Veteran Claims, or the U.S. Court of Appeals for the Federal Circuit prior to August 4, 2014. Because the Veteran's appeal for an increased rating for PTSD had been certified to the Board on August 11, 2014, days after the final rule was promulgated, the DSM-5 is for consideration in this case. Under the applicable rating criteria for mental disorders, a 50 percent evaluation is warranted 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; and 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 relationships, 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 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); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). The maximum rating of 100 percent 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; and memory loss for names of close relatives, own occupation, or own name. Id. The symptoms associated with the psychiatric rating criteria are not intended to constitute exhaustive lists, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002). Thus, the Board will consider whether "the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code," and, if so, the "equivalent rating will be assigned." Id. In Vazquez-Claudio v. Shinseki, the Federal Circuit held that a Veteran may only qualify for a given disability rating "by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." 713 F.3d 112, 117 (Fed. Cir. 2013) ("Reading [38 C.F.R. §§ 4.126 and 4.130] together, it is evident that the 'frequency, severity, and duration' of a Veteran's symptoms must play an important role in determining his disability level."). After carefully reviewing the evidence, the Board finds that the criteria for a 70 percent rating have been met. Here, it is acknowledged there is a difference of opinion between the VA examiners and the Veteran's private provider regarding the overall severity of his PTSD, the latter of which opined that his PTSD resulted in total occupational and social impairment, whereas the former most recently noted occupational and social impairment in line with a 50 percent rating. However, even the March 2017 VA examiner recognized that "if he presents in an employment setting with the presentation he showed today, it is hard to imagine he would be hired," that "his narrative is one of his having almost sequentially alienated everyone who has reached out to him." Furthermore, some of his symptoms recognized by the March 2017 VA examiner were more severe than those listed as examples for a 50 percent rating, including grossly inappropriate behavior (noted as an example symptom for a 100 percent rating) and speech intermittently illogical, obscure, or irrelevant (noted as an example symptom for a 70 percent rating). Additionally, symptoms of suicidal ideation and an inability to establish and maintain effective relationships was noted in the June 2016 private Disability Benefits Questionnaire (DBQ). This all suggests a severity of symptoms that are of such duration, frequency, and severity to more nearly approximate a 70 percent rating, representing impairment in most areas, such as work, school, family relationships, judgment, thinking, or mood. The Board also finds it significant that the Veteran's GAF scores assigned in VA treatment records since 2013 were consistently reported at 45. According to the DSM-IV, GAF scores between 41 and 50 indicate "[s]erious 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)." This evidence of "serious" symptoms or impairment also suggests that there has not been a bright line worsening of his PTSD so as to make the assignment of staged ratings appropriate regardless of any minor noted differences on previous examination. Although GAF scores are not used under DSM-5, the Board's use of GAF scores in support of a grant of a higher rating results in no prejudice to the Veteran. To the extent that the March 2017 VA examiner summarized the overall severity as "[o]ccupational and social impairment with reduced reliability and productivity," in line with only a 50 percent rating, the following caveat was provided: "It must be noted that this is not the examiner's specific expertise and the opinion being given is, therefore, speculative and impressionistic to an almost unacceptable degree." Additionally, even though the March 2017 VA examiner found the Veteran's personality disorder is the most acute factor in his work performance deficit, it was expressly determined that it was not possible to differentiate which psychiatric symptoms were attributable to PTSD versus his other two diagnoses of bereavement and personality disorder. Thus, the Board will resolve any doubt in the Veteran's favor and assume that these noted deficits were caused by his service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam) (citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (indicating that the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so, although the Board may not ignore such distinctions where they appear in the medical record). In light of the totality of the symptoms reported and personal and work deficits noted, the Board finds that the criteria for a higher, 70 percent rating have been met. However, the Board must conclude that the criteria for the next higher, 100 percent rating have not been met at any time during the appeal period. In accordance with Mauerhan and Vazquez-Claudio, the Board recognizes that the Veteran demonstrated a wide range of psychiatric symptoms throughout the appeal period. Examples of psychiatric symptoms discussed in VA examination reports include, but are not limited to, the following: recurrent and distressing recollections of the stressor; recurrent distressing dreams; acting or feeling as if the traumatic event were recurring; intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; psychological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; avoidance; inability to recall an important aspect of the trauma; markedly diminished interest or participation in significant activities; feeling of detachment or estrangement from others; restricted range of affection ; sense of a foreshortened future; difficulty sleeping; irritability or anger outbursts; difficulty concentrating; hypervigilance; exaggerated startle response; depressed mood; anxiety; suspiciousness; memory problems; flattened affect, disturbances of motivation and mood, difficulty and inability in establishing and maintaining effective work and social prelateships, difficulty adapting to stressful circumstances, suicidal ideation, persistent flashbacks, neglect of personal appearance and hygiene. See September 2013 and June 2016 private DBQs, and October 2012 and March 2017 VA examinations. VA treatment records also confirmed symptoms of irritability/anger, distressing memories, hyperarousal, negative mood, problems with family, nightmares, flashbacks, isolation, irritability, hypervigilance/startles, and avoidance of crowds. Considering the nature of these symptoms and assessing their frequency and severity, the Board finds that they do not more nearly approximate the rating criteria for the next higher, 100 percent rating. In this regard, the Board finds that the symptoms above have not more nearly approximated total occupational and social impairment. For instance, during the March 2017 VA examination, it was noted that the Veteran had made no attempts at employment since he retired in 2002 but has inquired about auto-body work. With regard to social functioning in particular, the Board notes that the Veteran was his wife's caretaker prior to her death. In the October 2012 VA examination, it was noted that he was estranged from all of his family in California, but that he loved his wife and was "[k]ind to his wife throughout" the examination; it was noted that he was "performing role of primary caregiver for dependent wife - does all household care, bills, driving, keeps her dressed, fed and clean, coordinates friends to help as needed. He has some days where his own self-care is neglected due to time constraints, but makes appointments, plans and carries these out effectively." In an August 2015 VA treatment record, it was noted that he was "taking care of his wife, cleaning house, cut grass" and had a goal to work on his cars. In consideration of this evidence, without doubt, the Veteran experienced difficulties socially and occupationally. However, it cannot be said that total impairment in both of these areas has been demonstrated, especially given the nature of his relationship with his late wife (who died in 2016) and his management of her dependency needs. Such evidence demonstrates a level of social functionality that cannot be considered "total impairment." As noted above, his private provider indicated that the Veteran's PTSD resulted in total social and occupational impairment. However, the private DBQs of September 2013 and June 2016 failed to provide any rationale or discussion regarding such impairment, and the Veteran did not respond to the opportunity to submit records from Dr. Liss that might shed some light on his private treatment. Significantly, on examination and discussion of occupational and social functioning, both VA examiners found an overall assessment of PTSD to be consistent with a level less than total occupational and social impairment as contemplated by the symptoms set out in the rating schedule. Thus, notwithstanding the wide range of reported symptoms, the above evidence ultimately suggests an overall impairment more nearly approximating occupational and social impairment equal to that of a 70 percent rating and no higher. That is not to say that the Veteran has not demonstrated any symptoms akin to those provided in the diagnostic criteria of 38 C.F.R. § 4.130 for a higher rating. As an example, the Board acknowledges the March 2017 notation of grossly inappropriate behavior, talking to his deceased wife, and seeing symbols suggesting dead family are contacting him. Also, as noted above, his private provider provided the less probative conclusion that the Veteran's PTSD resulted in total social and occupational impairment and, in June 2016, identified the additional symptom of memory loss for names of close relatives, own occupation, or own name. However, the Court has emphasized that "[t]he use of the term 'such as' demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Further, the Federal Register accompanying the 1996 amendment to Diagnostic Code 9411 explains, "Although certain symptoms must be present in order to establish the diagnosis of PTSD, as with other conditions it is not the symptoms, but their effects, that determine the level of impairment." 61 Fed. Reg. 52,695, 52,697 (Oct. 8 1996) (emphasis added). Here, the most probative evidence simply fails to demonstrate that his symptoms are of such duration, severity, and frequency so as to result in total occupational and social impairment of the nature described by a 100 percent rating at any time during the appeal period. Finally, neither the Veteran nor his representative has raised the issue of extraschedular consideration, nor has it been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017). For all of the reasons set forth above, the Board concludes that a disability rating of 70 percent, but no higher, is warranted throughout the appeal period. III. Entitlement to TDIU The Board recognizes that the issue of TDIU was expressly raised in May 2010, during which time the Veteran was only rated as 50 percent disabling for PTSD, with a combined rating of 60 percent for compensable-rated disabilities of PTSD (50 percent) and tinnitus (10 percent) since February 2010. For purposes of ascertaining whether the Veteran meets the schedular requirements for consideration of TDIU under 38 C.F.R. § 4.16(a) throughout the entire appeal period of his TDIU claim, the Board notes that "multiple injuries incurred in action" are considered "as one disability." 38 C.F.R. § 4.16(a)(4). Here, because there is evidence in the record indicating that his ratable disabilities both resulted from combat action in Vietnam, his PTSD and tinnitus are considered "multiple injuries incurred in action." Thus, they are considered as "one disability" rated at 60 percent, and the Board concludes that threshold schedular requirements for consideration of TDIU under § 4.16(a) have been met throughout the appeal period. Despite the findings mentioned above that the Veteran has not demonstrated total occupational and social impairment for purposes of being entitled to a 100 percent schedular rating for PTSD, the Board nonetheless finds that he is unable to secure or maintain a substantially gainful occupation as a result of service-connected disabilities. The Board finds the negative March 2013 VA opinion, which found that "the [V]eteran's symptoms of PTSD less likely than not (less than 50% probability) render him unable to secure or maintain gainful employment," has limited probative value because it is not supported by a thorough rationale. First, the Veteran's work history, alone, many years prior to the claim for TDIU is not convincing evidence that his PTSD at its current level would enable the same sort of occupational capabilities during the appeal period, especially given the notations in the record that his symptoms have worsened. Second, the March 2013 examiner's rationale appears to be based on an incomplete history regarding the Veteran's prior work performance; the March 2013 opinion relied on the facts that the Veteran had previously had been able to maintain successful employment through Chrysler until his retirement around 2002 and that he did not appear to have lost his job due to PTSD symptoms or received formal reprimands. However, the Veteran's TDIU application form indicated that he was either in receipt or expected to receive disability retirement benefits (the Board notes that the Veteran, however, has not provided these records from Chrysler). Additionally, a former coworker of the Veteran submitted a statement in May 2013 explaining the Veteran's "numerous grievances" and "numerous conflicts with both high and lower management." What is more, in March 2010, a prior VA examiner suggested that he may not have been able to keep his job but for the union's efforts on his behalf. In fact, the following was noted about his earlier employment in the March 2010 VA examination report: [Veteran] was known for putting people in their place and not one wanted to 'mess with him.' In 1974 someone poked him in the butt and he floored the guy such that no one else would bother him. . . . He does have problems getting along with people. This did not interfere with his job, everyone was afraid of him. . . . [Veteran] was employed for 36 years at Chrysler. He was able to hold on to a job with the protection of the union. The examiner suspects that under certain conditions, [Veteran] had impulse problems and had severe conflicts which were not reported to management. Here, the Veteran's ability to communicate or get along with others has appeared to have only decreased since the time of his last employment. See VA examinations and treatment records (noting recurrent anger/irritability and other symptoms, such as grossly inappropriate behavior). Of particular significance, the March 2017 VA examiner noted, "He may previously have been somewhat held together by being a caretaker for his wife post-stroke, but if he presents in an employment setting with the presentation he showed today, it is hard to imagine he would be hired." Again, inasmuch as the examiner also identified personality disorder as playing a role in his occupational deficits, the examiner stated that he was unable to differentiate symptoms between his psychiatric diagnoses. This evidence in its totality, and coupled with the June 2016 private PTSD DBQ's remark that the Veteran was "100% disabled," constitute sufficient evidence that his PTSD symptoms have been of such a severity so as preclude the obtainment and maintenance of substantially gainful employment. For the reasons set forth above, TDIU is granted. ORDER Subject to controlling regulations applicable to the payment of monetary benefits, a 70 percent disability rating for PTSD is granted Subject to controlling regulations applicable to the payment of monetary benefits TDIU is granted. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs