Citation Nr: 1800826 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 14-29 649 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to a rating higher than 50 percent for post-traumatic stress disorder (PTSD) prior to March 28, 2017, and in excess of 70 percent thereafter. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Daniel Smith, Attorney ATTORNEY FOR THE BOARD S. Freeman, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1964 to March 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision by the Atlanta, Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied entitlement to TDIU, and increased the rating for PTSD from 30 percent to 50 percent disabling, effective October 18, 2010. In a May 2017 rating decision, the RO increased the evaluation assigned for service-connected PTSD from 50 percent to 70 percent, effective March 28, 2017. A "staged" evaluation has been created, and the issue remains in appellate status, as the partial allowance did not constitute a full grant of the benefit sought. See Hart v. Mansfield, 21 Vet. App. 505 (2007), see also, AB v. Brown, 6 Vet. App. 35, 38-39 (1993). The issues on appeal were previously remanded by the Board in September 2016 for additional development. The Board notes that the Veteran filed an appeal form in April 2017 apparently in response to a statement of the case issued earlier that month regarding a claim for an earlier effective date for special monthly compensation. However, the RO has not yet certified that matter to the Board for appellate review, and it is unclear whether the RO has completed all actions with regard to the issue. Accordingly, that issue will not be addressed now, but will instead be the subject of a future decision by the Board. 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) (West 2014). FINDINGS OF FACT 1. Prior to November 9, 2011, the Veteran's psychiatric disability was manifested by symptoms no more severe than productive of occupational and social impairment with reduced reliability and productivity; occupational and social impairment with deficiencies in most areas was not shown. 2. From November 9, 2011, symptoms of the psychiatric disability are reasonably shown to have been productive of occupational and social impairment with deficiencies in most areas, but total occupational and social impairment is not shown. 3. The evidence establishes that the Veteran's service connected disabilities did preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent for PTSD prior to November 9, 2011, have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.4, 4.7, 4.125, 4.126, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for a rating of 70 percent for PTSD, but no higher, from November 9, 2011, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). 3. The criteria for a TDIU have been met. 38 U.S.C.A § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The record includes service treatment records, VA treatment records, and lay statement in support of the claim. In addition, the Veteran was afforded VA examinations in connection with his claim on appeal in November 2011 and March 2017. 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.159; see McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The Board has found that the November 2011 and March 2017 medical examinations and opinions obtained by VA were adequate, and were based upon a complete review of the evidence of record as well as consideration of the Veteran's lay assertions. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. The Board also finds that there has been substantial compliance with its remand directives in September 2016. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, outstanding VA treatment records were obtained and associated with the evidence of record before the Board, and the Veteran was afforded an adequate VA examination in March 2017 and his claim was readjudicated by the RO in a May 2017 Supplemental Statement of the Case. Other Due Process Considerations In his April 2017 appeal to the Board, the Veteran did not request a hearing. Thereby, no other due process considerations are present. Legal Criteria The Veteran's PTSD is currently rated as 70 percent disabling under Diagnostic Code 9411. Under the diagnostic code, a 50 percent rating 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent is warranted when there is 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 rating (the maximum schedular rating) is warranted when there is 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. In order to be assigned a particular rating, a Veteran need not demonstrate the presence of all, most, or even some, of the symptoms listed as examples in the rating criteria. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The key element for a rating under the General Formula for Mental Disorders is the degree of social and occupational impairment caused by those symptoms. The record contains Global Assessment of Functioning (GAF) scores assigned by mental health professionals who have evaluated the Veteran. The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed.) (DSM-IV). Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by replacing references to DSM-IV with the fifth edition of the DSM (DSM-5). See 38 C.F.R. § 4.125, amended by 79 Fed. Reg. 45099 (effective Aug. 4, 2014). Although the DSM-5 no longer uses the GAF scale to assess functioning, the DSM-IV was in effect at the time the GAF scores of record were assigned. Therefore, the Board will consider the various GAF scores of record in evaluating the Veteran's occupational and social functioning. However, an examiner's classification of the level of psychiatric impairment, by word or by a GAF score, is not determinative of the VA disability rating to be assigned. See VAOPGCREC 10-95, 60 Fed. Reg. 43186 (1995). As such, in evaluating the severity of mental disorders, the disability rating is to be based on all of the evidence that bears on occupational and social impairment, rather than solely on an examiner's assessment of the level of disability at the moment of the examination. See 38 C.F.R. § 4.126 (2016) (emphasis added). Analysis The Veteran is in receipt of service connection for PTSD evaluated as 30 percent disabling beginning December 12, 1998; 50 percent beginning October 18, 2010; and 70 percent beginning March 28, 2017. The Veteran contends that his PTSD warrants a 70 percent rating prior to March 28, 2017 and higher than 70 percent thereafter. The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical and lay evidence for the issue on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. PTSD Prior to November 9, 2011 The Board has considered the full history of the disability at issue. The Veteran was afforded a VA examination in June 2002. The examiner indicated the Veteran was in no acute distress, he was polite and uncontracted. He had increased irritability and difficulty with interpersonal relationships. His mood was within normal limits, his affect was alert, oriented, relevant, and coherent. His problems with post-traumatic stress disorder included frequent nightmares about his combat experience in Vietnam. The disturbance that they caused to his sleep caused him to be fatigued and make it difficult for him to work. The examiner reported that there was no evidence of psychotic signs. He was diagnosed with posttraumatic stress disorder. He reported that he has been divorced three times and it had been 15 years since his last divorce. He had worked on a shrimp boat for the past 36 years. He had a child whom he has a good relationship with. He reported a Global Assessment of Functioning (GAF) of 55. At a September 2000 VA treatment, the Veteran reported doing well, but stated that he continues to experience some "edginess" during the day. He stated that his sleep is markedly improved; nightmares have subsided to just occasional happenings and are not as bothersome. At an April 2004 VA treatment evaluation, the Veteran reported that he had not been feeling depressed or hopeless. The Veteran stated he has not been bothered by little interest or pleasure in doing things. He stated that he has had nightmares about things, and tried hard not to think about those things. The Veteran's claim for an increased rating was received in October 2010. In a September 2011 VA treatment note, the Veteran complained of fragmented sleep, but denied any significant problem with nightmares. He indicated that his appetite was good. He worked as a maintenance man at an apartment complex. He was reported as well groomed, alert and oriented, with good eye contact. There was no psychomotor agitation or retardation; he had adequate hygiene, no suicidal or homicidal ideations. His physician assistant, S.M.F. stated that the Veteran denied any psychotic symptoms and reported that none was present. There were no delusions; he had fair judgment and insight. PTSD Beginning November 9, 2011 The Veteran was afforded a VA examination in November 2011 to determine the severity of his PTSD. Dr. L.S., noted that the Veteran complained that his PTSD symptoms "affect total daily functioning which results in him wanting to work alone, and being alone, and these needs create some financial insecurity." Dr. L.S. also stated that the Veteran PTSD resulted in impaired impulse control which "affects motivation and/or mood by creating symptoms of anxiety and depression." It is noted that the Veteran was suspicious all the time. Dr. L.S. stated that "there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and /or mood." A January 2012 Disability Benefit Questionnaire shows a GAF score of 58 and with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The examiner noted that the Veteran's GAF score have ranged between 50 and 65. It was noted that the Veteran reported for his appointment appropriately dressed, on time and cooperative. The Veteran said he has been married twice and that both of his wives left him because of their fear of his anger and violence. He reported that he quitted his job to avoid being around people. The Veteran reported he has a child and described their relationship as good. He reported that he had worked on a shrimp boat for over 36 years and described his relationship with his supervisor and co-workers as good. The Veteran described his symptoms of difficulty going to sleep and staying asleep, flashback, nightmares of combat and accidents in Vietnam, walking and not knowing where he is, anger, avoidance of crowds, and sleeping with gun in bed. In light of the examination's findings and symptoms, the examiner described the severity of the Veteran's symptoms as moderate. A January 2012 mental health record note shows his orientation was within normal limits. Appearance and hygiene were appropriate. His behavior was appropriate and he maintained good eye contact. His affect and mood showed a flattened affect, mood swings, anxiety, depressed mood and impaired impulse control. Speech was within normal limits. Concentration was within normal limits. There were no panic attacks. He was suspicious all the time. On March 2017 VA psychiatric examination, the examiner noted that recent death of the Veteran's friend exacerbated the symptoms of his PTSD. He reported he had relationships with is children and siblings. The Veteran reported he takes Mirtazapine for nightmares. He denied psychiatric admissions or suicide attempts. On examination, he exhibited depressed mood, anxiety, suspiciousness, panic attacks that occurs weekly or less, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events. Flattened affect, difficulty understanding complex commands, impaired abstract thinking, disturbances of motivation or mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, and neglect of personal appearance or hygiene. The examiner also noted that the Veteran appeared tearful when talking about the loss of his friend and family, had trouble comprehending questions, and slow mental processing. Considering the symptoms that manifested throughout the period on appeal, the Board finds that a 70 percent rating from November 9, 2011, and thereafter, is warranted. The Veteran's treatment records demonstrate that the Veteran's PTSD most closely resembles the criteria for a 70 percent rating. The Board recognizes that the Veteran did experience occupational and social impairment with deficiencies in most areas due to suicidal ideation, near-continuous panic or depression affecting his ability to function independently, impaired impulse control, and the inability to establish and maintain effective relationships. However, the evidence of record does not demonstrate that the Veteran experienced total occupational and social impairment warranting a 100 percent rating. Specifically, the Veteran did not experience or demonstrate gross impairment in thought processes or communication, persistent delusions or hallucinations, disorientation to time or place, memory loss for names of close relatives, own occupation, or own name, or gross impairment in thought processes or communication. Total Disability Based on Individual Unemployability (TDIU) The issue of entitlement to TDIU has been raise in the record in this claim for increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to total disability rating based upon individual unemployability (TDIU) is an element of all increased rating claims. See Rice, 22 Vet. App. at 447; Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Where a veteran (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirements in 38 C.F.R. § 3.155 (a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to TDIU. Id. See also Jackson v. Shinseki, 587 F. 3d 1106 (Fed. Cir. 2009). Based on the foregoing, the Board notes, that the Veteran meets the schedular criteria for a TDIU rating. Under the applicable regulations, a TDIU may be granted only when it is established that the service-connected disability is so severe, standing alone, as to prevent the retaining or obtaining of substantially gainful employment. Under 38 C.F.R. § 4.16, if there is only one service-connected disability, it must be ratable at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there must be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). The Veteran service-connected disabilities include: (1) prostate cancer, rated 100 percent; (2) PTSD, rated 70 percent; (3) diabetes mellitus type II, rated 20 percent, (4) right upper peripheral neuropathy, rated 20 percent; (5) left upper peripheral neuropathy, rated 20 percent; (6) right lower peripheral neuropathy, rated 10 percent; (7) left lower peripheral neuropathy, rated 10 percent; (8) bilateral tinnitus, rated 10 percent; and (9) left ear hearing loss, rated 0 percent. As noted above, and in light of these ratings, the Veteran meets the schedular criteria for a TDIU rating. See 38 C.F.R. §4.16 (a)(2). The remaining (and dispositive) question is whether the service-connected disabilities render him incapable of participating in a regular substantially gainful occupation consistent with his education and work experience. The Board notes, that there are some conflicting evidence about the date the Veteran became unemployable. In a June 2013 vocational evaluation, Mr. C.A.Y. reported that the Veteran has been unemployed since July 2012 because of his service-connected disabilities, and further opined that the Veteran's symptoms preclude employment, notably that the Veteran has no skills, and he is competing with healthy people in a time of high unemployment. However, at the March 2017 psychiatric examination, the Veteran reported that he had been unemployed since 2013 due to work injury and disability. Notwithstanding, in review of the record and according the Veteran the benefit of the doubt, the Board notes, TDIU is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. In summary, the evidence in the record reflects that due to his service-connected disabilities the Veteran is precluded from participating in any regular substantially gainful employment consistent with his education and occupational experience. Resolving any remaining reasonable doubt in the Veteran's favor, as required (see 38 C.F.R. §§ 3.102, 4.3), the Board finds that a TDIU rating is warranted. The Board again notes that the AOJ will set an effective date for the award of a TDIU after determining the date on which the Veteran was last able to secure or follow a substantially gainful occupation. This preserves the Veteran's right to appeal the effective date awarded by the AOJ. See DAV v. Secretary of Veterans Affairs, 327 F.3d. 1339 (Fed. Cir. 2003). ORDER Entitlement to a rating in excess of 50 percent, for PTSD prior to November 9, 2011, is denied. Entitlement to a 70 percent rating, and no higher, for PTSD from November 9, 2011, is granted, subject to controlling regulations applicable to the payment of monetary benefits. Entitlement to a rating in excess of 70 percent, for the entire rating period is denied. A TDIU rating is granted, subject to the regulations governing payment of monetary awards. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs