Citation Nr: 1800885 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 16-40 364 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating due to individual unemployability (TDIU). ATTORNEY FOR THE BOARD Amanda Baker, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1964 to February 1967. This matter comes before the Board of Veterans' Appeal (Board) on appeal from an October 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which established service connection for PTSD and assigned a 30 percent rating, effective March 31, 2014 date of claim. The Veteran was previously represented by American Veterans (AMVETS); however, in January 2009 and May 2015 letters, AMVETS revoked their representation. As such, the Veteran is now proceeding pro se. In his April 2015 VA Form 21-8940, application for TDIU, the Veteran indicated his belief that his PTSD, alone, prevents him from securing or following a substantially gainful occupation. The TDIU claim is thus part and parcel of his claim for a higher rating for PTSD. As such no separate appeal needs to be initiated as to entitlement to TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). 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) (2012). FINDINGS OF FACT 1. For the entire duration of the appeal, the Veteran's service-connected PTSD has been manifested by no more than occupational and social impairment with occasional decrease in work efficiency and intermitted 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, and mild memory loss (such as forgetting names, directions recent events). 2. The Veteran's service-connected disabilities have not rendered him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 30 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 3.340, 3.341, 4.3, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). Turning to the rating criteria, the Board first observes that the symptoms listed in VA's general rating formula for mental disorders 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 (2002). Under the General Rating Formula for Mental Disorders, a 30 percent evaluation for PTSD will be assigned when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, without 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, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130. An evaluation of 50 percent is warranted for PTSD with 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. See Id. A 70 percent evaluation is warranted for PTSD with 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. See Id. A 100 percent evaluation is warranted for PTSD with total occupational and social impairment, due to symptoms such as the following: 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. See Id. For purposes of considering the evidence in connection with the PTSD issue, the Board notes that the Global Assessment of Functioning (GAF) scale is a scale from 0 to 100, reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health illness." Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994) ("DSM-IV") (100 representing superior functioning in a wide range of activities and no psychiatric symptoms). See also 38 C.F.R. §§ 4.125, 4.126, 4.130. In this regard, the Board acknowledges that effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to "DSM-IV," AMERICAN PSYCHIATRIC ASSOCIATION: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th Edition (1994). The amendments replace those references with references to the recently updated "DSM-5," and examinations conducted pursuant to the DSM-5 do not include GAF scores. Although the Veteran's case was certified post-DSM-5 (see December 2016 VA Form 8), some of his evaluations were conducted prior to that time and therefore include a relevant GAF score. The Board will consider these GAF scores in adjudicating the claim, as doing so is most advantageous to the Veteran in this case. A GAF score of 31-40 indicates some impairment in reality testing or communications or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. A GAF of 41-50 denotes serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning. A GAF of 51-60 denotes moderate symptoms (e.g. flat affect, circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers). A GAF of 61-70 denotes 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. When it is not possible to separate the effects of a non-service-connected condition from those of a service-connected disorder, reasonable doubt should be resolved in the claimant's favor with regard to the question of whether certain signs and symptoms can be attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998); see also 38 C.F.R. § 3.102; Mauerhan v. Principi, 16 Vet. App. 436 (2002) (factors listed in the rating formula are examples of conditions that warrant a particular rating and are used to help differentiate between the different evaluation levels.). The record includes a VA examination report, VA and private treatment records, Social Security Administration (SSA) records, and lay statements from the Veteran. All of these records have been reviewed by the Board, although they will not all be discussed in assessing the rating assigned to the Veteran's psychiatric disability. In April 2014, the Veteran established private treatment for his PTSD disability. May 2014 private treatment records provide a GAF score of 49. During this visit, the Veteran reported sleep problems, nightmares, recurrent and distressing recollection of events, and hypervigilance. He reported loud noise and crowd avoidance. Specifically, he described taking alternative routes to public locations out of caution and only sitting in a position where he could view his surroundings. He also reported anxiety, anger, and being prone to self-isolation. The Veteran was afforded a VA examination in August 2014. The examiner found that he had mild occupational and social impairment, which decreased work efficiency and ability to perform occupational tasks during periods of significant stress, or his symptoms are controlled by medication. The Veteran reported minor symptoms, such as guardedness or mild irritability. He indicated that he gets along well with his wife and family, and occasionally eats at restaurants with his family. The Veteran denied being prone to isolation. Symptoms of anxiety, suspiciousness, chronic sleep impairment, and mild memory loss were noted. As for occupational and educational history, the Veteran is a retired truck driver. He reported that while working as a truck driver he was prone to isolation and startle response. However, he stated that he did not miss work due to PTSD. In an April 2015 dated letter, the Veteran's treating private practitioner stated that the Veteran had symptoms of sleeplessness, flashbacks, irritability, and nervousness due to PTSD. He also demonstrated symptoms of hypervigilance and feeling uncomfortable in crowds and public places. He reported problems with anger, irritability, concentration, and memory. The practitioner stated that the Veteran has an inability to manage his PTSD symptoms and that he is in need of assistance in order to establish and maintain a healthier and happier quality of life. April 2015 VA treatment records contain a psychiatric examination positive for PTSD, but the Veteran denied anxiety and depression. He was described as appropriate. At a subsequent May 2015 VA psychiatric examination, he had normal affect and intact judgment. March 2016 VA treatment records state that the Veteran denied anxiety, depression and PTSD. That same month, his psychological status was descried as alert and oriented to person, place and time with normal mood and affect. March 2017 VA treatment records contain a negative PTSD screening test. His psychological status was described as alert and oriented to person, place and time with normal mood and affect. Based on the forgoing, the Board finds that the evidence is against granting a disability rating higher than 30 percent for the Veteran's PTSD. The evidence does not show that the Veteran's symptoms have been of the type and degree contemplated by the criteria for a 50 percent disability rating. The Board has considered the May 2014 GAF score of 49, however, it is not accompanied by symptoms indicating impairment of the kind contemplated by the criteria for a rating higher than 30 percent. During this visit, the Veteran reported sleep impairment, a depressed mood, anxiety, and suspiciousness, which are all symptoms contemplated by the 30 percent rating criteria. The evidence does not show that the Veteran has had a flattened affect, speech problems, panic attacks more than once a week, difficulty understanding complex demands, impairment of short or long term memory, impaired judgment, impaired abstract thinking, disturbances in motivation and mood, or difficulty in establishing and maintaining social relationships. On the contrary, he has reported getting along well with family members, to include eating at restaurants, and his psychological status has consistently been described as alert and oriented in all spheres. See August 2014 VA Examination Report; and March 2016 and May 2017 VA Treatment Records. The Board finds that the preponderance of the evidence is against the assignment of a higher disability rating other than that listed herein for the Veteran's PTSD on a schedular basis for any period on appeal. 38 U.S.C. § 5107(a). The Board has considered staged ratings, but finds that the evidence does not support the assignment of staged ratings. Also considered by the Board is whether referral is warranted for a rating outside of the schedule. To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2017). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. 38 C.F.R. § 3.321(b). The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, the Board or the RO must determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. All symptoms and the level of disability resulting from the Veteran's PTSD are addressed by criteria found in the rating schedule. His PTSD has been manifested by symptoms of depressed mood, anxiety, suspiciousness, panic, chronic sleep impairment, and mild memory loss indicating occupational and social impairment with occasional decrease in work efficiency and intermitted periods of inability to perform occupational tasks. Therefore, the first prong of the Thun test is not satisfied and referral for extraschedular consideration is not warranted. Also considered by the Board is whether the collective effect of his other service connected disability warrants referral for extraschedular consideration. See Johnson v. Shinseki, 762 F.3d 1362 (Fed. Cir. 2014). The Veteran has two other service-connected disabilities, diabetes mellitus rated as 20 percent disabling and history of cerebrovascular accident rated noncompensable (0 percent disabling). There is no collective effect of his other service connected disabilities that makes his disability picture an exceptional or unusual one with regard to his PTSD. For these reasons, the Board declines to remand this case for referral for extraschedular consideration. I. TDIU A "schedular" TDIU may be assigned where the schedular rating is less than total if it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.34l, 4.16(a) (2017). The Veteran has three service connected disabilities: PTSD rated as 30 percent disabling, diabetes mellitus rated as 20 percent disabling, and history of cerebrovascular accident rated as noncompensable (0 percent disabling). The Veteran's combined rating is 40 percent from March 31, 2014, thus he does not meet the percentage requirements under § 4.16(a). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16. 38 C.F.R. § 4.16 (b). The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. Id. Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). In determining the severity of impairment, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). Marginal employment shall not be considered substantially gainful employment for purposes of entitlement to TDIU. 38 C.F.R. § 4.16(a). Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Id. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. As discussed above, the Veteran is a retired truck driver. On August 2014 VA examination, he reported that while working as a truck driver he was prone to isolation and startle response, but stated that he did not miss work due to PTSD. The claims file contains a favorable SSA determination based on diagnoses of injuries to the nervous system (stroke) and essential hypertension. In his April 2015 VA Form 21-8940, Application for Increased Compensation Based on Unemployability, he claimed that he was no longer able to work due solely to PTSD. However, there is no explanation as to how his PTSD symptoms render him unemployable. After a thorough review of the evidentiary record, the Board finds that the functional limitation imposed by the Veteran's service-connected PTSD disability does not render him unable to secure and follow a substantially gainful occupation. The most probative evidence of record, the August 2014 VA Examination Report, does not demonstrate that the Veteran's service-connected disability would preclude him from being able to engage in substantially gainful employment. Similarly, the record does not show that his diabetes or stroke residuals (evaluated as noncompensable) acting alone or in conjunction with his PTSD render him unable to secure or follow a substantially gainful occupation. However, the Court has held that the Board is the entity that determines whether a TDIU is warranted, not the experts. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2014) (explaining that "applicable regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner"). The Board's decision rests on all of the relevant and probative evidence. In light of the foregoing, it is clear that the Veteran has experienced impairment due to his service-connected PTSD. However, by the assigned schedular ratings during the appeal period, the Veteran has been compensated for the symptomatology associated with each of his service-connected disabilities. Thus, impairment of industrial capacity due to service-connected disabilities has already been taken into consideration via the disability ratings assigned. The evidence does not show that the Veteran is incapable of performing the physical and mental acts required by employment due solely to his service-connected disabilities. As such, the evidence weighs against finding that his service-connected disabilities have combined to cause unemployability. Entitlement to TDIU is thus not established. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Moreover, referral of the TDIU claim to the Director of Compensation Service for extra-schedular consideration is not warranted because the preponderance of evidence is against a finding that the Veteran's service-connected PTSD renders him unable to secure or follow a substantially gainful occupation. ORDER Entitlement to an initial rating in excess of 30 percent for PTSD is denied. Entitlement to a TDIU is denied. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs