Citation Nr: 1801538 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-06 452 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for post-traumatic stress disorder (PTSD). 2. Entitlement to a total rating for compensation based upon individual unemployability due to service-connected disabilities (TDIU). ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from December 4, 1967 to December 3, 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans' Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The issue of entitlement to an earlier effective date for service connection for ischemic heart disease (IHD) has been raised by the record in a March 2017 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action, if any. 38 C.F.R. § 19.9(b) (2017). FINDINGS OF FACT 1. The Veteran's PTSD is productive of no more than occupational and social impairment, with deficiencies in most areas. 2. The Veteran meets the schedular criteria for a TDIU and the Veteran's service-connected PTSD precludes him from securing or following a substantially gainful occupation CONCLUSIONS OF LAW 1. The criteria for a 70 percent rating for PTSD are met. 38 U.S.C.A. §§ 1155, 7105 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2017). 2. The Veteran is individually unemployable by reason of his service-connected disabilities. 38 U.S.C.A. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341(a), 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) There has been a significant change in the law with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. The Veteran's claim is being granted. As such, any deficiencies with regard to VCAA are harmless and nonprejudicial. Rating for PTSD Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Before proceeding with its analysis of the Veteran's claim, the Board finds that some discussion of Fenderson v. West, 12 Vet. App 119 (1999) is warranted. In that case, the Court emphasized the distinction between a new claim for an increased evaluation of a service-connected disability and a case (such as this one) in which a veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been recognized as service-connected. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim-a practice known as "staged rating." See also Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, staged ratings are warranted. The regulations for mental disorders are found in 38 C.F.R. §§ 4.125-4.130. The Board notes that psychiatric disabilities evaluated under Diagnostic Code 9411 and Diagnostic Code 9413 are rated according to the General Rating Formula for Mental Disorders. The rating criteria provides a 10 percent rating for occupational and social impairment due to mild or transient symptoms which decreases work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. A 30 percent rating is provided for occupational and social impairment with occasional decrease in work efficiency and intermittent 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, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is provided for 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 rating 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 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. The Board further notes that a GAF rating is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994). The Board notes that an examiner's classification of the level of psychiatric impairment, by a GAF score, is to be considered but is not determinative of the percentage rating to be assigned. VAOPGCPREC 10-95. Service connection has been in effect for PTSD since April 2010. VA records dated in 2010 document complaints of anxiety. In May 2011, the Veteran was afforded a VA examination. The Veteran reported significant sleep disturbance. He was casually groomed. He was fully cooperative. He gave no reason to doubt the information he provided. He did display significant anxiety. Speech was within normal limits with regard to rate and rhythm. The Veteran's mood was anxious. His affect was appropriate to content. Thought processes and associations were logical and tight. No loosening of associations was noted, nor was any confusion shown. The Veteran's memory was grossly intact. He was oriented in all spheres. He did not report hallucinations. No delusional material was noted. The Veteran's insight was adequate as was judgment. The Veteran reported suicidal and homicidal ideation, VA and was not in need of psychiatric hospitalization at the time of this examination. The GAF was 53. The veteran was afforded another VA examination in July 2011. At that time, the Veteran reported sleeping approximately 4 hours a night with medication and stated that without medication he did not sleep. He reported dreaming of Vietnam experiences 3 to 4 times a week. He went on to describe a friend that was killed that had ran over a land mine and he saw the friend with his body parts hanging out of him. He also referenced seeing the Vietnamese that were brought to him in body bags. He reported that he had intrusive thoughts regarding these events on a daily basis. The Veteran indicated that he was easily startled. He referenced that hearing any unexpected sound is unpleasant and has significantly had problems this past week in hearing the fireworks that have been displayed. He stated that he was scared all of the time. It should be noted that when this examiner went to get the Veteran from the waiting area, he did have a slight, startle response even when his name was called. He had avoidant behavior in that he could not watch the news or any movies related to the war. He avoided conversations with people about Vietnam and reports that he tended to block this out. He indicated that he had to take medicine for anxiety if he became agitated because of conversations or memories related to the war. He had a long history of these behaviors for about 40 years. He described ongoing, angry outbursts in that he would overreact to things and would respond either verbally or physically. He referenced a situation in which he had told his son to do something and his son did not and so he struck at him. The Veteran reported a suicide attempt in 2004, which resulted in inpatient treatment as well as subsequent treatment. The Veteran reported to receive some benefit from his psychotropic medication's, as well as his counseling. Mental status examination revealed that the Veteran was casually groomed and cooperative with the evaluation. He presented some information in a way that was believed to be creditable. Eye contact was good and speech was within normal limits. His mood was anxious and affect was appropriate to content. He displayed rational thought processes, and rip problems were noted with orientation to time, place, or person. There was no evidence of delusional thought and he did not report any hallucinations. He displayed adequate insight and judgment. He denied any thoughts of harm to self or others. The diagnosis was PTSD and the GAF was 50. The examiner felt that although his symptoms impaired his social functioning, the Veteran was not unemployable due to PTSD. The Veteran was seen by VA from June 2015 to September 2015. He appeared anxious, dysthymic; and slightly unkempt. He reported that his mood had been poor. He said that he had not been sleeping well and complained of insomnia. He stated that he did not use his CPAP machine due to his anxiety. He related that his anxiety and hyperarousal interfered with his sleep. He denies having nightmares. He reported having no energy. He had continues to isolate himself to his house alone. He reported having general inactivity. He had no interests or hobbies. His appetite had decreased. He denied suicidal or homicidal ideation. Although he reported that he was taking his medication, the examiner noted that he had not filled his Trazodone, which indicated that he had not been taking it on a regular basis. On appearance, the Veteran was unkempt and unshaven. He was cooperative with good eye contact. His mood was poor and his affect was anxious and dysthymic with restricted range. His speech was normal. His thought process was goal directed. He was oriented and is memory was intact. His attention and concentrating were adequate. The examiner noted that the Veteran continued to report being chronically depressed and with an anxious mood. He continued to demonstrate little motivation for behavioral change. He continued to complain of sleep disturbance which was likely exacerbated by untreated sleep apnea and poor sleep hygiene. He remained isolative, inactive, and unwilling to engage in evidence-based therapy for his psychiatric disability including anxiety. It appeared that he had improved medication compliance somewhat, but refill records continued to suggest inconsistent adherence (which is likely to render his psychotropic medications less effective). Overall, the examiner indicated that the Veteran's motivation in treatment was fair at best, and because of this, his current presentation might well be his psychiatric baseline. In October 2015, the Veteran was afforded a VA examination. At that time, he reported that his sister had previously filed a restraining order against him after which time he lived in his car for seven months. He reported having sleep difficulties. He had initial insomnia and the frequent awakening. He related that he heard noises around the house. He had no dreams/nightmares. He generally stayed at home. He went grocery shopping once a week. He had a CPAP machine, but reported his anxiety was too high to wear the mask. The examiner noted that the Veteran had depressed mood, anxiety, suspiciousness, panic attacks that occurred weekly or less often, and chronic sleep impairment. On examination, the Veteran was slightly disheveled. He was cooperative throughout the interview. His speech was within normal limits with regard to rate and rhythm. The Veteran's mood was anxious and dysphoric. His affect was appropriate to content. The Veteran's thought processes and associations were logical and tight with no loosening of associations or confusion noted. The Veteran was oriented in all spheres. There was no evidence of delusions or hallucinations. Suicidal and homicidal ideations were denied. The examiner indicated that the Veteran's anxiety was extremely high. His functional limitations related to PTSD included extreme anxiety when around large crowds, difficulty getting along with people, significant difficulty handling stressful situations, impulsivity and irritability. The examiner opined that the Veteran's PTSD resulted in occupational and social impairment with reduced reliability and productivity. The Federal Circuit in Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013), acknowledged the "symptom-driven nature" of the General Rating Formula. The Federal Circuit observed that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (emphasis added). The Federal Circuit explained that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating." Id. at 117. Although Vazquez-Claudio confirms that symptomatology will be the primary focus in cases for higher ratings for psychiatric impairment, it did not hold that the Board may treat the symptoms listed in General Rating Formula as a checklist from which the criteria are mechanically applied. Each list of symptoms associated with the 30 percent, 50 percent, 70 percent and 100 percent ratings in the General Rating Formula is preceded by the words "such as," confirming that the listed symptoms are simply examples. Instead, the Federal Circuit endorsed an approach whereby the Board would identify the symptoms associated with the service-connected mental health disability, determine whether they are of the kind enumerated in the regulation, and if so, assess whether they result in the level of occupational and social impairment specified by a particular rating. See 713 F.3d at 118. Thus, when making such an assessment, the Board is mindful of how the frequency, severity, and duration of those symptoms affect occupational and social impairment. The Board finds that overall, and in affording all reasonable doubt, the Veteran met the criteria for a 70 percent rating for his PTSD. Although the most recent VA examination advanced that the Veteran's PTSD was at the 50 percent level, other medical evidence and in particular the records just pre-dating that examination, show a higher level of severity. The Veteran demonstrated extreme anxiety, sleep disturbance (caused by the anxiety), and isolation. The Veteran also admits to irritable and fight-oriented tendencies. His appearance has diminished to a more disheveled level and he does not engage in any enjoyable activities. Thus the Board finds that the Veteran's PTSD more nearly approximated the criteria for a 70 percent rating. However, a 100 percent rating was not warranted because the Veteran did not have total occupational and social impairment. He did not have gross impairment in thought processes or communication. He did not suffer from persistent delusions or hallucinations. His behavior was not grossly inappropriate. He was able to perform activities of daily living. He was fully oriented. The Veteran did not have memory loss for names of close relatives, own occupation, or own name. The Board is aware that the symptoms listed under the 100 percent evaluation are essentially examples of the type and degree of symptoms for that evaluation, and that the Veteran need not demonstrate those exact symptoms to warrant a 100 percent evaluation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, the Board finds that the preponderance of the evidence, including the clinical findings, shows that the Veteran's PTSD symptoms, including those listed in the criteria and those not listed, more nearly approximate occupational and social impairment with deficiencies in most areas. In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran's claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the evidence supports a 70 percent rating for PTSD. TDIU Total disability ratings for compensation may be assigned, where the schedular rating is less than total, 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 provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall 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. For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a). VA interprets the schedular requirements in 38 C.F.R. 4.16(a) to mean that a combined 70 percent rating is only required if no single disability is rated at 60 percent disabling. See M21-1, Part IV, Subpart ii, Chap. 2, Section F. Generally, VA does not presume a claim for a TDIU is a claim for increase in all service-connected disabilities. See M21-1, Part IV, Subpart ii, Chap. 2, Section F, Para h. The issue is whether the Veteran's service-connected disabilities precluded him from engaging in substantially gainful employment (i.e., work that is more than marginal, which permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). For the Veteran to prevail in his claim for a TDIU, the record must reflect circumstances, apart from nonservice-connected conditions, that place him in a different position than other veterans who meet the basic schedular criteria. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the Veteran, in light of his service-connected disorders, is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran contends that his service-connected disabilities rendered him unable to work and that he has not been employed for many years. A review of the record shows that the Veteran initially met the schedular criteria for a TDIU as his PTSD is rated as 70 percent disabling and his IHD is rated as 60 percent disabling. Although a VA examiner opined that the Veteran's PTSD does not prevent employment, the Board also considers his IHD. In conjunction with the physical limitations from his IHD, the Veteran's extreme anxiety, sleep deprivation, irritability, isolation, lack of personal upkeep, and noncompliance with medication render him unemployable. Therefore, the Board finds that Veteran is unemployable and a total disability rating based upon individual unemployability is warranted. ORDER A 70 percent rating, but no higher, for PTSD is granted. A TDIU is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs