Citation Nr: 1801915 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 13-36 005 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) and major depressive disorder (MDD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to June 4, 2014. REPRESENTATION Appellant represented by: Patricia E. Roberts, Attorney ATTORNEY FOR THE BOARD R. Casadei, Counsel INTRODUCTION The Veteran served on active duty from November 1968 to March 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from February and October 2013 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The issues on appeal were previously remanded by the Board in June 2015. FINDINGS OF FACT 1. For the rating period prior to June 4, 2014, PTSD and MDD were manifested by objective complaints of sleep disturbance, nightmares, flashbacks, increasing socially wariness, irritability, anger, but not violent, anxiety, suspiciousness, flattened affect, difficulty in adapting to stressful circumstances, inability to establish and maintain relationships, suicidal ideation, irritability, social isolation, and sadness; subjective findings included irritability, anxiousness, withdrawn, quick to anger when provoked, but was cognitively able to complete work. 2. For the rating period beginning June 4, 2014, PTSD and MDD were manifested by objective complaints of depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationship, difficulty in adapting to stressful circumstances, and hallucinations; subjective findings included recurrent flashbacks, hypervigilance, diminished interest in activities, impaired ability to complete occupational tasks, feelings of detachment from others, irritability, hypervigilance, stress, and lack of motivation. 3. The Veteran is already in receipt of a TDIU beginning June 4, 2014. 4. For the rating period from April 12, 2012, to June 3, 2014, the Veteran had only marginal employment; his service-connected psychiatric disability prevent him from obtaining or maintaining a substantially gainful occupation. CONCLUSIONS OF LAW 1. For the rating period prior to June 4, 2014, the criteria for a rating in excess of 70 percent for PTSD and MDD have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411 (2017). 2. For the rating period beginning June 4, 2014, the criteria for a 100 percent rating for PTSD and MDD have been met. 38 U.S.C. §§ 1155, , 5013(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, DC 9411 (2017). 3. The criteria for a TDIU have been met from April 12, 2012, to June 3, 2014. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating for PTSD Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity, and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation has already been established and an increase in the rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). In this case, the Board has considered all the evidence of record, lay and medical, as it bears on the issue of rating. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation). Under DC 9411, a 70 percent rating is assigned 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 that is 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); and inability to establish and maintain effective relationships. A 100 percent rating is assigned 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, or for the veteran's own occupation or name. In applying the above criteria, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability. See 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181 (1998) (citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996)) (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 which does so). In determining the level of impairment under 38 C.F.R. § 4.130, a rating specialist is not restricted to the symptoms provided under the diagnostic code, and should consider all symptoms which affect occupational and social impairment, including those identified in the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM-IV or DSM 5). See Mauerhan v. Principi, 16 Vet. App. 436 (2002). If the evidence demonstrates that a claimant suffers symptoms or effects that cause an occupational or social impairment equivalent to those listed in that diagnostic code, the appropriate, equivalent rating is assigned. See Mauerhan, 16 Vet. App. 436. Within the DSM-IV, Global Assessment Functioning (GAF) scale scores ranging from 1 to 100 reflect "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996). GAF scores from 71 to 80 reflect transient symptoms, if present, and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). GAF scores from 61 to 70 reflect 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, with some meaningful interpersonal relationships. GAF scores ranging from 51 to 60 reflect 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 obsession rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, inability to keep a job). GAF scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech which is at times illogical, obscure, or irrelevant) or major impairment in several areas such as work or school, family relations, judgment, thinking, or mood (depressed patient who avoids friends, neglects family, and is unable to do work). Effective August 4, 2014, VA amended the regulations regarding the rating of mental disorders by removing outdated references to DSM-IV. The amendments replace those references with references to the recently updated "DSM-5." As the Veteran's claim was certified to the Board prior to August 4, 2014, the DSM-5 is not applicable to this case. Nonetheless, according to the DSM-5, clinicians do not typically assess GAF scores. The DSM-5 introduction states that it was recommended that the GAF be dropped from DSM-5 for several reasons, including its conceptual lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice. In reviewing the evidence of record, the Board will consider the assigned GAF score; however, the Board is cognizant that GAF scores are not, in and of themselves, the dispositive element in rating a disability. Rather, GAF scores must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126 (a) (2017). Turning to the merits of the case, the Veteran maintains that his PTSD is more severe than what is contemplated by the 70 percent rating assigned throughout the rating period on appeal. VA treatment records dated in October 2011 (one month following the Veteran's claim for service connection for PTSD), indicate that he had previously worked as a truck driver for 12 years. He was noted to be working full-time as a manager in a restaurant for the last 3 months. In a March 2014 VA treatment record, he was noted to be employed as a school bus driver, but was on medical leave due to right foot pain. The evidence also includes a January 2013 VA PTSD Disability Benefits Questionnaire. The examiner confirmed a diagnosis of PTSD and assigned a GAF score of 56, indicative of moderate symptoms or moderate difficulty in social, occupational, or school functioning. During the evaluation, the Veteran reported living with his wife and having four children from a previous marriage. He also reported working full-time, but did not participate in any significant social activities. Specifically, the Veteran indicated that he worked 35 hours a week and his job was in good standing. Symptoms were noted to include sleep disturbance, nightmares, and flashbacks. He was also noted to have become increasingly socially wary. The Veteran was quick to become irritable and anger, but not violent. Additional symptoms included anxiety, suspiciousness, flattened affect, difficulty in adapting to stressful circumstances, inability to establish and maintain relationships, suicidal ideation, irritability, social isolation, and sadness. The examiner also indicated that the Veteran was currently performing his work well; however, he tended to be irritable, anxious, and withdrawn. He was quick to become angry when provoked and the examiner noted that the Veteran would not be able to provide a leadership role as a result of these tendencies. Nonetheless, the examiner indicated that the Veteran was cognitively able to complete work. The Veteran submitted a private psychological evaluation from the Center for Psychological Services and Development dated in November 2012. During the evaluation, it was noted that he worked as a school bus driver. He also indicated that he remained fairly isolated and had little contact with his children. After performing various psychological tests, the examiner confirmed a diagnosis of PTSD and major depressive disorder. A GAF score of 45 was noted, reflecting serious symptoms or any serious impairment in social, occupational or school functioning. In a February 2013 statement from the examiner who performed the November 2012 evaluation, it was noted that the Veteran was likely to have continued "difficulty with social interaction and occupational performance." The emotional distress and negative coping behaviors were noted to be major impetuses to his divorce and he reported being isolated most of the day. Moreover, he had not been able to maintain a consistent, full-time job for some years. The emotional distress he experienced and his inability to maintain adequate performance at work had led him to either leave or be fired from multiple positions throughout his life. In an April 2014 statement from psychologist L. F., it was noted that the Veteran's symptoms of PTSD and MDD made it "difficult for him to maintain consistent employment." Pursuant to the Board's June 2015 remand, the Veteran was afforded another VA examination in March 2016. The examiner specifically indicated that the Veteran's PTSD and MDD resulted in occupational and social impairment with reduced reliability and productivity. During the evaluation, the Veteran reported that he last worked as a bus driver in October 2013. The Veteran reported that he stopped working as the experience of working with children was "very stressful." Current symptoms were noted to include depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationship, difficulty in adapting to stressful circumstances, including work or a worklike setting, and hallucinations. The examiner specifically indicated that the Veteran's "recurrent flashbacks, hypervigilance, and diminished interest in activities impaired his ability to complete occupational tasks." Further, the Veteran's feelings of detachment from others, irritability, and hypervigilance were noted to "impair his ability to relate to others in an occupational setting." In a July 2015 statement from the Center for Sexual Assault Survivors, it was noted that the Veteran was working as a bus driver and stated that he had been feeling stressed recently while working. He indicated that he had no motivation. Upon review of the evidence of record, the Veteran's PTSD more nearly approximated a 100 percent rating for the period beginning June 4, 2014. In this regard, the evidence demonstrates that he was not employed as of June 4, 2014. Specifically, a request for employment information indicated that he last worked on June 4, 2015, but only earned $12.47 during the 12 month period preceding his last date of employment. This indicates that he only worked approximately 2 hours from June 2014 to June 2015. Moreover, the March 2016 VA examiner specifically indicated that the Veteran's recurrent flashbacks, hypervigilance, and diminished interest in activities impaired his ability to complete occupational tasks. Further, the Veteran's feelings of detachment from others, irritability, and hypervigilance were noted to impair his ability to relate to others in an occupational setting. The Board finds that, beginning June 4, 2014, the evidence also reflects that the Veteran was socially isolated and had problems with anger, irritability, and lack of motivation. For these reasons, the Board finds that a 100 percent rating is warranted for the rating period beginning June 4, 2014. Regarding the rating period prior to June 4, 2014, the Board finds that the Veteran's PTSD did not manifest total occupational impairment as required by the 100 percent rating criteria. Although the evidence demonstrates that he may have had some difficulties dealing with co-workers and hypervigilance, he was able to maintain full-time employment as a manger in the food industry and as a bus driver. See October 2011 VA treatment record (indicating that he had previously worked as a truck driver for 12 years and was currently working full-time as a manager in a restaurant for the last 3 months); see also March 2014 VA treatment record (he was noted to be employed as a school bus driver, but was on medical leave due to right foot pain). Employment information indicated that he worked from April 2012 to June 2014 Further, the evidence prior to June 4, 2014, reflects that the Veteran did not manifest gross impairment in communication, persistent delusions or hallucinations, suicidal or homicidal ideation, gross inappropriate behavior, disorientation, or poor hygiene. The Board acknowledges that he reported difficulty with motivation, irritability, and anger; however, these impairments in thought process are not of such severity as to be considered "gross" impairments. For these reasons, a rating in excess of 70 percent for the rating period prior to June 4, 2014, is not warranted. TDIU The Veteran has been granted a TDIU effective June 4, 2014. Thus, the question is whether, prior to June 4, 2014, he was unable to secure or follow a substantially gainful occupation as the result of his service-connected disabilities. A total disability rating for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. A veteran is eligible for a rating of TDIU if either one service-connected disability is rated at least 60 percent disabling or multiple service-connected disabilities yield a combined rating of 70 percent (with at least one of those disabilities rated 40 percent or more)). 38 C.F.R. § 4.16(a). In determining whether a veteran is indeed unemployable, consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Further, the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. Indeed, a high rating in and of itself is a recognition that the service-connected impairment makes it difficult to obtain and keep employment. Rather, the relevant inquiry is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Here, the Veteran's service-connected disabilities include, in pertinent part, PTSD, evaluated as 70 percent for the period prior to June 4, 2014. Thus, he meets the threshold rating requirements necessary to consider entitlement to a TDIU. The evidence indicates that the Veteran worked as a school bus driver from April 12, 2012, to June 4, 2015. As indicated by his former employer, he only earned $12.47 in the 12 months preceding his last date of employment (i.e., from June 4, 2014, to June 4, 2015). Prior to June 4, 2014, he was noted to work 32.5 hours a week, earning $6.50 an hour, which totals $211.25 per week, or $10,985 annually. Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran's earned 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. Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. See 38 C.F.R. § 4.17(a). According to the U.S. Department of Commerce, Bureau of the Census, the Poverty Threshold in 2012 was $11,945 for individuals under the age of 65 (the Veteran was 63 years old in 2012). In 2013, the poverty threshold was $12,119 for individuals 65 years of age or younger. In 2014, the poverty threshold was $12,316. https://www.census.gov/hhes/www/poverty/data/threshld/. The Board finds that the evidence is in equipoise as to whether a TDIU is warranted for the rating period beginning April 12, 2012 (the date the Veteran began employment as a bus driver). As indicated above, his annual salary of $10,985 fell below the poverty threshold in 2012, 2013, and 2014. As such, although employed from April 2012, to June 2015, he only had marginal employment during this time. For these reasons, and resolving reasonable doubt in the Veteran's favor, given the impact of his service-connected psychiatric disability and his marginal employment from April 2012 to June 2015, he was unable to secure and maintain substantially gainful employment due to his service-connected disability as of April 12, 2012. As he is already in receipt of a TDIU beginning June 4, 2014, TDIU is now warranted from April 12, 2012, to June 3, 2014. As for the rating period from July 27, 2011 (the date the Veteran filed his claim for service connection for PTSD) to April 12, 2012 (the first date of the grant for a TDIU), the Veteran was employed and earned above the poverty threshold. Specifically, in his VA Form 8940, he indicated that he worked 50 hours a week in the food service industry in 2011 and earned $1,200 a week (or approximately $62,000 a year). As such, he did not meet the criteria for a TDIU from July 27, 2011, to April 12, 2012, as he was gainfully employed. Finally, 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). ORDER For the rating period prior to June 4, 2014, a rating in excess of 70 percent for PTSD and MDD is denied. For the rating period beginning June 4, 2014, a 100 percent rating for PTSD and MDD is granted. A TDIU for the period from April 12, 2012, to June 3, 2014 is granted. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs