Citation Nr: 1802440 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 06-03 176 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to a rating in excess of 50 percent for generalized anxiety disorder (GAD). 2. Entitlement to a total disability rating based upon individual unemployability (TDIU) prior to February 20, 2013. 3. Entitlement to special monthly compensation (SMC) based on housebound status. REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD EM Lederman, Associate Counsel INTRODUCTION The Veteran had active duty service in the United States Army from December 1942 to January 1946. He died in January 2017. The appellant is the Veteran's son, and has been designated as substitute for the Veteran for purposes of processing this appeal to completion. 38 C.F.R. § 3.1010. This appeal to the Board of Veterans' Appeals (Board) arose from March 2005 and April 2013 rating decisions. In a December 2008 decision, the Board denied a rating in excess of 50 percent for GAD. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2010 Memorandum Decision, the Court vacated the December 2008 Board decision and remanded the case to the Board. The Board then remanded the appeal in May 2011, July 2013, and May 2016. 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. From February 18, 2004 to February 20, 2013, the Veteran's GAD was manifested by occupational and social impairment, with deficiencies in most areas. 2. From February 20, 2013, the Veteran's GAD was manifested by total occupational and social impairment. 3. From February 18, 2004 to February 20, 2013, the Veteran's GAD rendered him unable to secure or follow a substantially gainful occupation. 4. The criteria for special monthly compensation (SMC) at the housebound rate are met from January 3, 2011. 38 U.S.C. § 1114(s) (2012); 38 C.F.R. § 3.350 (2017). CONCLUSIONS OF LAW 1. From February 18, 2004 to February 20, 2013, the criteria for a 70 percent rating, but no higher, for the Veteran's GAD are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.400, 4.1-4.14, 4.130, Diagnostic Code 9400 (2017). 2. From February 20, 2013, the criteria for a total disability rating for the Veteran's GAD are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.14, 4.130, Diagnostic Code 9400 (2017). 3. The criteria for a TDIU are met from February 18, 2004 to February 20, 2013. 38 U.S.C.A. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). 4. The criteria for special monthly compensation (SMC) at the housebound rate are met from January 3, 2011. 38 U.S.C. § 1114(s) (2012); 38 C.F.R. § 3.350 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Prior to his death, the Veteran sought a disability rating higher than 50 percent for his service-connected GAD, maintaining that it rendered him unable to establish and maintain relationships or work, and that he had impaired impulse control and cried spontaneously. See May 2005 Notice of Disagreement. Increased Rating Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. Separate diagnostic codes (DCs) identify various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.130. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 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. Ratings are assigned according to the manifestation of particular symptoms. The use of the term "such as" in 38 C.F.R. § 4.130 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 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the DC. VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders DSM-IV. (The Board recognizes that the Veterans Benefits Administration is now required to apply concepts and principles set forth in DSM-5; however, the DSM-IV is still to be applied by the Board for cases such as this one, which was pending before the Board as of February 2007). When determining the appropriate disability evaluation to assign for psychiatric disabilities, however, the Board's "primary consideration" is the Veteran's symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). The Veteran's acquired psychiatric disorder has been rated under the General Formula for Rating Mental Disorders pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9400. Under the General Formula for Rating Mental Disorders, a 70 percent rating is warranted where the evidence shows 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); and an inability to establish and maintain effective relationships. A 100 percent 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 and place, memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9400. The Global Assessment of Functioning (GAF) is a scale reflecting psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DSM-IV). Here, the Veteran has been assigned GAF scores ranging from 40 - 65 as determined by VA examiners and treatment providers. According to the DSM-IV, 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 score of 41 to 50 is reflective of serious symptoms (e.g., suicidal ideation, severe obsessional rituals,) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF scores ranging from 51 to 60 reflect more 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). A GAF score 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 well, has some meaningful interpersonal relationships. The Veteran's GAD is currently rated 50 percent disabling from October 1983. The appeal period before the Board begins October 29, 2003, one year before the date of his increased rating claim. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). Period Prior to February 20, 2013 The Board finds that from February 18, 2004, the earliest date of psychiatric treatment with the one-year look-back period, to February 20, 2013, a rating of 70 percent is warranted for the Veteran's psychiatric disorder. Initially, the Board notes that the Veteran also had diagnoses of bipolar disorder, major depressive disorder, and dementia. See February 2004, April 2005, May 2006 and February 2013 treatment records. The evidence of record does not sufficiently distinguish the symptoms of these disorders form his service-connected GAD. Thus, the Board's instant discussion attributes all of the Veteran's mental health symptoms to his service-connected GAD. Mittleider v. West, 11 Vet. App. 181, 182 (1998). Turning to the evidence of record, the Veteran was afforded VA examinations, as well as regular psychiatric treatment at VA facilities since at least March 2001, which show that his disability manifested in occupational and social impairment with deficiencies in most areas. In early 2004, the Veteran presented with excessive tearfulness, fatigue, and excessive sleepiness. In December 2004, he reported that he was more emotional and having trouble with increased anxiety and migraines. He was compliant with his long-prescribed Zoloft. The attending psychiatrist encouraged him towards increased socialization. He was rated with a GAF score of 48 at that time and also in April 2004, indicative of serious symptomatology. An April 2004 VA psychiatric examiner noted a history of suicidal ideation and intermittent auditory hallucinations. The Veteran reported nervousness and anxiousness with sporadic depression, and on mental status examination he demonstrated impaired insight, judgment and impulse control. The examiner noted a GAF score of 65 and indicated the Veteran was employable. In April 2005, the Veteran received further treatment for his chronic anxiety symptoms, as well as for depressive symptoms. His GAF score was again assessed at 48, and importantly, the treating physician indicated that he was not employable, having suffered from his condition for many years. Additionally, the VA psychiatrist advised him that he needed to remain compliant with his treatment plan, and follow-up appointments, in order to prevent exacerbation. October 2005 and February 2006 VA treatment records again note a GAF score of 48. The Veteran's social isolation continued, as evidenced by a private psychological evaluation in May 2006, in which the examiner found that the Veteran's mood was best described as extremely depressed and anxious, and that he showed isolation, withdrawal, and detachment from others since the death of his spouse in 1999. The Veteran's anxiety was reported to be "very upsetting," with symptoms of feeling terrified, nervous, having episodes of panic attacks and having a pervasive fear of dying. Additionally, his symptoms of depression included feeling extremely pessimistic, having difficulty deriving pleasure from any activities, feelings of guilt, crying easily, feeling agitated, having a loss of energy, feeling irritable, and having difficulty concentrating. The private examiner found that the Veteran presented as being rather fragile and vulnerable and impressed as being susceptible to potential decompensation, as had occurred in the past. See May 2006 private examination report. Moreover, the examiner found that the Veteran's short term and working memory skills were at least moderately impaired, and his impulse control was mildly impaired, which contributed towards him avoiding interactions with others. He also noted impairment in judgment and prior suicidal thoughts, and assigned a GAF score of 45. The Veteran provided a lay statement in August 2006, explaining that he is mostly a loner, and is not comfortable around other people, that life is sad, and he cries at the drop of a hat. An October 2006 VA examination report described a decreased ability to concentrate, decreased energy, decreased concentration, forgetfulness, and easy startle reflex. The Veteran reported having these symptoms on most days, for many years. Insight, judgment and impulse control were described as "fair." Despite the examiner describing the symptoms as moderate in nature, she set his GAF score at 50, indicative of more severe symptoms and impairment at that time. She also called attention to the Veteran's isolative behavior, noting that he had six children, but did not see them "all that much," he liked living alone, and his social activities diminished from the time his spouse died in 1999. The October 2006 examiner reported that the Veteran's psychiatric problems did not prevent him from getting employment, however, she did not provide any rationale for her opinion. Further treatment notes during the appeal period showed a range of GAF scores from 48 to 53. During this time, the Veteran showed symptoms of excessive daytime sleepiness, constricted mood and affect, moderate to severe memory loss, depression, and chronic and severe "post-traumatic stress disorder" symptoms. See February 2006, April 2007, May 2008, November 2008, May 2009 and May 2010 treatment records. Given the medical and lay evidence of record, the Veteran's psychiatric symptoms - including a recent history of suicidal ideation, impaired impulse control, panic attacks, excessive tearfulness, severe memory problems, and isolative behavior - resulted in occupational and social impairment, with deficiencies in most areas. Although cognizant that a rating cannot be assigned solely based on GAF scores, the Board notes that such scores throughout the appeal period have been consistently reflective of serious symptomatology, and when coupled with the symptoms noted above, support assignment of a 70 percent rating. Accordingly, the Board finds that a disability rating of 70 percent from February 18, 2004 to February 20, 2013. At no point during this period did the Veteran's symptomatology reflect total social impairment to warrant assignment of a 100 percent rating. While the Veteran endorsed periods of suicidal ideation before the appeal period, there is no indication of such ideation during the appeal period, nor is there any indication of any gross impairment in thought processes or communication, persistent danger of hurting self or others, intermittent inability to perform activities of daily living, disorientation to time or place or any other symptoms of similar frequency, severity or duration. While the Veteran evidenced severe memory loss, the available evidence does not show it was of a severity contemplated by a total rating (e.g. for names of relatives, own name, etc.) at this time. The Veteran was generally described as having normal grooming and hygiene. For these reasons, a rating in excess of 70 percent for this period is not warranted. Period from February 20, 2013 As noted above, the Board is considering all psychiatric symptomatology in assessing the Veteran's rating. The February 20, 2013 VA examiner found the Veteran to have total occupational and social impairment, as he was not oriented to time and place, and required a home health aide. The appellant indicated that the Veteran became so anxious at times, that he could not speak. The Veteran's GAF score was 40, indicating major impairment in several areas, such as work, family relations, judgment, thinking, or mood. Notably, in February 2013, the Veteran moved into an assisted living community His "service plan," which was updated every six months, starting in August 2014, highlighted that the Veteran had impaired judgment, and was unable to weigh advice, had severe impairment of orientation to time and place, including poor judgment, spoke very softly (and by February 2016, was considered non-verbal), used hearing aids in both ears, needed assistance with medication administration, required a family member to manage financial affairs, could not make telephone calls on his own, and required escorting to attend meals and daily events. The April 2014 VA examiner similarly found total occupational and social impairment. In view of the foregoing, and resolving all reasonable doubt in favor of the Veteran, the Board finds that as of February 20, 2013, his GAD most nearly approximated a total disability rating. TDIU A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, where it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of one service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, providing 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. 38 C.F.R. §§ 3.340, 4.16(a). Entitlement to a TDIU is based on an individual's particular circumstances, including education, training, and work history. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009); Beaty v. Brown, 6 Vet. App. 532 (1994). The determination of whether a veteran is unable to secure of follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). In light of the Board's findings above, the Veteran meets the schedular standards for consideration of a TDIU from February 18, 2004. 38 C.F.R. §§ 3.340, 4.16(a). Following service he owned and operated a laundromat and coffee shop, then was employed as an insurance agent until 1983. A December 1987 psychiatric evaluation states that the Veteran had been unemployed since 1980 because of profound anxiety and inability to function. At that evaluation, the Veteran exhibited profound anxiety with phobic features and severe depression. He reported verbal outbursts, and he continued to have problems relating to people. The examiner found that the Veteran could not function at any of his jobs because of his poor ability to relate to people and his verbally explosive behavior. A March 2001 record similarly indicates the Veteran left his employment as an insurance agent due to the severity of his mental condition. As noted above, the April 2005 VA provider noted the Veteran was unemployable due to his psychiatric disorder. Additionally, a March 2011 private vocational examiner, who reviewed the entire claims file, opined that the Veteran's GAD had resulted in his inability to secure or follow substantially gainful occupation on a consistent, regular basis since at least March 2003. The examiner reasoned that due to his psychiatric disorder the Veteran was not comfortable associating with anyone but family and close acquaintances, became disoriented and forgetful outside of his immediate surroundings, and would have difficulty in a structured work setting. Although some of the VA examiners during the appeal period found the Veteran to be employable, when considering the impact of his psychiatric disability and the above-cited favorable evidence, and resolving all reasonable doubt in favor of the Veteran, the Board finds that a TDIU due to GAD is warranted from February 18, 2004 to February 20, 2013. SMC VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); see also Bradley v. Peake, 22 Vet. App. 280 (2008) (finding that SMC "benefits are to be accorded when a Veteran becomes eligible without need for a separate claim" and remanding, pursuant to VA's duty to maximize benefits, for VA to determine whether the Veteran's posttraumatic stress disorder, rated 70 percent disabling, would entitle him to a TDIU and, therefore, to SMC). Special monthly compensation is payable where the Veteran has a single service-connected disability rated as 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). A TDIU may satisfy the "rated as total" element of section 1114(s), if the TDIU is awarded for a single disability. Buie, supra. In this case, the Veteran is entitled to TDIU for GAD alone, and has additional service-connected disabilities ratable at 60 percent from January 3, 2011. Accordingly, he is entitled to SMC at the housebound rate from that date. ORDER Entitlement to a 70 percent rating, and no higher, for the GAD is warranted from February 18, 2004 to February 20, 2013. Entitlement to a 100 percent rating for GAD is warranted from February 20, 2013. Entitlement to a TDIU is granted from February 18, 2004 to February 20, 2013. SMC at the housebound rate is granted from January 3, 2011. ____________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs