Citation Nr: 1802517 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 09-26 570 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to May 5, 2016, and in excess of 50 percent from May 5, 2016 to September 11, 2016. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to September 12, 2016. REPRESENTATION Veteran represented by: Paul Kachevsky, Esq. WITNESS AT HEARING ON APPEAL The Veteran and J.B. ATTORNEY FOR THE BOARD M. Hendricks, Associate Counsel INTRODUCTION The Veteran had active duty service from November 1964 to November 1968, and from February 1975 to February 1977. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before a Veterans Law Judge (VLJ) in August 2010. That VLJ subsequently left the Board; consequently, the Veteran was offered an opportunity for a hearing before another VLJ. The Veteran ultimately declined another hearing. This case was before the Board in May 2011 and March 2012; subsequently, the Veteran appealed the March 2012 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2013 Memorandum Decision, the Court set aside the Board's March 2012 decision and remanded the matter to the Board for further adjudication. This case was again before the Board in July 2014, and was last before the Board in May 2017. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Throughout the appeal period, the symptoms associated with the Veteran's PTSD resulted in no more than occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. CONCLUSION OF LAW The criteria for establishing a 70 percent evaluation, but no higher, throughout the appeal period for the Veteran's PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2017); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2017); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2017); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2017). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the claimant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran was initially awarded service connection for PTSD from August 2007. The Veteran's PTSD has been evaluated as 30 percent disability for the period prior to May 5, 2016, 50 percent disabling from May 5, 2016 to September 11, 2016, and 100 percent disabling thereafter. Those evaluations are assigned under Diagnostic Code 9411. Under Diagnostic Code 9411, which is governed by a General Rating Formula for Mental Disorders, a 10 percent evaluation is warranted for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders, Diagnostic Code 9411 (2017). A 30 percent rating is warranted 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). See Id. A 50 percent rating is warranted 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. See Id. A 70 percent rating is warranted 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 work-like setting); inability to establish and maintain effective relationships. See Id. A 100 percent rating is warranted 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; 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. The Board is mindful that the lists of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet App 436, 442-3 (2002). On the other hand, if the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443. The United States Court of Appeals for the Federal Circuit has embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). One factor for consideration in evaluating mental disorders is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)). A GAF score of 61 to 70 indicates some mild symptomatology (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. 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 obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). At the Veteran's August 2010 Board hearing, the Veteran reported his PTSD caused him to be constantly nervous, aware of his surroundings, and that he had experienced hallucinations. He reported having anger issues, and that he had been in numerous physical alterations. Additionally, he noted he experienced panic attacks approximately once per week, had concentration problems, and a constant depressed mood. He reported that on average he could only work about two to three hours per day due to his PTSD symptoms. Further, he noted he needed to be reminded to bathe, that he isolated himself from his family and friends, had nightmares, short-term memory loss, and could not remember the names of all his relatives. Moreover, at the August 2010 Board hearing, the Veteran's co-worker, J.B., testified that the Veteran had fits of rage and fidgetiness, that he had seen the Veteran demonstrate anger issues "thousands of times," and that the Veteran had not been able to keep his handyman job due to physical altercations. VA treatment records showed the Veteran underwent an initial psychiatric evaluation for PTSD in August 2007. The Veteran reported only sleeping 4 hours a night, having distressing dreams about Vietnam, and that he avoided large crowds. The Veteran did not report any symptoms of hypervigilance or psychological distress. On examination, the Veteran was neatly dressed, had good eye contact, and his focus was within normal limits. His speech was somewhat rapid, pressured, and circumlocutory. However, he had no apparent thought disorders or delusions, and his short and long term memory was intact. The Veteran underwent a VA examination in February 2008. The Veteran reported he had an excellent relationship with his wife, but that he didn't have many friends since returning from Vietnam. He reported he attended church weekly. Additionally, the Veteran reported no history of suicide attempts, violence, or issues with substance abuse. However, he reported nightmares about six times per month. On examination, the Veteran was neatly groomed, appropriately dressed, and his speech was spontaneous, clear, and coherent. The examiner noted the Veteran was cooperative, friendly, and attentive, and that his mood and affect were normal. He noted the Veteran's attention, thought process, thought content, judgment, and insight were all normal. Further, the examiner noted the Veteran had no obsessive or ritualistic behaviors, panic attacks, homicidal thoughts, episodes of violence, or any problems with activities of daily living. The Veteran indicated he was currently self-employed as a handyman full-time. Following the examination, the examiner concluded that while it appeared the Veteran experienced PTSD symptoms that were likely severe at one time, the symptoms had improved and stabilized. She opined that his PTSD symptoms were transient or mild and decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. In September 2008, VA treatment records showed that the Veteran reported he was paranoid, and his sleep and concentration were poor. He reported mood swings, and that he believed his PTSD symptoms had worsened. In a March 2010 statement, the Veteran's spouse reported the Veteran's psychiatric symptoms included memory impairment, neglect of his personal appearance, problems with social functioning, depressed mood, low motivation, panic and anxiety attacks, episodes of irritability and anger, to include screaming and yelling at his employees, and periods of violence. In March 2010, the Veteran presented with a stable mood, poor concentration, and less frequent panic attacks and nightmares. On examination, he was casually dressed, made good eye contact, and was cooperative and appropriate. His speech was normal, his affect was appropriate, and he denied any hallucinations, paranoid/grandiose ideations, or suicidal thoughts. In April 2010 and September 2010, the Veteran's physician noted his PTSD was stable. In April 2011, the Veteran reported mood swings and that he was easily angered. In May 2011, the Veteran reported he was mildly angry and intolerant at times. He reported no arguments with his wife since he started his medication, but that his symptoms included nightmares, flashbacks, avoidance, hypervigilance, and avoiding crowds. He reported he was currently doing some handyman work. On examination, the examiner noted the Veteran was appropriately dressed, cooperative, and attentive. His motor activity was within normal limits with no psychomotor retardation or agitation. Additionally, the examiner noted the Veteran's thought process was coherent with no looseness of associations or disorganization, and his thought content did not reveal any delusional thinking or paranoia. Further, the examiner noted the Veteran's cognition was fairly intact for immediate, recent, and remote events, and his insight and judgment were fair. Lastly, the examiner noted the Veteran denied any suicidal or homicidal thoughts, intents, or plans, and did not appear to be an immediate risk of danger to himself or others. The Veteran underwent a second VA examination in July 2011. The Veteran reported he was having trouble with his handyman job due to his anger issues. He reported he felt anxious much of the time, had panic attacks, was depressed, and his energy level was low. He reported he still attended church weekly, but only had one friend. Additionally, he reported that while he had never attempted suicide, he had suicidal thoughts occasionally, but without intent or plan. The examiner noted the Veteran's wife reported the Veteran's psychiatric symptoms had progressed, and indicated the Veteran had numerous difficulties including fidgetiness, a racing mind, memory problems, anger, lack of caring about his personal appearance, not interacting with others in social functions, problems with concentration and motivation, depression, panic/anxiety attacks, irritability with his employees, periods of violence, and flashbacks. Further, the examiner noted that the Veteran had a history of violence, to include an incident that occurred two years prior. On examination, the examiner noted the Veteran was neatly groomed and appropriately dressed, his speech was spontaneous, clear, and coherent, and was friendly and attentive. The examiner noted the Veteran's affect, mood, attention, thought process, thought content, judgment, and insight were all normal, he had no delusions, hallucinations, or obsessive behaviors, and he was able to maintain his personal hygiene and activities of daily living. The examiner opined the Veteran's PTSD symptoms were of moderate severity, and impacted his concentration, family relationships, work, and mood. In an October 2011 statement, the Veteran's spouse reported that the Veteran had trouble with his personal hygiene, could not understand normal conversations, and that the Veteran was socially isolated. In March 2012, the Veteran reported not having a stable job for many years, and that his PTSD symptoms included nightmares, flashbacks, avoidance symptoms, hypervigilance, avoiding crowds, and trouble sleeping at night. On examination, the Veteran was cooperative, and his thought process was coherent with no looseness of associations or disorganization. His thought content did not reveal any delusional thinking and there was no evidence of paranoia. The examiner noted the Veteran's mood was irritable and angry, but that he did not appear to be an immediate risk of danger to himself or others. In an October 2012 statement, the Veteran's friend reported he witnessed the Veteran have many outbursts of anger and irritability, to include at work. In January 2013, the Veteran presented with depressed mood, low energy, passive thoughts of death, nightmares, intrusive thoughts, flashbacks, and hypervigilance. However, he denied any suicidal or homicidal ideations. In June 2013, the examiner noted the Veteran continued to have no suicidal or homicidal ideations. The Veteran underwent a third VA examination in September 2014. The Veteran reported he experienced hyperarousal symptoms, including insomnia, irritability, anger, impaired concentration, hypervigilance, and an exaggerated startle response. The examiner noted the Veteran's PTSD symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, suicidal ideation, and neglect of personal appearance and hygiene. Additionally, he indicated the Veteran experienced insomnia, anhedonia, crying spells, guilt, low self-esteem, hopelessness, helplessness, low energy, and low motivation. On examination, the examiner noted the Veteran was casually dressed and appropriately groomed, had appropriate speech, normal thought processes, and reported no suicidal or homicidal ideations. However, the examiner noted the Veteran occasionally experienced auditory and visual hallucinations. The examiner indicated that the Veteran's psychiatric condition alone did not impair his ability to obtain and maintain gainful employment, and that it caused moderate to severe impairment in social and industrial functioning. He opined his PTSD symptoms caused occupational and social impairment with reduced reliability and productivity. In February 2015, the Veteran reported a fairly stable mood and occasional nightmares/avoidance. He denied any suicidal ideations or intent. In July 2015, the Veteran reported feeling more irritable and angry, that he was experiencing more flashbacks to Vietnam, and that his anxiety had increased when he was out in public. He reported his symptoms included sadness, irritability, excessive worry, hypervigilance, and physiological reactivity. On examination, the Veteran had appropriate hygiene, maintained good attention and focus, had normal speech, and his thought process was unremarkable. Further, there was no evidence of hallucinations, or suicidal or homicidal ideations. In February 2016, the Veteran underwent a PTSD evaluation The examiner noted the Veteran's symptoms included mild memory loss, passive suicidal ideations with no intent or plan, avoidance, sleep impairment, irritable behavior, hypervigilance, and some problems with concentration. She indicated that the Veteran's symptoms had reportedly become more pronounced in the last month due to the anniversary of the Veteran's trauma. On examination, the examiner noted some mild memory loss and passive suicidal ideations, but the Veteran's examination was otherwise normal. The Veteran underwent a fourth VA examination in May 2016. The Veteran reported that his relationship with his wife was sporadic with communication problems, and that his irritability had become more frequent. He reported he maintained a friendship with a fellow veteran and his wife. Additionally, the Veteran reported he completely stopped working as a handyman about a year prior, but that he had done this job part-time for approximately twenty five years. Further, he reported that about a year and a half prior to the examination, he had an incident of road rage. The Veteran noted that he was generally independent in his self-care and daily living activities. On examination, the Veteran was well-groomed and appropriately dressed. His speech, attention, orientation, thought process, and thought content were all unremarkable. The examiner indicated there was no evidence of delusions, hallucinations, or suicidal ideations. The examiner noted the Veteran's PTSD symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner opined the Veteran's PTSD symptoms caused occupational and social impairment with reduced reliability and productivity. In June 2016, the Veteran's examination showed he was casually groomed, friendly, and cooperative. The examiner noted his eye contact was good, and his psychomotor activity and speech were normal. Further, he noted the Veteran's thought processes were linear and goal-directed, there were no perceptual disturbances, and no suicidal or homicidal ideations. In July and August 2016, the Veteran's physician noted the Veteran was casually groomed, friendly, and cooperative. His psychomotor activity was normal, and his speech was clear, relevant, and spontaneous. Additionally, his thought processes were linear and goal directed, and the Veteran reported no perceptual disturbances, delusions, hallucinations, or suicidal and homicidal ideations. In September 2016, the Veteran's treating physician submitted a PTSD disability benefits questionnaire. He indicated that the Veteran had difficulty with low frustration tolerance, and spent about eighty percent of his time in his home. Additionally, he noted the Veteran had poor relations with his wife and family, and that his social functioning was limited due to anger outbursts. Moreover, he indicated the Veteran had a low mood, low energy, irritability, anxiety, and difficulty sleeping. Further, the physician noted the Veteran's other symptoms included suspiciousness, panic attacks, chronic sleep impairment, mild memory loss, flattened affect, difficulty in understanding complex commands, impaired judgment, disturbances in motivation and mood, difficulty in establishing and maintaining effective work and social relationships, suicidal ideation, obsessional rituals, persistent danger of hurting self or others, and neglect of personal appearance and hygiene. He concluded the Veteran's PTSD symptoms caused total occupational and social impairment. The Veteran underwent a fifth VA examination in November 2017. The Veteran reported he occasionally experienced suicidal ideations, and that he is not able to engage in appropriate interpersonal relationships with co-workers. He reported he experiences depression on most days, that he does not like to go out in public, and that he no longer cares about his personal appearance. The examiner noted the Veteran's PTSD symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, impaired impulse control, and neglect of personal appearance and hygiene. The examiner opined the Veteran's PTSD symptoms caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. Based on the foregoing evidence, the Board finds that a 70 percent evaluation, but not higher, is warranted throughout the appeal period. The Board notes that while the February 2008, July 2011, September 2014, and May 2016 VA examiners opined the Veteran's PTSD only caused at most an occupational and social impairment with reduced reliability and productivity, the Veteran's symptoms throughout the appeal period, to include as reported in his VA treatment records, his August 2010 Board hearing, and in the 2011 and 2012 lay statements, are more commensurate with a 70 percent evaluation under Diagnostic Code 9411. Specifically, throughout the appeal period, the Veteran's symptoms included memory impairment, problems with social functioning, depressed mood, low motivation, panic and anxiety attacks, episodes of irritability and anger, periods of violence, social isolation, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships. Further, beginning in July 2011, the Veteran began to report intermittent passive suicidal thoughts. Additionally, while the September 2016 private examiner opined that the Veteran's PTSD symptoms caused total occupational and social impairment, and the Veteran has been awarded a 100 percent evaluation as of the date of that examination, the Board finds that there is no indication that the Veteran's symptoms at any point during the period in question for this appeal included gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, an inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name. In fact, the Veteran was always fully oriented and appropriately dressed at all VA examinations throughout the appeal period and demonstrated no significant impairment of thought process, memory, or speech. Moreover, none of the mental health professionals who evaluated the Veteran during the relevant period found that his PTSD symptoms resulted in total occupational and social impairment. Thus, based on the above, the Board gives little weight to the September 2016 private examiner's opinion in establishing the severity of the Veteran's symptoms for the period in question (prior to September 11, 2016) as it seems to be contradicted by the weight of the objective and clinical findings of record during the pertinent appeal period. As the Board cannot find that the Veteran's symptomatology more nearly approximates total occupational and social impairment at any point during the appeal period, the Board must find that an evaluation higher than 70 percent is not warranted for the Veteran's PTSD. Accordingly, the Board finds that a 70 percent evaluation, but no higher, for the Veteran's PTSD is warranted throughout the entire appeal period. See 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. In so reaching that conclusion, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C.A. § 5107 (b) (West 2014); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER A 70 percent evaluation, but no higher, throughout the appeal period for the Veteran's PTSD is granted. REMAND The Board finds that additional development and clarification is needed before final adjudication of the Veteran's TDIU claim can be completed. At the Veteran's February 2008 VA examination, he reported he was self-employed as a handyman and working full-time. At his August 2010 Board hearing, the Veteran reported he on average only worked as a handyman about two to three hours per day due to his PTSD symptoms. In May 2011, the Veteran reported he was still doing some handyman work, and in July 2011, he reported he was having trouble with his job due to his anger issues. In March 2012, the Veteran reported he had not had a stable job in years; however, at his May 2016 VA examination, he reported he only stopped working as a handyman a year prior to the examination. Based on the above, it currently remains unclear what periods of time during the appeal period, if any, the Veteran was not engaged in full-time employment. Thus, the Board finds a remand is necessary for the AOJ to obtain a full employment history, to include self-employment, from the Veteran throughout the entire appeal period. Accordingly, the case is REMANDED for the following action: 1. The AOJ should obtain a full employment history from the Veteran throughout the entire appeal period. 2. Following any indicated development, the AOJ should review the claims file and readjudicate the Veteran's claim for entitlement to TDIU. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ____________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs