Citation Nr: 1802735 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 04-04 351 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to a rating in excess of 50 percent for generalized anxiety disorder with posttraumatic stress disorder (PTSD) (psychiatric disability) beginning May 27, 2014. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: George T. Sink, Attorney ATTORNEY FOR THE BOARD P. Daugherty, Associate Counsel INTRODUCTION The Veteran served in the United States Army with active duty from May 1975 to May 1979, February 2003 to June 2004, and from June 2006 to September 2007. The Veteran was a member of the Army National Guard from December 1979 to July 2010. 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 Atlanta, Georgia. On the Veteran's October 2015 Form 9 Substantive Appeal, he indicated that he wished to have a videoconference hearing before a Veterans Law Judge. However, in an October 2016 correspondence, the Veteran's representative withdrew the hearing request. The request is deemed withdrawn and the Board will proceed with adjudication of the issues on appeal. 38 C.F.R. § 20.704(d)(2017). With respect to the Veteran's claim for entitlement to an increased rating for his psychiatric disability, the Board notes that the Veteran is in receipt of a 70 percent rating from July 18, 2011 to May 26, 2014 as a result of a September 2015 rating decision, and has indicated that he is satisfied with the rating for that period. See, correspondence dated September 2015, October 2016, December 2017; September 2015 summary of Informal DRO Conference. Accordingly, the Board will consider the Veteran's appeal to be limited to the period beginning May 27, 2014, in which he is in receipt of a 50 percent rating, and has recharacterized the issue on the title page accordingly. The Board notes that the Veteran has filed a notice of disagreement concerning the denial of increased ratings for urticarial and left knee meniscus tear and anterior cruciate ligament tear, status post arthroscopy, meniscectomy and ligament repair with residual osteoarthritis which were denied in a March 2016 rating decision. As these issues have not yet been certified to the Board, they are not subject to Board review at this time and will be the subject of a later Board decision, if ultimately necessary. Additionally, the Board notes that while the issue of TDIU was also denied in the March 2016 rating decision, as the Veteran has asserted that he is unemployable in part due to his psychiatric disorder, the issue of entitlement to a TDIU is properly before the Board as an included claim within the increased rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). This claim was previously before the Board in December 2016, at which time the issue of entitlement to service connection for a back injury, to include a scar, as a result of an automobile accident was denied and the issues of an increased rating for a psychiatric disability and TDIU were remanded for further development. The claim has now returned to the Board for further appellate action. FINDINGS OF FACT 1. Beginning May 27, 2014, the Veteran's psychiatric disability is manifested by symptoms such as: depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, impaired impulse control, difficulty in adapting to stressful circumstances, including work or a work like setting, and difficulty in establishing and maintaining effective relationships, but without total social and occupational impairment. 2. The Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disability. CONCLUSIONS OF LAW 1. The criteria for a rating of 70 percent, but no higher, for generalized anxiety disorder with PTSD have been met from May 27, 2014. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.7, 4.21, 4.130 (2012), Diagnostic Code (DC) 9411 (2017). 2. The criteria for entitlement to total rating based on individual unemployability have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify and assist claims in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103(A) (West 2014); 38 C.F.R. § 3.159 (2016). However, as discussed below, the Board is granting the Veteran's claim for entitlement to a rating of 70 percent for his psychiatric disability, which satisfies the Veteran's appeal as noted in September 2015, October 2016, and December 2017 written correspondences to the Board and at the Veteran's informal DRO conference, and is also granting the Veteran's claim to a TDIU, no further discussion of the statutory duty to notify the Veteran and to assist him in the development of this claim is necessary. II. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. See 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "staged" ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board observes that the words "slight," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2017). It should also be noted that use of descriptive terminology such as "mild" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C. § 7104 (a) (2012); 38 C.F.R. §§ 4.2, 4.6. Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C. § 7104 (a) (2012). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran and his representative contend that his psychiatric disability warrants a rating of 70 percent beginning May 27. 2014. The Veteran's psychiatric disability is currently rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. As stated above, the Veteran and his representative have stated that a 70 percent rating will resolve the issue on appeal, and therefore, the Board will limit its analysis to the 70 percent rating criteria. Under 38 C.F.R. § 4.130, Diagnostic Code 9411, a 50 percent evaluation is warranted when there is 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; the Veteran's difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability evaluation is warranted when there is 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 work-like setting); inability to establish and maintain effective relationships. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. The use of such terminology permits consideration of items listed and other symptoms and contemplates the effect of those symptoms on the Veteran's social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board acknowledges that symptoms recited in the criteria in the rating schedule for evaluating mental disorders are "not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating." Id, at 442. In adjudicating a claim for a higher rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id, at 443. A Global Assessment of Functioning (GAF) scale, with scores ranging between zero and 100 percent, represents the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. GAF scores included in the record are a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). In this regard, the Board acknowledges that effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM-IV, AMERICAN PSYCHIATRIC ASSOCIATION: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th Edition (1994). The amendments replace those references with references to the recently updated DSM-5, and examinations conducted pursuant to the DSM-5 do not include GAF scores. As the Veteran's increased rating claims was certified to the Board after August 4, 2014, DSM-V applies. Since the most recent VA examination in January 2017 considered the Veteran's disorder under DSM-V, the Board finds that it may proceed to consider the merits of the claim. The Veteran was afforded a VA examination in May 2014, which resulted in his current 50 percent evaluation. At this examination, the VA examiner opined that the Veteran's service-connected psychiatric disability resulted in 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. However, in coming to that conclusion, the examiner also noted that the Veteran was experiencing symptoms such as recurrent, involuntary and intrusive distressing memories of the event, dissociative reactions, chronic sleep impairment, persistent negative emotional state, markedly diminished interest or participation in significant activities, feelings of detachment from others, problems with concentration and irritable behavior and angry outburst, among others. The examiner also noted that the Veteran's PTSD symptoms described above cause "clinically significant distress or impairment in social, occupational, or other important areas of functioning. See, VA examination dated May 2014. As the Veteran's reported symptoms are extensive and severe in nature, the Board has assigned the VA examiners conclusion that the Veteran's psychiatric disability resulted in 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 to be of low probative value. Prior to the Veteran's next VA examination in January 2017, the Veteran consistently received VA treatment for psychiatric symptoms. During his treatments, the Veteran consistently reported depressed mood, extreme reactions to world events, avoidance symptoms, chronic sleep impairment, panic attacks as much as 2 to 4 times per week, and occasional violent urges against his former first sergeant. See, post-service treatment records from May 2014 to present. During his treatment, the severity of the Veteran's symptoms occasionally improved, but would eventually subsequently return to the original level of severity, resulting in the Veteran's overall disability picture being the same. Additionally, the Veteran's treating physician at the Trauma Recovery Program stated in May 2013 that "although [the Veteran] has remained compliant with his treatment plan however the noted symptoms limit his ability to perform essential occupational duties. He has difficulties with interpersonal interactions and psychological and physical reaction to stimuli that reminds him of the traumatic event. Therefore, [the Veteran's] symptom burden is indicative of severe impairment in multiple domains, including social, family, and occupational functioning. His GAF score is 40. His condition is chronic and will not remit." See, post-service treatment record dated May 2013. There are also instances in the record of the Veteran's treating physicians having to remind the Veteran to be judicious and modest with his spending and to evaluate some of his personal relationships, indicating impaired impulse control and poor judgment. Additionally, the Veteran also submitted a private medical opinion that was completed following an extensive interview with the Veteran and a complete review of the Veteran's claims file, and lay statements from both the Veteran and his wife. During this examination interview, the Veteran stated that he had one friend, made attempts to avoid crowds, lost interest in hobbies that he previously enjoyed, reported difficulty in concentrating and remembering certain things, and chronic sleep impairment. Following the interview, the physician opined that the Veteran's psychiatric symptoms resulted in "very severe limitations of social and occupational functioning." The physician went on to state that the "record is clear for evidence of across-the-board deviancies in most areas, such as work, family relations, judgment, thinking, and mood, due to across-the-board PTSD symptoms (to include intrusion, avoidance, and arousal symptoms." See, September 2016 private medical opinion. As this opinion was furnished following an interview with the Veteran, a complete review of the Veteran's record, and contains a thorough rationale for the conclusion provided, the Board has assigned this opinion with high probative value. The Veteran's next VA examination was in January 2017. During this examination, the Veteran reported similar symptoms as noted in his May 2014 examination, to include depressed mood and anxiety, recurrent, involuntary and intrusive distressing memories of the event, dissociative reactions, chronic sleep impairment, persistent negative emotional state, markedly diminished interest or participation in significant activities, feelings of detachment from others, problems with concentration and irritable behavior and angry outburst, among others. Overall, the examiner opined that the Veteran's psychiatric disability resulted in occupational and social impairment with reduced reliability and productivity. See, January 2017 VA examination. However, as this opinion does not appear to address the Veteran's lay statements, the private medical opinion, or the extensive amount of symptomatology that the Veteran presented with, the Board has assigned this opinion with low probative value. Based on the foregoing, and resolving all doubt in the Veteran's favor, the Board concludes that the Veteran's psychiatric symptomatology most nearly approximates the criteria for a 70 percent disability, and that therefore, the Veteran is entitled to a rating of 70 percent beginning May 27, 2014. 38 U.S.C. § 5107 (2012). As stated previously, the Veteran and his representative have asserted that a 70 percent rating would satisfy their appeal and therefore, the Board will not discuss the criteria for a 100 percent rating. III. TDIU Total disability ratings for compensation may be assigned 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 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. 38 C.F.R. § 4.16(a). However, if the percentage ratings of 38 C.F.R. § 4.16(a) are not met but the Veteran is unable to secure and follow a substantially gainful occupation by reason of service connected disability or disabilities, an "extraschedular TDIU" may be assigned and the case shall be submitted for extraschedular consideration in accordance with 38 C.F.R. § 3.321 (2016). 38 C.F.R. § 4.16(b). In determining entitlement to a TDIU, the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by his or her employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In making its determination, VA considers such factors as the extent of the service-connected disability, and employment and educational background, but not age. See 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. The Veteran's service-connected disabilities include: generalized anxiety disorder with posttraumatic stress disorder now at 70 percent at all times pertinent herein, urticarial at 10 percent, left knee meniscus tear at 10 percent, and left knee scars associated with left knee meniscus tear at 0 percent. The Veteran's combined rating for his service-connected disabilities is at 80 percent. Accordingly, the Veteran meets the percentage requirements for TDIU. Prior to his retirement, the Veteran's education included a high school diploma and several automobile maintenance classes. See, October 2015 Application for Increased Compensation Based on Unemployability. The Veteran reported that since retiring from Lockheed Martin in 2009, he worked at Wal-Mart, but quit because he was unable to work around people. The Veteran also worked part-time as a substitute bus driver, but there as an incident in which the Veteran tried to intervene in a bullying situation but shoved the child back into his seat, resulting in the child going through the window and into traffic. See, post-service treatment record dated February 2017. At the Veteran's January 2017 VA examination, the reported that "[the Veteran] is likely negatively impacted within most occupational settings by impatience, temper/anger control/management, persistent anxious restlessness and suspiciousness, fatigue and lethargy from regular traumatic nightmares and sleep disturbance, and distraction during the daytime from dissociative/flashback experiences where he sees himself as back in the combat zones." See, January 2017 VA examination. As this opinion was rendered following an examination of the Veteran and review of his record, the Board has assigned it high probative value. Overall, the Board finds that the Veteran's psychiatric symptoms as noted by the January 2017 VA examiner severely limit his ability to interact with coworkers and the public at another job and inhibit his ability to complete occupational duties. Additionally, the Veteran's limited education and training further restrict the number of positions that he would be qualified to take. When considered in conjunction with his limited education and training, the evidence shows that the Veteran has not been able to obtain or maintain substantially gainful employment during the period on appeal. Accordingly, the Board finds that the criteria for a total disability rating based on individual unemployability due to service-connected disability have been met. ORDER Entitlement to a rating of 70 percent for a psychiatric disability is granted effective May 27, 2014, subject to the laws and regulations governing VA compensation. A total disability rating on individual unemployability is granted, subject to the laws and regulations governing the payment of VA compensation. ____________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs