Citation Nr: 1802912 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 09-01 854 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD), prior to July 26, 2017. 2. Entitlement to an initial rating in excess of 50 percent for service-connected PTSD, from July 26, 2017. 3. Entitlement to a total disability evaluation based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from November 1967 to November 1969, and his decorations include the Purple Heart Medal. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in October 2014. A transcript of the hearing is associated with the electronic claims file. The Board notes the Veteran previously had a Travel Board hearing in August 2010, before an Acting VLJ who was at the time no longer employed by the Board, and as such was given the opportunity for a new hearing. The Veteran elected such resulting in the October 2014 hearing. In January 2016, these matters were last before the Board, at which time they were remanded for further development. In a June 2017 rating decision, the RO increased the initial evaluation of PTSD to 50 percent disabling, effective July 26, 2017. FINDINGS OF FACT 1. Prior to July 26, 2017, PTSD manifested by occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), but not occupational and social impairment with reduced reliability and productivity, occupational and social impairment with deficiencies in most areas or total occupational and social impairment. 2. From July 26, 2017, PTSD manifested by occupational and social impairment with reduced reliability and productivity, but not occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. 3. Although, during the course of the present appeal, the Veteran has met the threshold schedular requirements for consideration of a TDIU, his service-connected disabilities have not been shown to prevent him from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to July 26, 2017, the criteria for evaluation in excess of 30 percent for PTSD have not been met or approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2017). 2. From July 26, 2017, the criteria for evaluation in excess of 50 percent for PTSD have not been met or approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2017). 3. The criteria for the assignment of a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 7104 (2002); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act (VCAA) in a June 2007 letter. 38 U.S.C. §§ 5100, 5102-5103A, 5106, 5107, 5126 (2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 4.2 (2017). Concerning the duty to assist, the record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including his service treatment records, post-service treatment records, and VA examination reports. The Veteran was provided hearings before the Board. Because there is no allegation that either of the hearings provided to the Veteran were deficient in any way, further discussion of the adequacy of the hearings is not necessary. Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). These claims were last remanded in January 2016 to obtain outstanding VA medical records, outstanding private medical records, afford the Veteran a VA examination for his PTSD and develop the TDIU claim. In accordance with the Board's remand, VA records were obtained and he was afforded a VA examination. He was informed of how to substantiate a claim for a TDIU, and asked to submit a VA Form 21-8940. He was also asked to identify any relevant non-governmental records. In neither case did the Veteran respond. Accordingly, there has been substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). PTSD Evaluations While the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Therefore, the Board will determine whether further staged evaluations are warranted. If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107 (2002); 38 C.F.R. §§ 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. The General Rating Formula for Mental Disorders provides, in pertinent part: 30 percent - 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, and mild memory loss (such as forgetting names, directions, recent events). 50 percent - 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. 70 percent- 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. 100 percent - Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or name. 38 C.F.R. § 4.130, Diagnostic Code 9411. Ratings are assigned according to the manifestation of particular symptoms. However, 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 diagnostic code. Instead, VA must consider all symptoms of a Veteran's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV (American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)). Id. The Federal Circuit has indicated that when addressing the issue of a veteran's entitlement to a disability rating under 38 C.F.R. § 4.130, an explicit finding as to how most of the enumerated areas are affected may be important, if not absolutely required. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Additionally, a Global Assessment of Functioning (GAF) score is often used by treating examiners to reflect the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Richard v. Brown, 9 Vet. App. 266 (1996). A GAF score is highly probative as it relates directly to the Veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. See Massey v. Brown, 7 Vet. App. 204, 207 (1994). The Board notes that effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations to remove outdated references to the DSM -IV and replaced them with references to the recently updated Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094 (August 4, 2014). The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the AOJ on or after August 4, 2014. VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014, even if such claims are subsequently remanded to the AOJ. See 80 Fed. Reg. 53, 14308 (March 19, 2015) (emphasis added). The RO certified the Veteran's appeal to the Board in July 2009, and as such, this claim is governed by DSM-IV. Therefore, while the Board acknowledges that the DSM-5 represents the most up-to-date clinical diagnostic guidelines, due process requires that the Veteran's claim be considered using the DSM-IV criteria. A February 2007 private medical opinion reflects that the Veteran's main PTSD symptom was anger. The opinion also notes sleep impairment, detachment, restricted range of affect, negative impacts on marriage/family, increased arousal, irritability and outbursts of anger. The opinion assesses impaired social and occupational functioning, and notes that the Veteran was having marital problems. He was then working full-time. In August 2007, the Veteran was examined by VA. At that time he was working and self-employed. He was married, and reported "ups and downs" with his marriage. He described irritability and sleep impairment with nightmares. He offered a history of sadness and depression. He was casually attired, and well-groomed. He was well-developed and nourished. He was alert and oriented times 3, and in no acute distress. He was verbal and logical, with no evidence of psychosis. His mood was mostly anxious and depressed. Affect was constricted. He denied suicidal and homicidal thoughts. Cognitive functions were intact. Insight and judgment were adequate. PTSD, chronic, mild to moderate, was assessed, with a GAF of 60 to 65. VA records following the Veteran's initial PTSD examination document a history of PTSD treatment, with GAF scores ranging from 50 to 60. At the Veteran's initial VA consultation in August 2007, symptoms of sleep impairment, irritability and anger outburst were noted, and had a negative impact on his marriage and work. In terms of symptoms, the records primarily reflect reports of irritability and sleep impairment related to PTSD. In June 2011 the Veteran was again examined by VA. At this time, the Veteran reported daily to weekly symptoms, increasing to mild to moderate in intensity, intermittently thought the day, without remission since the last VA examination. He also reported some depressive symptoms, but attributed this to sleep impairment. He remained married, and had 2 adult children. He reported good family relationships. He endorsed having acquaintances, with good social relationships. He had no history of suicide attempts, violence or assault. He was clean, neatly groomed and appropriately dressed. Psychomotor activity was unremarkable, Speech was spontaneous and clear. Attitude was cooperative, friendly, relaxed and attentive. Affect was appropriate. Mood was stable. Attention was intact. He was alert and oriented times 3. Thought process and content were unremarkable. He had no delusions and judgment was good. Insight was good. He had no homicidal or suicidal ideation. Impulse control was good. He had no panic attacks, or obsessive/ritualistic behavior. He maintained minimal hygiene. Memory was normal. He remained self-employed, but was working part-time, primarily due to the economy. The examiner found occupational and social impairment due to mild or transient symptoms which decreased work efficiency and the ability to perform occupational tasks only during periods of significant stress or symptoms controlled by medication. PTSD with a GAF of 65 was assessed. A review of the record shows that the Veteran's spouse petitioned for divorce in October 2013. The Veteran was divorced in March 2014. VA records dated in March 2014 reflect depressed mood, with anhedonia, decreased energy and appetite changes, but without suicidal or homicidal thought. The Veteran maintained supportive relationships with his friends and family. See e.g. April 16, 2014, VA mental health note. A June 2016 VA record reflects PTSD, with continued reports of sleep impairment. On mental status examination the Veteran was appropriately dressed, adequately groomed. He was cooperative and friendly and conversed spontaneously. He told many jokes and displayed a good sense of humor. He was oriented in all three spheres. His speech and thought content were concrete and goal-oriented, although he did tend to lead the conversation in slightly tangential directions with various anecdotes. Affect was congruent with a euthymic mood. On July 26, 2017, the Veteran received a VA examination, resulting in continued assessment of PTSD. In terms of overall impairment, the examiner summarized occupational and social impairment with reduced reliability and productivity. The Veteran was very well dressed and groomed, with good social skills. He enjoyed yard work. He related that his wife left him due to his "verbal abuse." He reported that he had frequent contact with his children. He continued to work part time in construction and real estate, and last worked full time 5 years prior. In terms of symptoms the examiner identified depressed mood, anxiety, suspiciousness; chronic sleep impairment, flat affect, disturbance of motivation and mood, difficulty with establishing and maintaining work/social relationships and difficulty adapting to stressful circumstances, including a worklike setting. The examiner remarked that PTSD was worse since the last VA examination, but that PTSD did not preclude or limit employment. The Board notes that the Veteran seeks a 70 percent evaluation for PTSD. See December 15, 2017, Informal Hearing Presentation. The Veteran asserts that his PTSD exhibits symptoms resulting in occupational and social impairment consistent with a 70 percent evaluation due to his consistently demonstrated irritability and problems with anger. The Veteran's representative notes that the July 26, 2017, VA examination report reflects difficulty adapting to stressful circumstances, including a worklike setting. The Veteran seeks entitlement to an evaluation in excess of 30 percent for service-connected PTSD prior to July 26, 2017. Here, prior to this date, the evidence demonstrates symptoms of chronic irritability, nightmares, sleep impairment, anxiety, depression, flattened and limited affect, and anger. GAF scores range from 50 to 60. However, the Veteran continued to engage in what appears to be substantially gainful employment, only working part-time beginning in 2011 due to economic reasons. He maintained effective social relationships, including with his children. The Board acknowledges that the Veteran was divorced in 2014, and that his irritability and verbal outbursts played a role in the divorce. Notwithstanding, the Veteran has worked in a field that would necessitate human interaction on a regular basis, and this employment appears to be gainful. He has also consistently maintained relationships with his family and friends. VA records have never shown suicidal or homicidal thoughts, or violence. Memory, judgement and insight have always been intact. The Veteran had depression, anxiety and flattened affect. However, VA examinations indicated only mild to moderate symptoms. One could also describe his propensity for anger as "impaired impulse control." However, he has no history of violence or assault. VA examinations dated prior to the July 26, 2017, VA examination indicate only occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. At all times the Veteran was able to function independently. Accordingly, prior to July 26, 2017, an evaluation in excess of 30 percent for service-connected PTSD is not warranted. Fenderson, supra. The Veteran also seeks an evaluation in excess of 50 percent from July 26, 2017. As noted, he argues that the VA examination conducted on this date substantiates the award of a 70 percent evaluation for difficulty adapting to stressful circumstances, including a worklike setting. He points to his history of significant irritability and outbursts of anger, as well. Besides difficulty in adapting to stressful circumstances, including a worklike setting, the July 26, 2017, VA examination identifies symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, flat affect, disturbance of motivation and mood, difficulty with establishing and maintaining work/social relationships. The report certainly rules out total occupational and social impairment, noting that the Veteran continued to work and had good social skills. Otherwise, the examination report documents no other symptoms listed in the criteria for a 70 percent evaluation, or any symptoms analogous thereto. Mauerhan, supra. Entitlement to an evaluation in excess of 50 percent from July 26, 2017, for PTSD is denied. The Board acknowledges that the July 2017 VA examiner indicated that the Veteran had difficulty in adapting to stressful circumstances, including in a worklike setting. Otherwise, there are no other indications of symptoms consistent with a 70 percent evaluation. Moreover, at the time of the examination the Veteran continued to work part-time, and notably had good social skills. He maintained effective work and family relationships. Thus, the Board cannot conclude that PTSD demonstrated occupational and social impairment with deficiencies in most areas, such as work, family relations, judgement, thinking or mood, due to any difficulty in adapting to stressful circumstances. Certainly the Veteran had mood disturbance, i.e. depression. However, the objective evidence shows that he was proficient in most areas, including family relations, judgment and thinking. Total occupational and social impairment is certainly not shown. Accordingly, entitlement to an evaluation in excess of 50 percent for PTSD is denied. Fenderson, supra. TDIU A total disability rating based upon individual unemployability due to service-connected disabilities is assigned when service-connected disabilities result in such impairment of mind or body that the average person would be precluded from following a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15 (2017). If there is only one service-connected disability, it must be rated at 60 percent or more. If there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be at least 70 percent. 38 C.F.R. § 4.16 (a). A claim for a total compensation rating based upon individual unemployability, "presupposes that the rating for the [service-connected] condition is less than 100%, and only asks for TDIU because of "subjective" factors that the "objective" rating does not consider." Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). Importantly, the question of whether a service-connected disability or disabilities render a veteran unemployable is a legal determination for adjudicators to make rather than a medical question to be answered by health care professionals. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"). In evaluating a veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341 , 4.16, 4.19. Since June 2, 2011, the Veteran has met the minimum schedular criteria for consideration of a TDIU. Since then, his combined evaluation for purposes of compensation was 70 percent, and he had at least one service-connected disability evaluated 40 percent or more disabling, with none rated at 60 percent or more. Having met the objective, schedular criteria, from this date, the remaining question is whether the Veteran's service-connected disabilities preclude him from securing or following substantially gainful employment. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. Entitlement to a TDIU is not established. The Veteran has a bachelor's degree, and has worked in the construction and real estate field throughout the course of the present claim. He began working part-time in 2011, apparently in response to economic changes. He has asserted that his service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment. VA invited the Veteran to provide income and employment information, and he has not. It appears that the Veteran has maintained substantially gainful employment throughout the course of the present claim and appeal. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim is denied. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to an initial rating in excess of 30 percent for service-connected PTSD prior to July 26, 2017, is denied. Entitlement to an initial rating in excess of 50 percent for service-connected PTSD, from July 26, 2017, is denied. Entitlement to a TDIU is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs