Citation Nr: 1802933 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 13-25 723 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Elizabeth F. Lunn, Attorney ATTORNEY FOR THE BOARD Robert A. Elliott II, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1974 to October 1988. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued in February 2012 by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which granted service connection for PTSD and awarded an initial 30 percent disability rating. A Supplemental Statement of the Case (SSOC) issued in November 2013 increased the initial disability rating to 70 percent. The Veteran has continued to appeal. In his statement of June 2013, the Veteran requested a "BVA hearing at a local VA office." This request was later withdrawn in correspondence in November 2016. In September 2017, the Board remanded the Veteran's claim for further development. The agency of original jurisdiction (AOJ) substantially complied with the September 2017 remand directives, and no further development is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. For the entire appellate period, The Veteran's PTSD has not resulted in 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 own name or other symptoms which approximate total occupational and social impairment. 2. The evidence is at least evenly balanced as to whether the Veteran's service-connected disability precludes him from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411 (2017). 2. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to a TDIU are met FROM November 11, 2010. 38 U.S.C. §§ 1155, 510; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist VA's duty to notify was satisfied for the claim before the Board by letter dated February 2011. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). The record also reflects that VA has made efforts to assist the Veteran in the development of his claim. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records (STRs), VA medical records, private medical records, VA examination reports, and the statements of the Veteran. Further, in a written statement submitted in January 2017, the Veteran stated that he desired to withdraw his appeal for entitlement to TDIU. Consequently, the Board does not have jurisdiction to review the appeal as to these issues, and the appropriate action by the Board is dismissal. II. Increased Ratings Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. PTSD is evaluated under VA's General Rating Formula for Mental Disorders. A 70 percent rating is warranted where 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; 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. 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 or place; memory loss for names of close relatives, own occupation, or own name. DSM-IV contains a Global Assessment of Functioning (GAF) scale, with scores ranging between zero and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. Higher scores correspond to better functioning of the individual. Under DSM-IV, a GAF score of 71 to 80 indicates that, if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). A GAF score of 61 to 70 reflects some mild symptoms, or some difficulty in social, occupational, or school functioning, but generally functioning pretty well, with some meaningful interpersonal relationships. A GAF score of 51 to 60 indicates moderate symptoms, or moderate difficulty in social, occupational, or school functioning, a GAF score of 41 to 50 reflects 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). DSM-IV; 38 C.F.R. §§ 4.125, 4.130; see Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). Although GAF scores are important in evaluating mental disorders, the Board must consider all the pertinent evidence of record and set forth a decision based on the totality of the evidence in accordance with all applicable legal criteria. Carpenter, supra. An assigned GAF score, like an examiner's assessment of the severity of a condition, is not dispositive of the percentage rating issue; rather, it must be considered in light of the actual symptoms of a psychiatric disorder (which provide the primary basis for the rating assigned). See 38 C.F.R. § 4.126(a). Accordingly, an examiner's classification of the level of psychiatric impairment, by word or by a GAF score, is to be considered but is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. Id.; see also 38 C.F.R. § 4.126, VAOPGCPREC 10-95, 60 Fed. Reg. 43186 (1995). Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). The Veteran contends that he is eligible for a higher disability rating in regard to his service-connected PTSD. See June 2012 Notice of Disagreement. An April 2011 VA Mental Health Outpatient Record notes the Veteran reports being off this psychiatric medications. Symptoms include hypervigilance and easily startled with occasional hallucinations. Examiner notes the Veteran is not actively psychotic. A July 2011 VA Mental Health Outpatient Record notes the Veteran as alert and cooperative with good hygiene. No suicidal ideations and non-depressed mood. In November 2011, the Veteran attended a VA contract Psychiatric Examination. The examiner diagnosed PTSD. The Veteran noted current symptoms as nervousness, jumpy with loud noises, dreams 1-2 times a week, hearing his name called 1-2 times a week, and getting nervous with cars back fired. The examiner noted the moderate symptoms were constant, continuous, or ongoing. The Veteran indicated that the symptoms affected his total daily functioning. Further, he stated a history of violent behavior described as a short temper. No suicidal ideations were noted. The examiner noted there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational task although generally functioning satisfactorily, with normal routine behavior, self-care and normal conversation. GAF score of 75 was indicated. A December 2011 VA Mental Health Outpatient Record notes the Veteran continued to report PTSD symptoms which clearly adversely affect his life style and quality of life. He continues to avoid leaving home often as he cannot tolerate crowds and fears someone coming up from behind him to harm him. He tends to withdraw and isolate self. Helicopter sounds trigger unpleasant flashbacks to one of the traumas he endured. A December 2015 VA Psychiatry Attending Treatment Record notes the Veteran in an overall stable mood and reported no PTSD specific symptoms at the time. An April 2015 Emergency Department Record notes the Veteran's spouse statement that he has demonstrated progressively bizarre cognitive and behavioral changes for the last 3 weeks, including locking himself in rooms and speaking to himself, decreased appetite, decreased sleep, and inappropriate cognitive processing. Per the Veteran, he has consistently heard voices for 2-3 weeks telling him to kill himself and kill others. Further, the spouse stated that he had a previous episode of abnormal behavior 1 year previous with no diagnosis made at the time. An April 2015 VA Treatment Record notes the Veteran was admitted for PTSD, depression with suicidal ideation and auditory hallucinations. Veteran denied feeling depressed, suicidal and homicidal ideations and rated his mood as "great". An August 2015 VA Psychiatry Attending Treatment Record notes the Veteran has occasional nightmares which are manageable. Further, his thoughts were adequately organized without evidence of active psychosis or suicidal ideations. A December 2015 VA Psychiatry Attending Treatment Record notes the Veteran was alert and cooperative with good hygiene. Further, he reported fair mood and denies any excessive anxiety, suicidal and homicidal ideations. A review of the evidence described above shows no evidence of total occupational and social impairment and his symptoms, including those described above do not approximate this level of disability. Outpatient treatment provided for a variety of other matters showed no abnormal psychiatric findings, although the Veteran was screen as a suicide risk and found to be a moderate risk but not acutely dangerous to self. For instance, in September 2016, the Veteran felt depressed an anxious with poor sleep with nightmares. He was also irritable, but there was no mania or hypomania. There was no psychosis or paranoia. He denied thoughts of self-harm and lived with a son. A January 2017 VA Psychiatry Attending Treatment Record notes the Veteran exhibited no mania, suicidal or homicidal ideations, delusions, or hallucinations. In August 2017, his symptoms included no suicidality, homicidally, no delusions, no hallucinations, and no mania. The evidence described above here is not evidence of total occupational and social impairment and his symptoms during this time frame, including those described above do not approximate this level of disability. Following a review of the relevant evidence of the record, the Board finds that a rating of 70 percent for the Veteran's PTSD, and no more, is warranted for the entire appeal period. In this regard, the Board finds that such symptomatology, to specifically include the Veteran's occasional suicidal ideations and hallucinations, is similar or like the symptoms contemplated in a 70 percent rating. As noted above, 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 or place; memory loss for names of close relatives, own occupation, or own name. Symptoms of this nature have not been demonstrated during this period. The Board does note the evidence of record detailing the Veteran's threats of hurting himself or others but determines there is no record of a persistent danger in this regard and as such does not rise to the level contemplated by a 100 percent rating. Consequently, as the Veteran's PTSD symptoms, as detailed previously, are contemplated by his 70 percent rating and, absent more severe symptoms, a higher rating of 100 percent disabling is not warranted during the entire appeal period. III. TDIU Total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided that 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. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2016). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to age or to impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2016). The Veteran has met the minimum percentage requirements, set forth in 38 C.F.R. § 4.16(a), for award of a TDIU, since November 15, 2010. The Veteran is service connected for PTSD, rated as 70 percent disabling. The remaining question is whether the Veteran is unable to secure and follow a substantially gainful occupation because of his service-connected disability. The Veteran contends that he is unable to work due to his PTSD symptoms. See August 2013 VA Form 9. The Board incorporates by reference all evidence described above. Social Security Administration (SSA) records received April 2014 indicate that the Veteran has received disability benefits based on his non service-connected degenerative disc disease of the cervical and lumbar spine, PTSD, and adjustment disorder since December 2005. The fully favorable SSA decision notes that the Veteran, on mental examination, has painful affect and depressed mood. His insight and judgment are fair. He has difficulties with crowds and reports ongoing irritability. He tends to avoid the conversation about past experiences. He feels that he is uncomfortable doing so. Regarding the Veteran's work and educational background, the evidence shows that he has a high school education and work experience as an electric laborer and self-employed with his own barbeque business. See Veteran's SSA records The weight of the evidence shows that the service-connected PTSD (current rating of 70 percent), preclude the Veteran from engaging in all forms of substantially gainful employment from the date of the claim. Given the Veteran's competent and credible lay statements, occasional suicidal ideations and hallucinations, inappropriate cognitive processing, and the fully favorable SSA decision which notes the Veteran's diagnosis of PTSD as part of the basis for its decision, the Board finds that the evidence is at least in equipoise as to whether the Veteran is entitled to TDIU. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107 (b) (West 2012); 38 C.F.R. § 3.102 (2017). In reaching this decision, the Board points out that the ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). As a result of the foregoing evidence, the Board finds that the Veteran is entitled to a TDIU. ORDER 1. Entitlement to an initial disability rating in excess of 70 percent for PTSD is denied. 2. Entitlement to a TDIU is granted from November 11, 2010, subject to controlling regulations governing the payment of monetary awards ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs