Citation Nr: 1803245 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-11 182 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an increased rating for tinnitus, currently rated as 10 percent disabling. 2. Entitlement to an increased rating for hearing loss, currently rated as noncompensable. 3. Entitlement to an increased rating for coronary artery disease, currently rated as 30 percent disabling. 4. Entitlement to an increased rating for posttraumatic stress disorder (PTSD) and dysthymic disorder, currently rated as 50 percent disabling. 5. Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Michael G. Miskowiec, Attorney at Law WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD A.Z., Counsel INTRODUCTION The Veteran served on active duty from January 1968 to January 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In February 2017, the Veteran testified before the undersigned Veterans Law Judge via videoconference. A transcript of the hearing is of record. Subsequently, the Veteran perfected an appeal regarding service connection for sinusitis and sleep apnea and has requested a videoconference regarding such issues. See October 2017 VA Form 9. A separate decision on such appeal will be issued following his hearing. With respect to the issues decided herein, the Veteran was provided with all appropriate laws and regulations in prior Statements of the Case and Supplemental Statements of the Case. Additionally, the Board notes that, during the hearing, the Veteran's representative stated that they would find the appeal fully satisfied with a 70 percent rating for the Veteran's psychiatric disorder and a grant of TDIU, both effective on the date of the claim, May 6, 2011. The Board is granting such herein. FINDINGS OF FACT 1. During the February 2017 hearing, and prior to the promulgation of a decision in the appeal, the Veteran's representative requested a withdrawal of the appeal concerning increased ratings for tinnitus, hearing loss and coronary artery disease. 2. Throughout the appeal period, the Veteran's psychiatric manifestations have included: occupational and social impairment with deficiencies in work, family relations and mood; impaired impulse control; difficulty in adapting to stressful circumstances, including work or a work-like setting; and inability to establish and maintain effective relationships. 3. Resolving all reasonable doubt in favor of the Veteran, he is unable to secure and follow substantially gainful employment as a result of his service-connected psychiatric disorder. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal concerning increased ratings for tinnitus, hearing loss and coronary artery disease by the Veteran have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2017). 2. The criteria for a rating of 70 percent, but no higher, for the Veteran's PTSD with dysthymic disorder have been met throughout the appeal period. See 38 U.S.C. § 1155 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9400, General Rating Formula for Mental Disorders (2017). 3. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawn Appeals The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (West 2014). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, during the February 2017 hearing, the Veteran's attorney stated that he wished to withdraw his appeal concerning increased ratings for tinnitus, hearing loss and coronary artery disease. Therefore, as the Veteran has withdrawn his appeal concerning those issues, there remains no allegation of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal concerning said issues and it is dismissed. II. Increased Rating for PTSD and Dysthymic Disorder The Veteran seeks a 70 percent rating for his PTSD with dysthymic disorder, as expressed during his Board hearing. He is currently rated as 50 percent disabled by his psychiatric disorder. 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. See 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. 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. Id. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought process 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 or minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives and own occupation or name. Id. Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score. According to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health illness." The GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126 (a). VA has recently changed its regulations, and now requires use of DSM-5 effective August 4, 2014. Among the changes, DSM-5 eliminates the use of the GAF score in evaluation of psychiatric disorders. The change was made applicable to cases certified to the Board on or after August 4, 2014; and is not applicable to cases certified to the Board prior to that date. 79 Fed. Reg. 45093 (Aug. 4, 2014). As the Veteran's case was certified to the Board after August 4, 2014, GAF scores, though reported herein, will not be used in the evaluation of his psychiatric disorder. Id. Here, the pertinent evidence includes a November 2010 letter from the Veteran's former employer, stating that he was being terminated due to his "violation of corporate policy regarding inappropriate, unprofessional and insubordinate conduct on numerous occasions," "inability to work effectively in a team environment," and "sudden and angry outbursts." The Veteran underwent a VA psychiatric examination in June 2011. He reported losing his job in November 2010, and that since then, he has experienced an increase in psychological distress. He denied suicidal/homicidal ideation. He stated he had been married for 30 years, and that he and his wife have a stable relationship, but have been arguing more than usual. They share one daughter, with whom he has a good relationship. The Veteran said he speaks to his siblings once a month, but has no social relationships and no desire to establish friendships. He stated he isolates himself from other people, but does attend a monthly dinner sponsored by a veterans' service organization. He added that his only leisure activity is riding his motorcycle. The Veteran further reported having difficulty controlling his temper, and that he lost his job due to repeatedly losing his temper and arguing with his supervisor. He denied a history of violence. On physical examination, he was clean, neatly groomed and appropriately dressed. Psychomotor activity and speech were unremarkable. His attitude was cooperative and friendly. He became tearful during the examination and described his mood as stressed. His attention was intact and he was oriented to person, place and time. His thought process and content was unremarkable. Judgement, intelligence and insight were normal; delusions and hallucinations were absent. He reported sleep impairment consisting of difficulty sleeping and nightmares. Inappropriate behavior, obsessive/ritualistic behavior and panic attacks were absent. He was able to interpret proverbs appropriately, had good impulse control and the ability to maintain minimum personal hygiene. Remote memory was normal, but recent and immediate memory were mildly impaired. The Veteran reported experiencing intrusive thoughts about traumatic events from service daily. The examiner assessed the Veteran with a GAF score of 55, and concluded that it was more likely than not that the Veteran's PTSD symptoms contributed to his job loss, but that he could likely maintain gainful employment in a sedentary workplace. VA treatment notes include an August 2011 assessment by another VA clinician, during which time the Veteran presented with symptomatology consistent with that of his June 2011 examination. It was again concluded that the Veteran's PTSD likely contributed to his job loss. During the hearing, the Veteran described his difficulty getting along with his superiors at his last job, leading to his insubordination and ultimate termination. He also described having a temper, which he stated inhibits him from being able to work effectively with other people. The Veteran's wife also testified regarding his temper and increased irritability, and that he will shout and throw things when angry, and also succumbs to road rage. She added that he can no longer go to crowded stores or restaurants because it makes him anxious and nervous, and that he does not have a social life anymore because of such symptoms. She further stated that she cannot sleep in the same room as the Veteran, due to his nightmare and violent turning, twisting and hitting. She also described the Veteran's hypervigilant behavior regarding checking the perimeter of their house, and locking the windows, doors and garage. The weight of the aforementioned evidence indicates that the Veteran's psychiatric manifestations have most closely approximated those contemplated by a 70 percent rating, rather than a 50 percent rating during the appeal period. See 38 C.F.R. § 4.130, Diagnostic Code 9400, General Rating Formula for Mental Disorders. Specifically, the evidence indicates: occupational and social impairment with deficiencies in work, family relations, and mood; impaired impulse control; difficulty in adapting to stressful circumstances, including work or a work-like setting; and inability to establish and maintain effective relationships. Therefore, the Board finds that the preponderance of the evidence is in favor of a finding that a rating of 70 percent is warranted. A 100 percent rating is not warranted for this period. In particular, while the Veteran endorsed concentration and memory issues, there is no evidence currently of record that his memory impairment was so severe that he forgot the names of close relatives or his own occupation or name. There are also no indications that the Veteran was unable to perform activities of daily living or is a persistent danger of hurting self or others;. Further, the Veteran was oriented in all spheres, had normal thought and speech processes, and did not experience persistent hallucinations. Lastly, there is no evidence of other symptomatology of similar frequency or severity as the symptoms contemplated by a 100 percent rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002); Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). As such, the Board assigns an evaluation at 70 percent, but no higher, since May 6, 2011, the date of the Veteran's claim. All potentially applicable codes have been considered and there is no basis to assign an evaluation in excess of the currently assigned rating. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The Board has considered whether staged ratings are appropriate for the Veteran's service-connected psychiatric disorder; however, the Board finds that his symptomatology has been stable throughout the appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). Therefore, assigning staged ratings for such disability is not warranted. B. TDIU The Veteran contends that his various service-connected disabilities prevent him from maintain gainful employment. As indicated above, the record reflects that the Veteran was terminated from his job due to his PTSD in November 2010, and his claim for TDIU was received on May 6, 2011. A total disability evaluation may be assigned when the schedular evaluation is less than 100 percent where a Veteran is 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, or 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. §§ 3.340, 3.341, 4.16(a). If a claimant does not meet the aforementioned criteria, a total disability evaluation may still be assigned, but on a different basis. It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Therefore, the rating boards are required to submit to the Director, Compensation Service, for extra-schedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). Id. In determining whether a Veteran is unemployable for VA purposes, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). A Veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Presently, the Veteran's service-connected disabilities and corresponding ratings are as followed: PTSD and dysthymic disorder-70 percent, coronary artery disease-30 percent; tinnitus-10 percent; and, hearing loss-noncompensable. Thus, he meets the threshold criteria for a TDIU under 38 C.F.R. § 4.16(a). As such, the remaining inquiry is whether he is unable to secure or follow substantially gainful occupation due solely to his service-connected disabilities. As described above, the Veteran submitted a November 2010 letter from his former employer outlining the Veteran's inappropriate behavior which led to his termination. Such behavior has been ascribed to his service-connected PTSD, and at least two VA clinicians have found that the Veteran's PTSD contributed to his employment termination. Again, as above, the June 2011 psychiatric examiner found that the Veteran could engage in sedentary work. In October 2011, the Veteran underwent a VA examination for his coronary artery disease, where it was found that he should not engage in strenuous work-related activity. In March 2014, the Veteran submitted a vocational evaluation. The rehabilitation specialist concluded that the Veteran was unable to secure or follow a substantial, gainful occupation as a result of his service-connected disabilities. In support of this conclusion, she noted the Veteran's poor sleep, which impairs his work-related concentration, his numerous vocational limitations associated with his PTSD, including his reduced reliability and productivity, and the Veteran's lack of motivation. She also noted the Veteran's cardiac impairment, which would further limit the types of jobs he would be able to perform, and found that there was no gainful employment for which he was suited. Additionally, the Board has herein increased the Veteran's rating for his psychiatric disorder to 70 percent. Such rating is reflective of occupational and social impairment with deficiencies in most areas, including work. While the June 2011 VA examiner found that the Veteran was employable in a sedentary occupational work setting, the Board notes that such determination was made prior to the Veteran being awarded an increased 70 percent rating for his psychiatric disorder, which has been assessed as causing deficiencies in most areas, including work. The Board finds the March 2014 private opinion highly probative, as such is based on the functional impact of all of the Veteran's service-connected disabilities, and was prepared by a vocational expert who interviewed the Veteran and discussed his pertinent medical and occupational history. Therefore, based on the foregoing evidence, and resolving all doubt in favor of the Veteran, the Board finds that his service-connected disabilities in combination render him unable to secure and follow a substantially gainful occupation consistent with his educational background and employment history. Therefore, entitlement to a TDIU is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER The appeal regarding an increased rating for tinnitus, currently rated as 10 percent disabling, is dismissed. The appeal regarding an increased rating for hearing loss, currently rated as noncompensable, is dismissed. The appeal regarding an increased rating for coronary artery disease, currently rated as 30 percent disabling, is dismissed. A 70 percent rating for PTSD and dysthymic disorder, is granted, effective May 6, 2011. A TDIU is granted, effective May 6, 2011. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs