Citation Nr: 1803273 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-09 367 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) prior to November 15, 2016. 2. Entitlement to a rating in excess of 70 percent for service-connected PTSD from November 15, 2016. 3. Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Hammad Rasul, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1968 to October1971 and from October 1980 to February 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi that granted service connection for PTSD and assigned a rating of 50 percent for PTSD effective April 11, 2008. In a November 2016 rating decision, the initial rating for PTSD was increased to 70 percent effective November 15, 2016. The Board has recharacterized the issues to reflect the staged ratings. The issue of entitlement to a 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, the symptoms and overall impairment caused by the Veteran's PTSD have more nearly approximated occupational and social impairment with deficiencies in most areas, but it has not more nearly approximated total occupational and social impairment. CONCLUSIONS OF LAW 1. Prior to November 15, 2016, with reasonable doubt resolved in favor of the Veteran, the criteria for an initial rating of 70 percent, but no higher, for PTSD, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 3.400, 4.1, 4.2, 4.3, 4.7, 4.130, DC 9411 (2017). 2. Throughout the entire appeal period, the criteria for an initial 100 percent rating for PTSD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 3.400, 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. The Veteran was appropriately notified about the information and evidence needed to substantiate the claim in a December 2013 letter. The Veteran does not assert any prejudice from any notification deficiency and none has been identified by the Board. The duty to notify is satisfied. In addition, VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claims, and affording him multiple VA examinations. As indicated by the discussion below, these examinations are adequate because they were based on consideration of the Veteran's prior medical history and described his PTSD in sufficient detail to allow the Board to make a fully informed evaluation. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). There is no evidence that additional records have yet to be requested, or that additional examinations are in order. II. Analysis Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). As shown below, an initial, uniform 70 percent is warranted for PTSD in this particular case. The Veteran's PTSD is currently evaluated as 50 percent disabling prior to November 15, 2016 and 70 percent disabling thereafter under 38 C.F.R. § 4.130, DC 9411. All acquired psychiatric disorders, with the exception of eating disorders, are evaluated under the General Rating Formula for Mental Disorders. Under the general rating formula, 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. 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 an 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. A total schedular rating of 100 percent 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; 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. 38 C.F.R. § 4.130, DC 9411. When determining the appropriate disability evaluation to assign, the Board's primary consideration is the veteran's symptoms, but it must also make findings as to how those symptoms impact the veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. The Global Assessment of Functioning (GAF) scale reflects psychological, social, and occupational functioning of a hypothetical continuum of mental health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV)). A GAF score between 61-70 contemplates some mild symptoms (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 when the individual is functioning pretty well and has some meaningful interpersonal relationships. A score of 51-60 indicates 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 peer or coworkers). A score of 41-50 indicates 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). In a September 2008 VA social work note, the Veteran reported nightmares and flashbacks. The Veteran denied suicidal or homicidal ideation. The Veteran reported that he has no children and that he is estranged from his two sisters. The Veteran reported that he did not have a source of income at the time. In an August 2009 VA psychology note, the Veteran was diagnosed with PTSD. The psychologist noted that the Veteran had problems with social environments, physical health, housing, school or work, and self-care. The Veteran reported that he was more depressed about situational issues along with being generally depressed. The Veteran also reported presence of auditory hallucinations but denied a current intention of self-harm. The psychologist noted that the Veteran was not a threat to himself or others. The psychologist assigned a GAF score of 45. In May 2012, the Veteran was afforded a VA examination for PTSD. The examiner diagnosed the Veteran with PTSD. The examiner noted that the Veteran's psychological and environmental problems include a lack of social support, unstable employment, and financial problems. The examiner noted that the Veteran did not have more than one mental disorder diagnosed. The examiner marked occupational and social impairment with reduced reliability and productivity to best summarize the Veteran's level of occupational and social impairment with regards to all mental diagnoses. The Veteran reported that he is the oldest of three children and that he has two sisters. The Veteran also reported that he was never married and is not currently in a relationship. The Veteran explained that after service, he had anger issues, serious depression, and did not relate well to other people. The Veteran also reported that he was not on speaking terms with one of his sister but that they had no hostility towards each other. The Veteran' relationship with his other sister was described as "up and down" but he speaks to her every two months. The Veteran reported that "his family tossed him away a long time ago." The Veteran also reported that he has no contact with his mother because she disowned him years ago and told him that he was a disappointment. The Veteran reported that he lives alone with his dog and cat and that he associates with two or three people that he does not see very often. The Veteran also reported that he likes to garden, go to the library three to four times a week, read, ride his bicycle, surf the internet, and watch some television. The Veteran stated that he used to attend church until the preacher was replaced, at which point he stopped attending. In regards to occupational and educational history, the Veteran worked before service and had problems. The Veteran described that after his initial separation from service in 1971, he had about 20 different jobs and that after his separation from service in 1993, he had 10 different jobs. The Veteran reported that he was fired from about 80 percent of his jobs because other people found him hard to work with. The Veteran stated that his longest job was for 18 months as an electronic technician. The Veteran reported that his performance evaluations were always positive for the work that he did but that he also struggled with the social aspect of the jobs. In regards to relevant mental history, the Veteran reported that he sleeps about 10 hours per day but that his sleep is never restful. The Veteran also reported that he has felt depressed for about 42 years. The Veteran stated that he has suicidal thoughts but denied any plan of self-harm over fear that he would go to hell if he took his own life. The Veteran reported that he has hope but also feels worthless. The Veteran denied any legal and behavioral problems before service. However, the Veteran reported that he was in many fights after he returned from Vietnam but noted that he was never arrested for those fights and that his only arrest was right after service for disturbing the peace. For relevant substance abuse history, the Veteran reported that he regularly uses marijuana because it calms him down and gets rid of nightmares. The examiner noted that the Veteran's PTSD symptoms include depressed mood, chronic sleep impairment, difficulty in establishing and maintaining effective relationships, suicidal ideation, and neglect of personal appearance and hygiene. The examiner noted that the Veteran was capable of managing his own financial affairs. The examiner assigned a GAF score of 55. In a March 2014 statement in support of his claim, the Veteran reported that he had suicidal ideation numerous times but that his belief in suicide being a sin has prevented him from taking any action. The Veteran reported that he has difficulty adapting to stressful circumstances. The Veteran described that he is 65 years old alone and lives by himself. The Veteran also reported that his mother disowned him and told him that he was a disappointment to her, and that he thinks about it every day as he is her only son. The Veteran was afforded another VA examination in November 2016. The examiner noted that the Veteran has occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran reported that he is single and has no children. The Veteran also reported that he lives alone and denied having any friends because he lives "out in the country" where he is socially isolated. The Veteran reported that he emails with his sister monthly but that he has not seen her or any other family members in four or five years. The Veteran stated that he has a long history of working in different jobs. The Veteran reported that he used to drink 8 to 10 beers every night from 1970 to 2005 but that he has reduced his drinking significantly since. The examiner noted the Veteran's symptoms as depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss (such as forgetting names, directions, or recent events), impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, suicidal ideation, impaired impulse control, and neglect of personal appearance and hygiene. The Veteran contends an initial rating in excess of 50 percent prior to November 15, 2016 and 70 percent thereafter is warranted for service-connected PTSD. In this case, the Board will apply the reasonable doubt doctrine to find that the frequency, severity and duration of the Veteran's PTSD symptoms more closely approximate deficiencies in occupational and social function throughout the claims period as explained below. 38 C.F.R. §§ 4.3, 4.7, 4.130, DC 9411. Based on the evidence above, the Board finds that during the pendency of the claim, the Veteran exhibited symptoms of such type, severity, and frequency as to more closely approximate a disability rating of 70 percent for his service-connected PTSD. The Veteran had symptoms listed in the criteria for a 70 percent rating, including suicidal ideation, as well as deficiencies in most areas. See Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017) (the language of the general rating formula indicates that the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas). The evidence of record shows that the Veteran was socially withdrawn and experienced nightmares, lived alone and had little contact with his family, having a minimal relationship with one sister. He also had some memory problems, sleep disturbances, and depressive feelings. Moreover, the May 2012 examiner noted that the Veteran had suicidal ideation, neglect of personal appearance and hygiene, and inability to establish and maintain effective relationships. The Board notes that although the May 2012 VA examiner characterized the level of disability as approximating occupational and social impairment with reduced reliability and productivity, the question of whether psychiatric symptoms fall within the criteria for particular ratings is an adjudicatory and not a medical one. See 38 C.F.R. § 3.100 (a) (2017) (delegating the Secretary's authority "to make findings and decisions . . . as to the entitlement of claimants to benefits" to, inter alia, VA "adjudicative personnel"); 38 C.F.R. § 4.2 ("It is the responsibility of the rating specialist to interpret reports of examination . . . so that the current rating may accurately reflect the elements of disability present."); VA Adjudication Procedures Manual, M21-1, Part III, Subpart. iv, Chapter 3, Section A.7.i (updated Oct. 28, 2015) ("Do not request a medical authority to make conclusions of law, which is a responsibility inherent to the rating activity"). The above evidence reflects that the symptoms and overall impairment of the Veteran's PTSD more nearly approximates the criteria for a 70 percent rating throughout the pendency of the claim. The Veteran's symptoms did not, however, more nearly approximate the total occupational and social impairment required for a 100 percent rating. While the Veteran referenced hallucinations on the August 2009 VA examination, there was no indication that they were persistent. Moreover, while there was some neglect of personal appearance and hygiene, there was no indication of an intermittent inability to perform activities of daily living. In addition, the Veteran had a relationship with his sister, associated with two or three people (although he did not see them often), gardened, went to the library multiple times per week, and rode his bicycle. This reflects that the overall level of impairment did not more nearly approximate the total social impairment listed in the criteria for a 100 percent rating. The Board has considered the Veteran's claim and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). As such, an initial disability rating of 70 percent, but not higher, for the entirety of the appeal is warranted. 38 C.F.R. § 4.130, DC 9411. ORDER Entitlement to an initial rating of 70 percent, but no higher, for PTSD prior to November 15, 2016 is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to an initial rating in excess of 70 percent for PTSD from November 15, 2016 is denied. REMAND As to the issue of entitlement to a TDIU, the Veteran reported in a November 2016 VA examination that he previously worked in 2004. The Veteran also reported that he has worked many jobs since leaving service and that he has been fired from an estimated 80 percent of those jobs due to problems caused by his psychiatric disability. The evidence suggests that the Veteran has been unemployed for many years. Given that the Veteran seeks the highest rating possible for his PTSD and there is evidence of unemployability due to PTSD, the Board finds that the issue of entitlement to a TDIU has been raised as part and parcel of the claim for a higher initial rating for PTSD. Rice v. Shinseki, 22 Vet. App. 447 (2009) (a claim for TDIU is part and parcel of a claim for increased evaluation). Moreover, pursuant to the above decision, the Veteran now meets the schedular criteria for TDIU throughout the appeal period. See 38 C.F.R. § 4.16(a). As the AOJ has not had an opportunity to develop and adjudicate this issue in the first instance, to include providing the Veteran with the formal TDIU application form (VA Form 21-8940), a remand is warranted. Accordingly, the issue of entitlement to a TDIU is REMANDED for the following action: 1. Develop and adjudicate the issue of entitlement to a TDIU, to include providing the Veteran with the formal TDIU application form (VA Form 21-8940). 2. After undertaking any other development deemed appropriate, adjudicate the issue of entitlement to a TDIU. If any benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. 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. §§ 5109B, 7112 (2012). ______________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs