Citation Nr: 1803593 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 15-16 994 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to an initial rating in excess of 30 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: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and the Veteran's spouse ATTORNEY FOR THE BOARD D. Ware, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from March 1966 to January 1968, including service in Vietnam. His awards and decorations include the National Defense Service Medal and Vietnam Campaign Medal. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. Although the issue of entitlement to TDIU was not certified for appeal, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans' Claims held that the issue of TDIU is part and parcel of an increased rating claim when it is raised by the record. In this case, the Board finds that the record raised the issue of entitlement to TDIU during the pendency of the appeal. Accordingly, the Board has characterized the issues on appeal to include a claim for entitlement to TDIU and the issue is properly before the Board. In October 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a) (2) (West 2014). FINDINGS OF FACT 1. The Veteran's PTSD has been productive of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 2. The Veteran meets the schedular criteria for TDIU. 3. The Veteran's service-connected disabilities prevent him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating of 70 percent for PTSD have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2017). 2. Resolving reasonable doubt in favor of the Veteran, the criteria for entitlement to a TDIU have been met. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.341, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2017). Ratings are assigned based on the average impairment of earning capacity resulting from a service-connected disability. 38 C.F.R. § 4.1. Where two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct times where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's disability should be viewed in relation to its history. 38 C.F.R. § 4.1 (2016); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's PTSD was assigned a rating of 30 percent, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. Under Diagnostic Code 9411, a 30 percent rating is warranted for occupational and social impairment with an 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 a depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, and recent events). Id. A 50 percent rating is warranted where 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; difficulty in establishing and maintaining effective work and social relationships. Id. 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, 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); and inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted where 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. Id. The use of the term "such as" in the General Rating Formula for Mental Disorders 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 symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013), the U.S. Court of Appeals for the Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." "Although the veteran's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran's level of [occupational and social] impairment." Id. In reviewing the evidence of record, the Board will consider the assigned GAF scores; however, the Board is cognizant that GAF scores are not, in and of themselves, the dispositive element in rating a disability. Again, GAF scores 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). From January 2008 to April 2010, VA treatment records revealed symptoms consistent with a diagnosis for chronic PTSD. The Veteran reported sleep impairment, nightmares, social isolation, anger, irritability, difficulties with concentration, emotional detachment from his wife, and feeling anxious around people. He related that he avoided the news or war movies and spent most of his time at home. On examination, his appearance was appropriate. He was alert and cooperative and there was no evidence of psychomotor changes. His speech was normal. His mood was okay and his affect ranged from full to restricted. His thought process was goal directed and logical. There was no evidence of psychosis or suicidal and homicidal ideation. He was assigned a GAF score of 51. In April 2010, the Veteran was afforded a VA PTSD examination. He reported that he had a problem with his memory and his wife had to help him write things. He also related that he might have a nightmare and sometimes dreams about "dead folks." Generally, he got five hours of sleep at night. He relayed that he went out to eat once every couple of weeks. He used to enjoy walking around a large store in town before it closed down. He stated that he did watch the news. He had been married to his wife for 46 years. Although at times his relationship with his wife was rough, he felt close to her. He reported that he retired after working as a brick mason for 45 years because his work became stressful, he had difficulty finding workers, and he had increasing problems with his hypertension. Now, he spent his time "piddl[ing]" around the house, attending church and visiting with his brother. He denied and alcohol or drug use. On examination, he was casually groomed. He was cooperative and did not display any significant anxiety or dysphoria. His speech was normal. His mood was generally euthymic and his affect was appropriate to content. His thought processes and associations were logical and tight without loosening of associations or confusion. His memory was grossly intact. He was oriented in all spheres. He did not report any hallucinations or delusions. His insight and judgment were adequate. He denied suicidal or homicidal ideation. The examiner did not find a diagnosis of PTSD. From May 2010 to December 2010, VA treatment records continued to reveal symptoms consistent with a diagnosis for chronic PTSD. He reported symptoms of sleep impairment, nightmares, and isolation. He related that he often feels like someone is watching him and then realizes that it is probably his mind playing tricks on him. On examination, his appearance was appropriate. He was cooperative, alert, and oriented. He had normal psychomotor activity and speech. His mood ranged from okay to "kind of down." His affect was restricted. He had mostly linear thought processes and no psychosis. His memory, attention, and concentration were grossly intact. He denied suicidal or homicidal ideation. He was assigned GAF scores of 45. In January 2011, a VA staff psychiatrist stated that since returning from the war, the Veteran had difficulties with nightmares, increased startle response, hypervigilance, irritability, and avoidance of crowds and people. He noted that his symptoms had somewhat improved with medication treatment. From February 2011 to November 2014, VA treatment records documented symptoms of sleep impairment, occasional nightmares, anxiety, feelings of frustration, depression, some irritability, avoidance, exaggerated startle, hypervigilance, and isolation. He denied severe depression or violence. He spent his time in and out of the house - "piddling." On examination, his appearance was appropriate. He was cooperative, alert, and oriented. He had normal psychomotor activity and speech. His mood varied between pretty good, okay, and frustrated. His affect ranged from restricted to pleasant and mostly euthymic, intact range. He had mostly linear thought processes and no psychosis. His memory, attention, and concentration were grossly intact. He did not have any hallucinations. He denied homicidal ideation. He had occasional thoughts of passive suicidal ideation ('"should just give it all up"' and '"at this age, what's the use?"'), but denied any active suicidal ideation or plan. He was assigned GAF scores of 45 and 55. In April 2015, the Veteran was provided an additional VA PTSD examination. At that time, he had been married for 52 years and had four adult children with whom he maintained contact. He reported that he had friends. His leisure activities included sleeping, watching television, and attending church. One examination, he was adequately groomed and maintained good eye contact. He readily responded to questions in seemingly open manner. His mood was euthymic and affect was within normal limits. He was oriented to time, place and person. He had average judgment and insight. The examiner found that the Veteran did not meet the full criteria for PTSD with respect to the avoidance criteria. The examiner stated that the Veteran's symptoms were very mild and did not create significant impairment. The examiner concluded that although a mental condition had been formally diagnosed, the Veteran's symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication. From May 2015 to October 2016, VA treatment records documented symptoms of sleep impairment, nightmares, anxiety, memory problems, anger, depression, some irritability, avoidance, hyperstartle, and hypervigilance. He related that he sometimes felt like someone was coming up behind him, and his vision would catch little movements. He enjoyed seeing kids and other family. His wife was very supportive. On examination, his appearance was appropriate. He was cooperative. His appetite was good. His mood varied between low, up and down, frustrated, and rather bland. Little affect was noted. There was no evidence of mania. He denied violence or homicidal ideation. He had occasional thoughts of passive suicidal ideation (wishing it was "'all over,'" "'what is the point of being here,'" or that he could "'just end it'" but stated that '"[he was] afraid to die."'), but denied any active suicidal ideation or plan. In October 2016, a VA staff psychiatrist stated that since August 2014, the Veteran had chronically dealt with nightmares, avoidance, hypervigilance, and irritability associated with his PTSD. From December 2016 to June 2017, VA treatment records documented symptoms of sleep impairment, nightmares, anxiety, depression, some irritability, and hypervigilance. On examination, his appearance was appropriate. He was cooperative, alert, and oriented. He had normal psychomotor activity and speech. His mood ranged from up and down to not very good. His affect was nervous and restricted. He had mostly linear thought processes and no psychosis. His memory, attention, and concentration were grossly intact. He denied homicidal ideation. He had occasional thoughts of passive suicidal ideation, but denied any active suicidal ideation or plan. In October 2017, the Veteran and his wife testified that the Veteran exhibited symptoms of sleep impairment, nightmares, anxiety, stress, depression, some irritability, aggressiveness, being hard to deal with, hypervigilance, isolative behavior, and suicidal ideation. For activities of daily living, the Veteran's wife had to "stay on him constantly" about being clean and she did not like him to cook because he might forget that the stove was on. The Veteran related that his children just tolerated him and when they visited, he usually went to bed. The wife added that the Veteran was hard to get along with when he worked as a brick mason. Additionally, the Veteran did not have any close friends. See also November 2016 Statement from the Veteran's Wife. In addition to the above hearing testimony, the Veteran's son described the Veteran as not as "happy to see [them]" anymore and not as communicative as he was in the past. See November 2016 Statement. The Veteran was provided a VA PTSD examination in December 2017. He endorsed PTSD symptoms of depressed mood; suspiciousness; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; flattened affect; difficulty in understanding complex commands; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work like setting; inability to establish and maintain effective relationships; impaired impulse control, such as unprovoked irritability with periods of violence; neglect of personal appearance and hygiene; and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. He reported that he avoided crowds, was irritable and easily frustrated, was verbally violent, and prone to angry outbursts. He also described helplessness, worthlessness, and anhedonia. He related that he had no close friends or hobbies. He would spend days doing nothing. His only enjoyment was during the holidays with his family. However, he stated that the chaos could be overwhelming. In the last few years of working, he became intolerant of and had difficulty getting along with others. His wife had to force him to bathe, shave, and brush his teeth. On examination, he was adequately groomed, cooperative, made little eye contact and was easily engaged. He was oriented in all spheres. His speech was normal. His mood appeared to be depressed and affect flat and restricted. There was no evidence of perceptual disturbances, gross cognitive impairment or overt memory issues. His thought process, content, and associations were generally coherent, but bereft of detail. He denied and suicidal or homicidal ideations. His judgment was adequate but his insight appeared to be poor and limited. The examiner noted that the Veteran's overall presentation appeared to be sincere and he was a reliable historian. The examiner concluded that the Veteran had total occupational and social impairment. The aforementioned evidence reflects that the Veteran's PTSD was manifested by sleep impairment, nightmares, anxiety, depression, irritability, isolative and avoidant behaviors, hypervigilance, hyperstartle response, memory impairment, difficulty in establishing and maintaining effective relationships, and suicidal ideation. In so finding, the Board acknowledges that while the evidence has varied, the mental status examinations of record as well as the Veteran's and his wife's lay statements have shown the frequency, severity and duration of symptoms consistent with a higher 70 percent rating, which contemplates occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood. However, at no point during the appeal period, has the Veteran's service-connected PTSD been shown to have met the criteria for the higher rating of 100 percent. Although the December 2017 VA examiner indicated that the Veteran had total social and occupational impairment, the medical and lay evidence of record do not support that assessment. VA treatment records and examination reports noted that the Veteran was oriented in all spheres. Although sometimes the Veteran felt like "his mind playing tricks on him," there is no evidence that he had persistent delusions or hallucinations. His thought process, content, and associations were generally coherent, goal directed, and logical. He exhibited no mania or psychosis. While the Veteran expressed suicidal ideation, he was not in persistent danger of hurting self or others nor did he exhibit grossly inappropriate behavior. The Veteran neglected his personal appearance and hygiene and did not remember to turn off the stove; however, he did not demonstrate intermittent inability to perform activities of daily living or exhibit memory loss for names of close relatives, own occupation, or own name. Although he was socially isolated to some extent, the Veteran did maintain a few social and personal interactions with his wife, family members, and church. Additionally, he worked in masonry for 45 years. Taken together with the other evidence noted above indicating at most severe PTSD but not total impairment, with few, if any, of the symptoms described under the 100 percent rating, the Board finds that a 100 percent rating is not warranted. Furthermore, the GAF scores assigned during this period do not tend to support the assignment of a higher rating. As indicated, the Veteran had been assigned GAF scores of 45, 51, and 55 during the course of the appeal period. According to DSM-IV, GAF scores ranging from 41 to 50 reflect severe 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), and GAF scores ranging from 51 to 60 reflect 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 peers or co-worker). Here, the majority of the GAF scores assigned during the appeal period are reflective of moderate to severe symptomatology and this is consistent with the 70 percent rating assigned. Accordingly, the Board finds that a rating of 70 percent for PTSD, but no higher, is warranted. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). The Board has considered the Veteran's claim and decided entitlement based on the evidence or record. 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 these claims. 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). TDIU A total disability rating for compensation based on a TDIU 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 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. 38 C.F.R. § 4.16(a). The central inquiry is whether service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Consideration shall be given to the Veteran's level of education, special training, and previous work experience. Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Initially, the Board finds that the Veteran meets the schedular requirement for the award of a TDIU as he is service-connected for PTSD, rated as 70 percent disabling, as granted herein. The Veteran reported on his October 2017 VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, that his service-connected PTSD prevented him from securing or following any substantial gainful occupation. After the military, his primary occupation was in brick masonry from 1977 to 2007. To the extent that there is evidence against the award of TDIU, the December 2017 VA examiner found that the Veteran exhibited a number of PTSD symptoms (with associated anxiety and depression) that would severely impair his ability to work in both sedentary and active work environments. In particular, the examiner stated that symptoms of irritability, poor anger management, exaggerated startle response, social withdrawal and alienation, poor coping strategies, and his inability to tolerate being around groups of people would severely interfere with the Veteran's ability to interact and relate effectively with others (even in a one-on-one setting). Additionally, the Veteran's symptoms of difficulty with concentration, problems with focus, the presence of intrusive thoughts, and intolerance of repetition would seriously interfere with his ability to effectively manage workplace tasks and demands in a consistent and productive manner. Finally, poor sleep and associated daytime fatigue, avoidance, low mood and motivation, poor self-esteem, and difficulty functioning in stressful situations would further reduce the Veteran's reliability and efficiency in the workplace. The examiner concluded that it would be extremely difficult for the Veteran to secure or to maintain employment across all work environments and settings due to the severity of his PTSD and associated symptoms of depression and anxiety. The law is clear. Pursuant to the "benefit-of-the-doubt" rule, where there is "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. 38 U.S.C.A. § 5107(b). Here, the Board finds the December 2017 VA examiner's findings and the resultant impact on his ability to secure or follow substantially gainful employment, permit application of section 5107(b). In other words, the evidence both for and against the claim is in relative equipoise. Accordingly, resolving all reasonable doubt in the Veteran's favor, the Board finds that the criteria for TDIU are met. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; see also Gilbert supra. ("[T]he 'benefit of the doubt' standard is similar to the rule deeply embedded in sandlot baseball folklore that 'the tie goes to the runner' . . . . [I]f . . . the play is close, i.e., 'there is an approximate balance of positive and negative evidence,' the veteran prevails by operation of [statute]."). ORDER An initial rating of 70 percent for PTSD is granted. An award of TDIU is granted, subject to the law and regulations governing the award of monetary benefits. ____________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs