Citation Nr: 1803664 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 16-43 389 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based upon individual unemployability (TDIU). ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1965 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision of the Department of Veterans Affairs (VA) in Jackson, Mississippi, which reopened and granted the Veteran's service connection claim for PTSD and assigned a 50 percent disability rating. The United States Court of Appeals for Veterans Claims (Court) has held that a request for TDIU is part and parcel of a higher rating when raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In his September 2015 notice of disagreement (NOD), the Veteran indicated that his PTSD precludes him from obtaining and maintaining gainful employment. As such, the issue of entitlement to a TDIU has been raised by the Veteran. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's PTSD disability is not shown to result in occupational and social impairment, with deficiencies in most areas. CONCLUSION OF LAW The criteria for a disability rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist In this case, the Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Claim - Applicable Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4 . 38 U.S.C.A. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25 (2017). Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14 (2017). It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him or her through their senses. See Layno v. Brown, 6 Vet. App. 465 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In this case, the Veteran is in receipt of an initial 50 percent disability rating for PTSD under Diagnostic Code 9411. A 50 percent rating is assigned 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; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. A 70 percent disability rating is assigned 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 that is 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 disability rating is assigned 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; and memory loss for names of close relatives, or for the veteran's own occupation or name. Id. In applying the above criteria, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability. See 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181 (1998) (citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so)). In determining the level of impairment under 38 C.F.R. § 4.130, a rating specialist is not restricted to the symptoms provided under the diagnostic code, and should consider all symptoms which affect occupational and social impairment, including those identified in the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM-IV or DSM 5). See Mauerhan v. Principi, 16 Vet. App. 436 (2002). If the evidence demonstrates that a claimant suffers symptoms or effects that cause an occupational or social impairment equivalent to those listed in that diagnostic code, the appropriate, equivalent rating is assigned. See Mauerhan, 16 Vet. App. 436. Within the DSM-IV, Global Assessment Functioning (GAF) scale scores ranging from 1 to 100 reflect "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996). Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM-IV. The amendments replace those references with references to the recently updated "DSM-5." As the Veteran's claim was certified to the Board after August 4, 2014, the DSM-5 is applicable to this case. According to the DSM-5, clinicians do not typically assess GAF scores. In reviewing the evidence of record, the Board will consider the assigned GAF score; however, the Board is cognizant that GAF scores are not, in and of themselves, the dispositive element in rating a disability. Rather, 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). PTSD - Analysis The Veteran asserts that his PTSD disability symptoms are worse than contemplated by the assigned 50 percent rating. Upon review of the evidence on file the Board finds that the Veteran's PTSD disability has not more nearly approximated occupational and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood, which warrants a higher rating of 70 percent. In May 2015, the Veteran underwent a VA examination, in which the examiner rendered a diagnosis of PTSD with occupational and social impairment with reduced reliability and productivity. In terms of social, marital, and family history, the Veteran reported that he had good marriage and relationship with his wife and children, and grandchildren, and indicated that he attends church together with his wife. He further stated that he had two good friends, and likes to fish and watch ball games. In terms of occupational and educational history, the Veteran was noted to retire after 30 years. There was no reported history of psychiatric hospitalizations or legal or behavioral problems. Under the various criterions for PTSD, the examiner noted that the Veteran had persistent and exaggerated negative beliefs or expectations, persistent negative emotional state, markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from others, irritable behavior and angry outbursts, hypervigilance, exaggerated startle response, and problems with concentration. The above criteria were noted to cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. The examiner further identified symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances including work or work like setting. Lastly, the examiner noted that the Veteran was dressed in jeans, t-shirt, and jacket, was verbal and articulate, social and outgoing, and reported having a great deal of guilt and sadness. He liked his work and since he retired he had more time to think, which seems to intensify his feelings regarding Vietnam. Mental health treatment notes from Hattiesburg VAMC dated from October 2015 to June 2016 indicate that the Veteran reported to generally have good mood/stability and sleep pattern. He continuously denied anxiety/panic attacks, disturbing dreams, sensory hallucinations, paranoid or delusional thoughts, or thoughts/plan to harm self/others, and suicidal or homicidal ideation. He regularly appeared to be appropriately dressed with good grooming and hygiene. His mood consistently was described as "feeling good" and his affect was friendly and smiling. Mental health treatment notes from Hattiesburg VAMC dated June 2016 indicated that the Veteran reported recent changes in mood and inability to sleep. He denied anxiety, panic attacks, disturbing dreams, sensory hallucinations, paranoia, delusional thoughts, or thoughts to harm self/others. Upon examination, the Veteran had normal consciousness, was alert, attentive, easily engaged, cooperative, maintained focus, and had appropriate casual clothing/dress, grooming, hygiene, and posture. His speech was coherent, with appropriate rate/pace, with good volume and tone. There was no agitation, elation, nervousness, or anger. He reported feeling depressed and his affect was observed to be "blunted." He denied suicidal and homicidal ideations. His insight and judgment demonstrated good understanding. An additional progress note dated July 2016 indicates that the Veteran reported significant mood/mood stability improvement since he was prescribed duloxetine at his previous mental health consultation. His affect was described as "warm/cheerful/smiling." The same improved mood and overall psychiatric symptoms were noted in additional mental health consultations dated September and November 2016. On review of all evidence, both lay and medical, the Board finds that the weight of the evidence is against an increased rating in this case. A higher rating of 70 is not warranted as the evidence does not show that the Veteran's PTSD is productive of symptoms resulting in or approximating occupational and social impairment, with deficiencies in most areas. There is no evidence of any suicidal ideation, obsessional rituals which interfere with routine activities, neglect of personal appearance and hygiene, or any other more severe symptoms consistent with the criteria for a 70 percent raring. To the contrary, the Veteran noted that he was "feeling good" and generally indicated that his symptoms were improving. Rather, the Veteran's PTSD is shown to more nearly result in occupational and social impairment with reduced reliability and productivity. The Veteran's PTSD symptoms include mild memory loss, anxiety, depression, suspiciousness, disturbances of motivation and mood, a flattened affect, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. These symptoms are contemplated under the disability criteria for the currently assigned 50 percent rating. The Board recognizes that the symptoms listed in VA's general rating formula for mental disorders is 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. With this in mind, the evidence shows that the Veteran's overall PTSD picture is already adequately contemplated by the 50 percent rating already assigned. For these reasons, the Board finds that the Veteran's PTSD disability does not warrant a higher rating and the claim must be denied. ORDER A disability rating in excess of 50 percent for PTSD is denied. REMAND The Board finds that a remand is necessary in order to refer the Veteran's TDIU claim for extraschedular consideration. 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. §§ 3.340, 3.34l, 4.16(a). Where the combined rating percentage requirements are not met, entitlement to the benefits may be nonetheless considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). Here, the Veteran does not meet the schedular requirements for an award of TDIU under 4.16(a), because he is only service connected for PTSD rated as 50 percent disabling. In this case, the combined schedular disability rating eligibility criteria for a TDIU under 38 C.F.R. § 4.16(a) are not met. Nevertheless, the Board finds that despite working for many years, the record reflects that the Veteran is currently unemployed and he attributes this to his service-connected PTSD. Accordingly, the claim should be referred to the Under Secretary for Benefits or the Director of Compensation Service pursuant to the provisions of 38 C.F.R. § 3.321(b) (2017) for consideration of whether an extraschedular rating is warranted. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA medical treatment notes, specifically those done after the most recent supplemental statement of the case. 2. Then, refer the Veteran's TDIU claim to the Under Secretary for Benefits or the Director of Compensation Service pursuant to the provisions of 38 C.F.R. § 3.321(b) (2017) for consideration of whether an extraschedular rating is warranted. 3. Thereafter, readjudicate the Veteran's TDIU claim on appeal. If the benefit sought remains denied, provide an SSOC to the Veteran and his representative, and give him an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters 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). ____________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs