Citation Nr: 1803933 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-16 844 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Wisconsin Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Saudiee Brown, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1964 to August 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in March 2017. The Board notes that the Veteran's wife was present as a witness. A transcript of the hearing is of record. FINDINGS OF FACT 1. Throughout the period of this claim, the Veteran's PTSD overall has not been manifest by 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); or an inability to establish and maintain effective relationships. 2. The probative evidence of record indicates the Veteran's service-connected disabilities were rated 60 percent combined, and did not preclude him from securing and following a substantially gainful occupation. CONCLUSIONS OF LAW 1. 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. § 4.130, Diagnostic Code 9411 (2017). 2. The schedular requirements for a TDIU rating were not met, and a TDIU rating was not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. Increased Rating Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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 not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2017). 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran claims entitlement to an increased disability rating for his service-connected PTSD, which he asserts is more severe than the 50 percent rating assigned. A 50 percent rating is warranted for PTSD 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 such as, 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 for PTSD contemplates 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. Finally, a 100 percent disability rating is warranted for PTSD resulting 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. Id. The evidence considered in determining the level of impairment under the Rating Schedule for PTSD is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002). In evaluating the evidence, the Board has considered the various Global Assessment of Functioning (GAF) scores that clinicians have assigned. The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV); Carpenter v. Brown, 8 Vet. App. 240 (1995). A GAF score of 61-70 reflects some mild symptoms, such as depressed mood and mild insomnia, or some difficulty in social, occupational, or school functioning, but generally functioning pretty well, and has some meaningful interpersonal relationships. A GAF score of 51-60 indicates moderate symptoms or moderate difficulty in social, occupational or school functioning. A GAF score of 41-50 is assigned where there are "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)." A GAF score of 31 - 40 contemplates some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed adult avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). Id. Current mental health evaluations no longer use the GAF as an assessment of functioning. Compare Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV) with Diagnostic and Statistical Manual of Mental Disorders (5th ed.) (DSM-5); see also 38 C.F.R. § 4.125 (2017). The Veteran was afforded VA examinations in July 2011 and March 2014. Overall, these examinations show a finding for no more than a 50 percent disability rating. Specifically, the Veteran exhibited symptoms of depressed mood, chronic sleep impairment, flattened affect, intrusive memories, nightmares, avoidance, persistent negative emotional state, feelings of detachment from others, irritable behavior and angry outbursts, exaggerated startle response, sleep disturbance, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work-like setting. There were no reports of suicidal or homicidal ideation. Moreover, the July 2011 VA examiner noted that the Veteran's PTSD symptoms were on par with his previous VA examination or had slightly improved, and the March 2014 VA examiner found that the Veteran's symptoms were under control with therapy and medication. There were also no notes of obsessive or ritualistic behavior and his depression was related to his retirement. The Veteran was found to be married for over 20 years with an overall good family relationship. He reported enjoying leisure activities such as golfing and watching the history and military channels. The Veteran was assigned a GAF score of 60 for his July 2011 VA examination. The Board notes that a February 2017 disability benefits questionnaire (DBQ) found that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. This criteria would possibly warrant a 70 percent disability rating. Yet, the Veteran exhibited the same symptoms in the DBQ as in previous VA examinations, namely, depressed mood, anxiety, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work-like setting, and impaired impulse control, such as unprovoked irritability with periods of violence, which warranted a 50 percent disability rating. Thus, as the VA physician provided no rationale as to why the Veteran had occupational and social impairment with deficiencies in most areas, the Board affords this VA opinion less probative weight. In March 2017, the Veteran testified at his Board hearing that he "got into it" with his foreman and coworkers. The Veteran reported that he was demoted as well and that eventually he felt forced into early retirement at age 62. In addition, VA treatment records from May 2013 to the present showed symptoms that did not warrant a disability rating higher than 50 percent. Specifically, the Veteran was treated for moderate mental health symptoms and his medication was decreased. The Board also considered statements submitted by the Veteran's wife and daughter. In February 2011, the Veteran's daughter reported that the Veteran ruminated on negative thoughts which led to avoidant behaviors. She stated that he had a problem with every person he came into contact with; specifically, he became angry and refused to participate in events which led to self-isolation. The Veteran's daughter stated that the Veteran told her he feared becoming physical. Overall, the Veteran's daughter described how he was unable to control his anger and had outbursts at times. In April 2012, the Veteran's wife described how the Veteran's medication controlled his anger and depression to some extent. She reported that the Veteran got restless, had nightmares, and had trouble dealing with their grandchildren despite loving them. The Board notes the February 2017 DBQ found the Veteran's symptoms to warrant a higher disability rating. However, the Board finds that the Veteran's VA treatment records and VA examinations are more probative as they showed that the Veteran's symptoms were under control and that the Veteran's medication decreased. The Veteran has also been married for over 20 years. In addition, the VA examinations suggested symptoms getting better at one point and that any symptoms were no more than moderate. Accordingly, the Board finds that a rating in excess of 50 percent is not warranted for any period of time covered by the appeal. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence during the appeal period is against the Veteran's claim for a disability rating in excess of 50 percent for his service-connected PTSD, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 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). III. TDIU The Veteran contends that he is unemployable as a result of his service-connected disabilities. Specifically, the Veteran states in an April 2011 Form 21-8940 that TDIU is due to his service-connected PTSD. The Board may assign a TDIU in the first instance provided that certain schedular disability ratings requirements, such as a combined disability rating of 70 percent with at least one disability rating as 40 percent rating, are met. See 38 C.F.R. § 4.16 (a); see also Bowling v. Principi, 15 Vet. App. 1, 10 (2001) (holding that the Board may not assign a TDIU in the first instance when the schedular requirements of 38 C.F.R. § 4.16 (a) are not met). The Veteran is presently in receipt of service connection for PTSD, rated as 50 percent disabling, and diabetes mellitus type II, rated as 20 percent disabling. The Veteran's combined disability rating is 60 percent. Thus, the preliminary schedular rating requirements for a TDIU are not met. 38 C.F.R. § 4.16 (a). Therefore, any award of TDIU would have to be on an extraschedular basis. It is the policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service connected disability shall be rated totally disabled. 38 C.F.R. § 4.16 (b). The process for establishing entitlement to an extraschedular TDIU rating is described in 38 C.F.R. § 4.16 (b). That process requires first an adjudicative determination that the Veteran is rendered unemployable by virtue of service-connected disabilities, and if that determination is affirmative, followed by referral to the Director, Compensation System. At the outset, it is noteworthy that disability ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from the service-connected disabilities in civil occupations. See 38 C.F.R. § 4.1. In other words, occupational impairment with respect to a specific type of employment is not dispositive; and if a Veteran is precluded by service connected disability or disabilities from participating in a specific type of employment in which the Veteran has primary experience, but remains capable of maintaining other regular substantially gainful employment consistent with education and occupational experience, such Veteran is not deemed unemployable. The central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran is currently retired. The evidence of record shows that the Veteran completed high school. The Veteran last worked in February 2009 as a pressman. In a July 2011 general VA examination, the Veteran stated that he was unemployed because he was not going to take orders from anybody. The examiner found that he had medical problems that were not service connected, but did not affect his ability to work. In a July 2011 PTSD VA examination, the examiner found that as there was no evidence that the Veteran's PTSD had worsened, this did not preclude him from employment. Specifically, the examiner opined that the Veteran's PTSD did not render him unable to secure and maintain gainful employment, although he would likely operate best in a low-stress environment. In a March 2014 PTSD VA examination, the examiner stated that the Veteran worked as a printer for over 30 years and was very good at his job. Throughout that time, he had problems with his temper, but managed to stay employed, and up until the job moving to Illinois, his work seemed to have been respected. The examiner said that in Illinois the Veteran felt demeaned, disrespected, and occasionally even ridiculed by people who he felt did not know the job as well as he did, and who were inexplicably hostile about his military history. However, the Veteran was not fired despite a melt down on one or more occasions. Instead, the Veteran opted to leave and take a buy-out. The examiner stated that the Veteran was very clear that he could not work in a situation where his work and his history were not respected; he could not take orders from "youngsters," who did not know the job as well as he did. Nonetheless, the examiner opined that it seemed likely to him that based on the Veteran's presentation, that he could work in a situation where his interactions were less frequent, his considerable work skills were respected, and his co-workers and employers were less fractious and critical. The examiner stated that whether such a position existed for a man of his age and expertise remained a question. The Board has carefully considered the Veteran's statements regarding the effects of his disabilities on his employability. Although the Veteran experiences difficulty working with others as a result of his PTSD, repeated VA examinations have indicated that he is not precluded from obtaining or maintaining substantially gainful employment. The Board has assigned these examination reports great probative value as they were based on an examination of the Veteran and a review of the pertinent evidence of record. In addition, the examiners addressed the question of employability directly and their opinions are consistent. In summary, the record simply does not show or suggest that the Veteran was by virtue of his service-connected disabilities, rendered incapable of participating in any substantially gainful employment consistent with his education and experience. Accordingly, referral of his claim to the Director, Compensation Service for consideration of such rating is not warranted and a TDIU rating is not warranted. ORDER Entitlement to an initial disability rating in excess of 50 percent for PTSD is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs