Citation Nr: 1804055 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 14-24 002 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to a disability rating in excess of 50 percent prior to April 8, 2014, and in excess of 70 percent therefrom, for post-traumatic stress disorder (PTSD). 2. Entitlement to a total disability rating on the basis of individual unemployability (TDIU) prior to April 8, 2014. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Christopher M. Collins, Associate Counsel INTRODUCTION The Veteran had active military service from July 1968 to June 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in December 2012 and April 2014 of the Department of Veterans Affairs (VA) Regional Office (RO) located in Philadelphia, Pennsylvania. In September 2016, the Veteran testified during a videoconference hearing at the RO before the undersigned Veterans Law Judge (VLJ) sitting in Washington, D.C. During the hearing, he waived RO review of any newly received evidence. FINDINGS OF FACT 1. For the entire period of the appeal, the Veteran's PTSD is shown to be productive of occupational and social impairment with reduced reliability and productivity due to symptoms not adequately contemplated by the criteria for a 50 percent evaluation; however, the disorder does not result in total social and occupational impairment. 2. For the entire period of the appeal, the evidence of record shows that the Veteran's service-connected disability precluded him from securing or following a substantially gainful occupation consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The criteria for a 70 percent rating, but no more, for PTSD have been met for the period prior to April 8, 2014. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.17, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for an evaluation in excess of 70 percent for PTSD have not been met for the period beginning April 8, 2014. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.17, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for TDIU have been met for the period prior to April 8, 2014. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). Increased Rating for PTSD The Veteran was awarded a 50 percent initial disability rating for PTSD in a December 2012 rating decision effective June 20, 2011. Thereafter, in an April 2014 rating decision the RO increased the rating for PTSD to 70 percent, effective April 8, 2014. The Veteran seeks to have an increased rating for the entire period on appeal. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. See 38 C.F.R. § 4.7. The ratings at issue were assigned pursuant to the General Rating Formula for Mental Disorders as outlined in 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Rating Formula, a rating of 50 percent is warranted if 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 compete 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 may be 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 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. A 100 percent schedular evaluation contemplates 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. Specifically with regards to evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. See 38 C.F.R. § 4.126. Furthermore, ratings are assigned according to the manifestation of particular symptoms. The use of the term "such as" 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 the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment; however, the Board's "primary consideration" is the Veteran's symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). In treating and evaluating mental disorders under the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, 4th edition (DSM-IV), mental health professionals assign a Global Assessment of Functioning (GAF) score. The GAF scale is a scale of psychological, social, and occupational functioning on a hypothetical continuum of mental health and illness. Assessments on the GAF scale are not to include impairment in functioning due to physical or environmental limitations. Clinicians have assigned the Veteran GAF scores ranging from 55 to 70. GAF scores of 51 to 60 are for moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social or occupational functioning (e.g., few friends, conflicts with peers or co-workers). Scores higher than that are indicative symptoms that are no more than mild in severity. For the period prior to April 8, 2014, the Board finds that there is evidence to suggest that a 70 percent rating is warranted. Although the July 2012 VA examiner did not note that the Veteran experienced difficulty in establishing and maintaining effective work and social relationships as well as a difficulty in adapting to stressful circumstances, they contradicted this omission elsewhere in the examination when they found that the PTSD caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. The examiner also apparently overlooked the Veteran's statements regarding his long history of difficulty maintaining employment, which he attributed to his inability to handle stressful situations at work and his tendency to react with anger to those stressful circumstances. This was also corroborated by the many lay statements submitted by the Veteran from his family, received by the RO in January 2012, all of whom attested to the Veteran's anger management issues and how this impeded his ability to secure and maintain substantially gainful employment as well as establish and maintain effective relationships. Granting the Veteran the benefit of the doubt, the Board finds that even though he was evaluated as having GAF scores no lower than 55, and in light of the July 2012 VA examiner's omissions regarding the Veteran's symptomatology, there is still sufficient evidence showing that the disability picture for the PTSD during the period prior to April 8, 2014 was manifested by impaired impulse control, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships. Taken together, this symptomatology warrants an increase of the disability rating to 70 percent for the period prior to April 8, 2014. The Board does not find, however, that the disability picture for the Veteran's acquired psychiatric disorder warrants a 100 percent rating at any time during the appeal. To begin, the Veteran has never been assigned a GAF score any lower than 55, and has regularly been assigned GAF scores in the 60 to 65 range. Moreover, although the Veteran has consistently maintained that he has been unable to function in an occupational setting as due to his PTSD, he has repeatedly attested to his ability to carry out activities of daily living and take care of his family's household, which would suggest that he does not experience the intermittent inability to perform activities of daily living that is characteristic of a mental health condition that is completely disabling. Furthermore, both VA examiners found no indication that the PTSD resulted in gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, disorientation to time or place, or significant memory loss. In summation, the Board finds that the significant impairment encompassed by the 70 percent rating criteria most closely corresponds with the disability picture for the Veteran's PTSD. During the entire pendency of the appeal he has demonstrated difficulties in social and occupational functioning reflected in the relative paucity of close relationships he has with other people as well as his long history of inability to maintain employment as due to his difficulty in handling stressful circumstances and his tendency to act out with anger. That being said, he has not shown the severe, debilitating impairment encompassed by the 100 percent disability rating. As reflected most recently on the April 2014 examination, he still attends to activities of daily living for his entire family and he maintains some interpersonal relationships. There is no indication of total occupational and social impairment. In short, the Veteran is not wholly incapacitated by his PTSD, and the 70 percent rating reflects that. Neither the Veteran nor his representative has raised any other issues other than the request for entitlement to TDIU during the entire period of the appeal. Moreover, no other issue has been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (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 Although the Veteran was granted TDIU effective April 8, 2014 on the basis of a freestanding application for the benefit, pursuant to Rice v. Shinseki, 222 Vet. App. 447 (2009), VA must address the issue of entitlement to a TDIU in increased-rating claims when the issue of unemployability either is raised expressly or by the record. See also Hurd v. West, 13 Vet. App. 449 (2000). Upon review of the record, and in light of the increase of the rating for the PTSD to 70 percent for the entire period of the appeal, the Board finds that the Veteran is entitled to TDIU as well for the entire period of the appeal. VA will grant TDIU when the evidence shows that a veteran is precluded by reason of a service-connected disability or disabilities from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16. The relevant issue is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Advancing age, any impairment caused by conditions that are not service-connected, and prior unemployability status must be disregarded when determining whether a veteran is currently unemployable. 38 C.F.R. §§ 4.16(a), 4.19. With the increase of the rating for the PTSD to 70 percent, the Veteran meets the criteria for consideration for TDIU on a schedular basis for the entire period on appeal. 38 C.F.R. § 4.16(a). However, the Veteran would still only be entitled to TDIU if the evidence demonstrates that he was unable to secure or follow substantially gainful employment as a result of his service-connected disabilities. As reflected on the July 2012 VA examination and discussed above, the Veteran has consistently reported that the symptomatology of his PTSD impeded his ability to secure and maintain substantially gainful employment, such that he effectively ceased working in 2000 after years of moving from one job to the next. Specifically, the Veteran has detailed several instances of his inability to adapt to stressful circumstances and acting out in anger, which resulted in him being fired or demoted. This was corroborated by his family members in the lay statements submitted in January 2012. Although the July 2012 VA examiner did not opine as to the occupational impairment attributable to the PTSD, they did find that the PTSD contributed to clinically significant distress or impairment in social, occupational, or other important areas of functioning. Accordingly, the Board finds that it is at least as likely as not that the Veteran had not been able to secure and follow a substantially gainful occupation as due to his service-connected PTSD since he first filed his claim, and TDIU is therefore warranted for the entire period of the appeal. ORDER For the period prior to April 8, 2014, a disability rating of 70 percent, but no more, is warranted for PTSD, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an evaluation in excess of 70 percent for PTSD is denied for the period beginning April 8, 2014. Entitlement to TDIU is granted for the period prior to April 8, 2014. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs