Citation Nr: 1804142 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 11-16 760 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a rating in excess of 30 percent for residuals of a myocardial infarction. 2. Entitlement to an increased rating for posttraumatic stress disorder (PTSD), initially evaluated as 10 percent disabling prior to October 29, 2009; 50 percent disabling prior to December 19, 2014; and 70 percent disabling thereafter. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran is represented by: Joseph R. Moore, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Banister, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1962 to July 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2009 and March 2011 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This matter was previously before the Board in October 2014, at which time it was remanded for further development. The requested development was completed, and the case has been returned to the Board for further appellate action. FINDINGS OF FACT 1. Prior to the promulgation of a decision by the Board, the Veteran withdrew his appeal with respect to the issue of entitlement to an increased rating for residuals of a myocardial infarction. 2. Throughout the appeal period, the Veteran's PTSD has been manifested by no more than occupational and social impairment with deficiencies in most areas. 3. The probative evidence of record demonstrates that it is at least as likely as not that the Veteran's service-connected disabilities render him unable to secure or follow substantially gainful employment consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal as to the issue of entitlement to a rating in excess of 30 percent for residuals of a myocardial infarction have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for an initial 70 percent rating for PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2017). 3. The criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). 4. The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating for Residuals of a Myocardial Infarction An appeal may be withdrawn as to any or all issues at any time before the Board promulgates a decision. 38 C.F.R. § 20.204(a), (b)(3). Such withdrawal may be made by the appellant or by his or her authorized representative and, unless done on the record at a hearing, it must be in writing. 38 C.F.R. § 20.204(a). In a November 2017 written correspondence, the Veteran's attorney indicated that the Veteran wished to withdraw his appeal with respect to the issue of entitlement to an increased rating for residuals of a myocardial infarction. As such, no allegation of error of fact or law remains before the Board for consideration with respect to that claim. Accordingly, the Board finds that the Veteran has withdrawn his appeal with respect the issue of entitlement to an increased rating for residuals of a myocardial infarction, and it is dismissed. Increased Ratings for PTSD Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability; resolving any reasonable doubt regarding the degree of disability in favor of the claimant; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.10 (2017); see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 127 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Pursuant to the General Rating Formula for Rating Mental Disorders (General Rating Formula), a 10 percent rating is warranted when there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 30 percent rating is warranted when there is occupational and social impairment with 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: depressed mood, anxiety, suspiciousness, weekly or less often panic attacks, chronic sleep impairment, and mild memory loss, such as forgetting names, directions, recent events. Id. A 50 percent rating is warranted when 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; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted when there is objective evidence demonstrating occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to 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, or 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 the inability to establish and maintain effective relationships. Id. A maximum 100 percent rating is warranted when 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 and place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the General Rating Formula are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or effects thereof, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Accordingly, the evidence considered in determining the level of impairment under Diagnostic Code 9411 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms associated with the Veteran's PTSD and their effect on the level of occupational and social impairment. Id. When evaluating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b) (2017). The record also contains Global Assessment of Functioning (GAF) scores assigned by clinicians, which reflect the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Carpenter v. Brown, 8 Vet. App. 240, 243 (1995). Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by replacing references to DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, Fourth Edition (DSM-IV) with the fifth edition of the DSM (DSM-5). See 38 C.F.R. § 4.125, amended by 79 Fed. Reg. 45099 (effective Aug. 4, 2014). Although DSM-5 does not use the GAF Scale to assess functioning, the DSM-IV was in effect at the time the GAF scores were assigned. Thus, the Board will consider the GAF scores of record in evaluating the Veteran's occupational and social functioning. However, an examiner's classification of the level of psychiatric impairment, by word or by a GAF score, is not determinative of the VA disability rating to be assigned. The percentage evaluation is based on all of the evidence that bears on occupational and social impairment. 38 C.F.R. § 4.126(a) (2017). A GAF score between 51 and 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 peers or co-workers. A GAF score between 41 and 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). See DSM-IV. In a November 2009 rating decision, service was granted for PTSD, and a 10 percent rating was assigned, effective July 31, 2009. Thereafter, the Veteran perfected an appeal of the initial rating assigned to his service-connected PTSD. In a January 2015 rating decision, the Veteran's PTSD rating was increased to 50 percent, effective October 29, 2009, and 70 percent, effective December 19, 2014. Upon review of the record, the Board finds that an initial 70 percent rating for PTSD is warranted. The record shows that throughout the appeal period, the Veteran reported symptoms of recurrent recollections, vivid nightmares, chronic sleep impairment, avoidance, anxiety, suspiciousness, irritability, flattened affect, disturbances of mood and motivation, exaggerated startle response, hypervigilance, difficulty establishing and maintaining effective work and social relationships, mild memory loss, difficulty concentrating, and passive suicidal ideations. GAF scores ranged between 50 and 60, indicating moderate to serious symptoms or moderate to serious impairment in functioning. The record shows that the Veteran described himself as a loner, and treatment providers noted that he tended to isolate himself from others and kept his close relationships at a distance. He reported living alone, being estranged from his only living daughter, having four failed marriages, and denied dating. Although the Veteran made efforts to stay busy by volunteering with veterans organizations, the record shows that he continued to have difficulty establishing and maintaining effective relationships and had little social interaction outside of the veterans organizations. He reported having to leave social situations that made him angry or agitated in order to avoid losing his temper. He also reported having to "hunker down" for a few minutes in order to gain his composure when he heard people telling war stories while volunteering at a VA outpatient clinic. VA examiners who evaluated the Veteran in April 2013, December 2014, and October 2015 characterized his level of impairment as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking, and/or mood. Moreover, the record does not show a significant change in the Veteran's level of functioning between the time he filed his service connection claim in July 2009 and December 2014, when he was awarded a 70 percent rating. Based on the foregoing, and resolving reasonable doubt in favor the Veteran, the Board finds that an initial 70 percent rating for PTSD is warranted. The Board finds that a rating in excess of 70 percent is not warranted at any point during the period under review. The record shows that the Veteran was consistently alert, oriented, and well groomed. His thought process was organized, logical, and goal directed. His speech was fluent and spontaneous. Insight and judgment were good or fair, and impulse control was fair. There was no evidence of hallucinations, delusions, inappropriate behavior, obsessive or ritualistic behavior, disorganized thinking, or psychomotor retardation. Although the Veteran tended to isolate himself socially, he reported helping neighbors with yardwork at times, volunteering for veterans organizations, and occasionally attending social events. The Board has reviewed and considered a medical opinion submitted in November 2017 from a private psychiatrist who opined that the Veteran has been "completely and 100 [percent] disabled since at least 2008." However, the Board assigns little probative value to this opinion, as it is not supported by the evidence of record. For example, the private psychiatrist described the Veteran as having an "extraordinarily high potential for inappropriate, volatile, and unpredictable behavior," noting that he "was court ordered to attend anger management related to domestic issues with one of his ex-wives." The private psychiatrist also described the Veteran as being an at an "extraordinarily high risk for completed suicide." However, the record shows that Veteran's domestic issues occurred several years prior to filing his service connection claim for PTSD, and he told his therapist that he never acted out on his anger again after attending anger management classes. Moreover, the record shows that throughout the appeal period, the Veteran denied suicidal or homicidal ideations to his treatment providers, who consistently noted that he did not endorse any at-risk thoughts or behaviors. The Board assigns significantly greater probative value to the opinions of the Veteran's treatment providers, who are familiar with the Veteran and see him on a regular basis. In sum, total social and occupational impairment is not shown, and a 100 percent rating is not warranted at any time during the appeal period. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against assigning the Veteran's PTSD a rating in excess of 70 percent, the doctrine is not for application. See Gilbert, 1 Vet. App. at 56. Entitlement to TDIU VA will grant TDIU when the evidence shows that a veteran is precluded by reason of a service-connected disability or disabilities from securing or following substantially gainful employment consistent with his education and occupational experience. 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 Hose 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. A total disability rating may be assigned when the scheduler rating is less than total, where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Throughout the appeal period, service connection has been in effect for PTSD, evaluated as 70 percent disabling; residuals of a myocardial infarction, evaluated as 10 percent disabling prior to April 18, 2011, and 30 percent disabling thereafter; diabetes mellitus, type II, evaluated as 20 percent disabling; and bilateral lower extremity peripheral neuropathy, evaluated as 10 percent disabling for each extremity prior to March 20, 2012, and 30 percent disabling thereafter. Thus, the schedular criteria for TDIU have been met throughout the appeal period. See 38 C.F.R. § 4.25 (2017). The record shows that the highest level of education attained by the Veteran is a high school diploma. He last worked full-time in September 2008 as a drywall carpenter foreman. The record shows that most of the Veteran's prior work experience was in the construction industry. Upon review of the record, the Board finds that the probative evidence of record demonstrates that it is at least as likely as not that the Veteran's service-connected disabilities render him unable to secure and follow substantially gainful employment consistent with his education or occupational experience. On the 2013 VA psychiatric examination, the Veteran stated he could not wear steel toed boots due to his neuropathy and he was sent home when the foreman noticed. On the 2014 VA psychiatric examination, the Veteran reported that he last worked 6 years ago when he was laid off. He stated he tried to get jobs but his age impacted the job search. The examiner noted that while Veteran has PTSD-related concentration problems, anger, reactivity difficulty, and problems getting along with others, there is no clear indication that it is of such severe magnitude to interfere with his ability to secure/maintain gainful employment. The record further shows that with respect to the Veteran's PTSD, he had chronic sleep impairment, difficulty concentrating, mild memory loss, irritability, and difficulty establishing and maintaining effective work and social relationships. As noted above, he reported having to leave social situations that made him angry or agitated in order to prevent himself from losing his temper and having to "hunker down" for a few minutes in order to gain his composure when he heard people telling war stories. The October 2015 VA examiner reported that while the Veteran would like to get a job, he would likely experience significant coping obstacles related to his anger problems and PTSD related activity. With respect to the Veteran's diabetes and bilateral lower extremity peripheral neuropathy, the record shows that he reported moderate pain and numbness in both lower extremities and noted that he was unable to wear steel toed boots for work. VA and Vet Center treatment records show that the Veteran reported walking two miles a day in an effort to keep is diabetes under control, but on several occasions, he reported being unable to walk for periods of time due to significant foot pain from diabetic neuropathy. With respect to the Veteran's residuals of a myocardial infarction, throughout the appeal period, the record shows a workload of greater than 5 METs, but not greater than 7 METs, resulting in fatigue, which is consistent with activities such as golfing, mowing the lawn, and heavy yard work. The Veteran reported dizziness, heart palpitations, and shortness of breath upon moderate exertion. A May 2013 VA examiner opined that the Veteran's service-connected heart disability would not interfere with his ability to secure and maintain sedentary employment. Upon consideration of the record and after resolving all doubt in the Veteran's favor, the Board finds that the Veteran's psychological and physical limitations, when considered along with his lack of experience or training for sedentary work, renders him unemployable. Accordingly, entitlement to a TDIU is warranted. ORDER The appeal as to the issue of entitlement to a rating in excess of 30 percent for residuals of a myocardial infarction is dismissed. An initial rating of 70 percent for PTSD is granted, subject to the laws and regulations governing the payment of VA monetary benefits. A rating in excess of 70 percent for PTSD is denied. TDIU is granted, subject to the laws and regulations governing the payment of VA monetary benefits. ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs