Citation Nr: 1804199 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 15-12 112 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to a service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. An, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1966 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. This case was previously before the Board in March 2017 where the Board determined that the issue of unemployability due to PTSD was raised by the record and remanded for additional evidentiary development. See Rice v. Shinseki, 22 Vet. App. 447 (2009). 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). The issue of TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDING OF FACT The Veteran's PTSD was not shown to cause occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for a rating in excess of 50 percent for PTSD have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.125, 4.126, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Neither the Veteran, nor his representative has 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). Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The primary concern for an increased rating for a service-connected disability is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In all claims for an increased disability rating, VA has a duty to consider the possibility of assigning staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). PTSD In August 2013, the Veteran filed a claim for increased rating for his service-connected PTSD, which was denied by a rating decision of December 2013. A 50 percent rating for PTSD has been in effect since February 7, 2011. The Veteran disagrees with the assigned rating and asserts entitlement to an increased rating, including an evaluation of total occupational and social impairment. See Third Party Correspondence dated August 2013 and Statement in Support of Claim dated April 2014. The Veteran's PTSD has been rated under Diagnostic Code 9434, which is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 38 C.F.R. § 4.130, Diagnostic Code 9434 (2017). Under the General Rating Formula for Mental Disorders, a 50 percent rating requires occupational and social impairment, but with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, 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 task); 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, Diagnostic Code 9434. A 70 percent rating is warranted for even greater occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting 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 if 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. When rating a mental disorder, VA must consider the frequency, severity, and duration of the Veteran's psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency must 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 rating the level of disability from a mental disorder, the rating agency must consider the extent of social impairment, but cannot assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126. Furthermore, the specified factors for each incremental rating are examples, rather than requirements, for a particular rating. The Board will not limit its analysis solely to whether the Veteran exhibited the symptoms listed in the rating criteria. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Indeed, the symptoms listed under § 4.130 are not intended to serve as an exhaustive list of the symptoms that VA may consider but as examples of the type of degree of symptoms, or the effects, that would warrant a particular rating. Mauerhan, 16 Vet. App. at 442 (2002). The Veteran's actual symptomatology, and resulting social and occupational impairment, will be the primary focus when assigning a disability rating for a mental disorder, and the Veteran may qualify for a particular rating by demonstrating the particular symptoms associated with that percentage, or other symptoms of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). Also relevant to the Board's analysis is the Global Assessment of Functioning (GAF) score assigned to the Veteran, which is a scale that indicates the psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. Carpenter v. Brown, 8 Vet. App. 240 (1995); Richard v. Brown, 9 Vet. App. 266 (1996); American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV); 38 C.F.R. § 4.130. While the veteran's GAF score is not itself determinative of the most appropriate disability rating, the Board must consider it when assigning the appropriate disability rating for the veteran. VAOPGCPREC 10-95 (1995), 60 Fed. Reg. 43186 (1995). GAF scores ranging from 41 to 50 indicate 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). GAF scores ranging from 51 to 60 indicate 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). GAF scores ranging from 61 to 70 indicate some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994); 38 C.F.R. § 4.130. As explained below, the competent evidence of record, to include the Veteran's treatment records, VA examination reports, private medical opinions, and lay statements, do not establish findings consistent with a higher rating. Private treatment records of August 2013 reflect a PTSD disability benefits questionnaire completed by the Veteran's treating psychiatrist, Dr. J. Liss, where he indicated the Veteran's level of impairment due to mental disorder as "occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking and mood." The psychiatrist further indicated symptoms of depressed mood, anxiety, suspiciousness, panic attacks with flash back, sleep impairment, mild memory loss, flattened effect, difficulty establishing and maintaining effective work and social relationships, inability to establish and maintain effective relationships, suicidal ideation, obsessive rituals, and persistent flash backs. The Veteran was assessed a GAF score of 35. See private treatment records from Dr. J. Liss. In April 2014, the Veteran submitted a statement from the same private psychiatrist reflecting an opinion that the the Veteran qualifies for a 100 percent disability and unemployability. Dr. J. Liss indicated the Veteran's difficulty in establishing and maintaining effective work and social relationships and suicidal ideation. Id. In April 2017, the Veteran submitted another statement from Dr. J. Liss reflecting a similar opinion that "at this time 100% permanent disability and unemployability remain as the correct status" of the Veteran. The psychiatrist commented that "there is a request to document dates of treatment which is irrelevant. There is no defined treatment for PTSD." He further remarked that PTSD "is not a disease, it is a state of combat readiness." Id. In compliance with the Board's March 2017 remand, the Veteran was afforded a VA examination in September 2017. On clinical interview, he reported his closest relationship was with his wife of 48 years who passed away. He reported that also maintains close relationships with his mother (whom he visits two times daily), his adult children (son and daughter), and his grandson. He continues to go to the gym three times per week and attends church. As for relevant occupational history, he reported being on "disability since the 1980s from his previous work as a machinist due to back pain." The examiner noted symptoms of depressed mood, irritability, panic attacks, sleep impairment, low energy attributable to the diagnosis of PTSD. But, found the Veteran capable of following a healthy routine, caring for himself and providing care for family members. The examiner observed that the Veteran presented as pleasant, cooperative, and affable with a full range of affect. The examiner noted that the Veteran "exhibited good insight into his symptoms" and found his judgement intact. See PTSD Disability Benefits Questionnaire (DBQ) dated September 13, 2017. Upon review of the evidence, the Board finds that the preponderance of the evidence is against a finding of entitlement to an evaluation exceeding 50 percent at any time throughout the duration of the appeal. As described, the Veteran clearly experienced psychiatric symptomatology as a result of his PTSD with symptoms such as depressed mood, loss of motivation, and panic attacks. However, the record does not establish that his PTSD was manifested by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. In this regard, the Board assigns great probative value to the September 2017 VA psychiatrist's opinion indicating that the Veteran's PTSD results in occupational and social impairment with reduced reliability and productivity with symptoms of suicidal ideation, panic attacks, sleep disturbance, and difficulty in adapting to stressful environments; symptoms contemplated by the assigned 50 percent rating. Further, the findings of the most recent VA examination of September 2017 are not consistent with a higher 70 percent rating, which requires symptoms of impaired impulse control such as unprovoked irritability with periods of violence or neglect of personal appearance and hygiene. In fact, the Veteran does not exhibit or resort to violence or act upon any impulses. Despite reporting fleeting thoughts of suicidal ideation, the Veteran has denied the intent to act on hurting himself or others. At no time, during the appeal period does the evidence of record show that the Veteran had episodes of anger or irritability with periods of violence, which is indicative of impaired impulse control, contemplating a 70 percent rating. Indeed, the Board has considered the April 2014 and April 2017 opinions of Dr. J. Liss finding the Veteran totally disabled. However, as there is no supporting rationale for such opinions, and since each statement is no more than two sentences, the Board finds the private opinions carries significantly less probative value in this case. Furthermore, there is no contemporaneous medical documentation of treatment dates or evaluation accompanying the April 2014 and April 2017 statements. Notably, in response to a request for documentation of such treatment, Dr. J. Liss explained it was "irrelevant" as "there is no defined treatment for PTSD". Absent a detailed discussion and rationale in formulating his conclusions, the Board assigns less probative weight to Dr. J. Liss' opinions. See Prejean v. West, 13 Vet. App. 444 (2000). Likewise, while private treatment records of August 2013 reflect a GAF score of 35 as evaluated by Dr. J. Liss with no contemporaneous medical documentation, this is not itself determinative of the most appropriate disability rating for the appeal period. As was explained in Vazquez-Claudio, it is not just the presence of psychiatric symptoms that mandates the assignment of a higher rating, but rather, the Board must evaluate how the reported symptoms impact the Veteran's occupational and social functioning. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). As such, a rating is based on all the evidence of record that bears on occupational and social impairment. For example, while occupational impairment is a component of both a 50 percent rating and a 70 percent rating, the symptomatology associated with a 50 percent rating would include difficulty in establishing and maintaining effective work and social relationships. Here, contrary to the Veteran's assertions of total occupational and social impairment, he was able to maintain close social relationships with family members. Although his wife of 48 years passed away, during the clinical interview he characterized the relationship as "just great" and he was her main caregiver. He also reported maintaining close relationship with his 92 year old mother, his daughter who visits every weekend, and his son that he spends time with more than twice a month. Further, the Veteran was able to secure and maintain employment, though he reported being on disability since 1980's due to back pain. The September 2017 examination report reflects that he has not had any occupation experience in the last five years. The 2017 VA psychiatrist consistently noted that the Veteran was pleasant, cooperative, alert and fully oriented, with good hygiene, clear and logical thought processes, and had good insight and judgment. Once again, despite the Veteran's reported symptoms, the record shows that the Veteran has maintained relationships with close family members and was also capable of being caregiver to his late wife. Thus, it cannot be concluded that the Veteran is totally socially impaired. In sum, the Board finds that the Veteran's symptoms during this period of the appeal do not impact his social and occupational functionality in such a way to result in social and occupational impairment with deficiencies in most areas. For these reasons, the Board finds that the Veteran's PTSD has not been manifested by symptomatology more nearly approximating the criteria for a 70 percent disability rating under 38 C.F.R. § 4.130, Diagnostic Code 9434. The benefit-of-the-doubt doctrine is not for application, and an increased rating under this code is not warranted. See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the claim must be denied. ORDER Entitlement to a rating in excess of 50 percent for PTSD is denied REMAND Unfortunately, upon review of the evidence or record, remand is required before the Board can adjudicate the Veteran's claim for TDIU. Specifically, an addendum opinion is needed to ensure compliance with the Board's March 2017 remand directive. Stegall v. West, 11 Vet. App. 268, 271 (1998). As addressed in the Introduction, in March 2017, the Board found that a claim for TDIU was raised as a derivative claim in connection with the Veteran's claim for an increased rating for PTSD pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). In remanding for a VA examination pertaining to the Veteran's PTSD, the Board also directed the examiner to discuss "any findings pertinent to any functional or occupational limitation and offer an opinion as to the extent of such limitations." The Veteran was afforded an appropriate VA examination in September 2017, which provided adequate information necessary for the Board's adjudication of the PTSD claim above. However, as the 2017 examination report does not reflect discussion of the directive pertaining to TDIU, a supplemental opinion is needed before a decision on the claim can be reached. Additionally, the Board notes that in April 2017, the Veteran submitted a VA Form 21-8940 Application for Increased Compensation Based on Unemployability. He indicated that he was not able to find or hold gainful employment because of his service-connected PTSD. He reported he last worked full-time in January 1990 as a machinist at the Union Pacific Railroad. Notably, during his September 2017 VA examination, he reported being on "disability since the 1980s from his previous work as a machinist due to back pain." Given that the Veteran is not currently service-connected for his back disability, the examiner's addendum opinion in this regard should be limited to discussing the service-connected PTSD to unemployability. Meaning, whether the Veteran is capable of performing the physical and mental acts required by employment, and not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). Therefore, on remand, an opinion addressing the foregoing is required. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Forward the claims file and a copy of this decision to the September 2017 VA examiner to provide an addendum opinion for the Veteran's claim of TDIU. If the September 2017 examiner is not available, the request may be referred to another, equally qualified medical professional, who must independently review the claims folder in its entirety. The examiner is asked to discuss any findings pertinent to any functional or occupational limitation and offer an opinion as to the extent of such limitations. The examiner should also comment on the effect of his service-connected PTSD to unemployability, whether he is unable to obtain or maintain substantially gainful employment as a result of his service-connected disability. The examiner should specifically address all relevant lay and medical evidence of record, including the Veteran's report of being on disability since 1980s and conflicting medical evidence such as private opinions of April 2014 and April 2017 finding the Veteran totally disabled and unemployable. 2. After the requested medical opinion has been generated, the report should be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, it should be returned to the examiner for corrective action. 3. Then, the claim for TDIU must be readjudicated. If the benefit remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs