Citation Nr: 1804240 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 13-11 373 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD), excluding a period of a temporary 100 percent disability rating. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected PTSD. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Fowler, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from January 1971 to November 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, which granted service connection for PTSD and assigned an initial10 percent rating. During the course of the appeal, jurisdiction over the Veteran's case was transferred to the Philadelphia, Pennsylvania, RO. In a March 2013 rating decision, the RO granted a 50 percent rating, with an earlier effective date of May 19, 2005, assigned a temporary total rating for hospitalization, effective June 14, 2005, and then a 50 percent rating, effective June 16, 2006. The Board's consideration of the claim for an initial higher rating excludes the time period for which a temporary total rating was in effect. In April 2015 and July 2017, this claim was remanded to afford the Veteran a Board hearing. In October 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. FINDINGS OF FACT 1. The Veteran's service-connected PTSD more nearly approximates occupational and social impairment with deficiencies in most areas. 2. The Veteran's service-connected PTSD precludes him from obtaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial 70 percent rating for PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2017) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist VA's duty to notify was satisfied by an October 2009 letter. 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA must make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran has not identified any additional records that should be obtained prior to a Board decision. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Veteran was provided a VA examination in August 2011. The examination is adequate for the purposes of the instant claim, as the examiner examined the Veteran, reviewed the claims file, and provided discussion of pertinent symptomatology, functional impact, and sufficient rationales for all opinions expressed. The Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the Veteran in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C. §§ 5103 and 5103A; 38 C.F.R. § 3.159. PTSD Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. §1155; 38 C.F.R. §4.1. 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 for that rating. 38 C.F.R. §4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Staged ratings are 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's disability should be viewed in relation to its history. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran contends that he is entitled to an initial rating in excess of 50 percent for his PTSD. The Veteran's PTSD is rated under Diagnostic Code 9411. 38 C.F.R. § 4.130. Diagnostic Code 9411 utilizes the General Rating Formula for Mental Disorders. Under that formula, a 50 percent rating is warranted 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. A 70 percent rating is warranted 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 the inability to establish and maintain effective relationships. A 100 percent rating is assigned for 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name. As the United States Court of Appeals for the Federal Circuit explained, evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas" - i.e., "the regulation... requires an ultimate factual conclusion as to the Veteran's level of impairment in 'most areas.'" Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, Diagnostic Code 9411. Further, when evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission," and must also "assign an evaluation 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." 38 C.F.R. § 4.126(a). A Global Assessment of Functioning (GAF) rating is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). A GAF of 31 to 40 is defined as exhibiting some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or any major impairment in several areas, such as work or school, family relations, judgment, thinking or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). A GAF of 41 to 50 is defined as serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF of 51 to 60 is defined as 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). 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 prior to August 4, 2014, the DSM-IV is applicable to this case. However, according to the new DSM-5, clinicians do not typically assess GAF scores. The DSM-5 introduction states that it was recommended that the GAF be dropped from DSM-5 for several reasons, including its conceptual lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice. 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). In this matter, the Veteran's psychiatric symptomatology has remained consistent throughout the appeal period. In treatment records, the Veteran has consistently reported a depressed mood, panic attacks more than once a week, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relations. The Veteran stated his mood for the day is affected by whether his sleep is interrupted by nightmares or flashbacks. At an October 2017 hearing, the Veteran testified that he has nightmares three to four nights a week, and on bad weeks, he experiences panic attacks three times in four days. The Veteran also testified that he has had infrequent thoughts of self-harm. He stated that while they have become less overwhelming, he still has suicidal thoughts on occasion. At an August 2011 VA examination, the examiner diagnosed the Veteran with PTSD and assigned a GAF score of 53. GAF scores ranging between 51 and 60 are assigned when there are moderate symptoms (like flat affect and circumstantial speech, and occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Throughout the appeal period, the Veteran's GAF scores fell in the 51 to 60 range, with one score of 45 in June 2005 and 65 in October 2008. In a May 2013 statement, the Veteran claims that he has received GAF scores ranging from 30 to 40; however, these statements are not supported by documentation. Even if the Veteran's statements regarding his previously assigned GAF scores were supported by documentation, the GAF scores are not, in and of themselves, the dispositive element in rating a disability. The Board finds the GAF score is not probative evidence in support of the Veteran's claim. Regarding occupational impairment, at the hearing, the Veteran stated he had not worked since 2005. He stated that when he did work, he did carpentry work and had to work by himself, because he could not be around other people. At the August 2011 VA examination, the Veteran reported difficulty getting along with co-workers and working with others. With respect to social impairment, the Veteran testified that he lives in isolation. He reported not having any friends or romantic relationships. He stated that if he is in a group setting, he becomes silent and withdraws. He reported that he withdraws out of fear that he may lose his temper and have a violent reaction. At the August 2011 VA examination, the Veteran stated his marriage failed due to his PTSD. The Veteran has two children, with whom he reports having stable relationships. The VA examiner stated that the Veteran has few meaningful supports outside of a few contacts within his family. The only social interaction the Veteran reports is visiting his daughter, son-in-law, and grandchildren. He stated that he tries to visit his grandchildren as much as he can. The Board finds the Veteran competent and his statements and testimony regarding his PTSD credible. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). Additionally, the Board finds the Veteran's statements and testimony most probative for determining the severity of his service-connected PTSD. Based on the foregoing, resolving reasonable doubt in the Veteran's favor, his impairment due to PTSD has been most consistent with a 70 percent disability rating. 38 C.F.R. § 4.130, DC 9411. The Board has considered whether the Veteran's PTSD more closely approximates total occupational and social impairment; however, the evidence does not show that his psychiatric symptoms are of the frequency, severity, or duration needed to result in both total occupational and total social impairment. The evidence shows that the Veteran has established and maintains effective relationships with his daughter, son-in-law, and his grandchildren. Self-harm is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). While the Board notes that the Veteran has reported suicidal ideation, there have been no instances of self-harm in the almost 13 year appeal period. The Board also notes that, in 2005, the Veteran was admitted to an inpatient psychiatric unit for suicidal ideation; however, one instance over 12 years ago does not rise to the frequency, severity, or duration needed for a finding of both total occupational and total social impairment. The evidence does not show that symptomatology associated with the Veteran's PTSD more nearly approximates the schedular criteria associated with a 100 percent rating, at any time relevant to the appeal period. Therefore, the Veteran's depressive disorder warrants an initial 70 percent rating, but no higher. TDIU The Veteran seeks entitlement to TDIU due to his service-connected disabilities. All veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. For VA purposes, total disability exists when there is any present 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, 4.16. A total disability rating for compensation may be assigned, where the schedular rating is less than total, when a veteran is, in the judgment of the rating agency, 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. § 4.16(a). The phrase "substantially gainful employment" is defined as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income. See Faust v. West, 13 Vet. App. 342 (2000). The determination as to whether TDIU is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). The existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded. 38 C.F.R. § 4.16(a). Age may not be considered as a factor in evaluating unemployability. 38 C.F.R. §§ 3.341, 4.19. The Veteran's service-connected disabilities, employment history, education and vocational attainment, and all other factors bearing on the issue must be addressed. 38 C.F.R. § 4.16. Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). For VA purposes, the term "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2317 (Jan. 21, 1992). When the Board conducts a TDIU analysis, it must take into account the individual's education, training, and work history. Pederson v. McDonald, 27 Vet. App. 276 (2015). Here, the Veteran contends that his service-connected PTSD precludes him from obtaining substantially gainful employment. His service-connected PTSD is rated at 70 percent, which meets the schedular threshold for a TDIU. 38 C.F.R. § 4.16(a). At the October 2017 hearing, the Veteran testified that he has not worked since 2005. He stated that his PTSD hinders his ability to work or obtain meaningful employment. The Veteran claims his PTSD socially limits and prohibits him from being around another people. The Veteran reports an inability to work with others and withdrawing from groups of people out of fear of having a violent reaction. The Veteran also testified that when he worked construction on multistory buildings, he would experience suicidal thoughts of jumping off the buildings. During the August 2011 VA examination, the Veteran reported a past career as a police officer that lasted for 17 years. He claims he lost his job due to substance abuse and an arrest for gun possession, which led to a felony and incarceration. Other occupational background includes working in various construction and maintenance jobs from 1992, until 2005. His educational background includes a Bachelor of Arts degree in history from St. Peter's College. The evidence shows that the Veteran is unable to obtain and maintain substantially gainful employment due to his PTSD. The Veteran's history degree is not a degree that leads to gainful employment by itself. The Veteran has training as a police officer, but due to his service-connected PTSD and felony conviction, he is unable to obtain employment in that field. Lastly, the Veteran has not held employment since 2005 due to his PTSD and inability to be around and work with others. When the Veteran's education, training, and work history is taken into account, the Board finds the preponderance of the evidence shows the Veteran is unemployable. Therefore, entitlement to a TDIU is warranted. ORDER Entitlement to an initial rating of 70 percent for PTSD, excluding a period of temporary 100 percent disability rating, is granted. Entitlement to a TDIU is granted. ____________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs