Citation Nr: 1804246 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 10-15 991 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD), prior to February 21, 2013. 2. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Erin J. Carroll, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1962 to November 1964 and from December 1964 to September 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in October 2008, January 2009, and February 2013 by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran provided testimony at an October 2011 hearing before a Veterans Law Judge who is no longer at the Board. A transcript of this hearing has been associated with the claims file. In October 2017, the Board sent the Veteran a letter asking if he desired a hearing before another VLJ. In the same month, the Veteran and his representative submitted correspondence indicating he did not desire an additional hearing. This matter was previously remanded in December 2011 and May 2016 for further development, to include obtaining outstanding VA treatment records. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT 1. Throughout the entire appeal period, the Veteran's service-connected PTSD has been manifested by symptomatology more nearly approximating occupational and social impairment with deficiencies in most areas, but less than total occupational and social impairment. 2. The most probative evidence of record demonstrates that the Veteran's service-connected PTSD rendered him unable to secure or follow substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to February 21, 2013, the criteria for a 70 percent rating, but no higher, for PTSD have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS I. Duties to Notify and Assist 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). II. Increased Rating for PTSD The Veteran is currently in receipt of service connection for PTSD evaluated as 50 percent disabling. For the reasons described below, the Board finds that the Veteran's PTSD warrants a 70 percent rating, but no higher, for the entire period on appeal. Law and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2017). The Rating Schedule is primarily a guide in the evaluation of disabilities 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. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 199 (1999). VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability shall be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical and lay evidence for the issue on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Under Diagnostic Code 9411, 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 (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. Id. A 70 percent rating is warranted when there is 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. Id. A 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 or place; and memory loss for names of close relatives, own occupation, or own name. Id. In order to be assigned a particular rating, a Veteran need not demonstrate the presence of all, most, or even some, of the symptoms listed as examples in the rating criteria. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The key element for a rating under the General Formula for Mental Disorders is the degree of social and occupational impairment caused by those symptoms. Further, the United States Court of Appeals for the Federal Circuit has acknowledged the "symptom-driven nature" of the General Rating Formula and that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit has explained that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating." Id. at 117. Historically, psychiatric examinations frequently included assignment of a Global Assessment of Functioning (GAF) score. According to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), GAF scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996). Although not determinative, a GAF score is highly probative as it relates directly to the Veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. See Massey v. Brown, 7 Vet. App. 204, 207 (1994). According to the GAF scale, a score within the range of 61 to 70 represents mild symptoms (e.g., depressed mood and mild sleep impairment) or some difficulty in social, occupational or school functioning (e.g., few friends, conflicts with peers or coworkers). A score within the range of 51 to 60 represents 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 score of 41 to 50 reflects 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 score between 31 to 40 indicates 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 man avoids friends, neglects family, and is unable to work). The Board notes that the GAF Scale has been abandoned in the updated fifth edition of the DSM. In this case, however, the DSM-IV was in use at the time the medical entries of record were made. Thus, the GAF scores assigned remain relevant for consideration in this appeal. Analysis In a July 2008 statement, the Veteran reported that he experienced "mini rages." In August 2008, the Veteran underwent a VA psychological examination. He reported symptoms including irritability, nightmares, intrusive thoughts, flashbacks, exaggerated startle response, avoidance behaviors, emotional detachment, decreased energy, loss of interest in activities, hypervigilance, feelings of hopelessness and worthlessness, and depression. He also stated that he had thoughts of self-harm once every few months. He denied that these symptoms interfered with his activities of daily living. The Veteran had a "fairly good" relationship with his wife of 37 years, as well as fair relationships with his children and grandchildren, though his irritability occasionally resulted in conflict. He did not have any close friends, but attended church on a weekly basis. The Veteran further reported that he retired from the Washington D.C., Metropolitan Area Transit Authority (WMATA) in November 1996 due to his PTSD symptoms, including irritability and isolation tendencies, as they made it difficult for him to get along with others. The examiner noted that the Veteran was alert, oriented, and attentive. He had a depressed mood and his affect was constricted and anxious. He demonstrated anxious speech and some psychomotor agitation. He was able to maintain eye contact and was cooperative and pleasant. His thought processes, insight, memory, concentration, and intelligence were normal. The examiner did not observe any indication of delusions or hallucinations, but determined that he was considerably impaired in terms of social adaptability and interactions with others. He was assigned a GAF score of 52. A September 2008 VA treatment record documented the Veteran's reports of experiencing difficulty being around other people and "not exploding." He stated that his family was intact, and that he was very involved in his church and volunteered with providing meals for senior citizens. However, he reported that he was unable to establish close relationships with non-family members, as he did not have many close friends due to fear of losing them. His GAF score was a 59 at that time. In November 2008, the Veteran reported experiencing irritability, as well as depression that occasionally made him feel like harming himself or another person. The VA treatment provider assigned him a GAF score of 50. In a December 2008 statement, the Veteran stated that his suicidal thoughts were increasing and that his irritability was "out of control." In January 2010, the Veteran was afforded another VA psychological examination. He described symptoms including insomnia, dysphoria, nightmares, intrusive thoughts, social withdrawal, and difficulty controlling his anger. He did not have any friends, but maintained his relationship with his wife. He stated that he preferred to spend time alone at a cemetery, at a lake, and in the woods. He was able to go to restaurants with his wife, but needed to keep his back to the wall and be aware of the exit locations. The examiner noted him to be alert and oriented, with adequate insight and thought processes. His affect was blunted, but his speech and memory abilities were normal. He was assigned a GAF score of 50. The examiner concluded that the Veteran experienced a moderate degree of impairment in social functioning. In a February 2010 statement, the Veteran's wife reported that he experienced severe insomnia and constant flashbacks. A March 2010 VA treatment record noted that the Veteran experienced symptoms including insomnia, nightmares, depression, and irritability. He stated that he had many bad days that were "really bad." He also reported continuing suicidal ideation, but with no accompanying plan. He maintained communication with his adult children and was assigned a GAF score of 50. At the October 2011 hearing, the Veteran testified that he had thoughts of killing himself and others, and he wanted to be alone. He further stated that he went to a lake and train tracks when having these thoughts, and also had them when vehicles drove past him on the road. The Veteran described having difficulty with anger and that his reaction was to "kill" whatever was bothering him, which resulted in isolation tendencies. He described having positive relationships with his wife and children. He stated that he occasionally heard voices of men asking him for help. The Veteran also reported having weekly episodes of panic and anxiety. In January 2013, the Veteran reported that he experienced suicidal ideation two to three times per week. Though he had made no actual attempt to harm himself, he again stated that he had gone to a lake and railroad tracks when having such thoughts. Upon careful review of the evidence of record, the Board finds that the Veteran's PTSD symptoms, prior to February 21, 2013, most closely approximate those warranting a 70 percent rating. In reaching this conclusion, the Board has considered both the medical and lay testimony describing the Veteran's symptoms. The above-cited competent and credible evidence establishes that the Veteran's PTSD was manifested by symptoms such as irritability; difficulty controlling his anger, referred to as "mini rages"; intermittent suicidal and homicidal ideation; insomnia; nightmares; and avoidance behaviors, including social withdrawal, feelings of detachment, and loss of interest in activities. He reported experiencing a depressed mood; intrusive memories related to his military service, including flashbacks; hypervigilance; and an exaggerated startle response. The Veteran consistently stated that he did not have any friends, as he preferred to spend time alone in the woods and at a cemetery. Furthermore, he was unable to go to restaurants if he could not sit with his back to the wall and if he did not know the locations of the exits. The Veteran also reported that he retired from his prior place of employment due to difficulty getting along with others as a result of his PTSD symptoms. Although he was close to his family, he stated that his irritability and anger occasionally resulted in conflicts in those relationships. He also referred to his irritability as being "out of control" on certain occasions. Notably, the Veteran has reported suicidal and homicidal ideation as early as August 2008, and as often as several times per week. On multiple occasions he stated that he would go to a lake or railroad tracks when having these thoughts, but did not act upon them. At the Board hearing, he testified that he had homicidal thoughts as a response to becoming angry with others. The Board further notes that the assigned GAF scores are consistent with more than a 50 percent disability rating currently assigned for this period. As noted, during the relevant period of time, the Veteran has been assigned GAF scores as low as 50 throughout the period on appeal. Under the DSM-IV, a GAF score ranging from 41 to 50 is indicative of serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school function (e.g., no friends, unable to keep a job). Thus, the assigned GAF scores are indicative of serious symptomatology, which more closely approximates a 70 percent rating. Collectively, these symptoms are of the type, extent, severity, and/or frequency indicative of occupational and social impairment in most areas of the Veteran's life, including work, social relations, judgment, thinking, or mood. As such, the Board finds that the preponderance of the evidence supports the award of a 70 percent rating for the entire appeal period prior to February 21, 2013. However, the Board finds that the Veteran's PTSD symptoms do not reflect total occupational and social impairment prior to February 21, 2013. The Veteran consistently reported maintaining relationships with his wife, children, and grandchildren throughout the period on appeal. He also attended church weekly and volunteered with providing meals for senior citizens. He did not exhibit gross impairment in thought processes or demonstrate memory loss for names of close relatives or his own name. He was not a persistent danger to himself or others, despite reports of difficulty controlling his anger. Furthermore, although he reported suicidal and homicidal ideation, there is no indication that he formulated a plan or acted violently towards others. He was consistently noted to demonstrate normal thought processes, normal orientation, cooperation, and normal insight. He denied experiencing delusions and hallucinations, and did not demonstrate inappropriate or ritualistic behavior. The Board notes the Veteran's testimony regarding hearing the voices of men asking him for help, but does not find these hallucinations to be of the persistent nature that would warrant a 100 percent rating. In light of the foregoing, the Board finds that the Veteran's symptoms do not more nearly approximate a rating in excess of 70 percent under the General Rating Formula for the period prior to February 21, 2013. The Board has considered whether staged ratings are appropriate for the Veteran's PTSD at any time during the appeal period. However, the Board finds that his symptomatology has most nearly approximated symptoms such as those exemplified by the 70 percent disability criteria throughout the period on appeal. Thus, staged ratings at any point throughout the appeal period are not warranted. In sum, a 70 percent rating, but no higher, is warranted for the entire period on appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. III. TDIU A total disability rating for compensation purposes may be assigned where the schedular rating is less than total and where it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a 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). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). To meet the requirement of "one 60 percent disability" or "one 40 percent disability," the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment may also be held to exist, on a facts-found basis (including, but not limited to, employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16. Initially, the Board notes that a 70 percent rating for PTSD prior to February 21, 2013, has been granted herein. Therefore, for the period on appeal, the Veteran's service-connected disabilities include: PTSD, rated at 70 percent disabling, 100 percent beginning February 21, 2013; bilateral tinnitus, rated at 10 percent disabling; and bilateral hearing loss, rated as noncompensable, resulting in a combined rating of 80 percent. The Veteran thus has one disability rated at 60 percent or more, and meets the schedular requirements for TDIU. With the threshold requirements satisfied, the Board must examine whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. The evidence of record indicates that the Veteran was unable to secure a substantially gainful occupation during the appeal period. Specifically, he reported that he left his full time position in 1996 because his PTSD symptoms, specifically his anger, made him want to harm someone. See VA Form 21-8940. At the August 2008 VA examination, the Veteran reported that he retired from WMATA due to his PTSD symptoms, primarily irritability and isolation behaviors. He explained that his psychological symptomatology made it difficult for him to get along with others. Additionally, an April 2009 VA treatment record noted the Veteran's employment history as a bus driver, as well as his reports of experiencing anxiety that made him unable to drive in traffic or over bridges. This anxiety often forced him to turn around and drive back home before making it to his destination. VA examiners from August 2008 and January 2010 determined that the Veteran was moderately to considerably impaired in terms of social functioning and his ability to interact with others. Furthermore, the Veteran testified at the October 2011 Board hearing that he would not be able to work with other people, due to his isolation tendencies and avoidance behaviors. The Board finds that there is ample supported evidence that the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected PTSD, thereby warranting a grant of TDIU. The Board has granted TDIU and will allow the RO to address, in the first instance, the appropriate effective date of this award and whether the 100 percent rating for his PTSD from February 21, 2013, renders moot the issue of entitlement to a TDIU from that date. Urban v. Principi, 18 Vet. App. 143, 145 (2004) (per curiam order) ("To the extent that [the appellant] is arguing that the Board must assign, sua sponte, an effective date once it awards a rating of TDIU on appeal from an RO decision, such an argument is unavailing unless an NOD is then of record as to the downstream issue of an effective date for the assignment of that rating"); Buie v. Shinseki, 24 Vet. App. 242 (2010); Bradley v. Peake, 22 Vet. App. 280 (2008) (schedular rating of 100 percent does not necessarily render a TDIU moot). Neither the Veteran nor his representative has raised any other issues, nor have any other issues 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). ORDER Entitlement to a 70 percent disability rating, prior to February 21, 2013, for service-connected PTSD is granted, subject to the regulations governing the payment of monetary awards. A TDIU is granted, subject to the regulations governing the payment of monetary awards. ______________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs