Citation Nr: 1804632 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 06-23 522 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to a disability evaluation in excess of 50 percent for service connected posttraumatic stress disorder (PTSD) prior to July 6, 2004. REPRESENTATION Appellant represented by: M. Royle, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran had active service from September 1970 to April 1972. This matter came before the Board of Veterans' Appeals (Board) on appeal from a May 2011 decision in which the Appeals Management Center (AMC) granted service connection for PTSD and assigned a 30 percent evaluation for the period from December 20, 2002 to September 25, 2009, a 50 percent evaluation for the period from September 26, 2009 to December 29, 2009, and a 70 percent evaluation for the period on and after December 29, 2009. In November 2012, the RO, in pertinent part, granted a total disability rating based on unemployability (TDIU) effective December 29, 2009. In August 2015, the Veteran was informed that the Veterans Law Judge who had conducted his May 2007 Board hearing on the issue of entitlement to service connection for PTSD had retired and therefore he had the right to an additional hearing before a different Veterans Law Judge. In August 2015, the Veteran indicated that he did not want an additional Board hearing. In November 2015, the Board remanded the Veteran's claim for additional development. The claim has since been returned to the Board for further appellate action. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). In a February 2017 Decision, the Veteran granted entitlement to a disability evaluation of 50 percent for the Veteran's PTSD prior to July 6, 2004 and entitlement to a disability evaluation of 70 percent thereafter. The decision also granted TDIU from July 6, 2004. The issue of entitlement to TDIU on an extraschedular basis was remanded. The Veteran appealed to the United States Court of Appeals for Veterans' Claims (Court). Pursuant to an October 2017 Order by the Court, the issue of entitlement to a disability evaluation in excess of 50 percent for PTSD prior to July 6, 2004 is remanded. FINDINGS OF FACT 1. Prior to July 6, 2004 the Veteran's PTSD manifest with symptoms including depression, irritability, and sleep problems including nightmares, causing occupational and social impairment with deficiencies in most areas. 2. The Veteran has been unemployable as a result of his PTSD for the period on appeal. CONCLUSIONS OF LAW 1. The criteria for a rating of 70 percent, but no greater, for PTSD have been met from December 20, 2002. 2. The criteria for entitlement to TDIU were met as of December 20, 2002. 38 U.S.C. § 1155, 5110 (2012); 38 C.F.R. §§ 3.400, 3.340, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R., Part 4 (2017). An evaluation of the level of disability present includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2017). 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 (2017). The Veteran's PTSD is currently evaluated as 50 percent disabling from December 20, 2002 to July 6, 2004 and 70 percent disabling thereafter, under the criteria of Diagnostic Code 9411. See 38 C.F.R. § 4.130. A 50 percent rating contemplates 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; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where 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; intermittently illogical obscure, or irrelevant speech; 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 evaluation is warranted where 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. Symptoms listed in VA's general rating formula for mental disorders 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). The Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV) contains a Global Assessment of Functioning (GAF) scale, with scores ranging between zero and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health illness. Higher scores correspond to better functioning of the individual. Under DSM-IV, GAF scores ranging between 61 and 70 are assigned when there are 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 when the individual is functioning pretty well and has some meaningful interpersonal relationships. 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). GAF scores ranging between 41 and 50 are assigned when there are 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). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). In addition, the evaluation must be 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. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely the basis of social impairment. 38 C.F.R. § 4.126(b). The Board finds that giving the Veteran the benefit of the doubt he is entitled to a 70 percent rating prior to July 6, 2004, but no greater. VA outpatient treatment records shows that in April 2002, the Veteran described symptoms that included avoidance, detachment from others, and intrusive memories. He reported that he had experienced nightmares, flashbacks, and increased startle response, and was often hyper-aroused. In July 2002, he reported an increased sense of anticipatory dread, anxiety, and vulnerability. He indicated that the increase in alerts for terrorism caused him anxiety, disrupted his sleep, created hyper-startle responses, mood swings, and irritability, for which he had been self-medicating with cannabis. The Veteran's treatment provider indicated that he was not suicidal or homicidal, but that he reported that he had been "isolative, with rumination about combat stressors." VA treatment records reflect that in October 2003 the Veteran was referred for one-on-one therapy rather than group therapy. The Veteran reported problems with a sad mood over the past two years with a significant improvement since returning from vacation and working on things with his spouse. He reported low energy, poor motivation, trouble sleeping, poor appetite, irritability with yelling, and excessive worry, nightmares five times a week, difficulty making friends, a loss of respect for authority, and an inability to tolerate crowds, traffic, and loud noises. The examiner found him to be oriented, cooperative, with normal speech, normal and coherent thought process, content, and association, and an affect congruent with mood. A GAF of 54 was assigned. Treatment records for the remainder of 2003 and 2004 reflect the Veteran continued to report a feeling of insecurity, problems with temper, obsessive thinking about war and politics, and paranoia. A March 2004 noted the Veteran had a "[b]right presentation, the best ever" and that he reported a good recent vacation with the exception of one nightmare that caused him to wake up in a rage. He indicated that he felt better overall with almost daily running, a good relationship with his wife and no paranoia and no depressive feelings other than when triggered by the news, which he tried to avoid. A former employer of the Veteran, G.B., submitted a May 2007 statement noting that the Veteran had always been a very knowledgeable and competent employee, but ...Something happened to [him] after September 11, 2001. He turned into a completely different person. He made mistakes after mistakes. He miscalculated one employee's paycheck three times in three pay periods. To my knowledge, he had never miscalculated anyone's paycheck before. [The Veteran] started to become irritable and you could see that he wasn't sleeping or eating properly. He seemed unable to close the monthly books without help ..... In mid-December when pressure was coming down on him to get the books closed for October, I was working with him late one night and I told him he needed help. Something was just not right with him and I was worried about him. That night he told me the story of seeing people killed right in front of him when he was in the service in Vietnam. [The Veteran] told me that over the years he had blocked those memories out of his mind, but September 11 brought all of it back into his mind again. He didn't want to sleep because of the nightmares and he was having flashbacks during the day. [He] quit less than a week later stating personal reasons and he knew he was letting the company down.... The Board also notes that a private psychologist, Dr. J.M., reviewed the Veteran's claims file in November 2011 and opined that the Veteran's PTSD has caused occupational and social impairments with deficiencies in most areas since 2001, such as work, family relations, judgment, and mood, due to such symptoms as nearly-continuous anxiety which affects his ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); difficulty in adapting to stressful circumstances (including work or a work-like setting), and an inability to establish and maintain effective relationships. Based on all the above evidence and affording the Veteran the benefit of the doubt, the Board finds that the Veteran's PTSD more closely approximates the criteria for a 70 percent disability evaluation prior to July 6, 2004. However, 100 percent rating, is not warranted as the nature and severity of the Veteran's symptoms and their functional impact are contemplated by the 70 percent rating assigned. For his condition to more closely approximate the criteria of a 100 percent rating he must have total occupational and social impairment due to his PTSD. The Board finds that the record does not reflect such total impairment. The Veteran has maintained a marriage throughout the period on appeal. Furthermore, there is no evidence that during the period on appeal, the Veteran suffered from 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; or memory loss for names of close relatives, own occupation, or own name. The Board has also considered whether the Veteran is entitled to TDIU for the period on appeal. The schedular rating criteria are designed to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C. § 1155 (2012). "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1 (2017). A total disability evaluation may be assigned where the schedular evaluation 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, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2017). Here, the Veteran meets this criteria for the period on appeal. The issue is whether the Veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work that is more than marginal, permitting him to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In determining whether a veteran is entitled to a TDIU, neither non-service connected disabilities nor advancing age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). See also Fanning v. Brown, 4 Vet. App. 225 (1993); Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993); and Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992). The test of individual unemployability is whether a veteran, as a result of his service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation that is consistent with his level of education, prior work experience, and training. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. On his application for TDIU the Veteran reported he had worked in accounting since 1989, working for five different companies over the years, the last one of which he began working for in 2000. The Veteran has reported that he quit working in January 2002. While an October 2003 mental health treatment record indicates that the Veteran reported he resigned to take care of his wife and because the job was very stressful and he was beginning to make errors, other records indicate that the Veteran attributed his departure solely on his increase in PTSD symptoms after the terrorist attack on September 11, 2001 that caused him difficulties in performing his job. As noted above, the Veteran's last employer, G.B., reported the Veteran made few mistakes until after September 11, 2001. At that point the Veteran became irritable and had trouble completing his work correctly, including miscalculating paychecks and having trouble closing the books. G.B. reported that when he approached the Veteran about the change, the Veteran informed him he had been having nightmares and flashbacks of Vietnam since September 11, 2001. The Veteran quit shortly thereafter citing personal reasons. Additionally, a private psychologist, Dr. J.M., reviewed the Veteran's claims file in November 2011 and opined that the Veteran's PTSD had rendered him unemployable since 2001. Based on the above evidence and resolving any reasonable doubt in the Veteran's favor, the Board finds that the Veteran has been unemployable due to his service connected PTSD for the period on appeal. In conclusion, entitlement to a 70 percent disability evaluation, but no greater, and TDIU are granted from December 20, 2002. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 (2017). ORDER A disability rating of 70 percent, but no greater, for PTSD is granted prior to July 6, 2004. Entitlement to TDIU is granted prior to July 6, 2004. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs